Understanding Conflicts of Sovereignty in the EU

Nathalie Brack, Ramona Coman, Amandine Crespy, Nathalie Brack, Ramona Coman, Amandine Crespy

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000385144
• Edition: 1
• Topic: Law
• Subtopic: International Trade Law
• Index: Law

This book investigates the multifaceted conflicts of sovereignty in the recent crises in the European Union.

Although the notion of sovereignty has been central in the contentious debates triggered by the recent crises in the European Union, it remains strikingly under-researched in political science. This book bridges this gap by providing both theoretical reflections and empirical analyses of today's conflicts of sovereignty in the EU. More particularly, it investigates conflicts between four types of sovereignty. First, national sovereignty referring to the autonomy of the Westphalian Nation-State to rule on a territory delimited by borders; second, the supranational sovereignty acquired by the EU in a fragmentary fashion in a number of scattered internal and external policy fields; third, parliamentary sovereignty understood as the autonomy of parliaments (at the regional, national and European levels) to take part in the decision making process and control the executive in the name of the principles of election and representation; fourth, popular sovereignty whereby the body politic confers legitimacy to decision makers in a democratic system.

Through an analysis of the various crises (rule of law, Brexit, migration, Eurozone crisis), the chapters look at how sovereignty is framed and contested by different types of actors, and how the strengthening or the weakening of certain types of sovereignty contribute to shape preferences regarding policies and governance structures in the multi-level EU.

The chapters in this book were originally published as a special issue of the Journal of European Integration.

Unpacking old and new conflicts of sovereignty in the European polity

Nathalie Brack, Ramona Coman

and Amandine Crespy

ABSTRACT

In the post-Maastricht era, member states of the European Union (EU) have proved increasingly reluctant to transfer further competences to the supranational level and are willing to safeguard their sovereignty. Though the responses to the contemporary multiple crises – related to economic and monetary policy, borders and migrations, or democracy and the rule of law – have brought about conflicts over values and sovereignty losses surrounding the legal, economic and political legitimacy of the EU. Against this backdrop, we argue that beyond the traditional contentious (re)distribution of competences between nation-states (national sovereignty) and the EU (and its embryonic forms of supranational sovereignty), new conflicts of sovereignty involve two other key types of sovereignty belonging to the democratic tradition, namely parliamentary sovereignty and popular sovereignty. This introductory article proposes a common analytical framework in order to investigate conflicts in their multi-dimensionality.

Introduction

Sovereignty is one of the oldest concepts in law and political science. While sovereignty concerns have been at the heart of European integration from the outset, there are a number of reasons to think that there is a pressing need to re-open this old debate and re-assess it in the light of today’s challenges.

In the post-Maastricht era, member states of the European Union (EU) have proved increasingly reluctant to transfer further competences to the supranational level and are willing to safeguard their sovereignty (Bickerton, Hodson, and Puetter 2015). At the same time, however, recent crises in various policy areas, such as immigration, border control, monetary policy, trade, etc., have prompted decision-makers to consent, to various extents, new transfers of competences to the EU. This has triggered unprecedented levels of contention about the values underpinning the EU common policies and what is perceived by many as new sovereignty losses. Thus, the conundrum lying in the notions of ‘shared’ (Wallace 1999) or ‘pooled’ sovereignty (Peterson 1997; Moravcsik 1998) has come back at the forefront of the debates surrounding the legal, economic and political legitimacy of the EU.

Against this background, the main assumption underpinning this special issue is that, rather than the object of constitutional or theoretical debates, claims to sovereignty today have been exacerbated and politicized: they take the form of conflicts of sovereignty which are multidimensional and more divisive than ever, involving crucial – and unresolved – dilemmas for decision-makers.

Although the notion of sovereignty has been central in the seminal grand theories of EU integration (Haas 1958; Moravcsik 1998) as well as in the political debates triggered by the ongoing existential crises of the EU, it remains strikingly under-researched in political science and European studies. On the one hand, there is a burgeoning literature on how conflicts of sovereignty can influence the legislative outcomes at the EU level (Winzen 2016) or how sovereignty issues have an impact on the revision of the treaties (Jachtenfuchs et al. 1998). On the other hand, some authors have investigated normatively the concept of sovereignty and its boundaries, discussing how it can be reconciled with European and global politics (Bellamy 2016, 1). In a more institutionalist vein, Fabbrini (2015) has dealt with how distinctive conceptions of sovereignty imply different visions of power relations between the EU member states and supranational institutions, and types of policies to be further centralized at the EU level. However, while the contestation of the current EU institutional arrangements and policies is on the rise, the body of empirical work on sovereignty in the EU remains relatively limited so far. This special issue therefore intends to bridge this gap by putting forward a novel conceptual approach as well as original empirical studies of today’s conflicts of sovereignty in the EU.

We argue that, beyond the traditional opposition between national sovereignty and embryonic forms of supranational sovereignty at EU level, new conflicts of sovereignty involve two other dimensions of sovereignty anchored in the democratic tradition, namely parliamentary sovereignty and popular sovereignty. This means that, along with the vertical conflicts between national states and the EU, complex diagonal or horizontal patterns of conflict can feature parliamentary sovereignty vs. the EU or parliamentary vs. popular sovereignty. From an empirical point of view, the contributors to the issue investigate how different dimensions of sovereignty have come into conflict in a series of recent contentious episodes in European politics in three broad domains, namely socio-economic policy, borders and migration, and democracy and the rule of law.

An increasingly complex debate

Sovereignty is and has always been a contested concept and its contours have been shaped by dynamics of Nation-State formation and attempts ‘to move Western Europe beyond nation states’, as Haas put it (1958). This introductory article can in no way do justice to the fascinating ramifications of these debates dealing with various conceptualisations of sovereignty. Its purpose is to point to how scholarly debates about how European integration affects sovereignty have become more complex, shifting from an original focus on state sovereignty vs. supranationalism to a multidimensional debate involving also the respective roles of parliaments and peoples in democratic regimes.

Old conflicts: national sovereignty vs. emerging supranational sovereignty

To begin with, sovereignty is a modern political and legal concept. It is bound up with the emergence of the modern state and institutionalized forms of governance. While its origins go back to the medieval period with philosophers such as Bodin and Hobbes, in reality, the concept in its true sense did not exist then (Krasner 2001). In a monist and absolutist conception, Bodin defined it as ‘the highest power of command’, while Hobbes referred to the sovereign as the representative of the person of the state. Only later, the assertion of sovereignty became part of a modernizing project (Loughlin 2003, 57) linked to the idea of power over territory (topos), jurisdiction (nomos) and people (demos).

In different ways, lawyers and political scientists have sought to delineate to contours of sovereignty understood as a political bond between a group of people and its mode of governance (Loughlin 2003, 56). In International Relations, the contemporary meaning of sovereignty is linked to the idea that states are ‘autonomous and independent from each other’ within their own boundaries (Krasner 2001, 21). Thus, sovereignty is linked to key concepts such as power, autonomy, control (Krasner 1999) as well as ‘competence and authority (Loughlin 2003, 69).

Competence is about the power to enact law or jurisdiction, it is about the allocation of legislative, executive and judicial powers of the state. Within a state, sovereign power is about who makes law with the assertion that this law is supreme and ultimate, meaning that its validity is not dependent on the will of any other higher authority (Fassbender 2003, 117). Externally, a sovereign power obeys no other authority. As a legal concept, sovereignty is therefore about the effort to define and limit the powers of the person or body who claim to be sovereign and the attempts to evade legal rules and procedures.

Authority ‘involves a mutually recognized right for an actor to engage in specific kinds of activities’ (…) However, as Krasner explains, in practice, ‘the boundary between control and authority can be hazy. A loss of control over a period of time could lead to a loss of authority’ (1999, 10). Thus, Westphalian and international legal sovereignty refer to issues of authority, that is the right to exclude external actors; interdependence sovereignty refers to control, that is the control of the state over movements across its borders; ultimately, Krasner maintains, domestic sovereignty refers both to authority and control (1999, 10).

With endeavours of new forms of regional integration, the end of World War II opened a new phase for reconfiguring the boundaries of territories, political forces and institutional structures on the European continent which questioned traditional understanding of authority, competence and control. From the outset, this has triggered diverse political and scholarly debates on the subsequent reconfiguration of state sovereignty.

From the end of World War II onwards, we have witnessed the emergence of international organizations and the growth of polities ‘which are not states but which rival states in terms of legal and political authority’ (Walker 2003, 10). Sovereignty was a central issue in early theories of European integration as scholars sought to understand why states give up sovereignty, putting forward a variety of explanations ranging from rationalists to ideational accounts (Haas 1968; Hoffmann 1966; Moravcsik 1998). While Haas and its fellow neofunctionalists argued that pooling sovereignty resulted from a transfer of loyalty of domestic actors, intergovermentalists stressed the survival of the nation state and the relevance of interstate bargaining.

At the end of the 1960s, Hoffmann was arguing that what has to be understood and studied is the transformation of national sovereignty, which ‘has not been superseded, but to a large extent it has been emptied of its former sting’ (Hoffmann 1966, 157). In his view, what had to be examined was ‘not only the legal capacity of the sovereign state, but de facto capacity at its disposal’ (Hoffmann 1966, 158). He argued that the essence of the integration process was the strengthening of the nation-state. Similarly, Alan Milward (1992) has compellingly demonstrated that there is no antithesis between national sovereignty and European integration, since ‘reinvigorated nation-states had to choose the surrender of a degree of national sovereignty to sustain its reassertion’ (Milward 1992, 45). These foundational theories thus tend to present the debate about the place of national sovereignty as an opposition between two poles, as a ‘matter of “all or nothing”’ (Keohane 2002, 756): either the member states are collectively the sovereign units of the European integration (Moravcsik 1998), either European integration being all about taming sovereignty (Magnette 2000).

With each revision of the EU treaties, from the signature of the treaties of Paris to the Single European Act, member states agreed to transfer more powers to the supranational level. Against this backdrop, scholars of all persuasions sought to grasp the reconfiguration of sovereignty. A wide range of metaphors have been introduced to account for the transformation of sovereignty: ‘pooled’, ‘shared’, ‘divided’, ‘split’ or even ‘marginal’ and ‘redundant’ (Moravcsik 1998; MacCormick 1999). For Moravcsik, sovereignty is ‘pooled’ ‘when governments agree to decide future matters by voting procedures other than unanimity’ and it is ‘delegated’ ‘when supranational actors are permitted to take certain autonomous decisions, without an intervening interstate vote or unilateral veto’ (Moravcsik 1998, 67). The Court of Justice of the EU has been frugal in its discussions of sovereignty, stating that the sovereignty of member states is limited rather than claiming that the EU itself possesses sovereign authority. The Court instead developed a doctrine of supremacy, which appears to presuppose the EU’s sovereign status (de Burca 2003).

Under various forms, thus, and for a long time, the debates surrounding sovereignty focused on a vertical dimension conceiving the reconfiguration in the multi-level organisation of law and politics.

New multidimensional conflicts of sovereignty: parliamentary, popular, national and supranational

After three decades of nation state restoration, the 12 members of the EEC engaged from the late 1980s’ onwards with an intensive form of economic and then political integration which triggered a debate on how it was altering the nature of national sovereignty. The signature of the Maastricht treaty marked a turning point as since then, member states repeatedly rejected new major transfers of ultimate decision-making powers to the EU level (Puetter 2014, 1). Nonetheless, the EU has expanded the scope of its action to a wide range of policies, including controversial domains such as economic governance, justice and home affairs, defence and security and social and employment policies, embracing core areas of national sovereignty. This new trend – further integration without supranationalisation – has fuelled new conflicts of sovereignty. Although member states have been empowered, as Puetter (2014) and Bickerton, Hodson, and Puetter (2015) have argued, the gradual empowerment of the executives opened the Pandora box of increased contestation and acute crises as both citizens and parliaments have felt increasingly dispossessed by domestic executives of their own powers (Crum 2018; Hoffmann 2019).

Thus, since the late 1990s, scholars have tried to grasp what the implications of the genuine European model of ‘shared sovereignty’ (Wallace 1999) for democracy. Does the abolishment of national vetoes with the switch to qualified majority voting combined with a European top-down legal system mean the shift of Europe into a post-sovereign, post-national political order based on human rights (MacCormick 1999)? Or, should we rather conceive of it as a pre-sovereign configuration which ‘shares and distributes sovereignty in ways that remove the arbitrary power of any single agent or agency’ and where ‘unity is constructed via a dialogue amongst a plurality, with the one being continually challenged, renegotiated and reconstructed as the other evolves and becomes more diverse’ (Bellamy 2003, 190). While some authors have recently argued that state sovereignty must be abandoned to reconsider popular sovereignty (Habermas 2012), others maintain that sovereignty needs to be ‘vertically and horizontally dispersed between units below, across and above the state’ (Bellamy 2016, 1).

Against this backdrop, a second generation of sovereignty debates has therefore emerged which seeks to determine how to accommodate competence, authority, power and capacity in the EU with the requirements of democracy. In many ways, it is an attempt to consider recurrent claims to sovereignty by an ever wider range of political and social actors and the rise of resistances to EU integration.

One strand of this debate deals with the role of parliamentarism in the EU, a question which has surfaced in relation with the alleged democratic deficit of the EU. A consensus among scholars has emerged on the diagnosis pointing to the weakening of a further form of sovereignty conceptualised in democratic theory, namely parliamentary sovereignty. Beyond theoretical contributions, there is now an important body of literature analysing the role of national parliaments in the EU multi-level decision-making (a.o. Auel and Hoing 2014; Auel and Christiansen 2015, Hefftler et al. 2015; Winzen 2012). It converges towards the finding that, while the legislatures prerogatives and degree of adaptation to EU integration displays a great variation across the continent, their ability to participate in decision-making or hold their government accountable for the decisions made in Brussels remains unsatisfactory with regard to democratic expectations, a trend which has been aggravated with recent reforms of EMU (Auel and Höing 2015; Fasone 2014, Hefftler and Wessels 2013). A general trend exacerbated by EU integration has been the relative autonomization of European executives and strategies of blame shifting of by-passing of European actors allowing governments to pass unpopular reforms while partly escaping the national democratic debate (Crum 2013). At European level, the key role of non-majoritarian institutions, mainly the European Commission and the European Central ...