On Some Contemporary Challenges to Statehood in the International Legal Order: International Law Between Lotus and Global Administrative Law

This article examines some contemporary challenges to statehood in international law. The 'traditional manifestations' of statehood which primarily include the legally unlimited freedom of State actions supported by the Lotus doctrine, and the 'consent theory' are more and more often treated as obstacles to the establishment of international law as a real legal order. The main objection relates to the cultivation of the dogma that States are international law-makers. As such, this objection questions the leading role of States in international society. Another challenge concerns the relation between State sovereignty and the protection of human rights and democratic modes of government. The last challenge to statehood examined in the article is connected with the increased standard-setting activities of non-State actors, which is underlined by the concepts of global governance and global administrative law. The author argues that claims questioning the significance of statehood in international law are rather groundless because it is the States that are legal subjects assuring the publicness and unity of law within the international society.