Sovereignty: Contemporary Transformations

Wednesday 14 April 2010, by Jean-Louise Cohen

Thèmes : démocratie | Union européenne

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Référence : Article publié dans Raison publique, n° 5, octobre 2006, pp. 31-53.

Sovereignty has become an “essentially contested concept” today. (Gallie, 1962). The trans-national character of “risks” from ecological problems to terrorism, highlight the apparent lack of control of the modern nation-state over its own territory, borders, and the dangers that its citizens face. Key political and legal decisions are being made beyond the purview of national legislatures. A variety of supra-national organizations, transnational “private global authorities” and trans-governmental networks engage in regulation and rule making, bypassing the state in the generation of hard and soft law. A new form of regional polity has emerged (the E.U.) whose jurisdictions overlap with those of the territorial state and which have supremacy and direct effect within member states. The apparent decoupling of law from the territorial state on multiple levels of governance suggests that the latter has lost legal as well as political sovereignty. Moreover, the increasing importance of human rights law and the expectation that it should be backed up by strong sanctions including military intervention to protect the basic human rights of citizens against their own state (humanitarian intervention), suggest that the authority of the state, (and not only the control) over its internal affairs has become contingent and dependent on outside judgments based on cosmopolitan principles. Last but hardly least is the reemergence of the concept of empire to address what appears to be an imperial project that invokes the concept of global right of a superpower to secure global peace and security against allegedly anachronistic forms of international law, and impotent international institutions. From this perspective too, the concept of state sovereignty and the principle of the sovereign equality of states appears anachronistic.

Despite these recent challenges, however, sovereignty remains a frequently invoked concept both in reference to the state and to the people (popular sovereignty). Is this discourse of sovereignty still meaningful in the context of globalization? Has the state lost effective internal control as well as legitimate authority over its resident population? Do new and overlapping jurisdictions within a territory signal the end of sovereignty? Is the international society of states (Hedley Bull, 1977) being replaced by “world society” and a cosmopolitan legal and political order (Teubner 1997, Held, 1995, Archibugi and Held, 1995), or a global empire (Hart and Negri, 2000)? The issue that this entry will address is whether the 21st century is witnessing the demise of the concept of sovereignty or whether the transformations and shifts that are occurring involve instead, the transition from one sovereignty regime to another.

l. Historical and Conceptual Background

The modern discourse of sovereignty is associated with two developments: the emergence of absolute monarchy and the making of the modern state. From both perspectives, the assertion of sovereignty involved a claim to supreme authority and control within a territory. This discourse acquired its modern significance with the emergence of public law and public power, that is, of government as an autonomous practice within a territory. Thus, one must not confuse sovereignty with suzerainty—the authority and control of a feudal lord or king or emperor at the top of a feudal hierarchy to be the supreme over all particular powers, suzerain of all suzerains. (De Juvenal: 171) As part of the project of royal absolutism, the assertion of plenitude potestatis involved more than the claim to be first among equals, the pinnacle of a personalistic hierarchy of command and obedience. What made this a new and modern claim to sovereignty was that it also asserted direct rule over the governed. This entailed the destruction of all autonomous powers or authorities that could either rule independently of the King or make their own law. Sovereignty became the word for the coherence and unity of the governing authority of a territorially based political community. The ruler’s internal sovereignty mean supremacy, but it merged the older concept of personal jurisdiction with the claim to territorial jurisdiction. Internal sovereignty came to mean unified, comprehensive, supreme, exclusive and direct authority within in a territory over all of its inhabitants constructed now as members of a polity (subjects).

This conception of internal sovereignty (supremacy) had, perforce, an external dimension: it entailed a claim to autonomy vis a vis outside powers. External sovereignty thus came to mean independence from all extrinsic “foreign” powers, entailing impermeability of the territorial state to the jurisdictional claims of any outside authority. The emergence of modern sovereignty thus manifests itself as a dual process: the assertion of royal authority against the medieval order (autonomous local feudal powers) and the universalistic claims of emperor and church went hand in hand with the process of state making. The latter involved the consolidation of the principle of territoriality, bounded autonomous polities, the emergence of a system of states and ultimately, what has come to be called international society.

Sovereignty thus refers to a way of organizing political power, and public law (jurisdiction and authority). In addition to internal and external aspects, sovereignty claims articulate a relationship between power and law. It is thus helpful to distinguish between political and legal dimensions of the concept. As a political concept, sovereignty discourse was linked to the assertion of royal power in the context of the struggle for political control against internal and external forces. However, the declaration of supremacy and independence also involved claims about jurisdiction and the legal authority (supremacy) of a certain type of law-maker and of law itself, over traditional rights and powers and external legal sources or claims. This means that sovereignty is not reducible to de facto power, control or force but is always also a legal concept involving authoritative valid commands (law). Sovereignty is thus always a question of the relation of law and power. As we shall see, these relations are subject to change in different sovereignty regimes.

II. Modern Sovereignty as Absolute: the Internal Perspective

A.The Absolutist Model

The legal and political dimensions of sovereignty, and the internal and external aspects coalesced in an apparently frictionless way in the absolutist conception of modern sovereignty. This is evident in the works of the two most important early modern theorists of sovereignty: Jean Bodin (1529-1597) and Thomas Hobbes (1588-1679). Although Bodin’s 1576, De la Republique and Hobbes’ 1651 Leviathan were published nearly a century apart, both were written in the context of devastating religious civil wars and both authors sought a rationale for the legitimacy of one final authoritative locus of political decision-making and law. They each found this rationale in a systematic doctrine of sovereignty whose core idea was that rulers and ruled must be integrated into a single unitary body politic. This sovereignty doctrine was developed in polemical opposition to the concept of mixed government and the medieval model of a segmented society that under-girded it. In order to resolve the problem of disorder, sovereignty, it was argued, had to be embodied in a single, supreme ruling body which logically could either be the one (a king), the few (an aristocracy) or an assembly of the many (the people). Yet both Bodin and Hobbes clearly preferred royal sovereignty as the more perfect form, for this would mean that a single will could simultaneously express the unity of the polity and resolve all disputes within it.

Two aspects of Bodin’s theory of sovereignty distinguish it from earlier conceptions and render it modern. First, instead of listing the prerogatives of the sovereign and counter-posing them to the prerogatives of other autonomous powers, Bodin proceeds by analyzing the concept of sovereignty itself and asking what are its core functions and definitive marks. Second, Bodin redefined the juridical meaning of sovereignty by shifting it away from the medieval idea that law is found and interpreted and that legal sovereignty is a matter of jurisdiction and dispute resolution. Instead, influenced by the revival of Roman conceptions of law, he assumed that law is made by human beings, and construed juridical sovereignty as involving legislation by a political instance. Accordingly the core of sovereignty shifts from doing justice to law-making and the sovereign will is posited as the sole source of law within a polity. This meant that the entire legal order including the subordinate powers of other “public” persons and groups were seen as deriving from the will of the sovereign.

The key features of modern sovereignty doctrine stem from this monopoly of the legislative function: sovereignty is absolute, unitary indivisible, omni-competent. It is true that Bodin insisted that although the sovereign is the sole source of human law, he remained bound by both natural and divine law. He also thought it prudent for the sovereign to honor customary and property rights. After all, the societal counterpart to his sovereign power was not, as in Hobbes’ case, individualistic civil society but still the society of orders now integrated into a body politic. Nevertheless, there was no higher human court of appeal beyond the commands of the sovereign which could judge whether he did or did not violate natural or divine law. The laws commanded by the sovereign were not contingent on the deliberation or consent of the assemblies of lesser powers. In this sense internal sovereignty was absolute - legibus solutus.

The indivisibility of sovereignty stemmed from the doctrine of sovereign will as the source of law: it is inconceivable on this theory of the public and unified nature of sovereign legislative power, that sovereignty could be divided. At stake here was not so much the arbitrariness of personal rule but the unity of the polity as an association in terms of law, in which the sovereign’s law is now both public and supreme. The provisos regarding unity, indivisibility, omni-competence (the sovereign decides what he can decide), ensure the coherence and unity of public law and of the state, and not only supremacy of the ruler’s will.

Thomas Hobbes also insisted that sovereignty entails unitary, absolute, perpetual, public power, although he did so for slightly different reasons than his predecessor. The contract by which the sovereign gets constituted and authorized occurs, on his theory, between individuals of equal status who erect a common power over themselves so that one man or one assembly can reduce all their wills into one will. (Hobbes, 1968) The societal referent of this theory of sovereignty was an individualized society of subjects. Moreover, Hobbes developed a thoroughly secular theory of sovereignty and law, thereby abandoning the other key assumption of Bodin’s theory: the sovereign was no longer limited by natural, divine or customary law. The only law that exists is positive law, commanded by the sovereign. The unitary, absolute and indivisible character of sovereignty follows from the purpose of its institution: the conservation of peace and security. But by eliminating what he saw as the underlying cause of civil war, (mixed government and the society of orders), and by virtue of his secular approach to law and politics, Hobbes’ was faced with the problem of the radical contingency of the unity of society and the body politic. Unitary sovereignty was to hold the atomistically construed society of individuals together. The sovereign becomes the “sovereign representative”, the incarnation of the unity of society, and of the very identity and coherence of the body politic. Hobbes states that it is only through representation, that a multitude of men are made into one (public) person. (Hobbes, 135) The sovereign representative does not merely symbolize unity, he incarnates and produces it. This embodiment model of representation is at the heart of the absolutist model of sovereignty. Accordingly sovereignty cannot be divided because there cannot be more than one “sovereign representative” of the same people without creating imperri in imperi. The existence of any other source of law or autonomous power would raise the specter of disunity, of fragmentation of the body politic, of civil war.

The absolute model thus mapped the concept of unified state sovereignty (a coherent public system of law and a politically unified community) onto the idea that only one unitary governmental instance could and must embody this sovereignty and exercise its political and legal prerogatives. There could be no mixed government in the classical sense but neither could there be any separation of powers. The centralized political ruler had to control all the key functions of government, embody (re-present) the unity of the whole, and be construed as the extra-legal source of all law (the command theory of law).

B. Alternatives to the Absolutist Model

Over the centuries the absolutist conception of sovereignty has been challenged on a variety of fronts. Already in the 17th century, constitutional theorists such as James Harrington and John Locke rejected the claim that the political unity of the state had to be tightly linked to the person or persons who direct it. They embraced the modern state, while severing the link between public power, public law and absolutist forms of government. They did so, on two levels. First they explored the idea of an institutional articulation of government into various distinct forms of legislative and executive (including judicial) bodies within a unified sovereign state. Accordingly, the tasks and prerogatives of government need not be kept within the same hands: they could be differentiated functionally and, equally important, severed conceptually from the locus of political sovereignty. Second, the idea of constitutional law challenged the claim that there must be a sovereign in the shape of a head of government, who is the source of law but not subject to the law. Constitutional theory accepted the necessity of a single coherent legal system which articulated and regulated the political separation of powers. But constitutionalism entailed the idea of the rule of law: hence no positive political instance, not even the members of the supreme, “sovereign” legislature could be above the law. In short, political sovereignty in the sense of governmental functions could be disaggregated while legal sovereignty could be tamed. The author of the law (the legislature) could be made subject to it.

The democratic revolutions of the 18th century linked these shifts in the relation between power and law within the state to a change in the holder of sovereignty. Rousseau had already transferred the sovereignty of the king to the people, but it took the great events and theorists of these revolutions, in particular Tom Paine and Emmanuel de Sieyes, to link the idea of popular sovereignty to a new conception of representative and constitutional government. Both Paine and Sieyes argued that a constitution is not an act of government, but of the people giving itself a government. This involved a change in the status as well as the locus of internal sovereignty. The attribution of sovereignty to the people positioned the latter in the role of constituent power: the sole political source of constitutional legitimacy and the ultimate law giver. It also meant that the people were not directly involved in constituted power or ordinary functions of government. Constituted powers -legislation, execution and adjudication of the law- had to be exercised by officials construed as representatives of the sovereign people. Accordingly, the power of political representatives is not personal but public, and members of government could neither be above the law, nor, unaccountable to the popular sovereign.

Thus the discourse of popular sovereignty and its sister concept, representative government involved a radical break with the absolutist “embodiment” model of representation. It implied that no instance of government can claim to be sovereign. Accordingly, political representation in a constitutional democracy involves a complex dynamic of mediation between the part and the whole, between presence and absence: representatives must always claim to represent the people as a whole, but they must also always represent particular interests of constituents (Rosanvallon, 1998). The sovereign people are absent from government yet present in the sense of being the dynamic referent of representation. The modern institution of elections has to be understood in this context. Under constitutional government periodic elections authorize representatives but the latter, in principle at least, can never incarnate or “embody” the people’s sovereignty because their power and their right is delegated power.

The idea of the constituent power, however, seemed to imply that the people themselves could somehow incarnate popular sovereignty through direct forms of political expression: conventions, referenda or a plebiscite. It was Carl Schmitt, the most infamous 20thc sovereignty theorist, who showed where such an idea can lead. Schmitt linked the concept of the constituent power of the people and plebiscitiary democratic expressions of popular will, to the incarnation model of representation and the absolutist model of sovereignty in his theory of sovereign dictatorship. (Schmitt, 1985, 1989, 2004), Accordingly an elected leader like a President (actually a constituted power) could, by acquiring the acclaim of the people, incarnate and carry out the will of the constituent power, and in the role of sovereign dictator, abrogate a “dead constitution” and institute a new one. Once again, the unity of the “sovereign representative” was insisted on, this time in the context of “emergency” in order to forge and protect the unity (homogeneous identity)of the polity from internal and external enemies (Schmitt, 2004), This theory of “sovereign dictatorship” inspired in part by the Marxist-Leninist theory of the revolutionary dictatorship of the proletarian, led democratic theorists like Hannah Arendt (1963) to abandon the concepts of popular sovereignty and the constituent power altogether, and to claim that the most stable and successful constitutional democracy, the U.S., had done so from the start.

Later 20th and 21st century democratic theorists have been more circumspect in their response to the specter of a dictatorship invoking the discourse of popular sovereignty to suspend or re-write liberal-democratic constitutions. Bruce Ackerman’s (1991) important reflection on American constitutionalism refutes Arendt by showing that the Americans relied heavily on the concept of sovereignty, and the idea of constituent power. What they abandoned was not the discourse of popular sovereignty, but the notion that it could be embodied by any governmental power or even by the people themselves in normal circumstances. Direct democratic expressions of popular will, say in a referendum, may supplement, but not replace political representation. Ackerman’s anti- embodiment model of representation and of the constitutional separation of powers seems to mesh with the Habermassian idea, developed as an alternative to Schmitt, of a proceduralized popular sovereignty (Habermas 1996). Another way to put this is to say that the embodiment model of the relation between the people and their representatives is replaced by a relational one in constitutional democracies in which sovereignty circulates but cannot be located in any one body.

Nevertheless, Ackerman’s theory of constitutional dualism did not break fully with the Schmittean idea that the people themselves could appear on the political stage directly in extraordinary times: when profound constitutional changes (informal amendments) or the making of a new constitution are at stake. The sleeping sovereign awakes at these crucial moments in the form of repeated processes of deliberation and discussion social movement activity as well as heightened participation in key elections, to announce their will and to acclaim the political representative who articulates it most adequately in extraordinary moments of constitutional transformation.

The idea that the people in the shape of the constituent power can actually incarnate and directly express popular sovereignty in this way and that they are prior to and above the law, has been challenged by recent theory and practice of constitution-making in many countries. Andrew Arato’s (2002) theory of “post-sovereign” constitution-making de-dramatizes the constituent power and the “revolutionary” moment between constitutions. He dispenses with the myth that a constitutional convention, involves the popular sovereign directly in the process of extra-ordinary law making. Abandoning the last refuge of the embodiment model, this analysis applies a relational model of sovereignty to the idea of the constituent power. Successful examples of constitution making over the past 20 years show that a two-stage process is often involved, the first of which ideally includes representatives of all the key social groups in negotiations, compromises, and deliberations aimed at producing a temporary or interim constitution. The second phase entails the drafting of a “permanent” constitution that benefits, hopefully from important learning processes on the part of the representatives of the “constituent” power during the first phase. Participation of “the people” through ratification is an important moment of the process, of course. But the point is that even on this level, one cannot escape the circle of representation and what matters is a dynamic and inclusive relationship between representatives and represented. Instead of mythologizing the sovereign people as a constituent body outside the law that creates the law, this approach focuses on the principles that are necessary to render real processes of constitution-making legitimate. It also argues for the importance of the “fiction” of legal continuity in a context of discontinuity between constitutional orders. Even in these contexts the constituent power can and should be construed as “always under law”. Such an orientation on the part of key actors may help avert violence in transitional and revolutionary contexts.

Although the theory of this process appears under the heading of “post-sovereign” constitution-making, the discourse of popular sovereignty remains vital and compelling, albeit in a new shape. Popular sovereignty becomes a regulative idea, a principle of legitimacy, and in the relational model, an important source of dynamism in constitution making and on the level of ordinary politics. It remains an indispensable referent for efforts to establish mechanisms that ensure responsiveness and accountability of representatives, and to make constitutional democracy during both extraordinary moments of constitution-making, constitutional change, and ordinary politics, more inclusive and democratic.

III. Modern Sovereignty from the External Perspective

One can frame the development, transformation and challenges to the idea of external sovereignty in a parallel way to the emergence and contestation over the absolutist model of internal sovereignty. Recall that the external claim to sovereignty was directed against powers outside the territory of the state-in formation. This claim became bound up with a particular conception of the relation of law and power among sovereign states that became known as the classical or Westphalian model of sovereignty.

The history of the international system of sovereign states starts in Europe. The Peace of Westphalia in 1648 is commonly referred to as its origin although there is no scholarly consensus on this issue because state-making was a long process. Nevertheless, the Westphalian peace ending the Thirty Years War has become a marker of the emergence of the sovereign state system within Europe for two reasons. First, although the principle of cuius regio, eius religio, allowing German princes to enforce their own faith within their territory, was articulated in the Peace of Augsburg nearly a hundred years (1555), the latter was unstable. Westphalia effectively established the authority of rulers over religion within their territory ending the efforts of sovereigns to intervene in each others’ domains in order to affect religious governance. Second, Westphalia ended the authority of the Holy Roman Empire over the foreign policy, diplomacy and treaty-making capacity of European states. The latter emerged as the sole form of constitutional authority within Europe, no longer challenged by the temporal power of the Church or the Imperial Power of the Empire. How was external sovereignty construed within the system of sovereign states that emerged on this basis?

A. The classical Westphalian model

External sovereignty of the state entailed the political independence and legal impermeability of the polity vis a vis outside powers. Like internal sovereignty, it was also initially construed in terms of a unitary will and right, subject to no higher will or law giver. This will was ascribed to the state as such, and personified by its sovereign. Political independence meant that a sovereign power obeys no higher authority and that its internal affairs are off limits to other sovereign powers. In the territory of a foreign state, sovereign power cannot be exercised. Domestic authority structures exclude external actors. This became articulated as the political principle of non-intervention. Impermeability articulated the legal idea of domestic jurisdiction: no external legal authority had any jurisdictional claim within a sovereign state. External sovereignty thus meant comprehensive and exclusive jurisdiction by the state over its territory and population. Thus external sovereignty was a matter of power (internal control necessary for independence) and legal right (jurisdictional autonomy).

The two core dimensions of external sovereignty implied the existence of a plurality of sovereign states, and of an international society that recognized these principles and attributed them to polities on a coherent basis. The same is true of a third idea that was constitutive of external sovereignty, namely the equality of sovereign states in respect of their legal status and their basic rights. Equal sovereignty was not only crucial as a basic rule of coexistence within the states system; it was a principle that made possible the practice of mutual recognition and the regulation of interactions among sovereign states. Accordingly, an international society of states conscious of certain common interests (and perhaps common values), bound by a common set of rules in their interrelations such as respect for one another’s independence or the honoring of agreements, and cooperating in common institutions such as the machinery of diplomacy, balance of power techniques, and certain legal procedures, became the framework within which recognition of equal external sovereignty (independence and impermeability) could operate as a coordinating principle of international relations and international law (Hedley Bull 1977).

On the Westphalian model, external sovereignty was ascribed exclusively to states on the basis of the principle of efficacy (effective internal control over domestic powers). Among the political prerogatives of Westphalian sovereignty were the right to make treaties that would be respected and the all important right to war. Sovereign states and only sovereign states had this right to war, understood, now, more as a political conflict, rather than a moral crusade. The question of the justice of the cause of war (just war theory) was banished from international law as incapable of being settled by international society for the latter had no centralized instance that could make an impartial judgment. Thus it seemed that the right to war, the right to decide whether its rights and national interests have been violated or threatened, and the right to decide the enemy were inherent in the very concept of sovereignty. Nevertheless, this conception of sovereignty did not exclude diplomatic practices such as international conferences among sovereign powers from being held to attempt to ward off war or affect its aftermath. Moreover, rules limiting the conduct of war (jus in bellum), were articulated and applied to all parties. These included the concept of neutrality, a new device for limiting the geographical spread of war, which required impartiality towards both sides.

On the Westphalian sovereignty model the only subjects and sources of international law are states, and states are bound only by those rules of law to which they have consented either through treaties or long practice (custom). It was denied that individuals could have the status of subjects at international law. This implied another meaning of impermeability for the sovereign state: the latter was shielded not only from political and legal intervention of other states, but also from international law. International law could nave no direct effect on individuals or on the domestic legal order unless it was incorporated by state action (consent) into a state’s legal system by the appropriate authorities and procedures. Accordingly, international law was a body of norms exclusively regulating relations between sovereign states. (Fassbinder 2003) Until the late 19th century the system of sovereign states, the international society in which it was embedded, and the international law it articulated was exclusively European. The conception of sovereignty it operated with was in part a legal arrangement, “Jus Publicum Europaeum”, that attributed “westphalian” sovereignty and equal recognition only to European states, and gave these states the right to acquire colonies, and the right to go to war for any reason (Schmitt, 2003). The principles of non-intervention and domestic jurisdiction, the rules of war and the obligation to respect treaties applied only to European member states, not between them and the rest of the world – there no such norm of non-intervention applied for no equal sovereignty was ascribed to non-European polities.

It was not until the second half of the 19th century, however, that sovereignty appeared as a claim to power utterly unrestrained by law within as well as outside of Europe. Once the ideas of sovereignty, the nation state and imperialism had joined together, fierce competition among sovereign states undermined the rudimentary cooperative mechanisms and comity of nations within European international society. The assertion of state sovereignty became equated with power politics. Simultaneously, non-European great powers—Turkey, Japan, the U.S.—were included within international society and had sovereignty ascribed to them. These two developments signaled the beginning of the end of European international society and the jus publicum europeaum. Together, they had the result that sovereignty in international affairs along with the “westphalian sovereignty model”, have been confused with arbitrary and rapacious great power politics ever since. (Fassbinder: 119).

B. Alternatives to the Westphalian Model

Three developments in the 20th and 21st century have turned sovereignty into a contested concept. Discredited for having contributed to attitudes that led to two world wars, the “Westphalian model” entered into crisis already in the 1920’s and was finally superceded by the U.N. Charter system in 1945. Despite its ambiguities, the supranational organization established by this charter sought to reorient international relations from competition to cooperation and to revive international law. The development of global human rights law backed up by robust judicial procedures and institutions (ad hoc tribunals, the I.C.C.) and military “enforcement” - humanitarian intervention - since the 1990’s along with the emergence of global civil society and transnational governance networks constitute a second challenge to the Westphalian model of state sovereignty. Finally, the emergence of a new form of supranational polity, the European Union, has led to important debates over the continued relevance of both external and internal sovereignty in a world of multi-leveled, global governance. The question today is whether these developments make the concept of sovereignty irrelevant or whether what we are witnessing is the shift from one sovereignty regime to another. Is sovereignty still constitutive of the international system or have changes associated with globalization replaced international with a cosmopolitan world society, rendering the discourse of sovereignty anachronistic?

1. The U.N/ Charter System

The U.N. Charter system established in 1945 presents an ambiguous model of international governance in this regard. On the one hand, the Charter abolished what where once presumed to be the core prerogatives of sovereign states and replaced them with the principles of collective security, international cooperation and a new model of international law. Sovereign states lost their right to go to war and “aggressive” war became illegal. The Charter authorized a collective political body, the Security Council, to decide whether a threat to the peace or act of aggression exists, as well as what measures to be taken to restore peace and security. In short, collective security was to replace the “self-help” of sovereign states in enforcing the ban against aggression. The International Court of Justice established by the Charter interprets and applies international law. Moreover, the new international organization established by the Charter, acquired a claim to legislative authority, itself becoming a new source of obligations and international law based on the principle of consensus. Law–making by consensus overrides the opposing will of a minority of states, and is binding on them despite their lack of consent. Finally, sovereign states accepted being obligated by human rights principles, articulated in the U.N. Charter and subsequent Declarations and Covenants, by implication renouncing impermeability to international law in this domain and potentially eroding domestic jurisdiction over certain issues.

On the other hand, and under U.N. auspices, the global expansion of the sovereign state as the form of public political power not only for Europe, but for the whole world became an established fact. Imperialism and empire were discredited, and by the late 1960’s colonialism was dismantled and deemed a violation of the new principle of self-determination. Although the latter challenged the “sovereignty” of empires, it did so in the name of the sovereignty of the nation-state. Indeed the principle of sovereign equality of member states (today, all states) is at the core of the U.N. Charter system. The related principles of non-intervention and domestic jurisdiction now apply to all states. Furthermore, the Charter explicitly states that nothing contained within it authorizes the U.N. to intervene in matters essentially within the domestic jurisdiction of any state. The strictures prohibiting the threat or use of force against the territorial integrity or political independence of any state protects rather than abolishing state sovereignty.

These apparently contradictory provisions have led to a debate over the status and meaning of sovereignty in the U.N. Charter system. For some interpreters, the Charter is flawed by the destructive interplay between a Westphalian model of international order that still ascribes sovereignty to member states, and a cosmopolitan model that deeply challenges the very concept of state sovereignty in favor of a cooperative world society under a global constitution (Richard Falk, 1969). For others, the Charter stands as the “constitutional moment” of a new, coherent international order that has fully replaced the Westphalian model of equal sovereignty with a new and radically different legal concept, “sovereign equality”. The latter makes sovereignty follow from membership in the international legal community. Reversing the Westphalian conception, it also construes the various prerogatives of sovereignty (independence, domestic jurisdiction) as flowing from the rules articulated by the international legal community and not from the concept of sovereignty itself (Fassbinder, 2003). A third position argues that the U.N. Charter system establishes a dualistic world order, in which state sovereignty in the sense just described is a constitutive principle of international society. This dimension is in tension with the cosmopolitan principle of human rights articulated in the U.N. Charter and subsequent developments of human rights law all of which place the individual alongside the state as a subject of global law (Cohen, 2004). Instead of seeing the tension between state sovereignty and human rights as indicative of disorder, however, this approach views it as productive. The dualistic sovereignty regime does require a choice between international society on the Westphalian model vs a full fledged cosmopolitan order that abandons sovereign equality. Rather the new sovereignty regime constructs a cosmopolitan international society in which periodic adjustments between its component elements will (particularly between rights and sovereignty claims) will have to be made. It argues for legal reforms based on dualism that would protect both sovereignty and human rights while mitigating the tension between them.

2. Human rights, Humanitarian Intervention and Global Governance For many human rights theorists, however, human rights are in stark and irreconcilable conflict with sovereignty (Henkin’ s word). For them, sovereignty, however it is attained, entails the impermeability of the state to external moral, legal or political intervention. The post war discourse of human rights opened up the black box of the state, declaring that universal moral principles must restrict what states can do to their own citizens and that international law must establish the appropriate limits. For this to happen sovereignty talk should be abandoned altogether.

Although the idea of human rights goes back to the 18th century, it was in the aftermath of the Holocaust that they took center state in international politics. In 1948 a vast majority of states committed themselves to respect over 30 separate rights for individuals by signing the Universal Declaration of Human Rights. While this declaration was not legally binding it was deemed an important expression of “world opinion”. The 1948 Genocide Convention committed signatories to refrain from and punish genocide. The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms has arbitration mechanisms and stands as one of the strongest human rights conventions. In the 1960’ the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights legally bound states to respect the human rights of their own citizens. Even though these documents contain reservations regarding sovereignty and lack enforcement mechanisms, they signal an important change in attitude regarding what is or should be under the “domestic jurisdiction” of states.

Global civil society actors emerged in the 1980s and 1990s to pressure states to respect the human rights of their citizenry in the name of “world opinion” by exposing human rights abuses. The successful “boomerang effect” (Keck and Sikkink 1998) of such activists beyond borders encouraged the emergence of ever more influential new global actors: transnational civil society organizations (I.N.G.O.’s). Here too is an indication of an important shift in the understanding of the prerogatives of state sovereignty by “world opinion”.

However, it was not until the practice of backing up human rights principles by what has become known as “humanitarian intervention” - incursion by military force into a target state without the latter’s consent, to protect the local population against grave and massive rights abuses - that sovereignty became threatened in a serious way. Such interventions in the internal affairs of a state in the absence of aggression against another state seem to violate the principle of non-intervention established in the U.N. Charter. While some interventions have had the backing Security Council, others, such as NATO’s intervention in Kosovo and the U.S. Bombing of Iraq in December 1999 failed to elicit such endorsement. Disagreements over “humanitarian interventions” are likely to persist but so is the demand that the “world” not sit by while massive human rights violations such as the genocide in Rwanda or the “crimes against humanity” in Dafur, are taking place with the whole world watching.

The question of how to “enforce” human rights has led to a debate over the value of sovereignty in international law and to a multiplicity of reform proposals. Do U.N. sponsored humanitarian interventions signal a de facto abandonment of the idea of sovereign equality and of Charter law? Would this be desirable? Several moral cosmopolitans insist that justice and not only peace is now a core goal of supranational organization and governance (Buchanan, 2004). Accordingly the default position of sovereignty and non-intervention in international law have to be given up: hence, the rush to establish a new fundamental norm for the international order (Ignatieff, 2001). Among the candidates are a basic human right to security, a fundamental right to protection, a principle of civilian inviolability, and even a human right to popular sovereignty. On the assumption that the United Nations is a power based organization that is beyond reform, some propose the construction of a new coalition of democratic states with its own “law” and rules for intervention as the best alternative to unilateral action (Buchanan 2004). Others insist that any legal reform that articulates rules for humanitarian intervention risks the proliferation of self-serving action on the part of powerful against the less powerful states, hence reintroducing inequality into the international system. It is far better that humanitarian intervention remains illegal as it is under U.N. Charter rules (especially when it is unilateral or by carried out by unauthorized coalitions of the willing) than to try to legalize it (Byers and Chesterman, 2003). That way the burden of proof remains on the shoulders of the interveners to show just cause. But even this status quo position rests on implicit “rules of disregard” that would allow the international community to assess such actions after the fact (Walzer 1977). A third position insists on U.N. authorization while arguing for reforming the U.N. Charter in order to adapt to the new forms of violence and war (civil war) in the 21st century. Yet none of the recent U.N. reform proposals along these lines want to abandon the principle of sovereign equality.

The creation of an international criminal court (the ICC) is interesting in this regard because it seems to respect domestic jurisdiction of the sovereign state by acknowledging its “right” try its own citizens in its own courts if they are accused of international crimes. Yet what the individuals being tried are accused of violating are global principles of justice (human rights) that “penetrate” the black box of the state. (Slaughter, 2004) Thus the implication of this development for sovereignty is ambiguous. So is the proliferation of ad hoc tribunals to try individuals for criminal violations of international law, not to mention ideas of universal jurisdiction. Cosmopolitan theorists argue that these tribunals are part of the burgeoning phenomena of transnational governance which call for a cosmopolitan rethinking of the international political and legal order. The proliferation of trans-governmental networks of courts and regulators (Slaughter, 2004, Allard and Garapon, 2005), transnational private global authorities (Teubner, 1997) and global civil society has led to the claim that the world is witnessing a move to a cosmopolitan legal and political system in which individuals have become subjects at international law and are acquiring a new status as world citizens (Held, 1995). The debate here is between centered and decentered models of cosmopolitanism. On both accounts, however, sovereignty talk is deemed anachronistic. On the other hand, of course there is great resistance to the I.C.C. especially on the part of the U.S. precisely in the name of sovereignty.

It is clear that the principle of sovereign equality is at stake in these debates and developments. The 1990’s has triggered discussion of whether the world system is experiencing a new constitutional moment. The theoretical and practical question is whether the effort to get past a particular conception of sovereignty as impermeabity and of domestic intervention as necessarily comprehensive, must mean the abandonment the discourse of sovereignty altogether. The challenge is to reconcile the principle of sovereign equality with the enforcement of human rights principles and a new constellation of power in the 21st century. Without this, cosmopolitan principles of justice may well lead to new forms of inequality and injustice.

3. The European Union: The End of National Sovereignty?

This problematic is in evidence in another recent key transformation of sovereignty namely, the deepening of European integration since the 1991 Maastricht Treaty. As we saw, in the Westphalian model, the claim to autonomy was tightly coupled to the claim to exclusivity: the territorial sovereign state in the system of states would brook no interference in its “internal affairs”. The system of sovereign states was construed as one of discrete mutually exclusive comprehensive territorial jurisdictions. This implied that a non-exclusive authority is typically a dependent one, i.e. a non-sovereign entity, like a colony. But since 1991, the European Union has dramatically expanded its powers. This entity has clearly shifted from being just another international organization to becoming a new form of regional polity whose jurisdictions overlap with those of the territorial state and which have supremacy and direct effect within member states. The Council of Ministers composed of foreign ministers of each state developed to manage the European Coal and Steel Community in the treaty of Paris in 1950 has been supplemented over time by a judicial body, the European Court of Justice and a legislature—a directly elected European Parliament.

These developments have shown that it is possible to conceive of autonomy without comprehensive territorial exclusivity and to imagine jurisdictional overlap without subsumption. (Walker, 2003) Member states of the E.U. enjoy the status of sovereign equality. This means that the integrity and autonomy of a polity qua polity need not be impugned by the coexistence of other jurisdictional claims, some of which may even assert supremacy, within the same territorial space. The mere fact that there are rules obligating states or rules which ascribe competence over what were once considered internal matters to supra-national bodies, does not have to mean that states are no longer sovereign. Similarly the development of functionally delimited supra-national and transnational jurisdictional claims can supplement and overlap without abolishing the autonomy of segmentally differentiated territorial sovereign states.

These developments have triggered a serious debate over the status of sovereignty in the E.U. and over the meaning of the term. Some argue that member states have simply lost their sovereignty and that it is meaningless to continue to use the term in referring to them (MacCormick 1999). Others speak of pooled or shared sovereignty (de Witte 1998) while a third camp insists that the member states remain sovereign in their relationship with their citizenry and in key areas of national life, even though they have relinquished jurisdiction over certain functional domains (Walker, 2003). Indeed they argue that what makes the E.U. work is precisely the willingness to permanently defer the decision as to where sovereign lies, thus allowing creative solutions to emerge regarding the interplay of national democracy, basic rights, and community regulation.

These debates over the meaning and relevance of sovereignty are bound to continue. They involve the fundamental question of the relation between public power and law in international affairs in the context of globalization. The questions are perennial even if a particular sovereignty regime is not.


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by Jean-Louise Cohen

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