The lack of any universal model for a body similar to the National Council of Judiciary
When assessing the admissibility of the legislator’s interference in the shape of the National Council of the Judiciary, one should consider whether there is a universal model for the NCJ. Yet, this is a strictly rhetorical question, because it is impossible to create a functioning erga omnes norm of international law obliging every individual entity in the international arena, especially sovereign states, to adopt a uniform model of any of their state organs. Such a solution would be contrary to the basic principle in the doctrine of public international law that the state, being primary and full (in terms of its rights and obligations) subject of international law, exists within the framework of autocratic and complete sovereignty.
This principle is called the principle of state sovereignty. It is still binding, and even more so, with the increasing activities of non-state actors (NSA), including transnational corporations such as Facebook or Twitter, as well as international federal movements, which we observe in the European Union (EU), or in the Commonwealth of Independent States, where one state (the Russian Federation) tries to impose its own vision of the federalization. Hence, it is so important to return to the roots of international law, still having the rank of binding legal principles, such as the principle of sovereignty.The maxim of the autonomous (autocratic) sovereignty means that the state is the primary entity which possesses the exclusive legal authority to legislate in the territory under its control (territorial authority) and towards its citizens (personal authority). There cannot be a situation where another external entity, another state or NSA, such as an intergovernmental organization (IGO) or internal, such as another group that gives itself power to control the government or any lobbying / criminal groups, that constitute the new law, and therefore also create national and international politics. While the principle of the complete sovereignty means that solely the state within its organs has the power to operate in every area of its functioning, all types of power, services or strategic infrastructure throughout its territory, without any territorial or substantive exceptions.
States are still the main actors in international law, as enshrined in the Westphalian order which has politically emphasized but also legally sanctioned the state-centred theory. States create the legal norms thus they are the primary entities. Only they have a legal basis upon the doctrine of public international law on deciding what (how much limited or extended) legal subjectivity will they grant to the IGO they have established. That is why the international organizations possess the derivative nature, being fully dependent on their constituent states. The European Union, after the Lisbon
- B. Arts, Non-state actors in global governance: Three faces of power, Max Planck Institute for Research on Collective Goods, Working Paper 2003/4; M. Ataman, The Impact of Non-State Actors on World Politics: A Challenge to Nation-States, “Alternatives Turkish Journal of International Relations” 2003/2(1).
- A. Cooley, Whose Rules, Whose Sphere? Russian Governance and Influence in Post-Soviet States, Carnegie Endowment for International Peace (30.06.2017): https://carnegieendowment.org/2017/06/30/whose-rules-whose-sphere-russian-governance-and-influence-in-post-soviet-states-pub-71403 [20.03.2021]; Robinson M., Estimating Russia’s Impact on the Economic Performance of the Commonwealth of Independent States since 1991 – The Cases of the Kyrgyz Republic, Tajikistan, Armenia, Georgia and Ukraine, ODI, Working Paper April 2006: https://www.odi.org/publications/1859-estimating-russias-impact-economic-performance-commonwealth-independent-states-1991-cases-kyrgyz [20.03.2021].
- Compare W. Ciszewski, Zasada suwerenności ludu w demokratycznym państwie, „Filozofia w praktyce” 2017/3; J. Kranz, Pojęcie suwerenności we współczesnym prawie międzynarodowym, Elipsa, Warszawa 2015; R. Rosicki, O suwerenności, „Przegląd Naukowo – Metodyczny”, 2010/4.
- The Treaty of Westphalia ending the Thirty Years’ War (1618-1648) between the Holy Roman Empire and the Kingdom of France is one of the most significant international agreements in the history of modern Europe. Although it is no longer binding, it has laid the foundations for the modern doctrine of public international law reform, that is signing and ratifying the Treaty of Lisbon, pointed to the legal subjectivity of the EU in international relations. Still, it should be remembered that the form that the EU has now is not a federation of states, while its Member States have full rights as sovereign entities. Delegating some of the competences to an IGO does not mean giving up or reducing the degree of state sovereignty. This is because sovereignty is indivisible and non-gradable. In line with the United Nations Resolution, three types of sovereign entities are distinguished: independent sovereign states, free association states, and integration with another state. There is nothing else between them.
In a completely incomprehensible way, the principle of sovereignty, as already indicated, being the basic principle of international law, is being forgotten or perhaps even deliberately omitted at the level of regional cooperation within the European Union. After all, the EU is also an IGO, structurally indistinguishable from other secondary entities and limited by international law norm. Indeed, its scope of competence, on the basis of the principles negotiated jointly by the Member States, is different, as the EU reaches deeper, influencing directly citizen (the most striking example here is granting derivative, secondary citizenship, which is, nevertheless, a consequence of having already one of a Member States, where a similar right does not exist [so far] in other IGOs).
Still, it is unlawful to act or even threaten to use force (political, financial, etc.) towards a sovereign state to violate its primal right, the principle of autocratic and complete sovereignty. In accordance with the doctrine of public international law, it is impossible to distinguish or define legally (under the binding legal definition constituting a norm) the universal model of the National Judicial Council (or its equivalent, regardless of the name, which does not define the scope of the body’s competences). It is difficult then not to conclude that any desire to impose the form of functioning of such a body within an independent internal state’s order is only an attempt of the political pressure. This pressure is then the attempt to undermine the fundamental principle in international law of the primary and full sovereignty of the state.