The effective erosion of state autonomy is a familiar reality that shows every sign
of continuing. Even so, the degree of loss is variable and states remain a significant
and powerful force. They are still the primary actors in the international legal
system. Recognition as a state involves, at least in principle, a system of government
that applies across the territory of the state and the allegiance of its people.^92
In practice, a system of government is framed by a constitution of some kind,
which is likely to be conceived or to develop as a symbol of the state.
The institutions through which government is delivered derive their legitimacy
from the people of the state. Typically, they are conscious of their significance and
jealous of their prerogatives.
Of course, it may be that state actors seek international approval, embrace
international values and adopt institutions, rules and practices that further conver-
gence on international norms. But states themselves make these choices and
capitulation is unlikely to be complete. Experience in Europe, where regional
integration is relatively advanced, illustrates the point. The margin of appreciation
that has emerged through the jurisprudence of the European Court of Human
Rights leaves national authorities what may be considerable ‘room to manoeuvre’
in meeting the requirements of the European Convention on Human Rights where
circumstances suggest that the judgments in question are better made at the
national level.
93
Despite criticism, this and a companion doctrine of subsidiarity
arguably have been strengthened in recent years by decisions in sensitive cases
94
and by agreement in the Brighton Declaration to explicitly mention both doctrines
in a revised preamble to the European Convention.
(^95) In a parallel development,
the national jurisprudence of key European states has placed ‘counter-limits’
of various kinds on the primacy of European law vis-a`-vis aspects of domestic
constitutional law,^96 sparking new theoretical inquiry into the ‘pluralism’ of consti-
tutional law.^97 Time will tell whether this represents merely a transitional phase in
the progressive integration of the member states of the Union. For the moment,
however, it serves to demonstrate both the continued vitality of underlying state
(^92) Christopher W. Morris,An Essay on the Modern State(Cambridge: Cambridge University
Press, 1998 ).
(^93) Dean Speilmann, ‘Allowing the right margin – the European Court of Human Rights and
the national margin of appreciation doctrine: waiver or subsidiarity of European review?’,
CELS Working Paper Series, February 2012.
(^94) For example,Lautsiv.Italy[GC], no 30814 / 06 , 18 March 2011 (crucifixes in state schools in
Italy);Austinv.UK[GC], no 39692 / 09 , 15 March 2012 (police ‘kettling’ following the
London riots);Von Hannoverv.Germany (No 2 ),no 40660 / 08 , 7 February 2012 (balancing
freedom of expression and respect for private life).
(^95) High Level Conference on the Future of the European Court of Human Rights Brighton
Declaration, 19 , 20 April 2012 , Clause 12 ,www.coe.int/en/ 20120419 -brighton-declaration
(viewed 30 July 2012 ).
(^96) Luis I. Gordillo,Interlocking Constitutions(Oxford: Hart Publishing, 2012 ), pp. 19 – 39.
(^97) Neil Walker, ‘The idea of constitutional pluralism’, ( 2002 ) 65 Modern Law Review 317.