Urbs ex Machina? On the Hohfeldian Incidence of City Subsidarity as a Jus Cogens

Authors

Benjamen Franklen Gussen, FALSE

Abstract

The Article provides commentary on the meaning of peoples, the holders of the right to self-determination, by analyzing this right as a Hohfeldian claim-right that has a jural correlative, namely, a duty on the state to subsidiarize its peoples’ decision on their political status. Under international law, this duty is a norm from which no state can derogate, parallel to the status of self-determination as a jus cogens. By claiming the right, peoples become a constituent power that imposes a normative position on the state vis-à-vis their chosen political status. The relatum stems from the effect of claiming self-determination, being an impulse that transforms a constitutive power to a constituted power; the former is peoples lacking institutional expression of their political aspirations, while the latter have a constitutional representation, even potentially, an international legal personality. Under current jurisprudence, the meaning of the word ‘peoples’ carries connotations of social homogeneity, territorial integrity, and collective consciousness. Subsidiarity’s relational rationale corresponds to the requisite homogeneity, while Althusian subsidiarity corresponds to territoriality. The requisite consciousness inheres in ‘the city,’ and its penchant for territorial expansion, which implies that constituent powers are a response to the formation of metropoles through internal colonization, as much as the external version of self-determination supports decolonizing the periphery of colonial empires. The correlative duty is a special case of the general principle of subsidiarity, one based on peoples as a city aspiring to become a civitas—a city governed by its own rules. To illustrate this correlative duty, the constitutional transformations of Singapore, Mexico City, and Auckland (Tāmaki Makaurau) are considered. The praxis of self-determination should therefore be grounded in cities and shun away claims that aim at creating new metropoles, ushering instead city-based constitutional orders.

Recommended Citation

Benjamen Franklen Gussen, Urbs Ex Machina? On the Hohfeldian Incidence of City Subsidiarity as a Jus Cogens, 52 DENV. J. INT'l L. & POL'y 1 (Fall 2023)