Relocating Sovereignty

Neil Walker

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351150347
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

This volume brings together a collection of classic and contemporary texts which engage with the core problem of sovereignty from the perspective of various legal and law-related sub-disciplines: legal history and theory, constitutional law, international law and relations and EU law. Many of the highlights from the intense debates about the continuing relevance or otherwise of the internal sovereignty of national legal orders and the external sovereignty of states in a rapidly- globalizing world are reproduced here.c

Part I
Historical and Theoretical Overview

[1]
Sovereignty in World Politics: a Glance at the Conceptual and Historical Landscape

ROBERT JACKSON

A Normative Premise of Modern Politics

Sovereignty is one of the foremost institutions of our world: it has given political life a distinctive constitutional shape that virtually defines the modern era and sets it apart from previous eras. As A. P. d’Entreves puts it: ‘The importance of the doctrine of sovereignty can hardly be overrated. It was a formidable tool in the hands of lawyers and politicians, and a decisive factor in the making of modern Europe.’¹ And not only Europe: in the past century or two sovereignty has become a cornerstone of modern politics around the world. Sovereignty expresses some core ideas of political modernity including the fundamentally important notion of political independence. It was originally an institution of escape from rule by outsiders and to this day it remains a legal barrier to foreign interference in the jurisdiction of states. The basic norm of the UN Charter (Article 2) enshrines the principle of equal sovereignty and its corollary, the doctrine of non-intervention.

The institution is, shall we say, a basic element of the grammar of politics.² It exists as a normative postulate or premise or working hypothesis of modern political life. It may not always be explicitly acknowledged as such and may, like an iceberg, be mostly hidden from view. But it silently frames the conduct of much of modern politics nevertheless. Sovereignty is like Lego: it is a relatively simple idea but you can build almost anything with it, large or small, as long as you follow the rules. The British (English) used sovereignty to separate themselves from the medieval Catholic world (Latin Christendom). Then they used it to build an empire that encircled the globe. Then they used it to decolonize and thereby created a multitude of new states. It has other uses besides these.

My purpose is to investigate sovereignty in international relations in basic outline. Limitations of space dictate that this essay can only be an abridgement of a large historical subject. The main questions, although by no means the only ones, that can and I believe should be asked of sovereignty are the following: What is sovereignty? What is its character and modus operandi? Who are the principals and agents of sovereignty? Who are the subjects of sovereignty? What would be involved in going beyond sovereignty in world politics? What are the values that sovereignty can be seen to uphold and defend? The remainder of the essay is devoted to suggesting some responses to these questions, starting with the first and ending with the last.

Independence and Supremacy

What, then, is sovereignty? To begin, it is a constitutional arrangement of political life and is thus artificial and historical; there is nothing about it that is natural or inevitable or immutable. Sovereignty is a juridical idea and institution. A sovereign state is a territorial jurisdiction: i.e., the territorial limits within which state authority may be exercised on an exclusive basis. Sovereignty, strictly speaking, is a legal institution that authenticates a political order based on independent states whose governments are the principal authorities both domestically and internationally.

A caveat is necessary. Sovereignty is not an economic notion as it is sometimes made out to be. The expression ‘economic sovereignty’ is a conflation of two different concepts that are best kept in separate compartments if we wish to be clear. A better term might be economic autonomy. That is not to say that sovereignty and economics are unrelated. Obviously they are related. It is merely to point out that the relation is a contingent relation and not a conceptual relation. Economic autonomy is the notion that a country’s economy is insulated from foreign economic influence or involvement or control. That may or may not be desirable in any particular case. But it is a matter of policy and not one of definition. Rather than speak of the decline or loss of ‘economic sovereignty’ it would be more to the point to speak of the difficulties that independent governments face in trying to pursue nationalistic economic policies, especially in our era of transnationalism and globalization.

Thus, like all independent states, Canada has the sovereign authority to issue and manage its own currency. The USA does not have the authority to do that in Canada. But for Canada and presumably for all states in similar circumstances of economic interdependence that right is a bit hollow. The Canadian government does not have much room for manoeuvre in that regard, because while monetary policy is set in Canada, the value of the Canadian dollar is heavily dependent on American monetary policy and on international currency markets. So, while Canada has the right to its own currency, it has limited power or capacity to determine the value of that currency. Canada is a sovereign state but it does not possess very much economic autonomy.

Sovereignty is the basic norm, grundnorm, upon which a society of states ultimately rests. If states were not sovereign political life would have to rest on a different normative foundation, such as suzerainty or empire or theocracy as was the case prior to the revolution of sovereignty e.g., the ancient Chinese suzerain-state system, the Roman Empire, medieval respublica Christiana, etc. A conceivable future world of non-sovereign states would have to be based on an alternative normative foundation of some kind e.g., global federation. But in a world of independent states certain norms are necessarily basic: norms of equal sovereignty, non-intervention, reciprocity, etc. That is the normative logic of the institution.

Brierly identifies the following basic norms of sovereignty: ‘self-preservation, independence, equality, respect and intercourse’.³ These norms are radically different than those which are basic in a world of Chinese suzerainty or Roman imperialism or medieval theocracy i.e., state inequality, dependence, intervention, paternalism, non-reciprocity, etc. In the absence of sovereignty the normative shape of world politics would be significantly different and in all likelihood it would be fundamentally different. In a world federation, for example, states might resemble American ‘states’ which under the US constitution hold sovereignty jointly with the federal government but they do not hold it exclusively by themselves.

Hinsley captures the core meaning of sovereignty: it is ‘the idea that there is a final and absolute political authority in the political community … and no final and absolute authority exists elsewhere …’.⁴ In another place he notes that ‘sovereignty … is an assumption about authority’.⁵ We might say that sovereignty is the basic assumption about authority of modern political life, domestically and internationally. By ‘authority’ I am of course referring to a right or title to rule. Sovereignty is the assumption that a government of a state is both supreme and independent. Regarding insiders, sovereignty is disclosed by the supremacy of a governing authority over everybody who lives in its territorial jurisdiction and is subject to its laws and policies. Internal sovereignty is a fundamental authority relation within states between rulers and ruled which is usually defined by a state‘s constitution. Regarding outsiders, sovereignty is disclosed by the independence of a governing authority from other governing authorities. External sovereignty is a fundamental authority relation between states which is defined by international law. Thus, as seen from inside a state, sovereignty is paramount authority, and as seen from outside it is self–governing authority.

Most of the time there is an established and recognized set of states in the world whose title to sovereignty is not contested to the point of serious uncertainty. There are of course occasions when things are not taken for granted and sovereignty is anything but habitual. Those are the moments when things get interesting from an academic point of view. There is a history of political controversies about sovereignty which this essay shall attempt to survey briefly. Sovereignty, in that respect, should be understood as an institution which is periodically renovated to respond to new historical circumstances. There are of course limits to the renovations that can be made to any institution, including sovereignty, beyond which it is changed out of all recognition and it can no longer be said to exist as such.

Because sovereignty is so fundamental, so much a fixture of modern political life, those occasions when questions are raised about sovereignty are likely to be highly contentious and sometimes even combative moments. In Canada the question of sovereignty in Quebec has been raised with increasing frequency and intensity. There is a deep division of public opinion on that issue which has been disruptive of Canadian political and economic life. A similar question, posed by certain Slovak politicians, led to the peaceful break-up of Czechoslovakia into two successor states after the Cold War: the Czech Republic and Slovakia. A comparable partition could yet happen in Canada. These are peaceful episodes whose international dislocations are local and minimal. However, that might not be the case if an existing sovereign is not only called into question peacefully but is also opposed by force. In recent years – to cite only a few well-known cases – armed secession movements have been mobilized by dissident Chechens in Russia, dissident Serbians in Croatia and Bosnia, and dissident Albanians in Kosovo in Serbia (Yugoslavia). These latter conflicts have disrupted international relations in the Balkans region.

We should probably regard periodical reshuffling of the title to sovereignty, even major redistribution, as something to be expected from time to time. That could dislocate the political life of certain states and regions for a period. But it would not challenge the institution itself. The extensive reshuffling of sovereignty after the Cold War in the former Soviet Union and the former Yugoslavia was disruptive. But it was also an affirmation of the popularity of the institution. Sovereignty clearly is something that many people want to keep and many other people want to have.

However, there are moments in world politics when the current modus operandi of sovereignty – i.e., the institution itself – is placed in some degree of doubt. The history of sovereignty has involved occasions of that sort e.g., when national self-determination became a basic norm of sovereignty or when colonialism became illegitimate and illegal. On both of those occasions the constitutional shape of sovereignty was altered significantly. There may someday even be another occasion, reminiscent of the ‘Grotian moment’ of the seventeenth century, that may come to be regarded as the end of sovereignty and the beginning of some fundamentally different post-sovereign arrangement of world politics. Some scholars believe that that revolutionary time has already arrived.⁶

One of the basic inclinations of the society of sovereign states, however, is to prevent international revolutions and to keep international reformations to a minimum. International society is fundamentally conservative. Sovereignty is a historical institution and change has therefore to be met, but the encounter does not have to be a capitulation on the part of sovereignty. Nor could it be without putting the state system at normative risk. That conservative bias is a striking feature of the arrangement. That is justified by reference to basic political values that the institution of sovereignty is intended to underwrite and indeed foster (see the final section). Among the most important of those values is international order and stability. As international circumstances change, however, requirements for order and stability also change, and the practices of sovereignty must change too. In the beginning sovereignty was dynastic and imperial. Then it became popular and nationalist. Today in many parts of the world it is locally-based and anti-imperial. The institutional arrangements have changed over time but the core notion of sovereignty as political independence has remained the same.

To sum up thus far: sovereignty in world politics is a distinctive way of arranging the contacts and relations of political communities, or ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I HISTORICAL AND THEORETICAL OVERVIEW
• PART II LOCATING SOVEREIGNTY WITHIN THE STATE
• PART III LOCATING SOVEREIGNTY BEYOND THE STATE
• Name Index