Sovereignty in Europe
An idea in transformation
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Sovereignty in Europe
An idea in transformation
Coordinator:
Joan Vergés Gifra
Author:
Pau Bossacoma
Supervisor:
Peter A. Kraus
Policy paper requested by MEP Josep-Maria Terricabras Nogueras
SUMMARY
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.
A traditional understanding of sovereignty . . . . . . . . . . . . . . . . 12
An established belief
Absolute
Independent
Indivisible
Terms, concepts and conceptions
Time and place
2.
Distinguishing sovereignty from other close notions . . . . . . . . 15
Distinguishing sovereignty from power
Distinguishing sovereignty from autarchy
Distinguishing sovereignty from independence
Distinguishing sovereignty from autonomy
Distinguishing sovereignty from constituent power
Distinguishing sovereignty from the right to secede
3.
Distinguishing types of sovereignty . . . . . . . . . . . . . . . . . . . . . . . 19
Distinguishing internal from external sovereignty
Distinguishing vertical from horizontal dimensions of sovereignty
Distinguishing juridical from political conceptions of sovereignty
Distinguishing sovereignty in ordinary times from sovereignty
in extraordinary times
Distinguishing national sovereignty from popular sovereignty
Distinguishing formal sovereignty from material sovereignty
Distinguishing the subject from the object of sovereignty
4.
Is sovereignty a vanishing idea in international
law and politics? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
A definition of sovereignty under international law
A definition of State under international law
Sovereignty under the United Nations
Principles of international law
Changing is not vanishing
5.
Is the idea of sovereignty vanishing
in the European Union? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Primary EU law
Secondary EU law and political resolutions
EU case law
Member State basic laws, doctrines and opinions
6.
Visions of sovereignty in the context
of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
1. Statist
2. Confederal
3. Multinational
4. Federal
5. Pluralist
6. Cosmopolitan
7. Functional
7.
Sovereignty as a potentially transformative idea . . . . . . . . . . . 41
Transformative power of sovereignty
Sovereignty and the mixed constitution of the Union
Sovereignty and European popular democracy
Sovereignty and legal revolution
8.
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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Introduction
For decades, sovereignty was assumed to be a dying idea but it is
reawakening, as witnessed by phenomena such as Brexit and selfdetermination processes at sub-State levels as in Scotland or Catalonia,
the economic crisis in Greece and some other Mediterranean countries,
and the rise of populisms across Europe. Some of these phenomena
that nurture a renewed interest in sovereignty are somewhat connected
to the European integration process and its crisis. In this context,
describing, analysing and criticizing old and new uses of the notion of
sovereignty seem a worthy, interesting and challenging undertaking.
The opening sections of this work attempt to grasp the idea of
sovereignty by questioning a traditional understanding of it (section
1), by distinguishing it from other close notions (section 2) and by
identifying different types of sovereignty (section 3). After that, this
report should be in a better position to deal with the question of
whether the idea of sovereignty is vanishing in international and
EU law and politics (sections 4 and 5). Once shown that the idea
of sovereignty is still present, distinct visions of sovereignty in the
context of the EU are offered (section 6). Some closing remarks on
the transformative power of sovereignty are made in the last section.
11
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12
1
A traditional understanding
of sovereignty
An established belief
Many classic political and legal theorists, such as Bodin, Blackstone, Hobbes,
Rousseau and Dicey, have understood sovereignty as an absolute, independent,
indivisible power.1 If sovereignty with such attributes ever really existed, in our
time and context the concept seems more qualified, relative, diffuse, divisible,
shareable and transferable. Let us explore it.
Absolute
From its inception, sovereignty has been related to the idea of supreme,
unlimited, unqualified, final political power. Hans Kelsen rejects, however,
any compatibility between supporting the absolute sovereignty of States and
the primacy of international law. If State sovereignty was assumed to be the
supreme authority, this would be accepting the supremacy of State law over
international law and, in the end, it would be proclaiming the supremacy of
a particular State law over the other State laws. By contrast, the existence of
international law, as regulator of the relations amongst States and of the limits
of their powers, supports the principle
of equality between States and thus
their sovereignty. If the primacy of
“Many classic political and
international law over State law is
legal theorists, such as Bodin,
cherished, State sovereignty must
Blackstone, Hobbes, Rousseau
be understood in a relative sense.
and Dicey, have understood
In short, the sovereignty of States
sovereignty as an absolute,
means, according to Kelsen, that they
independent, indivisible power”
are subject to no other State, only to
international law.2
1
Absolute seems to come from ab solutus meaning free from. Therefore, the attributes of absoluteness
and independence are closely related. Indivisibility is close as well, since something divided or
divisible would hardly be absolute and fully independent. By the way, other classic political and
legal theorists did not understand sovereignty with these attributes. See HINSLEY, F.H. Sovereignty.
2
KELSEN, H. Principles of international law, parts III, V. KELSEN, H. Teoría General del Estado, part II.
KELSEN, H. Peace through law, pp. 34-6. Eminent philosophers, such as Rawls, pointed in similar
directions. For Rawls, international law has evolved and ought to evolve towards restricting States’
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Independent
Sovereignty has been identified as an
“If the primacy of international
independent power. However, State
law over State law is cherished,
sovereignty is not an independent
State sovereignty must be
power from and beyond international
understood ‘in a relative sense’ ”
law, but an independent power
under and within the international
legal order. This last notion of
independence respects the sovereignty of other States. From a more
internal sphere of independence, sovereignty may be conceived as a
political power beyond or above the law. The qualification of the sovereign
as a legibus solutus has traditionally meant a political power free from
acting in accordance with the law. Many liberals, in contrast, have upheld
that no one can be beyond or above the law, that everyone should be
bound to it. For some liberals, the constitution and the law should be
sovereign, since any power independent of the law, even in the hands of
the people, could endanger both individuals and minorities and end up
being totalitarian, authoritarian or tyrannical.3
Indivisible
Rousseau wrote that “the sovereign authority is one and simple, and cannot
be divided without being destroyed”.4 Beyond the common attributes of
sovereignty, classic theorists differ on who held and should hold sovereign
authority. For instance, Bodin and Blackstone assigned full sovereignty to
the monarch, Rousseau to the people’s assembly and Dicey to the Crown
sovereignty in light of his principles of ideal international law (to restrict both the right to war and
the unlimited right to internal autonomy). RAWLS, J. The Law of Peoples, pp. 26-7.
3
Constant warned that “when sovereignty is unlimited, there is no means of sheltering individuals
from governments”. Therefore, “sovereignty has only a limited and relative existence”. See CONSTANT,
B. “Principles of Politics Applicable to All Representative Governments”, in Political Writings, ch. 1.
4
ROUSSEAU. The Social Contract, book 3, ch. 13.
13
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14
in Parliament.5 Indivisibility, however,
can be questioned along two axes.
Federalism and confederalism show
“Instead of coining new terms,
that sovereignty and sovereign
perhaps adjusting the concept
powers can be divided, transferred or
of sovereignty or building new
conceptions would suffice”
shared between layers of government.
Separation of powers indicates
that the ordinary exercise of some
sovereign powers can be attributed
to and distributed among different branches of government.
Terms, concepts and conceptions
Terms such as post-sovereignty have been suggested to grasp and explain
how sovereignty has evolved in various directions.6 First, sovereignty can
be distributed or shared, as the (con)federal and multinational systems
and constitutional recognition of certain historical rights prove. Second,
sovereignty does not have to be a single, absolute power, but a relationship
agreed between sovereign subjects. Third, sovereignty may not need to
be a pure and fixed normative concept, but more practical and functional
to better describe constitutional power. Fourth, sovereignty is forced to
change conceptually due to the evolution of international law and relations,
especially in regional contexts such as the EU.7 Instead of coining new terms,
perhaps adjusting the concept of sovereignty or building new conceptions
would suffice.8 Some contemporary theorists, even cosmopolitans, point
out that it is not necessary to abandon the idea of sovereignty but only
to reject conceiving it as absolute and indivisible.9
5
Hobbes did write that sovereignty may lie in the hands of an individual or an assembly. See HOBBES.
Leviathan, ch. XXVI. Similarly, for Montesquieu, sovereignty rests in different hands different species
of government. In particular, “when the body of the people is possessed of the supreme power, this
is called a democracy. When the supreme power is lodged in the hands of a part of the people, it
is then an aristocracy. In a democracy the people are in some respects the sovereign, and in others
the subject.” See MONTESQUIEU The Spirit of Laws, book 2, ch. 1-2.
6
Other similar terms using the prefix post have been proposed to grasp the present-day nature of
sovereignty, such as post-Westphalian sovereignty, post-modern sovereignty and post-national
sovereignty. Adjectives such as soft and liquid have also been used to coin the terms soft sovereignty
and liquid sovereignty.
7
KEATING, M. “Rethinking sovereignty”, pp. 11-4.
8
For the distinction between concept and conception, RAWLS, J. A Theory of Justice, p. 5. DWORKIN,
R. Law’s Empire, pp. 90-6. MacCORMICK, N. Questioning Sovereignty, p. 32.
9
POGGE, T.W. “Cosmopolitanism and Sovereignty”, pp. 57-61.
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Time and place
The term sovereignty is both contextual, since it responds and adapts to
circumstances, and protean, for it can take many forms. Indeed, the notion
of sovereignty is adaptable, variable and malleable.10
2
Distinguishing sovereignty from other
close notions
Distinguishing sovereignty from power
Power and sovereignty are sometimes confused but they are two different
concepts. Sovereignty does indeed presuppose power, but the inverse
is not true. The concept of power is much broader (its range is much
greater) than that of sovereignty. Sovereignty could be a particular class
of power.11 Although large multinational corporations might have more
power than some States in many fields,
private companies do not commonly have
sovereignty. While sovereignty is generally
“Sovereignty does indeed
a strong type of power, it does not always
presuppose power, but the
trump other kinds of power in the factual
inverse is not true”
world.12 Nevertheless, some might point
10 Although sovereignty is usually related to States and other similar political entities, some authors
have linked it to individuals. See HOFFMAN, J. Sovereignty. The present work is, however, only
interested in a collective approach to sovereignty.
11 “Sovereignty by no means exhausts the field of power, but it does focus our attention on the most
significant and dangerous form that power can take.” WALZER, M. Spheres of Justice, p. 281.
12 VERGÉS, J. “Sovereignty, Fragility and Time in the Catalan Process”, p. 233.
15
16
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out that sovereignty is not just a sort of power, but a political structure of
power or a kind of collective will.13
Distinguishing sovereignty from autarchy
It is one thing to have power but quite another to be self-sufficient. While the
Westphalian conception of sovereignty prevailed, the ideas of sovereignty,
power and autarchy often went hand in hand. This connection seems to
have ancient roots as for Aristotle a polis was an autarchic entity.14 But
despite having historical and factual connections, these notions should
be conceptually differentiated. An idea of sovereignty divorced from
economic independence can survive in a world of increasing global and
regional economic integration. In fact, in some ways, economic integration
seems to favour political disintegration.15
Distinguishing sovereignty from independence
While in federal schemes sovereignty can be divided or shared between
territorial units, independence usually refers to a certain stadium of
full sovereignty. In addition, independence refers to actuality, whereas
sovereignty may also include certain potentiality (to become, for instance,
an independent State). In the Canadian debate on the clarity of the
referendum question, many have considered the notion of sovereignty to
be less clear than that of independence or, at least, not clear enough to
create a duty to negotiate secession.16 In the Scottish debate, the notion
of independence light (or lite) was proposed as a way of maintaining
certain ties with the rest of the UK.17 In Scotland and Catalonia, as well as
in other European minority nations, expressions such as “independence
in Europe” and “new State of Europe” are common. Instead of demanding
full sovereignty, such independence would claim sovereignty as a Member
13 “I hold then that sovereignty, being nothing less than the exercise of the general will, can never be
alienated, and that the sovereign, which is nothing but a collective being, can’t be represented except
by itself: the power indeed may be transmitted, but not the will.” (Emphasis added). ROUSSEAU.
The social contract, book 2, ch. 1.
14 VERGÉS, J. “Sovereignty, Fragility and Time in the Catalan Process”, p. 233.
15 ALESINA, A.; SPOLAORE, E.; WACZIARG, R. “Economic Integration and Political Disintegration”.
16 See the Canadian Clarity Act of 29 June 2000, officially named “An Act to give effect to the
requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec
Secession Reference”.
17 See KEATING, M. “Rethinking sovereignty.”
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State of the Union. This kind of independence would be somewhere in
between external and internal secessions.18
Distinguishing sovereignty from
autonomy
If two entities share jurisdiction over a
“While in federal schemes
population and a territory, sovereignty
sovereignty can be divided
or shared between territorial
tends to be prior to and stronger and
units, independence usually
deeper than territorial autonomy. Prior
refers to a certain stadium
in the sense that sovereignty might be
of full sovereignty”
primary and autonomy derivative or
secondary.19 Stronger in the sense that
sovereignty usually implies broader and
weightier competences than autonomy.
Deeper in the sense that a sovereign entity seems to be more capable of
maintaining, recovering or claiming competences that are in the hands
of an autonomous entity. Priority, strength and depth may blur when
autonomy is framed under a doctrine of shared sovereignty. Although
differences between sovereignty and autonomy often seem to be just
a matter of degree (especially to the external observer), sovereignty
tends to be more related to ultimate control and, thus, to the notions of
competence-competence and of constituent power.20
Distinguishing sovereignty from constituent power
The idea of sovereignty tends to be broader than that of pouvoir
constituant, since not all manifestations of sovereignty are necessarily
expressions of constituent powers. For instance, to declare war and
states of emergency is often deemed as a manifestation of sovereignty,
but it may not be considered as an expression of constituent power if
exercised by the constituted powers in accordance with the current
18 See BOSSACOMA, P. Justícia i legalitat de la secessió, §§ 1.2, 3.6.3. BOSSACOMA, P. Secesión e
integración en la Unión Europea, §§ 5, 10.
19 See TOMÁS Y VALIENTE, F. “Soberanía y autonomía en las Constituciones de 1931 y 1978” or
“Sobirania i autonomia en la Segona República i en la Constitució del 1978”, in FOSSAS, E. (dir.)
Les transformacions de la sobirania..., ch. 2.
20 Having said all that, there might be circumstances in which a sovereign entity has less actual
competences (i.e. real powers to make present and meaningful changes) than a non-sovereign
but autonomous entity.
17
18
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constitution. Nevertheless, constituent power is such a relevant species
of the broader spectrum of sovereign powers. Indeed, the question of
where the constituent power lies is strongly related to the question as
to where ultimate sovereignty rests.21
Distinguishing sovereignty from the right to secede
Present sovereignty, meaning where sovereignty and sovereign powers
currently lie, is different from the right to separate or withdraw from an
existing polity. A unit that holds a constitutional right to secede is not
necessarily sovereign from a static perspective, either internally or externally.
However, if one main sovereign power is the power to transform or reshape the constitutional order, the
constitutional right to secede could
be a sort of recognition of a potential,
“The idea of sovereignty tends
latent sovereignty. If a right to secede
to be broader than that of
is properly constitutionalized, it can
‘pouvoir constituant’, since not
then be understood as a type of
all manifestations of sovereignty
constitutional amending procedure.
are necessarily expressions of
If this is so, it may acknowledge certain
constituent powers”
decentralization of the constituent
power and some shared present
sovereignty.22
21 See SIEYES, E. Qu’est-ce que le Tiers état?, ch. V.
22 If a constitutional right to secede is considered a type of constitutional amending procedure, it
may symbolize a certain decentralization of the constituent power.
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3
Distinguishing types of sovereignty
Distinguishing internal from external sovereignty
Internal sovereignty, or sovereignty
under internal law, is identified with the
supreme power towards the population
“Rather than simply limiting
in its territory. This sovereignty faces
sovereignty, international law
is a superior legal order which
inwards and tends to be recognized from
ensures that all States enjoy
within. Conversely, external sovereignty,
equal sovereign powers and
or sovereignty under international law,
status”
is identified with a supreme power in a
negative sense, namely independence.
This sovereignty faces outwards and
tends to be recognized from outside.23 Obviously, both perspectives of
sovereignty are related in the sense that sovereignty is the plenary legal
competence for running the internal affairs of the State under international
law. Rather than simply limiting sovereignty, international law is a superior
legal order which ensures that all States enjoy equal sovereign powers and
status. Hence, external sovereignty, meaning independence and thus nonintervention, protects internal sovereignty. Internal (inside) and external
(outside) are then just perspectives of a whole idea.24 Yet, there can be
situations where internal and external sovereignty do not fully coincide.25
On the one hand, a political entity can enjoy effective internal sovereignty
without being recognized as a State and thus lacking full external sovereignty.
On the other hand, a State can be recognized as such without effectively
controlling its population and territory.26
23 HEGEL Philosophy of Right, §§ 278-340. Krasner proposes to substitute the classic distinction
between internal and external sovereignty distinguishing four types: domestic sovereignty,
interdependence sovereignty, international legal sovereignty, and Westphalian sovereignty. See
KRASNER, S.D. Sovereignty, ch. 1.
24 KELSEN, H. Teoría General del Estado, § 20.D.
25 The lack of coincidence may be for good reasons (for example, deny recognition to unjust factual
situations), not so good reasons (such as for particular political or economic interests) or more
technical reasons (as the significant decentralization of international law that makes it difficult to
have a global decision in this as well as many other issues).
26 For instance, after the fall of Saddam Hussein, while the Kurds in Iraq had no external sovereignty,
Iraq had no effective control of the Kurdish population and territory.
19
20
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Distinguishing vertical from horizontal dimensions of sovereignty
While the vertical dimension is related to the territorial division of powers,
the horizontal dimension tends to refer to the separation of powers among
branches of government. Under the constitutional law of liberal-democratic
States, the horizontal dimension of sovereignty shall be exercised by different
branches either in strict separation or in a more overlapping fashion
grounded on the idea of checks and balances. In addition, (con)federal and
multinational doctrines tend to divide power vertically.27 Under international
law, the vertical dimension of sovereignty is heavily concentrated at the
State level, albeit allowing States to transfer sovereignty to lower and upper
levels of government. In particular,
by means of international treaties,
under the international norm pacta
“While the vertical dimension is
sunt servanda, States may transfer
related to the territorial division of
powers, the horizontal dimension
sovereign powers to international
tends to refer to the separation
organizations. International law,
of powers among branches of
nonetheless, tends to neither force
government”
nor incentivize the division and
dispersion of sovereignty.28
Distinguishing juridical from political conceptions of sovereignty
In its origins, many proponents of the liberal State appealed to and advocated
for the sovereignty of the constitution or the sovereignty of the law.29 The
27 See TIERNEY, S. Constitutional Law and National Pluralism. BOSSACOMA, P. “An Egalitarian Defence
of Territorial Autonomy”.
28 Against that, some cosmopolitans such as Pogge claim more upward and downward distribution of
sovereignty under international law and politics. Intergovernmental bargaining rather than having
a single dominant level should be the way to deal with (ultimate) conflicts. Internal constitutional
struggles between the three branches of government, often without a clear final decision-maker,
point out that this possibility, though difficult, should be pursued. Constitutional democracies
with no clear sovereign branch of government have proven to be at least as enduring as autocratic
regimes. Constitutional crises within the former do not need to be frequent nor unresolvable.
POGGE, T.W. “Cosmopolitanism and Sovereignty”, pp. 57-61.
29 “(I)n America THE LAW IS KING. For as in absolute governments the King is law, so in free countries
the law ought to be King; and there ought to be no other.” PAINE, T. Common Sense, ch. 3. This
liberal doctrine of the sovereignty of the law is grounded on the dualism between Law and State.
Kelsen, however, defends another kind of juridical sovereignty based on the monism between
State and Law. The State is a personification of the legal order. Rather than the former submitted
to the latter, they are in essence the same. This is because, according to Kelsen, all States, including
those that are illiberal, are law States, since the legal order identifies the authority and the way of
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“ P o l i t i c a l s ov e re i g n t y i s
constitution they envisioned implied the
more related to the notion of
separation of and legal limits on public
constituent power, whereas
30
powers. Only States under such type
juridical sovereignty is more
of constitution would be a Rechtsstaat, a
related to constitutional
State based on the rule of law. This would
amending power”
be a form of juridical sovereignty for
preventing political abuses of sovereignty.
In contrast to such legalistic theories, for Schmitt sovereignty is a political
power that allows for departing from constitutional provisions and other
laws.31 Political sovereignty is more related to the notion of constituent power,
whereas juridical sovereignty is more related to constitutional amending
power.32 While the former rests more on legitimacy and facticity, the latter
depends more on legal procedures and authority.
Distinguishing sovereignty in ordinary times from sovereignty
in extraordinary times
The doctrine of the sovereignty of the law seems to work better in ordinary
times than in those extraordinary times when the constitution and the legal
order are strongly challenged or transformed. The previous Constitution
may be disregarded and a new Constitution may be the final product of
the dispute. In this vein, according to Schmitt, sovereignty is the political
power that is exercised and prevails over the others in existential conflicts
and exceptional moments, warning that these political conflicts cannot
be resolved in a judicial procedure.33 In times of peaceful order, however,
people’s expressions of sovereignty are rare and unnecessary. The silence
of the holder of constituent power may signify the enduring consent to
the existing constitution.34 In extraordinary times, claiming constitution-
exercising it. All States, including those that are liberal, are coercive legal orders. KELSEN, H. Teoría
General del Estado, § 20.G.
30 As Article 16 of the 1789 French Declaration of the Rights of Man and Citizen famously proclaimed:
“Any society in which the observance of rights is not assured, nor the separation of powers defined,
has no constitution”.
31 See SCHMITT, C. Constitutional Theory, §§ 8, 11.
32 Indeed, several authors claim that the constituent power should be distinguished from the
constituted power to amend the constitution. See SCHMITT, C. Constitutional Theory, §§ 8, 11.
MUÑOZ MACHADO, S. Vieja y nueva Constitución, p. 191.
33 SCHMITT, C. Constitutional Theory, p. 389.
34 Ibid., p. 132.
21
22
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making power, the people may awaken to re-write the Constitution and
re-shape the constitutional order.35
Distinguishing national sovereignty from popular sovereignty
As seen, many liberals used to designate the constitution as sovereign.
Since the idea of the sovereignty of the law may not have convinced the
revolutionary masses, national sovereignty could be more compatible with
it than popular sovereignty. Nation is a more abstract idea than people.
While national sovereignty is in a sense compatible with the constitution
as the sovereign, popular sovereignty is more inclined to grant broader
powers to the people. It confers, in particular, transformative power on
the people to depart from and change the current legal order. Hence, the
demand for and the rise of democracy substituted national sovereignty for
popular sovereignty. On the other hand, national sovereignty has taken
other usages in constitutional law such as: the concentration of sovereignty
and especially of constituent powers in the hands of the whole nation
(rather than minority nations, self-governing units or other sections of it);
the prevention of certain power-sharing arrangements between the State
(as a nation) and other territorial units;
and finally the articulation of rights and
“In extraordinary times, claiming
processes of self-determination and
constitution-making power, the
secession of sub-State minorities.36 In
people may awaken to re-write
short, national sovereignty has been
the Constitution and re-shape
used to identify which people(s) are
the constitutional order”
sovereign.37
35 For a similar doctrine but within a contemporary liberal democratic approach, see ACKERMAN,
B. We the People.
36 “A process of national assertion has gained ground in a way not seen in Europe for a long time; a
form of national sovereignty that precludes power-sharing with higher or lower authorities has been
sought or proclaimed, in particular in states born out of secession, and the growth of nation-states
has been unprecedented for such a short period.” VENICE COMMISSION, Self-Determination and
Secession in Constitutional Law, 1999. See KRAUS, P.A. “Democratizing Sovereignty”.
37 In this vein, ALBERTÍ, E. “Sobirania i autonomia en el sistema constitucional espanyol”, in FOSSAS,
E. (dir.) Les transformacions de la sobirania..., pp. 308-9.
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Distinguishing formal sovereignty from material sovereignty
The material concept of sovereignty attempts to identify a catalogue of basic
competences and powers related to (or derived from) sovereignty such as the
power to write and re-write the constitution, the power to legislate, the power
to set main political objectives, the power to lead the public administration,
the power to conduct international relations and to make and unmake
international treaties, the power to declare war and states of emergency, the
power to adjudicate, and so forth. In contrast to this more functional, pragmatic
approach to sovereignty, the formal concept of sovereignty aims to grasp the
essential idea beneath this catalogue, namely that sovereignty implies a juristic
and political order that is supreme, effective, consistent, complete. It is also
the final source of internal validity of all particular competences and powers.38
Distinguishing the subject from the object of sovereignty
Some constitutional historians and theorists believe it was and still is of
paramount importance to distinguish the power holder (subject) from the
nature of that power (object). When the debate focused on the idea of
sovereignty (i.e. the object), the possibility of discussing who the holder of that
power should be (i.e. the subject) opened up.39 Beyond history, this distinction
might provide conceptual and deliberative clarity. If the debate focuses on
who the sovereign is, the answers seem (more inclined) to presuppose the
existence of a final, absolute, independent, indivisible political power. In
contrast, if the debate is more concerned with what sovereignty is, the answers
could (be more inclined to) question the mentioned attributes and inquire
about the existence and nature of such power and perhaps qualify, relativize
and distribute it. Likewise, focusing on the object rather than the subject of
sovereignty may favour juridical conceptions of sovereignty.40
38 See KELSEN, H. Teoría General del Estado, § 20.H.
39 ARBÓS, X. “Orígens i evolució del concepte de sobirania”, in FOSSAS, E. (dir.) Les transformacions
de la sobirania..., p. 33.
40 Having said that, one may end up reaching similar approaches when focusing on the subject as
when focusing on the object.
23
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4
Is sovereignty a vanishing idea in
international law and politics?
A definition of sovereignty under international law
James Crawford understands sovereignty as “the plenary legal competence
that States prima facie possess” under international law.41 Sovereignty is,
therefore, not the origin of the State, but the legal consequence of statehood.
Such plenary competence shall be in accordance with international law, which
has the specific function of establishing the spheres of validity (territorial,
personal, material and temporal) of the legal orders of the various States.42
This is meant to ensure that the plenary legal competence is exercised within
its jurisdiction, with due respect for the jurisdiction of other sovereign States.
In a less juristic fashion, one may say that sovereignty is a question of status
within the international society.43 This is to say that sovereign States are the
main subjects and, par excellence, legislators of the international society.
A definition of State under international law
For Kelsen, a State is a group of individuals living on a definite territory organized
under an effective and independent government. Therefore, a State has
three essential elements: population, territory and an independent effective
government. A government is independent if it is not under the control of the
government of another State and is effective if it is able to procure obedience
to the coercive order it issues.44
Sovereignty under the United Nations
Article 2 of the Charter of the United Nations provides that the Organization and
its Members shall act in accordance with “the principle of the sovereign equality
of all its Members”. Yet, the UN Charter stipulates other principles, norms and
rules that ought to be balanced with that principle. What is more, note that by
41 CRAWFORD, J. The Creation of States in International Law, p. 89.
42 See KELSEN, H. Principles of international law, part III.
43 In similar vein, WTE/JHR “European Sovereignty”.
44 KELSEN, H. Principles of international law.
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qualifying sovereignty as sovereign equality
“Article 2 of the Charter of
of all UN Members, the Charter prevents
the United Nations provides
an interpretation of State sovereignty that
that the Organization and
could override the sovereignty of other
its Members shall act in
States. By implication, State law shall respect
accordance with ‘the principle
international law, for the latter regulates the
of the sovereign equality of
all its Members’ ”
range of State sovereignty. The Resolution of
the UN General Assembly 2625 (XXV), on
the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United Nations, reaffirms “the basic importance of
sovereign equality” and stresses that “the purposes of the United Nations can
be implemented only if States enjoy sovereign equality and comply fully with
the requirements of this principle in their international relations”. Hence, the
United Nations upheld sovereignty in a relative sense.
Principles of international law
Sovereignty is, according to Cassese, one of the fundamental principles of
international law together with the principles of non-intervention, of selfdetermination of peoples, of prohibition of illegal use of force, of peaceful
settlement of disputes, of co-operation, of good faith and of respect for human
rights.45 Accordingly, the principle of sovereignty shall be balanced especially
with these other principles.46 Interestingly, if due weighting is reached, it can
make the principle of sovereignty more alive and attractive in contemporary
45 CASSESE, A. Self-Determination of Peoples, pp. 333-7. See, in similar vein, Articles 1 and 2 of the
Charter of United Nations.
46 Westphalian sovereignty, for instance, assumed two behaviours that should not be compatible
with a due balance of those principles. In the inner sphere, that the sovereign State could treat its
citizens and minorities the way it deemed appropriate, even if this entailed human rights violations.
In the outer sphere, that a sovereign State could wage war for reasons of self-interest such as an
expansion of power or extension of territory. As a result of the tragic external and internal events
surrounding the World Wars, sovereignty has been qualified.
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“While in international, European
and constitutional law it may fall
into disuse, in political theory and
discourse it may enjoy renewed
emphasis”
law and politics. State sovereignty may
be more alluring if it is conceived in a
more temperate and gradual fashion
which considers, for instance, that just
States ought to enjoy higher levels of
sovereignty than unjust States.47
Changing is not vanishing
Sovereignty is a mutable, vague, ambiguous idea but it does not seem to be
disappearing. As constitutional history shows, flexible, open and even ambiguous
constitutional clauses are generally more resistant to the passage of time. This
is to say, the word may remain as long as the concept is capable of including
novel conceptions and adapting to new phenomena. Notwithstanding the
changes and transformations, sovereignty continues to be a powerful idea. A
classic but updated international law treatise reads as follows:
Despite repeated suggestions of the ‘death’ of sovereignty –or
its irrelevance– its normative basis within international law
remains. Indeed, the system is ordered such that entrenched
ideas are unlikely to succumb, as distinct from being modified
through practice or through the accretion of new ideas and
values. Such modification or accretion is at the present time
dependent on the will of states, and it is not difficult to predict
that sovereignty will retain its hold on the international plane
for the foreseeable future.48
Perhaps some aspects of sovereignty will endure while others not.49 Perhaps
the idea will persist in some fields more than others. While in international,
European and constitutional law it may fall into disuse, in political theory
and discourse it may enjoy renewed emphasis. Having said that, public law
and politics are so close in their apexes that in the long run they tend to
converge and mingle.
47 See BEITZ. C.R. Political Theory and International Relations, part 2.
48 BROWNLIE, I.; CRAWFORD, J. Brownlie’s Principles of Public International Law, p. 13. Emphasis
added.
49 See KRASNER, S.D. Sovereignty.
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5
Is the idea of sovereignty vanishing in the
European Union?
A particular sphere of international law and politics where sovereignty was
thought to be disappearing was within the European Union. Lately, however,
distinct territorial units reclaim their sovereignty. After analysing how EU law
and politics are generally elusive about sovereignty, it will be observed that
sovereignty plays a role in significant legal and political texts at the State level.
Primary EU law
The founding treaties, especially the Treaty on European Union (TEU) and
the Treaty on the Functioning of the European Union (TFEU), are the prime
source of EU law. In them there is no mention of the words sovereignty or
sovereign.50 Article 1 of the TEU provides that the High Contracting Parties
establish among themselves a Union “on which the Member States confer
competences to attain objectives they have in common”. Three ideas can
be inferred from this: (1) that the Member States, self-proclaimed High
Contracting Parties in capital letters, are unanimously constituting the Union
– the Union is thus not constituting itself from any act of self-determination;
(2) that competences, meaning legal powers, are attributed to the Union to
pursue their common objectives – these seem to be the common goals of
the High Contracting Parties more than the general interests of the Union
and its citizens; (3) that these legal powers attributed unanimously to the
Union by its Member States seem quite distant from the mentioned “plenary
legal competence” that international law presumes in the hands of States. The
Union would still be, according to this, an international organization based
on the international norm pacta sunt servanda. Member States retain much
of their sovereignty by means of their primordial status within the Union,
keeping the position of masters of the Treaties (in the terms of the German
Constitutional Court) and having a decisive seat in Council. In a less juristic
approach, sovereignty exercised from the Union level may even strengthen
some Member States’ powers and authority.51
50 Following the tendency of previous founding Treaties, with few irrelevant mentions.
51 In similar vein, GRASA, R. “Globalització, sobirania i interdependència”, in FOSSAS, E. (dir.) Les
transformacions de la sobirania..., pp. 246-7.
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Secondary EU law and political resolutions
The words sovereignty or sovereign found are often related to third States,
such as in resolutions, decisions or regulations concerning the need for
respecting the sovereignty of Ukraine. For example, in January 2015, the
European Parliament expressed its “full solidarity with Ukraine and its
people” reiterating “its commitment to the independence, sovereignty,
territorial integrity, inviolability of borders and European choice of Ukraine”.52
In other instances, the Union requires third countries to respect the
sovereign rights of one of its Member States, as Parliament did in November
2014 when it urged Turkey “to refrain from any violations of the sovereign
rights of the Republic of Cyprus”.53 In other circumstances, EU directives
and regulations specify that their provisions will respect the sovereign
rights of the Member States over a particular field. 54 In these cases,
sovereignty may work as a limit to an eventual expansive interpretation of
the scope of EU law. In some proposals to advance European integration,
sovereignty may also be mentioned to defend the compatibility of further
integration and State sovereignty.55 These are some noteworthy uses of
the terms sovereignty and sovereign detected in the laws and political
resolutions of the Union.
EU case law
In the 1964 Costa v ENEL case, the European Court of Justice ruled the following:
By creating a Community of unlimited duration, having its
own institutions, its own personality, its own legal capacity
and capacity of representation on the international plane
and, more particularly, real powers stemming from a limitation
of sovereignty or a transfer of powers from the States to the
52 European Parliament resolution of 15 January 2015 on the situation in Ukraine. In similar vein,
COUNCIL DECISION 2014/145/CFSP and COUNCIL REGULATION (EU) No 269/2014, both of
17 March 2014, concerning restrictive measures in respect of actions undermining or threatening
the territorial integrity, sovereignty and independence of Ukraine.
53 European Parliament resolution of 13 November 2014 on Turkish actions creating tensions in the
exclusive economic zone of Cyprus.
54 COUNCIL DIRECTIVE 2004/67/EC of 26 April 2004 concerning measures to safeguard security
of natural gas supply stipulates in the preamble that “the sovereign rights of Member States over
their own natural resources are not affected by this Directive”.
55 European Parliament resolution of 15 December 2015 on Towards a European Energy Union.
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Community, the Member States have limited their sovereign
rights, albeit within limited fields, and have thus created a body
of law which binds both their nationals and themselves. (...)
The transfer by the States from their domestic legal system
to the Community legal system of the rights and obligations
arising under the Treaty carries with it a permanent limitation
of their sovereign rights, against which a subsequent unilateral
act incompatible with the concept of the Community cannot
prevail.56
In this case, the Court affirmed the definitive (in the French, Italian and Spanish
versions) or permanent (in the English version) limitation of the sovereignty of
the Member States resulting from the foundation of the European Community
or their integration into it. Although the limitation was deemed definitive or
permanent, it does not necessarily mean perpetual or eternal.57 Definitive as
permanent seems to refer to the lack of any predetermined temporal limits,
but not to the impossibility of terminating or withdrawing from the Union.
In this respect, there is no perpetual transfer of sovereignty like that ruled by
the US Supreme Court in Texas v. White:
But the perpetuity and indissolubility of the Union by no means
implies the loss of distinct and individual existence, or of the
right of self-government, by the States. (…). The Constitution,
in all its provisions, looks to an indestructible Union composed
of indestructible States. When, therefore, Texas became one of
the United States, she entered
into an indissoluble relation.
All the obligations of perpetual
“The Court affirmed the
union, and all the guaranties
‘definitive’ (in the French,
Italian and Spanish versions)
of republican government in
or ‘permanent’ (in the English
the Union, attached at once
version) limitation of the
to the State. The act which
sovereignty of the Member
consummated her admission
States resulting from the
into the Union was something
foundation of the European
more than a compact; it was the
Community”
56 Emphasis added.
57 BOSSACOMA, P. Secesión e integración en la Unión Europea.
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incorporation of a new member into the political body. And it
was final. The union between Texas and the other States was as
complete, as perpetual, and as indissoluble as the union between
the original States. There was no place for reconsideration or
revocation, except through revolution or through consent of
the States.58
In any case, the Treaty of Lisbon, signed in 2007, provided for the first time
that Member States hold a right to withdraw from the Union (Article 50 of
the TEU).59 The Treaty did not only recognize this right, but it also regulated
the exit procedure, submitting the separation to a consensual procedure up
to a certain period of time after which the Member State may leave without
having reached an agreement with the Union.60 If there is an option to exit,
with or without the consent of the Union and its Member States, this may
imply that there is an option to terminate the Union. If the Union is not
perpetual regarding the withdrawal of an individual Member State, neither
does it seem to be perpetual in relation to a collective decision to terminate
the Union. Whilst the Union cannot destroy its Member States, the latter can
exit and terminate the former.
Member State basic laws, doctrines and opinions
The first article of the Italian Constitution provides that “sovereignty belongs
to the people, who exercise it in the forms and within the limits of the
Constitution”. Article 11 consents, “on conditions of parity with the other
States, the limitations of sovereignty that
may be necessary to an order ensuring
“The Treaty of Lisbon, signed
peace and justice among Nations”. The
in 2007, provided for the first
Italian Constitutional Court (Judgement
time that Member States
183 of 1973) held that Italy and the rest of
hold a right to withdraw
the founding Member States conferred and
from the Union (Article 50
recognized certain sovereign powers to the
of the TEU)”
European Economic Community, which
58 Emphasis added.
59 Article 50 of the TEU is clearly inspired in Article I-60 TCE of the failed Treaty establishing a
Constitution for Europe.
60 See HILLION, C. “Leaving the European Union, the Union way”. BOSSACOMA, P. Secesión e
integración en la Unión Europea, § 3.
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“In Article 79.3, the Bonn Basic Law
was constituted as an institution
(i.e. German Constitution) sets several
characterized by an autonomous
limits on constitutional reform,
and independent legal order. With
such as federalism, human dignity,
this consideration, the Italian Court
democracy and popular sovereignty”
acknowledged the previous ruling
of the European Court of Justice in
Costa v ENEL. These limitations on sovereignty, according to the Italian Court,
find the corresponding powers acquired within the larger Community of
which Italy is part. This last statement illustrates the changing but preserved
Italian sovereignty by means of a primordial status within the Union. The
passage from an individual to a collective exercise of sovereignty.
In Article 79.3, the Bonn Basic Law (i.e. German Constitution) sets several
limits on constitutional reform, such as federalism, human dignity, democracy
and popular sovereignty. This eternity clause is of paramount importance to
comprehend the ruling of the Federal Constitutional Court on the Treaty
of Lisbon (2 BvE 2/08). For the German Court, accession to a European
federal State would require a new German constitution, which would allow
for relinquishing the sovereign statehood safeguarded by the Basic Law.
Conversely, the Court considered that the EU continued to be a union
under international law, built upon the permanent consent of the sovereign
Member States. According to the Court, the Constitution of Germany only
allows for attributing sovereign competences to the Union provided that
the competence to decide on competences is not transferred to it. In other
words, shared-sovereignty is fine as long as the attribution is controlled, in
the last instance, by the sovereign Member States.
Article 3 of the French Constitution provides that “national sovereignty
shall vest in the people, who shall exercise it through their representatives
and by means of referendum”. “No section of the people nor any individual
may arrogate to itself, or to himself,
the exercise thereof”, continues the
“According to the Court, the
article. Accordingly, sovereignty
Constitution of Germany only
lies with the French citizenry as a
allows for attributing sovereign
whole. Likewise, Article 1.2 of the
competences to the Union
Spanish Constitution reads that
provided that the competence
to decide on competences is not
“national sovereignty belongs to the
transferred to it”
Spanish people, from whom all State
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powers emanate.” Although national
and popular sovereignty are linked in
these provisions, it has already been
pointed out that national sovereignty
may serve to identify which people(s)
are sovereign. The principle of national
sovereignty has not generally been used
with the same intensity upwards (to the EU) as downwards (to sub-State
peoples). For instance, the Constitutional Court of Spain has insisted
for decades that because sovereignty rests with the Spanish nation as
a whole, territorial units within it are only holders of a limited right to
autonomy. 61 Therefore, while national sovereignty has been used to
prevent the infra-State penetration of (con)federal and multinational
conceptions of shared-sovereignty, it has not been used, at least with
the same intensity, in relation to supra-State doctrines of transferredsovereignty such as that of the European Court of Justice in Costa v ENEL.
“The principle of national
sovereignty has not generally
been used with the same
intensity upwards (to the EU)
as downwards (to sub-State
peoples)”
Be aware, however, that the French Constitutional Council (Decision of 19
November 2004) ruled that some provisions of the Treaty establishing a
Constitution for Europe which affected the essential conditions of the exercise
of national sovereignty required prior revision of the French Constitution.
Having said that, the Council considered that the enshrinement of a right
to withdraw, together with other provisions such as those pertaining to
the entry into force and the revision of the Treaty, meant that the Treaty
establishing a Constitution for Europe maintained the nature of international
treaty. The Spanish Constitutional Court (Declaration 1/2004) alluded to the
right to exit to uphold the primacy of EU law over State law. Primacy was
accepted provided that the sovereignty of the State and the supremacy of
the core principles of the Spanish Constitution were respected by EU law.
Although these constitutional Courts believe that the right to unilateral
withdrawal tells much about the nature of the Union and its founding
compact, it actually does not. On the one hand, both confederal and federal
States can recognize a right to secede of some of its components.62 On the
61 See TOMÁS Y VALIENTE, F. “Soberanía y autonomía en las Constituciones de 1931 y 1978” or
“Sobirania i autonomia en la Segona República i en la Constitució del 1978”, in FOSSAS, E. (dir.) Les
transformacions de la sobirania..., ch. 2. SOLÉ TURA, J. Autonomies, Federalisme i Autodeterminació.
62 On the compatibility of the recognition of a constitutional right to secede with federalism, see
NORMAN, W. Negotiating Nationalism, pp. 175-211. NORMAN, W. “From quid pro quo to modus
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other hand, international law does not
provide a general right to withdraw from
international organizations, but leaves this
to the founding treaty and the will of the
contracting parties.63
“A fundamental doctrine of
British constitutionalism
stipulates that sovereignty
l i e s w i t h Pa r l i a m e n t i n
Westminster”
A fundamental doctrine of British constitutionalism stipulates that
sovereignty lies with Parliament in Westminster (or more precisely, with
the Crown in Parliament).64 This fundamental principle of the English and
then British constitution was famously summarised by Dicey as meaning
that the monarch in Parliament has “the right to make or unmake any
law whatsoever; and further, no person or body is recognised by the law
as having a right to override or set aside the legislation of Parliament”.65
This doctrine, still believed to be up to date, for a long time managed to
avoid ideas of popular sovereignty and the problem of identifying the
people(s) who hold it.66 The fall of the British Empire, the devolution of
vivendi...”, pp. 191-201. KELSEN, H. Teoría General del Estado, § 328. BOSSACOMA, P. Justícia i
legalitat de la secessió, § 3.1.
63 See Articles 54 and 56 of the Vienna Convention 1969 on the law of treaties. Having said that,
the Praesidium of the European Convention commented the following in relation to the right to
withdraw from the Union: “while it is desirable that an agreement should be concluded between
the Union and the withdrawing State on the arrangements for withdrawal and on their future
relationship, it was felt that such an agreement should not constitute a condition for withdrawal
so as not to void the concept of voluntary withdrawal of its substance.” (CONV. 648/03). Later the
Praesidium insisted: “since many hold that the right of withdrawal exists even in the absence of an
explicit provision to that effect, withdrawal of a Member State from the Union cannot be made
conditional upon the conclusion of a withdrawal agreement. Hence the provision that withdrawal
will take effect in any event two years after notification. However, in order to encourage a withdrawal
agreement between the Union and the State which is withdrawing, Article I-57 provides for the
possibility of extending this period by common accord between the European Council and the
Member State concerned.” (CONV. 724/1/03).
64 See LEYLAND, P. The Constitution of the United Kingdom, pp. 45-65.
65 See DICEY, A.V. Introduction to the Study of the Law of the Constitution, pp. 1-137.
66 KEATING, M. The Independence of Scotland, pp. 26, 38. In contrast, in Scotland there is a longstanding principle of political morality that holds a sort of (ultimate) sovereignty of the people.
This principle traces back to the 16th century writings of George Buchanan and it re-emerged with
vigour during both the devolution process of late the 20th century and the independence process
of the early 21st century. See BUCHANAN, G. De Jure Regni Apud Scotos. The 1988 Claim of Right
for Scotland. The 2014 “Scottish Independence Bill: A consultation on an Interim Constitution for
Scotland”. After Article 2 of the draft bill proclaiming the sovereignty of the people, Article 3 read:
“In Scotland, the people have the sovereign right to self-determination and to choose freely the
form in which their State is to be constituted and how they are to be governed. All State power
and authority accordingly derives from, and is subject to, the sovereign will of the people, and
those exercising State power and authority are accountable for it to the people.” MacCORMICK,
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powers and the quest for independence in Scotland, European integration
and disintegration, and the increasing use of referendums have raised
debate on whether popular sovereignty ought to play a role and which
peoples should have sovereign voice.67
Let us consider some passages of the majority opinion of the British
Supreme Court in R v Secretary of State for Exiting the European Union
(Judgement of 24 January 2017). Since it was the British Parliament that
consented the primacy and direct effect of EU law, which would “only
last so long as Parliament wishes”, the Law Lords did not accept that
the rule of recognition underlying UK laws had been modified by the
European Communities Act 1972, nor would the former be changed
by the repeal of the latter. The idea of sovereignty and, in the particular
British case, the doctrine of parliamentary sovereignty are indeed closely
related to the rule of recognition theorised by Herbert Hart, by reference
to which all legal norms are validated in a specific legal system. The rule
of recognition, according to Hart, identifies the sources of the law in a
specific legal system and, at the same time, works as a criterion of the
validity of the legal norms within that system.68 For the Supreme Court,
since the British Parliament is sovereign, it can make and unmake EU law
to enjoy a status in British domestic law. This is to say, whether EU law
maintains or not such attributes of internal effect and primacy is up to
the British Parliament to decide. In the final analyses, the Court does not
seem to condition such power to terminate the domestic effects of EU
law to the right to withdraw provided in Article 50 of the TEU, but to the
very doctrine of the sovereignty of the British Parliament.
In sum, a substantial part of sovereignty or of sovereign powers seems
to remain in the hands of the Member States rather than in the Union’s.
N. Questioning Sovereignty, chs. 4, 8. TIERNEY, S. Constitutional Law and National Pluralism, pp. 109-17.
67 See TIERNEY, S. Constitutional Referendums. TIERNEY, S. Constitutional Law and National Pluralism.
68 See HART, H.L.A. The Concept of Law, ch. VI.
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6
Visions of sovereignty in the context
of the European Union
Different visions of sovereignty may
generate different visions of the Union. In
this section, seven visions will be identified.
The following are only ideal types which,
in the real world, are rarely found in a pure
form but combined in different ways.69
1.
“ D i f f e re n t v i s i o n s o f
sovereignty may generate
different visions of the
Union”
Statist
Europe as a geographical space where States interact and cooperate
with each other. It is a Europe of States without a political, social and
cultural union. Accordingly, a European nation of nations is neither
envisioned nor desired. Conversely, it may be compatible with a
legal organization for trade and market purposes;70 as well as with
an organization for promoting peace within Europe. These were
basically the main fields and objectives of the European Communities,
although the word community may denote more ambitious aims.71
Such statist vision has been linked to British conservativism, but it
can also be traced to third countries where European integration
has been rejected such as Norway and Switzerland. Lately, it has
been expanded within many EU Member States, by the (often far)
right and left.72
69 Inspired in Middelaar but with added and renewed visions. See VAN MIDDELAAR, L. The Passage
to Europe. pp. 2-9.
70 In similar fashion to the European Free Trade Association (EFTA).
71 Notions such as society, association or organization may be more related to rational will, interest,
agreement and cooperation, whereas the idea of community seems to endorse certain bonds
of affection, common sympathies, shared memories or the will to live together beyond rational
interest.
72 Quite surprisingly, Euroscepticism may grow by means of two apparently opposite criticisms: on
the one hand, the Union has acquired too many powers and some should be devolved; on the
other, the Union is submitted to the will of the States when it should have its own will.
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2. Confederal
Europe united in a permanent round table of Member States. It is
a table around which Member States are disposed to continuously
agree on how to act together.73 These agreements should be made by
consent when delicate issues are at stake. This conceives the Union
for the High Contracting Parties to seek their common goals, not the
general interests of the Union as an entity with a separate and different
will from the aggregate.74 This vision of the Union may serve to protect
or enhance the external sovereignty of the small and medium-sized
Member States. Under such Union, States can safely remain the size
they are or even reduce in size. If external sovereignty is understood
as not only independence but also as power to influence, big Member
States may gain it too (or recover what their empires once had).
Nevertheless, this confederal vision of the Union has been criticized
from some sub-State regions for being too biased and deferential to
individual Member States’ positions. The present issue concerning
refugees and immigrants has raised similar complaints. Those criticisms
wonder if there is a genuine will of the Union beyond the will of the
Member States.
3. Multinational
This is a vision of a sort of (con)federal Union based not only on
States but on several layers of government. 75 According to this
view, sovereignty is to be shared across nations, be they majority or
minority nations within a particular Member State. It is a Europe of
peoples – more precisely, of sovereign, partly-sovereign and even
non-sovereign peoples. Article 3 of the TEU stipulates that “the
Union’s aim is to promote peace, its values and the well-being of its
73 See VAN MIDDELAAR, L. The Passage to Europe.
74 See MORAVCSIK, A. The Choice for Europe.
75 For MacCormick, the right to self-determination of the politico-cultural communities that have
evolved as nations can and should be recognized among the principles of justice that “set the terms
of shared democracy in a large-scale confederal commonwealth like the European Community”.
Within Europe, “further levels of system-differentiation and partial mutual independence” can be
recognized under the principle of subsidiarity. “The demise of sovereignty in its classical sense”
opens opportunities for subsidiarity and democracy as essential mutual complements as well as
for rethinking of problems about national identity. MacCORMICK, N. Questioning Sovereignty, pp.
188, 135.
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peoples”. The TEU’s preamble encourages continuing “the process
of creating an ever closer union among the peoples of Europe, in
which decisions are taken as closely as possible to the citizen in
accordance with the principle of subsidiarity”. However, peoples
other than Member States have minor relevance and powers in
the present Union.76 If the EU cannot offer them significant forms
of recognition and accommodation, it should be understanding
towards their demands for independence in Europe.77
4.
Federal
A Europe of citizens which mirrors the EU with federations such as
those of the USA or Germany.78 Since the citizens of these federations
have strong national identification with the federal level of government,
European federalists hope and endeavour to build a European demos.79
76 The Committee of Regions, which also includes municipalities, is far from those holding such
multinational visions.
77 This is to say, deeming secession from a Member State and integration in the Union compatible.
See, in this regard, BOSSACOMA, P. Secesión e integración en la Unión Europea.
78 The first provision of the failed Treaty establishing a Constitution for Europe started with the
following words: “Reflecting the will of the citizens and States of Europe to build a common future,
this Constitution establishes the European Union” (emphasis added). In the speech on “Why we
need a United States of Europe now” (8 November 2012), Viviane Reding, the then Vice-President
of the European Commission, lamented that the once celebrated vision of a United States of
Europe fell into disuse after the 1993 Maastricht momentum. In December 2017, Martin Schulz,
former President of the European Parliament and the then Leader of the Social Democratic Party
of Germany, called Angela Merkel to work together towards a “United States of Europe”. According
to him, such European federation would be created by means of a constitutional treaty, written by
a convention that would include civil society and the people. Member States unwilling to accept it
would automatically cease to be part of the EU. In April 2018, in a speech on the Future of Europe
before the European Parliament, the French President Emmanuel Macron claimed the need for
a “European sovereignty” stronger than Member States’ sovereignty, which should not replace
but complement the latter. See President Macron’s initiative for A sovereign, united, democratic
Europe http://www.elysee.fr/assets/Initiative-for-Europe-a-sovereign-united-democratic-EuropeEmmanuel-Macron.pdf
79 Just like the national-identification of citizens has been concentrated in the Federation in the
USA, a similar evolution could be expected over time in the EU. Beyond national identity, Jürgen
Habermas envisions a future “Federal Republic of European States” based on a constitutional
patriotism (Verfassungspatriotismus). His thesis claims that democratic citizenship need not be
rooted in the national identity of a people but, instead, it requires that every citizen be socialized
into a common political culture. HABERMAS, J. “Citizenship and National Identity” (1990),
Appendix II to Between Facts and Norms, p. 500. However, shared political values do not suffice
for different national groups to live together. Living together in a European nation of nations seems
less artificial than constitutional patriotism but nation-building takes time, especially in peaceful
and democratic contexts. Objections to constitutional patriotism may be found in VERGÉS, J. La
nació necessària, p. 48-57. BOSSACOMA, P. Justícia i legalitat de la secessió, § 1.4.2.
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Direct election to the European Parliament and the gradual expansion
of its powers were important institutional evolutions in this direction.80
Giving the citizens a direct voice could help to create a people, a
citizenry.81 Of strong symbolic value, EU citizenship was later established.82
“Every national of a Member State shall be a citizen of the Union”,
reads Article 9 of the TEU.83 However, while in federal States federal
citizenship tends to be primary and regional citizenships secondary,
in the European Union Member State citizenship is primary and EU
citizenship secondary.84 In this respect, Article 9 of the TEU provides
that “citizenship of the Union shall be additional to and not replace
national citizenship”.
5. Pluralist
A Europe with a plurality of sovereigns. This multiplicity of constituent
units could encompass citizens, cultural groups, private associations,
municipalities, regions, nationalities, States, Euro-regions and so
on. These many sources of sovereignty would be organized in
predominantly non-hierarchical ways with renewed emphasis on the
principle of subsidiarity. This means conceiving the Union as a mosaic
80 Turnout for European Parliament elections, however, has been gradually declining from 62% in
1979 to 43% in 2014. http://www.europarl.europa.eu/elections2014-results/en/turnout.html Before
any conclusion is raised, it should be studied whether similar phenomena can be traced within
the Member States or whether the decline could be partially caused by the enlargement of the
Union.
81 The 1973 Declaration on European Identity, agreed by the then Nine Member States’ Premiers,
proclaimed that “unity is a basic European necessity to ensure the survival of the civilization which
they have in common” and the legal, political and moral values they have in common. They declared,
in particular, their determination to “defend the principles of representative democracy, of the rule
of law, of social justice — which is the ultimate goal of economic progress — and of respect for
human rights”, which are “fundamental elements of the European Identity”. This Declaration was
an important attempt to self-definition from the political summit.
82 See Maastricht Treaty of 1992.
83 Article 3 of the TEU provides that “the Union shall offer its citizens an area of freedom, security and
justice without internal frontiers, in which the free movement of persons is ensured in conjunction
with appropriate measures with respect to external border controls, asylum, immigration and the
prevention and combating of crime”. According to the same provision, regarding relations with
the wider world, the Union shall contribute to the protection of its citizens.
84 “The citizenship is doubtless a ‘thin’ citizenship, the demos a ‘thin’ demos, for each depend upon a
pre-existing statehood and membership of the Union only via member states”. MacCORMICK, N.
Questioning Sovereignty, p. 145. Although the European Court of Justice has set some limits based
on principles on the Member States exclusive competence on nationality, this has not changed
the characterization of the EU citizenship as secondary or thin. See, inter alia, Judgements Janko
Rottmann v. Freistaat Bayern and Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm).
CÀTEDRA FERRATER MORA | UNIVERSITAT DE GIRONA
with no pre-determined order, a basically non-coercive organization.
An ongoing kaleidoscope ever changing, ever re-constituting itself.
Unfortunately, this seems an anarchic, potentially chaotic union. Public
law needs some sort of hierarchy and coordination of powers and
sources, certain centralization and institutionalization, and balance
between persuasion and coercion. Moreover, feelings of fraternity
and solidarity, which nurture redistributive policies, tend to be weaker
in contexts of radical pluralism. Many might deem this vision to be
a non-realistic utopia.
6.
Cosmopolitan
Europe as a step towards the ideal of a World Government. This is a
vision of supranational integration with the purpose of weakening
the sovereignty of current States, believing that they have too often
been the source of international disputes with tragic recourse to
force. From the very beginning, the European Communities were
a peace project – by means of jointly managing the war industries
of coal, steel and atomic energy.85 Back then there was even the
failed project of a European army, which could have ended up
terminating Member State armies.86 Since 2015, new proposals have
been discussed to create a European Defence Union and, in particular,
the European Parliament claims that such Union “should ensure the
maintenance of peace, conflict prevention and a strengthening of
international security, in accordance with the principles of the UN
Charter”.87 The cosmopolitan vision follows the premise that it is
85 In May 1950, Robert Schuman, in his declaration proposing the creation of a European Coal and
Steel Community, stated: “World peace cannot be safeguarded without the making of creative
efforts proportionate to the dangers which threaten it. The contribution which an organized and
living Europe can bring to civilization is indispensable to the maintenance of peaceful relations.”
See, in very similar words, the Preamble of the Treaty constituting the European Coal and Steel
Community.
86 In Paris in 1952, the six ministers of foreign affairs signed a Treaty establishing a European Defence
Community. This Treaty failed to obtain Member States’ parliamentary ratification, starting with
the French. The Treaty was ‘supranational in character’. In this respect, most troops in European
territory were to be transferred to the Defence Community. Internal reasons (e.g. an alien and
multilateral commandment and the alleged threat to Member States national sovereignty) and
international reasons (e.g. the NATO alternative and a perceived weakening communist threat)
may explain the failure to create an European Army. See VAN MIDDELAAR, L. The Passage to
Europe, pp. 143-51, 228-30.
87 European Parliament resolution of 22 November 2016 on the European Defence Union. Although
national sovereignty is believed to be an obstacle to moving towards a security and defence Union,
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positive to enlarge the political, legal, economic and social borders
in the direction of global governance.88 The followers of this vision
should not forget, however, that the ideal World State would (need
to) be, according to eminent cosmopolitans such as Kant and Kelsen,
a sort of federation.89 What is more, some have argued that a system
of many small States may be more beneficial for universal peace and
the progress of humanity.90
7. Functional
A Europe of offices and technocrats. A coordinating Union based on
expert opinion, economies of scale and without democratic troubles
– with an independent and effective government in the shadows of
public opinion and the mass-media. Such Union is expected to be
elusive and sceptical about sovereignty.91 Independent regulators,
specialized agencies, standardizing interventions, expertise instead of
politics, etcetera. Output rather than input legitimacy.92 This vision
promotes an invisible Union, silent but active. This vision would
promote much action with no ado. A Union claiming to develop
rational, efficient and fair policies without the need for politics.
in a later resolution the Parliament stressed that a common security and defence policy in line with
the Treaties would not impinge on national sovereignty, for that policy would be driven by the
Member States. Moreover, Parliament is convinced that there is no greater respect for sovereignty
than defending the territorial integrity of the European Union through a common defence policy.
Resolution of 16 March 2017 on constitutional, legal and institutional implications of a common
security and defence policy. In similar vein, the Commission claims that having stronger and more
sovereign Member States in a globalised world requires having greater cooperation and integration
within the European Union, including on defence. EUROPEAN COMMISSION. Reflection Paper
on the Future of the European Defence, June 2017, p. 11.
88 Article 3 of the TEU establishes that the Union, in its relations with the wider world, “shall contribute
to peace, security, the sustainable development of the Earth, solidarity and mutual respect among
peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular
the rights of the child, as well as to the strict observance and the development of international
law, including respect for the principles of the United Nations Charter.”
89 See “Perpetual Peace”, pp. 102-5 and “The Metaphysics of Morals”, pp. 165, 171. Both in: KANT Political
Writings. KELSEN, H. Peace through law, p. 5, 9-10. In similar vein, POGGE, T.W. “Cosmopolitanism
and Sovereignty”, p. 63.
90 KOHR, L. The Breakdown of Nations.
91 The Secretary General of the EU Parliament claims that the EU “needs to organise sovereignty
transfers based on proven needs and not on ideology”. Klaus Welle believes that in a polity not
based on demos but on pluralism “legitimacy is dependent on outcome and not on kinship”.
WELLE, K. “Europe and Sovereignty”.
92 See SCHARPF, F.W. Governing in Europe.
CÀTEDRA FERRATER MORA | UNIVERSITAT DE GIRONA
Slogans such as more experts, less politicians may be attractive in
countries were the latter are deemed corrupt and foolish. This vision
of an absence of political sovereignty, however, can be promoted
by powerful economic lobbies for whom freedom without public
regulation and intervention give them market leeway. Big corporations
are well aware that the welfare-state and democracy still live in
vernacular polities and politics.93
7
Sovereignty as a potentially
transformative idea
Transformative power of sovereignty
The notion of sovereignty wields enormous political power. In this vein, Kelsen
warned that the concept of sovereignty has not usually been used for theoretical
aims, but abused for particular political targets.94 Appealing to sovereignty
has huge transformative power that can be both progressive and regressive,
both virtuous and vicious. By way
of example, revolutionary political
“Appealing to sovereignty has huge
movements often invoke some sort
transformative power that can be
of sovereignty as an ultimate source
both progressive and regressive,
of power, especially since the appeal
both virtuous and vicious”
to natural law has declined. Since
sovereignty is widely believed to reside
93 Although this statement is based on a theoretical intuition more than a statistical analysis, the
former seems not so far from the latter. EU citizens vote more in their State elections than in the
European elections and seem to consider the former more important than the latter. EU citizens
are more satisfied with the way in which their democracies work at State level. In particular, citizens
of more consolidated democracies tend to believe that their democracy works better than the
European. The Public Opinion Monitoring Unit links such satisfaction and its results with factors
of economic prosperity. See “Democracy on the move”, 2018, pp. 40-7, 58-64. Eurobarometer
Survey 89.2 of the European Parliament.
94 KELSEN, H. Teoría General del Estado, § 20.K.
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with the people, it is a democratic driver
that can challenge the current legal order.95
Although in ordinary times democracy
and law should be understood as two
sides of the same coin, in extraordinary
moments a democratic appeal to the
dormant sovereign power of the people
may be used to overcome the present legal system.96
“EU norms, resolutions and
institutions usually avoid
specifying where sovereignty
rests, if sovereign powers are
shared, and who speaks the
final word”
Sovereignty and the mixed constitution of the Union
As observed, EU norms, resolutions and institutions usually avoid specifying
where sovereignty rests, if sovereign powers are shared, and who speaks the final
word. Different reasons might explain why the Union is generally elusive about
sovereignty. One reason could be the radically democratic power of sovereignty,
since the EU mixed constitution is far from being radically democratic. In the
present Union, democracy normally manifests itself in quite indirect ways.
There are no European-wide referendums, but State-wide referendums that
have sometimes functioned as integrating barriers.97 The European Parliament
has only shared legislative powers with the Member States ministers meeting
in the Council. The European Commission does not set the main political
targets. The general political directions and priorities of the Union shall be
defined by the Member States Premiers
sitting in the European Council. These
“One reason could be the
confederal institutional arrangements
radically democratic power
tend to result in negotiations and
of sovereignty, since the EU
agreements happening behind closedmixed constitution is far from
being radically democratic. In
doors and seeking consensual decisions
the present Union, democracy
(by means of unanimity requirements,
normally manifests itself in
qualified majorities, long negotiations,
quite indirect ways”
veto powers, opting ins and outs, stick
95 Although sovereignty in ordinary legal terms should be ruled by the empire of the law and the
Constitution, there is a sword of Damocles hanging from the ceiling which threatens the legal
sovereign. This sword may represent, especially in democratic regimes, the popular will. Since
the sword may fall and badly injure the law emperor, this puts pressure on adopting reforms and
accepting transformations. The law ruler should be wise enough to be conscious of the weight of
the people’s sword to preserve the law empire.
96 See BOSSACOMA, P. Justícia i legalitat de la secessió, § 3.7.1.
97 See BOSSACOMA, P. Secesión e integración en la Unión Europea, § 4.
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and carrot strategies, and so forth). For all that, the public tend to see
the Union as a faraway, boring, multilingual, technocratic, polyphonic,
incomprehensible not to say obscure polity.98 European people and
peoples do not (yet) feel themselves as tied to a community of fate
but rather to a union of convenience.99
Sovereignty and European popular democracy
Another reason to elude the idea of sovereignty in the Union could
be to avoid the emergence of a European people. Beyond the EU
mixed constitution and the search of consensus, perhaps some
reject European-wide referendums due to the potential of a direct
appeal to the citizens for creating a new demos, a community of
fate. One European voice can turn to one European will and that will
can generate a European fate. Once the voice of European people is
expressed through a Union-wide referendum it is more difficult for
the Member States’ governments to impose their preferences. The
choice of EU citizens as expressed through a European referendum
might be different from that of the round table of the Member States’
Executives. And some of them may fear that a more directly democratic
Union could become too unified, centralized and majoritarian. Others
might fear that a less confederal and consensual Union could foster
internal conflicts, withdrawals and
even disintegration. They may believe
that referendums are democratic
“Another reason to elude the idea
instruments of and for demos-cracy
of sovereignty in the Union could
be to avoid the emergence of a
(government of the people), whereas
European people”
98 See VAN MIDDELAAR, L. The Passage to Europe, pp. 300-9.
99 See WEILER, J. “La idea de que el Estado somos nosotros ha desaparecido”. WEILER,
J. “The Case for a Kinder, Gentler Brexit”. Although in a community of fate (under a
liberal-democratic approach) there can be deep divisions and conflicts, such divisions
and conflicts are to be resolved within the framework of the Union, its Member States
and their peoples, for they are attached to each other beyond rational interest. A
union of convenience, in contrast, is a contingent project which depends on a material
balance of costs and benefits. In a community with common sympathies, with feelings
of belonging and with bounds that extend over generations, fraternity and solidarity
can more naturally flourish than in a union merely based on rational choice.
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representation, deliberation and consensus are tools of and for demoi-cracy
(government of the peoples).100
Sovereignty and legal revolution
The EU lives through and for the Member States. They are still the primary
sovereigns, the masters of the treaties, the holders of the European constituent
power. The pouvoir constituant remains in the hands of the High Contracting
Parties and keeps being treaty-making power which requires their unanimous
agreement.101 In the USA, the Articles of Confederation of 1777 were superseded
by the Federal Constitution of 1787 by means of a revolutionary reform.102
In the EU, no Philadelphia moment has succeeded nor is expected any time
soon. The Union has not seized sovereignty. Sovereignty remains a political
weapon in the hands of the States and
national democracies.
“Sovereignty remains a
political weapon in the hands
of the States and national
democracies”
100 See BOSSACOMA, P. Justícia i legalitat de la secessió, § 3.4. BOSSACOMA, P. Secesión e integración
en la Unión Europea, § 4.
101 See Article 48 of the TEU.
102 See ACKERMAN, B. We the People (1). Foundations.
CÀTEDRA FERRATER MORA | UNIVERSITAT DE GIRONA
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