Year LXII, 2020, Single Issue, Page 67

 

 

Sovereignty*

 

GIULIA ROSSOLILLO

 

 

Reconstructing the debate that has grown up around the concept of sovereignty is an almost impossible task, given the sheer number of authors who have attempted to trace its contours and define its content. My aim here, therefore, is to focus on developing just a few reflections that can help to bring out the importance of this concept, both for federalist theory and also for understanding the development and future prospects of the process of European integration. In so doing, I shall be using sovereignty as a synonym of independence; for an organisation, this means self-determination vis-à-vis its very existence and actions, and thus the power to decide in the last resort within a given territory.
   

Sovereignty and Peace.

The importance, from the perspective of federalist theory, of a reflection on sovereignty is underlined, in particular, by the close link that exists between sovereignty and peace. The development of the concept of sovereignty coincided with the appearance of the modern state in its first forms, and therefore with the possibility of concentrating the monopoly of force in the hands of the sovereign. This was the start of the process that gradually allowed power relations between individuals established within a specific territory to be replaced by relations governed by law, and as such it marked the first step in the transition from anarchy to the achievement of social peace and the emergence of a common interest, superior to individual interests. As noted by Hobbes, the state, which holds supreme power, is the instrument serving to ensure “that those who have once consented for the common good, to peace and mutually help, may by fear be restrained, lest afterward they again dissent, when their private Interest shall appear discrepant from the common good.”[1]

Therefore, even though sovereignty often has negative connotations nowadays, stemming from a tendency to think of it only in terms of its most authoritarian expressions, the concept actually refers to the formation of a legal system and the imposition of law, in other words, a system able to govern power relations and therefore replace force-based pursuit of purely individual interests. Because sovereignty corresponds to the creation of relationships based on law, law and sovereignty necessarily go hand in hand. And where there is no sovereignty, there is anarchy.[2]

At international level, however, the existence of multiple sovereignties, each independent within its own territory, is the very condition that makes war possible: peace, in the Kantian sense, will be reached only when power relations between states are replaced by international relations based on law, and sovereignty assumes a global dimension.
 

Sovereignty: Divisible or Indivisible?

If what we have just said is true, then it follows that the sovereignty exercised over a given territory has to be indivisible. Indeed, were there to exist within a given territory a number of independent subjects each able to decide in the last resort, the final decision would necessarily be reached on the basis of pure power relations between these subjects, and the very concept of law would be lost.

This consideration prompts two inter-related questions: how is sovereignty exercised within a federation? And is it possible today, under the current Treaty framework, to speak of the exercise of sovereignty by the European Union?

Many maintain that the existence of the European Union disproves the idea that sovereignty must be indivisible, given that within the territory of each member state, both the EU and the state in question exercise their respective powers, each within its own sphere of action.

To examine this view, we must first highlight, and overcome, two misapprehensions. First, because sovereignty is wrongly assumed to be divisible, the concept of sovereignty tends to be confused with that of competence;[3] second, as we shall see later on, transfer and exercise of sovereignty are mistakenly taken to mean the same thing.

It is certainly true that the European Union, unlike other international organisations, has the ultimate power to decide in certain spheres of activity, and can issue provisions that are directly applicable in the legal systems of the member states. In this sense, the Union is a highly advanced organisation that has no real precedents in history. However, since this power is neither original nor independent, the EU cannot, on this basis, be said to possess sovereign powers.

To further clarify this aspect, it is necessary to take a step backwards and examine briefly the difference between a confederation of states and a federation. Both these forms of political organisation rest on an agreement (treaty) through which a group of states limit their powers by transferring some competences to the supranational level. A confederation, however, never departs from the initial agreement, which remains the foundation of its existence and its functioning. Accordingly, it is the states that, having kept their national sovereignties intact and simply undertaken to exercise them together and in concert, continue to control the existence and functioning of the organisation. In short, a confederation depends on the will of the states to cooperate, and when this is lacking, the confederation ceases to function.

To create a federation, on the other hand, it is necessary to depart from the original agreement in order to start a constituent process that will lead to the creation of an organisation independent of the parties to the original treaty. And whatever form it takes (federal union of states or federation, to use the two terms that in Italy are favoured in particular by Sergio Fabbrini),[4] it has to be clearly understood that states entering into a federal pact are agreeing to create a political organisation based not on a treaty, but on a constitution. In this sense, the power the federation assumes is original: we are no longer talking about power based on an agreement between states, but rather power based on an act, the Constitution, that is an expression of the will of the federal people. Thus, from the moment of its entry into force, it is the federal constitution that governs the exercise of sovereignty, both by the federation (at the federal level of government) and by its member states (within their areas of responsibility); in this setting, the existence of the Constitution “above” the level of the member states guarantees the indivisibility of this sovereignty; in short, there is only one sovereignty, which is exercised at different levels. In the light of all this, it is clear that, advanced as the EU undoubtedly is, its existence and functioning remain dependent on the will of its member states, precisely because it is based on agreements (the Treaties) between them. In other words, the powers and competences it has derive not from a constitution that expresses the will of the European people, but from international treaties that can be modified only by mutual agreement between the member states.[5] In Europe, therefore, sovereignty is still in the hands of the member states, and not the Union.

Although this reconstruction may seem to ignore the evolution of European integration process and the fact the member states’ legal systems are now deeply intertwined (as confirmed by the difficulties relating to the UK’s withdrawal from the EU), it should not be forgotten that the two aspects most central to the life of the Union, one internal —its funding — and the other external — its  foreign and defence policy —, are still (as shown by recent events relating to the approval of the multiannual financial framework) conditional on the reaching of unanimous agreements between the member states, and are therefore dependent on them.[6]
  

The Joint Exercising of Sovereignty and the Creation of European Sovereignty. 

The difficulty in identifying the holders of sovereignty in the highly complex setting of European integration also derives from the tendency to superimpose the ideas of “formal” and “substantial” sovereignty, which are actually separate concepts.

Worldwide, the growing interdependence between states, together with the ever-increasing size of the problems faced, has created a situation in which the formal holders of sovereignty, i.e., states, lack the tools needed to rise to the global challenges; as a result, their sovereignty is, to an extent, void of content and therefore meaningless. In Europe, which is fragmented into small sovereign states, this phenomenon is particularly evident, and was, indeed, at the root of the integration process that led to the current European Union.[7]

In fact, through the creation of a market of continental dimensions and a highly integrated institutional structure, Europe’s member states sought to address the impossibility of solving, individually, problems of a supranational dimension. And yet, from the outset, Europe’s integration was founded on the premise of respect for the sovereignties of the individual member states, which, by signing the founding Treaties, took the binding decision to cooperate closely with each other. The paradox of the process of European integration lies precisely in the fact that, in some respects, the member states appear to have chosen a dead end street: aware of the impossibility of tackling many problems at national level, they established very close forms of cooperation; at the same time, however, to avoid relinquishing their sovereignty, they made cooperation relating to the most crucial sectors dependent on their unanimous agreement, thereby creating the risk of decision-making paralysis in the event of their failure to agree.[8] These choices have had the effect of creating a sort of decision-making vacuum: the mechanism just described, which shows that sovereignty continues to be held at national level, risks making certain decisions impossible to take, given that, by definition, they demand a compromise between national interests, which cannot always be reached; at the same time, the failure to move towards the creation of federal sovereignty, and the consequent absence of an autonomous political power at European level, means that the Union is unable to take the said decisions independently of the states.

The creation of a European federation (the prerequisite for the birth of a sovereign Europe) would make a decisive contribution to bridging this gap between formal sovereignty and “substantial” sovereignty, since it would give Europe an organisation with the dimensions and weight necessary to address many continental-scale issues. That said, precisely because of the now global scale of many problems, and the very close interdependence between the various states, it has to be recognised that a complete convergence of formal and “substantial” sovereignty can be reached only through world federation.

The fact that the sovereignty of the European nation-states is currently extremely weak certainly does not mean that it has disappeared, or that the concept of sovereignty no longer serves any purpose. This weakness is merely a historical circumstance, and evidence that we are going through a transition phase in which the individual member states, although formally still the holders of sovereignty, are forced, in order to give it substance, to exercise their powers jointly with other states, without having yet taken the crucial step of creating a federal sovereignty.

The peculiarity of the current period of transition from international organisation of sovereign states to some future federal-type organisation, whose configuration is still unclear, and in some respects unpredictable, is precisely why it is so difficult, today, to envisage exactly what role the member states will play in the European federation, both in its early stages and subsequently, when it is established. In this sense, the evolution of integration towards federation in Europe will not, for two reasons, follow the same course as the processes that led to the formation of other federal states, such as the United States and Switzerland: first, contrary to the case of different historical precedents, it was not the presence of an external threat that prompted the Europeans to pursue ever-closer integration, but rather the need to complete Europe’s economic integration following the introduction of the four freedoms of movement; second — and this is crucial —, European integration is unusual because it is a process involving states with consolidated national traditions, meaning that a future European federation must inevitably be founded on the principle of subsidiarity and assign its member states greater weight than that which is carried by the member states of “traditional” federations.

What is important to identify at this stage, therefore, is not so much the role of the member states in a future European federation as the point in time at which it will be possible to say that the crucial leap towards the affirmation of a capacity of self-determination at European level has been taken, given that this will mark the laying of the foundation stone on which to build a supranational political power, with limited powers, but endowed with sovereignty. For this reason, it has to be understood that the EU will not truly acquire self-determination without first acquiring the capacity to procure, independently of the member states, the tools necessary for the exercise of its competences, and specifically, the power of taxation. This, however, raises the issue of creating true European democracy, so that the European Parliament (the body representing the citizens) can be empowered to determine the amount and type of fiscal resources the Union needs in order to deliver those European public goods that only the supranational level can guarantee. All these developments will mean that issues beyond the scope of nation states need no longer be entrusted to compromises between the member states, but can instead be decided by an embryonic European government.
 

Sovereignty, Democracy, People. 

In the 1990s, there emerged the idea that sovereignty is an outdated concept, and it was even argued that we are moving towards a world without sovereignty.[9] This view, still held by many, actually corresponds to a rejection of the very concept of politics and the common good, and ultimately it goes against the foundations of democracy. In fact, whereas sovereignty can exist without democracy, the idea that democracy can be built in the absence of sovereignty is unthinkable: any democratic order, to be defined as such, must be based on bodies representing the will of the citizens, and equipped to decide independently and in the last resort on the issues crucial to their lives.[10]

Therefore, those who argue that the European Union already exercises its own sovereignty in the fields within its competence, and can therefore continue to be founded on (albeit closely integrated) national sovereignties, fail to understand that democracy can extend beyond the ambit of the European nation-states, and that a democratically legitimised European political power can exist.

It makes no sense to talk of supranational democracy without accepting that sovereignty, too, can and must be exercised at this level: without supranational sovereignty, there would be no authority capable of representing a common interest superior to that of the individual states, and of deciding democratically in the last resort, independently of them.

It thus being established that sovereignty is closely linked with democracy also in the context of the European integration process, the next problem concerns the identification of a European people that can be recognised as the holder of this sovereignty and, as such, able in a constituent phase[11] to legitimise the creation of a European federal state.

The role of the European people in the EU’s transformation into a federation has always been a much-debated topic. It has to be considered that when a regime change occurs within a state, identifying the constituent subject does not present particular problems, as the territory involved remains the same; the process of European integration, on the other hand, ultimately makes it necessary to increase the orbit of the state and of democracy, through the transition from a number of small nation-states to a single state of continental dimensions.[12] A common argument in this context is that creating a European federation is impossible, since no European people actually exists, only 27 national peoples; for this reason — it is argued —, before creating a political union, it is first necessary to create a sense of belonging to a single community. To follow this reasoning, however, is to fall into a vicious cycle. After all, can it not also be argued that creating a sense of belonging to a political community that has yet to be established is surely an impossible task, unless it is recognised that a “people” can be an entity based on something beyond common ethnic, cultural, and linguistic characteristics?

In reality, as many have underlined, people and political organisation (people and state) are two closely linked, indeed inseparable, concepts. Therefore, if it is true that we cannot speak of a people unless there is a state organisation of reference for that people, it is also true that the very prospect of the founding of a new political entity creates the embryo of a people, a sort of people in nuce,[13] whose existence will be consolidated as the state-building process is completed. Put another way, the progressive establishment of a people is part of the process of forming a new state.

With regard to the process of European integration, we can therefore conclude that to be able to talk of a true European people, a federation must be created between the EU member states (or some of them at least); in the meantime, it is up to federalists, by proposing a new organisation of power that overcomes national barriers, to raise awareness within this embryonic European people of the need to create a form of supranational democracy that gives them back the possibility of determining the choices central to their future.


* Contribution presented during a debate on Federalism and the Concepts of Political Power, Power, Statehood and Sovereignty, held in Florence on 17-18 October 2020 and organised by the Debate Office of the European Federalist Movement.

[1] T. Hobbes, De Cive, p.28 http://www.public-library.uk/ebooks/27/57.pdf.

[2] On this point, cf. F. Rossolillo, Notes on Sovereignty, The Federalist, 43 n. 3 (2001), pp. 161 ff., in particular p. 161.  

[3] A. Morrone, Sovranità, Rivista dell’Associazione italiana dei costituzionalisti, 3/2017, pp. 1 ff., in particular pp. 13 ff..

[4] S. Fabbrini, Which European Union? Europe After the Euro Crisis, Cambridge, Cambridge University Press, 2015.

[5] As pointed out by S. Roland, La substance du principe majoritaire en droit de l’Union européenne, in F. Picod (sous la direction de), Le principe majoritaire en droit de l’Union européenne, Brussels, Larcier, 2016, pp. 203 ff., in particular p. 223, there is a profound difference between the formation of a state and the process of European integration, given that Europe lacks a fundamental text allowing the creation of an independent political body.

[6] As remarked by T. Verellen, European Sovereignty Now? A Reflection on What it Means to Speak of “European Sovereignty”, European Papers, 5 n. 1 (2020), pp. 307 ff., in particular p. 316, the external and internal dimensions of sovereignty are closely linked, given that “for Europe to hold external sovereignty it must also exist as an institutional reality capable of governing its territory effectively. To construct an EU capable of governing its territory effectively, two elements are required: first, a European capacity to take decisions independently of individual constituent members, and second a capacity to enforce those decisions vis-à-vis those measures”.

[7] Cf. A. Morrone, Sovranità, op. cit., p. 9, who points out that as a constitutive attribute of the modern state, sovereignty necessarily follows its historical trajectory: that which has been defined the “parable of sovereignty” is merely a metaphor referring to the changes seen in the political form of the state, when this is viewed through the lens of sovereignty. (…) Indeed, the necessary connection between sovereignty and the state is (...) the main reason for ambiguity surrounding constitutionalist reflection on sovereignty. It can, in fact, be said that the fate of sovereignty depends above all on that of the state.

[8] As highlighted by A. Bailleux, The two faces of European sovereignty, European Papers, 5 n. 1 (2020), pp. 303 ff., in particular p. 304, “in most fields of EU competence Member States have given up the unilateral exercise of their – increasingly illusory – normative supremacy in exchange for the collective use of a shared – but more effective – sovereignty”.

[9] In the sense that the concept of sovereignty makes no contribution to the distinction between confederation and federation. See, for all, O. Béaud, Théorie de la Fédération, Paris, Presses Universitaires de France, 2009.

[10] As pointed out by A. Morrone, Sovranità, op. cit., pp. 84 ff., those who theorise the prevalence of the market over politics and maintain that economic relations should be self-regulating on the basis of “private” rules are actually adhering to a technocratic model of society in which there is no common good pursued through democratically legitimised institutions, only individual interests governed ultimately by power relations.

[11] The creation of a European federal state and therefore the transformation of the European Union into a sovereign entity, being the creation of a new power, may not involve all member states, or take place in ways provided for by the Treaties. As pointed out by J. Baquero Cruz, What’s Left of the Law of Integration? Decay and Resistance in European Union Law, Oxford, Oxford University Press, 2018, pp. 175 ff., in reference to art. 48 TEU, “there is a trade-off between widening and deepening and a breaking point at which keeping the unity of the Union, valuable as it is, weighs less than the achievements of integration. If and when that breaking point is reached, perhaps it would be preferable to take note of the inner division, reducing the formal membership of the Union to a core group of States sharing comparable values and views about integration, while keeping the remainder States in another circle. (…) Perhaps this core group of member States could then again agree to modify the Treaties through a less dysfunctional procedure”.

[12] On this point, cf. G. Rossolillo, European People, Constituent Power and the Building of a European Federal State, The Federalist, 49 n. 3 (2007), pp. 196 ff., in particular pp. 204 ff..

[13] P. Rosanvallon, Le peuple introuvable, Histoire de la représentation démocratique en France, Paris, Gallimard, 1998, pp. 344 ff., speaks of a présupposition du peuple: “la théorie démocratique suppose que le peuple préexiste à son organisation politique. Cet ordre a toutes les apparences de la logique. Mais le peuple est-il déjà là ou est-ce seulement la présupposition du peuple qui est prise en compte comme sujet politique ? Ce n’est pas la même chose. Si c’est le peuple, il est appréhendé en tant que donné social, sujet effectivement existant de manière autonome. S’il s’agit du présupposé du peuple, il est à la fois saisi comme sujet et comme procédure. Dans ce dernier cas, l’objet de la politique est de faire vivre et d’activer cette présupposition (…). Comment activer cette présupposition ? C’est justement l’objet de l’expérience démocratique. Elle implique la construction d’un espace de confiance, de reconnaissance qui permet de rendre visible et de représenter ce qui n’existait auparavant que principiellement et procéduralement”.

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