A normative theory of sovereignty transfers.
In none of its cases has the ICJ dealt with either the sovereignty or the liberty questions directly. Yet, the ICJ, and its predecessor the PCIJ, adopted a distinctive conception of sovereignty that has been extremely important in the development of international law and is relevant to both of those questions.
This conception of sovereignty goes back to the view, first expressed by the Permanent Court of International Justice in Lotus, that state sovereignty may be restricted only through the consent of states; this is the Lotus presumption, (118) or the "metaprinciple of sovereign liberty." (119)
In Lotus, the Permanent Court rejected the French argument that the "Turkish courts, in order to have jurisdiction, should be able to point to some title to jurisdiction recognised by international law in favour of Turkey." (120) The Permanent Court accepted instead the Turkish argument that the question was whether the exercise of jurisdiction by Turkey had come into conflict with a principle of international law. It explained:
This way of stating the question is also dictated by the very nature and existing conditions of international law. International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed. (121)
The word sovereignty does not appear in this passage, but sovereignty is what is really meant by the word "independence" in the operative sentence at the end. Moreover, in a later passage the court explains that "all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty." (122) The Lotus idea of sovereignty could be summarised in two propositions: First, the original position on the international plane is absolute freedom for states; second, states move away from this original position only by freely consenting to international obligations.
As noted by Judge Simma in his Declaration, Lotus provided the "underlying rationale" for the ICJ's Advisory Opinion in the case of Kosovo. (123) The ICJ opined that, in the absence of a prohibitive rule in international law against declarations of independence, the declaration of independence of Kosovo had to be presumed to be "in accordance with" international law. (124) There was no small amount of irony in the fact the souverainisme of Lotus was deployed to tramp a quintessentially souveraniste argument about the territorial integrity of Serbia. (125)
The Lotus view is inadequate for a number of reasons. First, it is not clear why the original position for states should be one of absolute freedom. The answer that it follows from the consensualist foundations of international law simply begs the question. Secondly, the practice of states, particularly in relation to newly independent states, contradicts this account of an originally boundless sovereignty that is progressively limited through consent.
II. THE PHILOSOPHICAL ORIENTATION OF THE DOMESTIC AND INTERNATIONAL JURISPRUDENCE ON SOVEREIGNTY AND LIBERTY
The jurisprudence I discussed above deals with questions that are central to the nature of international law. It is a philosophical jurisprudence in the sense that it is premised on or promotes a particular vision of the international system. Adjudication is not of course an exercise in abstraction. Courts must ground their answers in the positive law. Nevertheless, international or constitutional law adjudication on points that find no clear answer in precedent will often require courts to grapple with principles that are formulated in very general terms and to argue at a fairly high level of abstraction. When one is dealing with foundational questions about the scope of liberty and the concept of sovereignty, the philosophical dimension can be ignored only by burying one's head in the sands of formalism.
Not all courts--as we have seen--are philosophically aware. The German Constitutional Court seemed almost to revel in the philosophical aspects of the questions it was addressing. At the opposite end, the House of Lords in Al-Jedda showed hardly any sign of philosophical engagement, preferring, as far as possible, to frame the issues in narrow formalistic terms. But philosophy can be concealed but not escaped: To paraphrase John Maynard Keynes, practical men who think of themselves as exempt from any intellectual influence are usually the slaves of some defunct theorist. (126)
The difference between those two courts goes beyond philosophical awareness. Their rulings reflect radically different approaches to liberty and sovereignty. As will be shown below, the approach of the German Constitutional Court in Lisbon was inspired by Kantian liberalism; that of the House of Lords in Al-Jedda by Hobbesian utilitarianism.
No common philosophical vision can be ascertained in the case of international courts. This may in part be due to the differences between constitutional and treaty-based adjudication. The application of the doctrine of equivalent protection by the ECHR, for example, is constrained by the jurisdiction ratione personae of that court: Until the long-awaited accession of the EU to the ECHR, the parties to the ECHR are all states, and the court's pronouncements on sovereignty transfers are by necessity limited by the fact that the court has jurisdiction on only one side of the transfer. Crucially, for international courts, the sovereignty question can prove quite intractable; this is particularly so for the ECJ. In the absence of a well-thought-out approach to the sovereignty question, the philosophical orientation of the jurisprudence of these courts can at best be an imperfect and incomplete form of liberalism. The ICJ is in a different position, since it has not, as mentioned, developed a distinctive approach to either the liberty or the sovereignty question, but it has continued to rely on the Lotus-based idea of sovereignty (127)--a conception which is as implausible philosophically as it is unfounded in state practice.
A. The Kantian Liberalism of the German Constitutional Court
A good insight into the philosophy that underpins the approach of the German Constitutional Court to the liberty and sovereignty questions is found in these two passages from the Lisbon decision:
The order that is founded on the Basic Law as its constitution assumes that human beings, who are able to avail themselves of freedom, have their own value and their dignity. This order is power under the rule of law on the basis of the self-determination of the people according to the will of the respective majority in freedom and equality. Fundamental rights can be guaranteed by law in numerous ways and may accordingly enjoy numerous types of judicial protection ... only the Bundesverfassungsgericht is entitled, within the framework of the powers granted to it by the Constitution, to protect the fundamental rights guaranteed in the Constitution. No other court can deprive it of this duty imposed by constitutional law. Thus, accordingly, in so far as citizens of the Federal Republic of Germany have a claim to judicial protection of their fundamental rights guaranteed in the Constitution, their status cannot suffer any impairment merely because they are directly affected by legal acts of authorities or courts of the Federal Republic of Germany which are based on Community law. Otherwise, a perceptible gap in judicial protection might arise precisely for the most elementary status rights of the citizen. Moreover, no different considerations apply to the constitution of a community of States with a constitution based on freedom and democracy which is called in question than apply to a federal State with a constitution based on freedom and democracy: it does not harm the Community and its constitution based on freedom (and democracy) if and in so far as its members in their constitutions give stronger guarantees of the liberties of their citizens than does the Community. (128)
The German Constitutional Court sees liberty as a central organising principle, an indispensable benchmark, the means and end of the legal system created by the Constitution--all undoubtedly liberal ideas and so far also quite Kantian. Where the court probably parts company with Kant is in the treatment of sovereignty and of international organisation. To explore this point we need to delve into some of the most delicate passages in Kant's international political theory.
Both in Perpetual Peace and in the Metaphysics of Morals, Kant set clear limits to cosmopolitanism. He argued that the federation of peoples he envisaged "must ... involve no sovereign authority (as in a civil constitution) but only an association"; (129) that "if such a state made up of nations were to extend too far over vast regions, governing it and so too protecting each of its members would finally have to become impossible"; (130) and that
The idea of the right of nations presupposes the separation of many neighbouring states independent of one another; and though such a condition is of itself a condition of war (unless a federative union of them prevents the outbreak of hostilities), this is nevertheless better, in accordance with the idea of reason, than the fusion of them by one power overgrowing the rest and passing into a universal monarchy, since as the range of government expands laws progressively lose their vigour, and a soulless despotism, after it has destroyed the seed of good, finally deteriorates into anarchy. (131)
There is a lively debate among scholars on the interpretation of these passages. For some, Kant conceived the supranational entity as a federation devoid of any sovereignty (the Volkerbund thesis); for others, despite some apprehension about the powers of this supranational body, Kant was not in principle opposed to the idea of a global state (the Volkerstaat thesis). (132) In the first camp are Jurgen Habermas, who opines that Kant regarded national sovereignty as "insurmountable," (133) and John Rawls, who subscribed to Kant's rejection of the world state in the Law of Peoples. (134)
But why was Kant so apprehensive about the possibility that states may surrender sovereignty to a supranational federation? His apprehension derived in part from scepticism about the level of ethical development attained by human kind. He feared that a "fusion of states" could be "premature and therefore fatal" if it occurred "before men have become morally better." (135) In a Kantian perspective, thus, a key question one needs to ask in assessing sovereignty transfers is whether people are ethically ready for them.
As explained by Amanda Perreau-Saussine, "[m]any commentators have been puzzled by Kant's apparent and uncharacteristic reliance on arguments from experience in dismissing the notion of a global state." (136) To understand this comment, one has to appreciate that Kant considered it a fundamental error of reasoning to treat as empirical, rather than normative, questions that cannot by their nature be answered on the basis of experience. For example, Kant would argue that the question whether man is capable of moral progress is not one to which experience can provide an answer, but reason can: The rational answer to that question is that we must posit that man is capable of such progress, because, if we assumed otherwise, we would preclude it. As Kant explained in his essay On the Common Saying: "This May be True in Theory but it does not Apply in Practice," "all is lost if the empirical (hence contingent) conditions governing the execution of the law are made into conditions of the law itself, so that a practice calculated to produce a result which previous experience makes probable is given the right to dominate a theory which is in fact self-sufficient." (137)
So why did Kant allow empirical observations about the putative lack of ethical development to contaminate his answer to the question of whether states should surrender sovereignty in order to preserve peace? It is Kant's failure to tackle this question that has preoccupied generations of scholars, beginning with Fichte. (138) According to Massimo Mori, Kant's rejection of the idea of the global state in spite of its prima facie rational and moral validity derived from various concerns, of which the most important ones for present purposes are, first, that government on such a large scale is bound to degenerate and, secondly, that it would have a negative impact on liberty. (139)
To return to the point above: In what way does the Lisbon decision depart from the Kantian position on sovereignty? First of all, it was not open to the German Constitutional Court to embrace the fully souverainiste version of the Kantian position and reject any transfer of sovereignty as unconstitutional in principle. Transfers of sovereignty to international organisations are expressly permitted under the German Constitution (Article 24(1)). Another important difference is empirical. In the modern world, unlike in the days of Kant, international and regional organisations have already been entrusted with significant sovereign functions; both the UN Security Council and the EU are probably more powerful and sovereign at this point than the federation envisaged by Kant. (140)
As emphasised by the Constitutional Court, the sovereignty it defends is not the "self-serving and self-glorifying concept" that, for example, "regarded the right to wage war--even a war of aggression--as a right due to a sovereign state as a matter of course." (141) Sovereignty stands instead "for a pacified area and the order guaranteed therein on the basis of individual freedom and collective self-determination" (142)--a conception which belies a jingoistic view of sovereignty pointing instead in the direction of the liberal tradition.
The court's conclusion, that while some sovereignty may be transferred not all of it can be, must thus be placed against the background of this decisively liberal conception of sovereignty and statehood, its anxiety about Entstaatlichung (loss of statehood, sometimes also referred to as Verlust der Staatlichkeit in the court's decision) can be dismissed as illiberal only if one ignores the particular idea of sovereignty on which that anxiety is premised. Far from embracing a romanticised idea of the nation, the court goes even further than Kant in a cosmopolitan direction. And it certainly goes nowhere near Schmitt.
B. England Between Hobbes and Burke
What is the philosophical matrix of British constitutional jurisprudence on the liberty and sovereignty questions? Two very different thinkers hover in the background: Hobbes and Burke. Let us start with Hobbes. Some may take umbrage at the Hobbesian characterisation of English courts: How can the courts which have shown greater openness to international law than most other domestic courts in the last decade be accused of Hobbesianism? Much depends on what is meant by Hobbesian. Here I am not using this term in the way in which it is commonly understood in the field of international relations, where "Hobbesian" normally describes a form of extreme realism--the view that war between states is inevitable, that power is the only determinant of international relations, and that international law is a chimera. (143) This view rests on a remarkable but enduring misconception about the thought of Hobbes. In The Leviathan, Hobbes explained that it was not his intention to deal with international law--a comment surely not due to oversight. (144) As Noel Malcolm has argued, although there were differences for Hobbes between a domestic and an international ruler, it is far from certain where Hobbes's thought applied to international relations should take us. (145)
To unveil the Hobbesianism hidden in English jurisprudence, let us return to Al-Jedda. The philosophy of that decision is in essence this: The Security Council is indispensable to the maintenance of international peace and security, particularly in an era where the destructive potential of military technology can make life in wartime shorter, nastier, and more brutish than ever before; a domestic legal system must defer to this international Leviathan, and, in the greater interest of peace and security, accept that its determinations shall prevail over constitutional principles including human rights. Al-Jedda thus rests on a trade-off between security and liberty similar to that which is at the centre of the argument in the Leviathan. (146) This utilitarian calculus can be transposed onto the international plane, especially since the above-mentioned developments have escalated threats to human security. True, under the British Constitution, a Hobbesian trade-off could not be accepted without at least the qualification that the principle of parliamentary sovereignty remains inalienable and non-derogable. But, as pointed out before, there is a contrast between the formally absolute nature of parliamentary sovereignty and the wide substantive exceptions carved into the cognate principle of state sovereignty by a decision like Al-Jedda.
There are two other subtle and important ways in which British constitutional argument follows a dangerously Hobbesian logic. First, Hobbes starts from a premise of almost boundless natural liberty but ends up justifying the complete subjection of the individual to the Leviathan. (147) The initial act of the will through which the individual enters into a social contract paves the way for political self-emasculation. The House of Lords/Supreme Court also start from a premise of boundless political liberty and sovereignty (i.e. parliamentary sovereignty), but end up justifying almost complete subjection to an external sovereign authority--be it the EU or the Security Council of the UN. The one freedom that is retained is the freedom to withdraw from those arrangements--the same merely potential and ultimately somewhat illusory liberty retained by the citizen of the Leviathan. (148)
Secondly, British constitutional argument rests on a fundamentally reductionist premise. Hobbesian reductionism concentrated on the idea of liberty. As Quentin Skinner has argued, in the De Cive, Hobbes had accepted the prevalent view of his time, namely that if someone has power over another person, even if that power is not exercised, that person is not truly free. (149) In the Leviathan, Hobbes abandons that view for a much narrower materialistic conception of liberty as absence of physical impediments ("external impediments of motion"). (150) This was Hobbes's original solution to the problem of squaring the power of the Leviathan with the contention that the individual remains free under it. British constitutional reductionism is, instead, focused on the idea of sovereignty. As long as Parliament (and through it the state) retains the power to withdraw from the international arrangements, sovereignty is presumed to remain intact. Without such a reductionist conception of parliamentary sovereignty, it would be impossible to square supranational sovereignty with it. In this way sovereignty is hollowed out of any actual content, and reduced to mere potentiality. But, thanks to this escamotage, the Emperor may appear not to have lost his clothes.
Why has the adoption of the Human Rights Act in the United Kingdom not led to a different approach? Two reasons come to mind. The first is that, with the exception of a few non-derogable rights, most Convention rights contain a limitation clause centred around the idea of balancing rights against other interests--a process which can quite easily degenerate into a merely utilitarian calculus. (151) The second is that the international nature of the Convention has facilitated the surreptitious introduction into the domestic order of the values of the international one. There are good reasons why the international order puts peace above everything else, but a domestic order that operates the same choice will fall into Hobbesianism.
With the Jabar Ahmed decision, the U.K. Supreme Court seems to have rediscovered a different voice. Analytically, this different conclusion was made possible, as explained, by the different position under U.K. domestic law of Chapter VII measures involving the use of force and Chapter VII measures not involving the use of force. But Jabar Ahmed also reflects the idea that sacrosanct ancient liberties will not be given up by Parliament, even though it has the power to do so. In a very English way, the Supreme Court seems to have exorcised the ghost of Hobbes with the spirit of Burke.
C. What Philosophy For International Jurisprudence?
The ECHR has dealt extensively--if not always cogently--with the question of what happens to the protection of human rights when sovereign powers are transferred, but has not addressed the question of how much sovereignty can be transferred. Indirectly, however, the ECHR jurisprudence does endorse at least one limit to the transferability of sovereignty that is ancillary to its own version of the doctrine of equivalent protection: The obligation to protect human rights effectively--and the sovereign functions connected to this obligation---can be transferred only subject to the continued availability of equivalent protection under the legal order of the transferee.
For the ECJ the sovereignty question is more difficult to avoid, it has been the elephant in the room since at least the early 1960s when, in cases like Van Gend en Loos and Costa v. Enel, (152) the ECJ began to advance the idea that the EEC legal order was more elevated than a mere treaty-based international legal regime. The importance of this characterisation has more recently been in evidence in the context of the ILC project on the responsibility of international organisations, when the argument was made--but eventually rejected by the ILC--that regional economic integration organisations such as the EU should be treated differently from "ordinary" international organisations for the purposes of certain rules on responsibility. (153)
As Joseph Weiler has observed, (154) the political and legal debate on sovereignty within the EU is normally framed in terms of the international/domestic dichotomy. For the ECJ, and the European project in general, this dichotomy is self-defeating for two reasons. First, it undermines the claim that the European project represents a genuinely novel political experiment, aimed not at creating a bigger state, but rather at reinventing the categories that have governed politics for at least four centuries. (155) Secondly, it pushes member states and their supreme courts into a constitutionally defensive stance.
In these circumstances, silence or elusiveness might be deemed preferable to the express endorsement of an idea of sovereignty that would run counter to a certain integrationist vision of the European project and send domestic courts to the barricades. This is the strategy that the ECJ seems to have adopted in the Kadi case. Both the Court of First Instance and the Grand Chamber framed the question exclusively in terms of liberty and ignored the sovereignty dimension. Indeed, the words "sovereign" and "sovereignty" do not appear a single time in either of the two judgments. This policy of strategic silence over the question of sovereignty has extended to (or perhaps originated from) the EU Treaties. In the latest version of the Treaties, the word "sovereign" appears only twice (in a reference to the British Sovereign Base Areas in Cyprus). (156)
There are however two provisions in the Treaty on European Union, as amended by the Treaty of Lisbon, which deal with sovereignty in all but name. Article 4.2 obliges the European Union to "respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self government," as well as "their essential State functions." (157) It also stipulates that "national security remains the sole responsibility of each Member State." Article 50 of the Treaty of the European Union recognises the right of a member state to withdraw from the Union "in accordance with its own constitutional requirements." (158)
On their face, except for their omission of the key term "sovereignty," these two provisions seem to uphold the theory of sovereignty espoused by European constitutional courts. First, as the German Constitutional Court observed in the Lisbon judgment, "[t]he right to withdraw underlines the Member States' sovereignty and also shows that the current state of development of the European Union does not transgress the boundary towards a state within the meaning of international law.'" (159) This, it has been observed, "appears to bury forever the idea formulated in Simmenthal (but not repeated ever since, which must mean something) that obligations pursuant to the Treaty are 'undertaken unconditionally and irrevocably.'" (160) And, one might add, it also represents a vindication of Lotus. Secondly, the obligation to respect national identities lends support to what the court calls its "identity review," grounded in the need to protect the essence of the constitution. Thirdly, the idea that sovereignty entails a functional core finds confirmation in the reference to "essential State functions" in Article 4.2. Finally, the distinction between the original sovereignty (of the state) and the derivative sovereignty (of international organisations including the EU) can rest on the principle of conferral in Article 5 of the Treaty of European Union, under which the EU "shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein." (161)
Can it then be said that, silences and omissions notwithstanding, the EU and member states now share an underlying theory of liberty and sovereignty? Superficially this might appear to be the case, but the issue that remains unresolved is that of the primacy of EU law and the corollary of the supremacy of the ECJ over domestic courts. On first reading, the two sovereignty-related provisions introduced by the Treaty of Lisbon suggest a retreat on the part of the EU on this controversial question. But this interpretation is contradicted by Declaration No. 17 Concerning Primacy annexed to the Treaty of Lisbon. The general understanding, based on this Declaration, is that the Treaty of Lisbon has not changed the position on primacy and left the question essentially unresolved. (162)
A further challenge also arises from the newly acquired human rights competence of the EU. One consequence of this development is that "in most EU member states, the conformity of legislation with human rights is nowadays examined by four instances: the judiciary, the constitutional court, the European Court of Justice, and the European Court of Human Rights." (163) This has the potential to create confusion and conflict. As discussed in Part I of this Article, supreme courts of the member states of the EU have accepted the primacy of EU law with three main qualifications: First, that primacy is limited to the areas of competence of the EU; second (and pace dictum of the ECJ in Simmenthal), that primacy is revocable; and third, that the constitution remains the supreme law, particularly in relation to the protection of fundamental human rights. But now that human rights form part of the competences conferred on the EU by member states, could it be said that the principle of primacy of EU law means in practice that, on human rights matters, the EU instance should take precedence over the domestic one?
This is a fundamental question that goes to the heart of the relationship between liberty and sovereignty. Purely in terms of the liberty question, in fact, it could be argued that the primacy of EU law on human rights matters would not contradict the Solange principles and the doctrine of equivalent protection. But if in the crucial area of the relationship between the individual and the authority primacy is accorded to the EU rather than national constitutions, the state will forfeit the claim to be the main political and legal order of reference for the individual in the definition of the space of personal and political liberty. If that order of reference is, instead, the EU, the main individual-authority relationship would become that between the individual and the EU-authority rather than between the individual and the state-authority.
All of this suggests that the sovereignty question is far from settled. Sovereignty might have become so intractable for the EU that the only approach that makes sense from its point of view is the only approach that could realistically work for the city of Jerusalem: Give God sovereignty and hope to end argument about it among men.
As for the ICJ, its jurisprudence on sovereignty oscillates between reticence and the almost mindless repetition of the Lotus doctrine, which, as a result, still holds considerable sway in international law. The philosophical pedigree of the Lotus doctrine is often traced to nineteenth-century legal positivism (164) or, like much else, to the Peace of Westphalia. Already by the end of the nineteenth century, however, positivism had different strands and the Lotus doctrine would have been incompatible with at least some of them (165)
But where does the Lotus view on sovereignty stand in the map of political theories of sovereignty? A lasting perception is that this view is somehow in keeping with a liberal theory of international law. True, liberalism is reluctant to sign off the achievement for liberty that a liberal sovereign state represents by agreeing to an international system that enervates that sovereign state. This is a real dilemma for liberals, exemplified, as we saw, by the inconclusiveness of Kant's arguments. However, rather than being a statement of the liberal conception of sovereignty, Lotus has provided an excuse for avoiding the range of philosophical issues that the concept of sovereignty poses for liberals. (166) It has, in other words, been a recipe for not rising to the formidable challenge that the development of a theory of sovereignty poses, and for proceeding, instead, on the basis of rather simplistic assumptions about it.
If Lotus does not embody a liberal view of sovereignty, what is then its philosophical matrix? At this point some may think of Jean Bodin. The XVI century French jurist and political theorist is generally, but somewhat simplistically, regarded as the inventor of an absolutist conception of sovereignty. The surprising thing is that the PCIJ in Lotus went further in conceptualising sovereignty as boundless than even the thinker most often associated with absolute sovereignty. For Bodin, in fact, sovereignty has at least one important limit: it is subject to natural law. (167) The Lotus conception of sovereignty is instead entirely unbound. In that case the PCIJ managed to invent an idea of sovereignty that is somewhere to the right of Bodin.
If not Bodin, then what about that other great thinker normally associated with state omnipotence: Hegel? Whether the Lotus view on sovereignty is Hegelian depends on how one reads the final paragraphs of the Philosophy of Right. On one interpretation, they leave no room for any international law, including the consensualist system that Lotus at least permits. (168) On another reading, which emphasises amongst others the passage in Philosophy of Right where Hegel extends the idea of recognition to the inter-state plane, (169) the Hegelian view does make some form of international law possible as long as the independence of states remains at its foundation; this view is common to some of the British idealists of the late nineteenth and early twentieth centuries as well as to contemporary neo-Hegelian international relations theorists. (170) Hegelian is ultimately as uncomfortable a fit for Lotus as Bodinian or positivist. Although most judicial interventions have some philosophical foundation, there are occasionally those which lack any: Lotus may be one of them.
III. LIBERAL LIMITS TO SOVEREIGNTY TRANSFERS
Should sovereignty have an inalienable core? Are there other conditions to which the transfer of sovereignty from states to international organisations should be subject? Any attempt to elevate international law from an essentially contractual regime between states to a system endowed with larger authority must address these questions. The limits of international law will largely depend on our answer to them. (171)
In this Part, 1 propose limits to sovereignty transfers from a liberal perspective, by which I mean an approach that considers the liberty of the individual to be the ultimate moral foundation of the legal order. The argument in this Part is developed in three stages. Part III.A examines certain key features of sovereignty, in particular indivisibility and inalienability, in an attempt to get closer to the kernel of sovereignty itself. Part III.B is an analysis of the relationship between sovereignty and liberty. In Part III.C, I discuss the limits a liberal political and legal theory places on sovereignty transfers. Part III.D ends with a short coda on the debate between global constitutionalists and pluralists.
Given the theoretical-normative nature of the argument in this Part of the article, the links with the analysis in Parts I and II may at first not seem obvious. It will however become clear that the normative argument presented here is a direct response to the liberty and sovereignty questions that have framed the earlier discussion. The spectrum of legal argument can be very wide: from the descriptive to the normative, from the analytical to the synthetic. The purpose of this Article is to examine these two fundamental questions across that spectrum. As one moves along it, however, the terms of reference will change. But there is also a continuum--more often than not unspoken--between ideas in their more abstract formulation and practice.
A. The Conundrum of Sovereignty
If it were true that sovereignty is logically or conceptually indivisible, any transfer of sovereignty from states to international organisations would be a logical fallacy or a category error. This would still leave us with the problem of having to come up with a suitable framework for reconciling the idea of sovereignty with the phenomenon of international organisations exercising functions normally characterised as sovereign, but the terms of the philosophical problem would be different.
The idea that sovereignty is indivisible was championed by Jean Bodin. (172) He considered indivisibility mainly in relation to the internal dimension of sovereignty, that is the constitutional structure of the state. He argued that a constitution could be monarchic, aristocratic or democratic--but not mixed. The reason for this conclusion is that for Bodin "the unity of a legal system seemed logically to require the unification of power in a single ruler or single ruling group." (173)
Bodin's argument on the indivisibility of sovereignty has resonated over the centuries. Rousseau expanded it in Book II of the Social Contract, while Kant's failure to entertain the notion that sovereignty could be shared by states with the international federation he envisaged might have also stemmed from an assumption of indivisibility. The persistence of indivisibility goes some way towards explaining why even modern international legal and political theory still often leaves us with what Jean Cohen calls the false "choice between the two monistic postulates: the primacy of the domestic legal system linked to subjectivist philosophy or that of the international legal system linked to an objectivist approach." (174)
Is Bodin's characterisation of sovereignty as indivisible correct? Modern constitutionalism has evidently grown out of this idea, as the success of the principle of separation of powers and the mechanism of checks-and-balances show. No one seriously argues anymore that the unity of the legal system is precluded by the sharing of sovereign power between different constitutional actors. As far as the internal dimension of sovereignty is concerned, Bodin's argument has been clearly superseded.
If sovereignty is divisible in its internal dimension (i.e. in a constitutional sense) does it follow that it is also divisible in its external dimension (i.e. on the international plane)? And can a state remain sovereign overall if it surrenders some sovereign powers to an international organisation?
The distinction between sovereignty in a specific sense and sovereignty in a general sense can be helpful at this point. (175) To be sovereign in relation to a specific area, an institution needs to have no authority above it endowed with the legal power to constrain it in the exercise of functions that pertain to that area. For example, on one interpretation of the Charter-based system on the use of force, the Security Council of the UN is sovereign in this area, save for cases of self-defence where some sovereignty "inherently"--to repeat the words of the Charter--remains with states. (176) On another interpretation, exclusive sovereignty vests in the Security Council because Article 51 of the UN Charter qualifies the exercise of the "inherent" right of self-defence with the sentence "until the Security Council has taken measures necessary to maintain international peace and security," which some take as meaning that the Security Council is the final arbiter even when self-defence is engaged. (177)
Sovereignty in a general sense is defined by both quantitative and qualitative elements. The quantitative element is the possession of a certain amount of specific sovereignty, i.e. the sovereign exercise of a number of functions, although how much specific sovereignty is required for general sovereignty to be maintained is not clear. Nor is it clear whether there are areas over which a state must by necessity retain sovereignty in order to be considered sovereign in a general sense. We do however know that states have in practice surrendered their specific sovereignty on many important areas to international organisations without ever renouncing their claim to be sovereign in a more general sense. In other words, as far as state practice is concerned, the indivisibility of sovereignty on the international plane seems to have been superseded no less than its indivisibility on the internal one.
As for the qualitative element of sovereignty, it was, again, Bodin who argued that sovereignty is more than the sum of its functions. (178) A similar point is made by Rousseau in the Social Contract where, in dealing with the inalienability and indivisibility of sovereignty, he warns against the "lack of precision," of which he also accuses Grotius, that derives "from having taken what were mere emanations from this [sovereign] authority for the parts of this authority itself." (179)
What is then the distinctive quality of sovereignty? According to Bodin, sovereignty is an "absolute and perpetual power." (180) Both of these attributes are problematic for liberals: Perpetuity appears to contradict the idea that the state--like all human creations--is historically determined and contingent, while absolute power negates individual rights. However, on close analysis, the Bodinian conception was more nuanced than the use of these two terms would at first suggest. By perpetual Bodin meant "for the life of him who has the power." (181) Even more importantly, and contrary to what the common description of Bodin's theory as absolutist might lead one to assume, for Bodin absolute power did not mean "not to be subject to any law at all." (182) Indeed, he emphasises that "every earthly prince is subject to the laws of God and of nature and to various human laws that are common to all peoples." (183) Absolute power meant for Bodin that "persons who are sovereign must not be subject in any way to the commands of someone else." (184)
This understanding of sovereignty as non-subjection accords with other theories that have otherwise very little to do with Bodin. For example, Rousseau's account of sovereignty is also based on the idea of a highest will embodied by the state but also situated, as General Will, within both the individual and the body politic at large. (185) Kelsen argued that the claim to supremacy is "the normativelogical essence of all great theories of sovereignty since Bartolus," (186) explaining that "[t]he statement that sovereignty is an essential quality of the State means that the State is a supreme authority" and that "[a]uthority' is usually defined as the right or power to issue obligating commands.'" (187) The PCIJ's use of the term "independence" in the passage in the Lotus case discussed above suggests a similar analysis.
A corollary of sovereignty as independence or non-subjection is inalienability. In fact, if sovereignty could be transferred, the consequence would be either dependence on the superior will of the new sovereign entity, or interdependence as between the entities which are sharing sovereignty. Yet, as mentioned before, state practice seems to have no difficulty with the idea that, while sovereignty over certain specific areas may be transferred, the general claim to sovereignty is not lost in the process. (188) It has even been suggested that the transfer of specific sovereignty is not only permissible, it also reinforces the sovereignty of the state in the general sense, because the states' "power to limit their power" is itself an expression of sovereignty. (189)
The distinction between original and derivative legal orders is an attempt to account for this state of affairs. Applying it in the Lisbon case, the German Constitutional Court explained that the legal orders of international organisations, and any sovereignty they may possess, are derivative (abgeleitete), (190) while the sovereignty of the state is original. (191) International organisations may be entrusted with sovereign functions, and thus become "sovereign" or supreme in certain areas; they may even display such "true marks of sovereignty" as the power to legislate or to coin money; but they lack the original qualitative essence of sovereignty, that is ultimate independence or non-subjection. The derivative nature of the legal order of international organisation makes their exercise of sovereign functions conditional upon an initial grant of power by states, and subject to the possibility of revocation. If the transfer were not in some ways revocable, the loss of specific sovereignty would be permanent and a situation of subjection, albeit limited to the specific area to which those functions apply, would arise. In one sense, one with which Rousseau would strongly agree, international organisations are not really sovereign at all, since all they may possess are the mere emanations of sovereignty but not true sovereignty.
This analysis perhaps resolves the conundrum of sovereignty, but it takes us straight back to Lotus. To a large extent it accords with the practice of states. As mentioned, states continue to be regarded as the exclusive depositories of general sovereignty, while the ultimate revocability of all sovereignty transfers from states to international organisations is guaranteed by the provisions found in the constituent instruments of international organisations that expressly preserve the sovereign right of member states to withdraw from the organisation. The Lisbon Treaty introduced one such provision in relation to the most "sovereign" of all international organisations, the European Union. (192) The principle of conferral in EU law also supports this idea. (193) The UN Charter does not contemplate a general right of withdrawal or denunciation, but at least a limited right exists in relation to the member state that opposes an amendment of the Charter adopted pursuant to Articles 108 or 109. (194)
The idea that, in a logical sense, the concept of sovereignty constrains us to the point that we can do no better than Lotus is disappointing. There are however other theoretical ways of solving the conundrum of sovereignty, of rescuing this concept from the idea of "some indivisible supernatural monad." (195) Kelsen offered what was in many ways a brilliant solution, namely to decouple sovereignty from the state and to ascribe it instead to the normative order. (196) By forcing a divorce on these two overloaded terms (the state and sovereignty) we can perhaps begin to think more freely. The price that one pays for this, however, is a formalistic and reductionist conception of sovereignty: Because the fact of the state--of its history, powers and claims--is so intractable, let us invent a form that excludes it. Whatever one makes of these arguments, it is quite remarkable that, although Kelsen is one of the most widely read legal theorists of the 20th century, this part of his theory has failed to assert itself in state or judicial practice in any noticeable way.
Somewhat more successful have been two different attempts to tame sovereignty. The first one is to separate the sphere of the state from that of other entities, with each claiming supremacy within its respective sphere. This is the essence of dualist and pluralist theories. The second attempt is to limit sovereignty from within, as Bodin did by making it subject to natural law. The concept of jus cogens achieves a similar objective in a way that can give superficial comfort to modern-day lawyers, generally disinclined to natural law arguments.
To return to the liberal perspective that informs the analysis of sovereignty in this Article, the first point to make is that the absolutism of Lotus is impossible to reconcile with any account of liberalism. Of the various attempts to resolve the conundrum of sovereignty in a non-absolutist sense, Kelsen's may seem essentially liberal. (197) But the formalism and abstraction of the Kelsenian conception sits uncomfortably with that liberal tradition which, following Burke or Tocqueville, rejects the shallow rationalism of abstract constructs that claim to achieve "perfection" by ignoring history, beliefs or customs. A modern day iteration of the Bodinian argument on the inherent limits of sovereignty stands a better chance of appealing to liberals from any tradition, and thus embodies the liberal perspective in a more comprehensive sense. To identify what the limits of sovereignty ought to be, one must begin by asking what the ultimate justification of sovereignty is in a political and moral sense. It is to this question that our analysis must now turn.
B. The Moral Quality of State Sovereignty
Why should states be sovereign? This is a fundamental question of political theory that would require a philosophical investigation into the foundations of the state. The aim here is not to address this question comprehensively, but to explore the nexus between sovereignty and liberty. Contemporary analyses either ignore this nexus or, more often, simplistically assume that sovereignty and liberty stand in antithesis to each other. (198)
In exploring the relationship between human liberty and state sovereignty, it is helpful to begin by distinguishing the libertarian position from the liberal one. Most libertarians would reject the argument that we need to endow the state, or any other authority, with even minimal powers in order to ensure security; even those libertarians who are prepared to compromise on this position would still view the concept of the sovereign state as inherently inimical to liberty. The liberal position is more nuanced. It could be said that for liberals the state is a necessary evil at worst, an integral element of individual liberty at best. Where a liberal stands on that spectrum will depend on the particular version of liberalism that he embraces.
In social contract theory, particularly its Lockean version, liberty exists in the state of nature, and is thus antecedent to society and to the state. At the same time, however, liberal contractarians regard political organisation, of which the state is the modern form, as a necessary condition for the enjoyment of liberty. The provision of a basic framework of security, without which liberty would become illusory, is the minimum with which every liberal, not only those subscribing to social contract theory, would credit the state.
Put exclusively in these terms the case for the state rests on no more than a trade-off between natural liberty and security. Many liberals, however, do not think of the state as simply the lesser evil between anarchy and order. At the source of a different attitude towards the state is often Rousseau's intuition on the transformative effect of social life on human nature: Man loses his natural liberty, but "what he gains is civil freedom and property in everything he possesses," as well as "moral freedom, which alone makes man truly master of himself." (199) For many post-Rousseauian liberals, a conception of liberty that aims to be relevant must have man in society, rather than man in nature, at its heart.
The liberal tradition known for its greater receptivity to the role played by beliefs, customs and historical experience, and associated with the likes of Constant, Tocqueville and Guizot, is in part built on this Rousseauian intuition. Its followers maintain that the depth of social bonds feeds into both the nature of authority and the quality of liberty. This tradition rejects the somewhat mechanicistic notion according to which "the more one reduces authority, the more one increases liberty, as if these were the content of communicating vessels." (200) It fears the novel forms of despotism that individualism unfettered by beliefs or authority can produce. (201) In this liberal perspective identities and loyalties play a fundamental function. As Burke said, "[t]o be attached to the subdivision, to love the little platoon we belong to in society, is the first principle (the germ as it were) of public affections. It is the first link in the series by which we proceed towards a love to our country and to mankind." (202) A liberal state is built on the "little platoons," but also sets limits to them by embodying ideas of individuality and, crucially, of equality which transcend particular loyalties and identities. And while the process of state formation also comes with certain risks to liberty, including centralisation, the idea that individual liberty could exist, let alone thrive, outside the political and institutional milieu of the state would strike many liberals as fanciful.
It is Hegel more than anyone else who took Rousseau's intuition and ran with it. Whether he took it so far as to forfeit any connection with liberalism has occupied many a scholar of political theory. (203) There is certainly no shortage of political theorists who see themselves as liberals and, at least in some ways, as Hegelians too. (204) These theorists propose an organistic view of liberty which begins with the notion that "the individual comes into being only by joining a community and changing from a self-interested calculator into a citizen...." (205) For neo Hegelian liberals "[t]he state ... should not be seen [merely] as a device which protects individual rights, but as a comprehensive arrangement between people who by mutually recognising one another in certain specified ways come to constitute one another as free individuals." (206)
The paragraphs above are just a succinct and inevitably simplified account of the range of liberal arguments on the nexus between the sovereign state and human liberty. The main point is that, except for libertarians, all liberal theories recognise some moral quality to the sovereign state and that this quality is a reflection of the state's relationship with liberty. There are differences within the liberal tradition on the nature and extent of this nexus, but all liberals would agree that it is vital. In a liberal perspective, sovereignty protects, enables" and (for neo-Hegelians at least) constitutes human liberty.
But the nexus between sovereignty and liberty does not relate solely to the individual dimension of liberty. Crucially, it extends to the political dimension too. This point is often illustrated by reference to Benjamin Constant's distinction between ancient liberty and modern liberty. Modern liberty is the liberty of the individual, articulated since the XVII and XVIII centuries as a catalogue of fundamental rights. (207) Ancient liberty is, instead, the liberty "to exercise collectively but directly various parts of the entire sovereignty; to deliberate, in the public space, on peace and war; to conclude alliances with foreigners; to vote laws; to pass judgments; to examine the accounts, the acts, the administration of magistrates; to force them to appear before the people; to charge, convict them, or acquit them." (208)
Constant argues that a modern liberal state needs both forms of liberty, but also emphasises that ancient liberty must evolve: For the modern state, unlike the Greek polis or the Roman Republic, is ill-suited to the direct and plebiscitary forms of political participation known to the ancient; and yet the fate of individual liberty, as Rousseau also understood, remains inextricably linked with political liberty and with the ideal of self-government. (209)
What kind of collective identity does political liberty require? An enduring misperception is that such an identity needs to be fixed and static. While political liberty does necessitate the existence of a polity with a certain degree of internal cohesion, it does not follow that that polity cannot re-constitute itself on a different basis over time. The conception of the polity in naturalistic terms, such as blood or destiny (Blut-or Shicksalgemeinschaft), (210) is illiberal on at least two grounds: It leaves little room for individuality and it ascribes permanence to the wrong idea. By contrast, conceptions of the polity, and of nationhood, which are premised on the notion that collective identity is a social and historical construct, accept the possibility of change and can be part of a liberal theory of the state. (211)
The view, shared by many liberals, that common historical experiences, identities, loyalties, social practices, and even religious beliefs and national temperaments may play a role in the shape, functioning, and effectiveness of political institutions should not be confused with the "tired old ideas of an ethno-culturally homogeneous Volk and the unholy Trinity of Volk-Staat-Staatsangehoriger as the exclusive basis for democratic authority and legitimate rule-making." (212) To fail to maintain this distinction is to fail to see the difference between Kant and Schmitt, Tocqueville and De Gobineau, or Mazzini and Mussolini. (213)
It might be objected that, even if theoretically robust, this distinction must take into account the fact that the sovereign state has an identity-generating effect, which transforms and even suppresses individuality. Far from being neutral vis-a-vis the complex historical processes through which identity is generated--the argument runs--the state is a key player, motivated by a clear agenda: to perpetuate and strengthen the collectivity that created it. (214) A state cannot, in other words, escape the logic that, the more indissoluble is the bond between the members of its polity, the stronger is the state.
The record of modern states on this front, however, should leave some doubt about the ineluctability of this "logic." States have accepted and often also encouraged a variety of collective identities, both local and international. Regional integration and international organisation are largely state-driven phenomena that offer evidence of the state's capacity for tolerance and accommodation. As we saw in Part III.A above, the concept of sovereignty has also proven pliable in respect of both its external and internal dimensions. (215) These developments have not taken place in spite of the liberal nature of the state; they accord with a profound liberal intuition about the nature of identity and loyalty, which Burke summarised in the famous passage in the Reflections cited above.
These foundational arguments about the relationship between collectivity and state are echoed in the debate on the no demos thesis in the context of the European project. The question is whether the perceived weakness of a collective European identity should fundamentally limit the political aspirations of the EU. A moderate version of the no demos thesis maintains that the absence of a European demos in the present does not preclude its emergence in the future, while a more intransigent one "does not only dismiss that possibility as objectively unrealistic but also as undesirable." (216)
The political dimension of liberty provides the key theoretical framework for understanding the principle of self-determination in international law--still the only human right born by people rather than individuals to have received universal recognition. Yael Tamir's observation twenty years ago that "although the right to national self-determination has often been at the heart of modern political discourse, theoretical analyses of this right are rather rare," still rings true today. (217) This lack of theoretical reflectiveness on self-determination may explain why some international lawyers seem to think it possible to be at the same time in favour of self-determination and against sovereignty. (218)
The nexus between state sovereignty and liberty, both in its political and individual dimensions, is not without problems. The most obvious example is tyranny, that is, the exercise of those powers associated with sovereignty in a way that violates both political and individual liberty. Most liberals (Kant being an exception) (219) support a right to resist in these circumstances. But what is being resisted is the particular way in which sovereignty is exercised rather than the idea of the sovereign state itself. In some cases the fracture between the state and the polity may be so profound as to call for changes in the nature of the state itself--for example in the case of post-colonial independence or secession. The answer to a liberally defective sovereignty may therefore be either a change in those who exercise the powers associated with it or a change in the nature of the state itself, (220) but the final result will always be a sovereign state albeit one organised on a different basis or with new boundaries.
C. Supranational Sovereignty in a Liberal Perspective
By contrast with state sovereignty, supranational sovereignty has no connection to either concept of liberty. A deficit of liberty is inherent to it. Here, in a liberal sense, lies its main limit.
The deficit of liberty of supranational sovereignty arises from the distance that exists between the individual and the social institutions of supranational sovereignty, from the failure to attract or generate loyalty, and from the complete absence or weakness of supranational identity bonds. For this deficit of liberty, which the literature on the "democratic deficit" of international institutions has captured only in relation to the political dimension, (221) institutional reform may provide only a superficial fix. To paraphrase what has been said above about state sovereignty, supranational sovereignty may protect liberty but only in a limited and complementary sense at best, but it cannot express or constitute it. Although the international human rights discourse continues to advance the idea of an antithetical relationship between human rights and state sovereignty, the relationship between supranational sovereignty and human liberty is conceptually far more problematic. International law was not, after all, built on the principle of the supremacy of the individual, and it is so surprising that new forms of sovereignty that are the offspring of international law fail to embrace what is in essence a principle of liberal political philosophy and liberal constitutionalism.
In spite of its inadequacies vis-a-vis liberty, supranational sovereignty is credited with two important moral qualities. The first one is the maintenance of international peace and security. Opinion differs on the effectiveness of supranational sovereignty as a solution to the problem of war. A strong positive correlation between supranational sovereignty and international peace could form the basis for the kind of systemic trade-off between peace and security that Hobbes proposed on the internal plane. As mentioned earlier with reference to Noel Malcolm's work on Hobbes, this way of reading Hobbes's international political thought is at least as plausible as the mainstream account of Hobbes that one finds in international relations literature. Even in a Hobbesian perspective, however, there remains the fundamental problem of assessing the consequences of the replacement of state sovereignty with supranational sovereignty on domestic peace, the achievement of which is the justification of the Leviathan.
For liberals, trade-offs and, in general, arguments about balancing liberty and security are problematic. (222) in a liberal perspective, the capacity of supranational sovereignty to promote peace may give it a strong basis for legitimacy, provided that it does not overstep the line beyond which its inherent deficit of liberty begins to affect the actual enjoyment of liberty.
The advancement of international peace is not the only moral quality with which cosmopolitans credit supranational sovereignty. The other moral quality is based on an argument not about the welfare of human beings but about their nature. Kant advanced it in his essay on the Idea for a Universal History with a Cosmopolitan Aim with greater clarity than in any of his other writings on international legal and political theory. (223) There he identifies the structure of international relations as a fundamental obstacle to the "the highest step of humanity" (224)--that is, the full development of all the predispositions of humanity. For this reason, human beings must strive to establish a "universal cosmopolitan condition, as the womb in which all the predispositions of the human species will be developed." (225) This 'perfect civil union of the human species' (226) will allow humankind--Kant argues--to be raised "out of the selfish aims of aggrandizement on the part of its rulers." (227) Rousseau had argued that life in society transformed the nature of man by civilising him. Kant maintains that a further step is required: Having been civilised, it is now time for man to be moralized. But "[a]s long as states apply all their powers to their vain and violent aims of expansion and thus ceaselessly constrain the slow endeavour of the inner formation of their citizens' mode of thought ... nothing of this kind is to be expected." (228)
The emergence of a universalist ontology is a difficult goal to achieve, not least because of the "deceptive appearance of external welfare" which comes with civilization. (229) Each human being has, according to Kant, a moral duty to transcend the particular and seek the universal; to rise above cultural, national and historical differences and embrace an inner and yet global humanity. (230) These are the ethical foundations for what Kant calls world citizenship (Weltburgerrecht). In a Kantian perspective, this change in ethical consciousness is necessary to create a global political space which would not replace states altogether but would secure the common good of peaceful coexistence in a more stable and permanent way than any institutional solution could ever afford to do.
This vision of a moral purpose in universal history is, Kant says, the "chiliasm of philosophy." (231) But he also stresses that it cannot be left to fate; and, having the present condition of humankind in mind, one could add there was not a better time for this kind of momentous change. It may be a cliche to say that technological advances have brought human beings, separated by space, closer together than ever before, but it is one that contains at least a grain of truth; and this change can be harnessed to nudge the moral imagination of man in a universalist direction. (232)
True, until this transformation takes place, this moral quality can be attributed to supranational sovereignty only in a potential rather than actual sense; and there is always the risk that a supranational institution prematurely endowed with extensive powers becomes a "soulless despot." Nevertheless, the cosmopolitan moral aspiration is important even in its potential state because it frees our political imagination from the shackles of experience. It acts as a constant reminder that, although the sovereign liberal-democratic state does represent a major achievement, we should continue to think that even better forms of political organisation are possible, and remain mindful of Kant's observation that the full potential of humankind is far from being fulfilled. As long as that is so, liberalism's finest hour is yet to come. (233) In this intensely moral and admittedly chiliastic sense liberalism is no philosophy of the end of history (pace Fukuyama). (234)
To return to the question of the limits to sovereignty transfers, neither the preservation of peace nor the promotion of a universalist ethical consciousness should tramp liberty ("the principle of liberty"). As mentioned before, I have not made a normative argument for this principle, but have postulated it given that my approach is declaredly liberal. From the principle of liberty derives the separate but related idea that the sovereign state plays a fundamental role in ensuring liberty. The role of sovereignty comes down to the dual function of expressing liberty in the collective or political sense, and enabling, protecting, and (possibly) constituting liberty in the individual sense. Any sovereignty transfer that impairs or undermines the exercise by the state of these two functions is illiberal ("the principle of sovereignty"). In practice, this means that sovereignty transfers must not extend as far as to undermine sovereignty in a general sense, and so transfers that entail an irreversible loss of independence are not permissible. On a strong reading of this limitation, a corollary is the revocability by the state of any sovereignty transfer. On a weak reading, permanent, and thus irrevocable, sovereignty transfers to an international organisation might be admissible as long as circumscribed to certain areas.
As for the amount of specific sovereignty that can be transferred, we saw earlier that European constitutional courts agree that some core sovereign functions should be inalienable. The liberal argument in favour of this approach is that, if sovereignty were "shorn of the last vestige of power" (235) and reduced to mere potentiality, the state would fatally lose credibility in the eyes of its constituents. If the state is thus disembowelled, what is the point of it? Cynicism towards it and resentment against usurpers would be likely to arise. The financial and monetary crisis has brought public argument in Greece and other parts of Europe perilously close to these positions.
Sovereignty transfers are not merely permissible in a liberal perspective; they are also desirable insofar as they are related to the two distinct moral qualities of supranational sovereignty ("the desirability principle"). As discussed, supranational sovereignty stands in an instrumental relation with one of these two moral qualities (the preservation of peace), but inheres to the other (the universalist advancement of humankind).
The desirability in principle of sovereignty transfers, subject to the liberty and sovereignty principles, does not create an automatic entitlement, on the part of the international organisation, to be the recipient of a sovereignty transfer. That is a question to be addressed separately, as part of an analysis of the rights and obligations of the "transferee sovereign."
D. Coda: Sovereignty Transfers and the Debate Between Global Constitutionalists and Pluralists
Debate about the theory of international law often follows a dialectic that Jean Cohen summarises in the following terms:
The debates over the international order today take place between two camps: "statists" who are still enchanted by sovereignty and "strong" cosmopolitan liberals who are entranced by human rights, and who applaud what they see as a shift from state-centric (consent-based) international law to an international or global legal order based on consensus, and justice to persons. (236)
The argument presented in this Article challenges the premise of this debate--namely that human rights take in one direction and "statism" in another. The same problematic premise defines the two schools of thought--global constitutionalism and pluralism (237)--which have dominated debate on the evolution of the international order for at least a decade and each of which would claim to have advanced the argument on these issues beyond the stale terms of statist-cosmopolitan dialectics. In the wake of Kelsen, both global constitutionalists and pluralists welcome the decoupling of state and sovereignty. Their disagreement comes down to one question: Does this new post-statist world order still need some idea of sovereignty, understood as a claim to supremacy, and ultimately a normative hierarchy?
However, neither global constitutionalists nor pluralists attach much importance to a question that is fundamental for every liberal contemplating the prospect of a (as of now still largely hypothetical) post-statist world: What liberty is possible outside the state? The avoidance of this question explains why so little of the debate is framed in terms of classical political theory on sovereignty and liberty: once Rousseau or Kant are brought into the analysis, there would simply be no way of ignoring this central question. It also explains why so-called political conceptions of human rights, (238) which offer accounts of the role of human rights in international practice without addressing the question of their moral foundations, are often invoked by both global constitutionalists and pluralists.
It cannot be said of constitutional pluralists, like Jean Cohen and Neil Walker, (239) that they ignore the liberty-state nexus. Their contribution, although originating from the debate between global constitutionalism and pluralism, advances argument in a different direction, largely by virtue of a greater clarity about the normative dimension of their position. Recognising the importance of the concept of sovereignty for the ideal of self-government, they call for a "reconceptualization and de-dramatization of sovereignty analysis ... not the premature abandonment of this concept." (240)
In spite of much common ground, the argument in this Article would probably be considered too statist and insufficiently pluralist by constitutional pluralists, in particular, the principle of sovereignty, that is the subjection of supranational sovereignty to state sovereignty, establishes a clear normative hierarchy in favour of the state that a constitutional pluralist would reject. However, it must be stressed that the principle of sovereignty as articulated in this Article applies to sovereignty transfers. It does not entail the proposition that all sovereignty must, in origin, belong to the state. The Lotus view of sovereignty, as analyzed above, is characterised precisely by a claim to this effect. Similarly, the idea that the legal order of the state is original while the legal order of international institutions is always derivative rests on this claim.
The question of whether a supranational legal order can be original rather than derivative is not one I have explored here. The argument that supranational sovereignty possesses distinct moral qualities could be developed to justify the view that some measure of original sovereignty must normatively belong to a supranational or even cosmopolitan entity, and that, with original sovereignty allocated between state and superstate on a principled basis, what follows a dualistic heterarchy rather than a hierarchy. The moral qualities of supranational sovereignty could also justify a non-dualist but shared conception of original sovereignty such as the one proposed by Habermas and others. (241) Nevertheless, with international institutions exercising sovereign functions in a very wide range of areas (from peace and security to trade; from foreign policy to monetary policy; from humanitarian assistance to the government of entire territories; and so on), short of embracing a purely cosmopolitan vision which replaces the claim of the state to all original sovereignty with that of a cosmopolis, one has to accept that there are situations where international institutions exercise sovereignty on the basis of a transfer from the state--which is why the question of the limits of sovereignty transfers is one that ought to matter for constitutional pluralists as well.
International law has a curious relationship with sovereignty. On the one hand, it holds sovereignty in awe. This is exemplified by the Lotus case, premised on a conception of sovereignty more absolutist than even Bodin had developed. On the other hand, sovereignty is often reviled by international lawyers as an expression of "egoism, arbitrariness and absolute power." (242)
These attitudes have one thing in common: They are both blind to the liberal dimension of sovereignty. To paraphrase Tocqueville, critics of sovereignty have seen some things very clearly, but they have often seen only one thing at a time. (243) They have seen the dark side of the state--the state as a violator of liberty. What they have failed to see is the liberal side of the state. Somewhat bizarrely, the development of the principle of self-determination, which is so closely related to those ideas of political liberty on which sovereignty also rests, has not always prompted a more comprehensive re-thinking about sovereignty. The debate on sovereignty largely continues to be defined in terms of either the simplified dialectics of statism versus anti-statism (or Lotus versus reaction to Lotus), or the inconclusive and ultimately narrow dialectics of the Schmitt-Kelsen debate. The debate on the democratic deficit of the EU and of international organisations has also shunned the complexity of arguments about liberty, sovereignty and the state.
To broaden this reflection with a more general remark on intellectual history, the search for the intellectual precursors of Nazi-Fascism did not help advance argument about sovereignty. Nazi-Fascism has often been seen as the final product of a particular conception of the state that prevailed in European and especially German thought in the nineteenth century. The consequence of this account has been to dismiss a variety of ideologies of the state, from liberal to conservative or liberal-nationalist, as tainted by the possibility or indeed the probability of degeneration into brutal nationalism and totalitarianism. (244) When souverainisme resurfaces in public and scholarly argument, for example in the context of the EU, this guilt-by-imputed-association has often been raised in response: Hegelian, Herderian or Schmittian are really code-words for that.
Today more than ever international law needs a theory of sovereignty that allows the discipline to outgrow both its foundational souverainisme and its reactive anti-souveranisime. The framing of the problem in terms of liberty and sovereignty questions is--I hope to have shown--a helpful starting point both for examining the constitutional and international jurisprudence which has, with varying degrees of self-awareness, grappled with these issues, and for developing a more general normative theory of sovereignty transfers and supranational sovereignty.
In a nutshell, my argument is that supranational sovereignty must remain subject to liberty and, insofar as state sovereignty continues to encapsulate political liberty and enable individual liberty, it must remain subaltern to state sovereignty too whenever sovereignty is transferred to it. The first qualification is of an absolute normative value. (245) The second one is contingent on the political, social, and historical circumstances that shape ethical consciousness. Supranational sovereignty does however possess distinct moral qualities that make the transfer of sovereignty to supranational actors desirable in many circumstances.
This approach lends support to the state's moral claim to legitimacy and authority. But it would be a mistake to view this as a dangerously regressive position. For better or for worse, the state does continue to define the space of political liberty. One may accuse human beings of being small-minded and unimaginative, but the alternative--to foist political institutions for which they are not yet prepared and to which they are not willing to give their loyalty--is worse. In a classical liberal perspective, the loyalties of individuals are crucial for the development and survival of political systems, and a "significant shift of power unaccompanied by a corresponding shift in loyalties ... threatens the legitimacy of both national and supra-national institutions." (246) Political liberty cannot be enjoyed in a space that is seen as distant, alien and abstracted from people's lives. In the present circumstances, loss of statehood (Entstaatlichung) would result in loss of liberty (Freiheitsverlust)--both in an individual and in a political sense.
International organisations already endowed with sovereignty and eager to acquire more risk finding themselves in an either-or situation: either become a super-state or remain illegitimate. As Joseph Weiler has put it, "[i]t would be more than ironic if a polity set up as a means to counter the excesses of statism ended up coming round full circle and transforming itself into a (super)State." (247) Rather than thinking within the box of existing categories of political organisation, they need to think of new ones and, over time, establish them as credible. (248) The challenge for them is to prove that it is not true that "there are a finite number of political forms" (249) all of which have already been discovered and experimented.
(1) A sovereignty purist would probably prefer to speak of sovereign-like powers in the case of international organisations to distinguish the derivative sovereignty of international organisations from the original sovereignty that pertains exclusively to the state. As discussed below, this approach finds support in the decision of the German Constitutional Court on the Lisbon Treaty. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] June 30, 2009, ENTSCHEIDUNGEN DES BUNDESVERFASSUNGSGERICHTS [BverfGE] 123, 267 (Ger.), available at http://www.bundesverfassungsgericht.de/entscheidungen/es20090630 2bve000208en.html [hereinafter Lisbon Decision].
(2) By sovereignty transfer I mean the voluntary or involuntary surrender of a previously held power, right, or function characterised as sovereign to another international legal person, as part of a legal arrangement designed to last. It might be argued that consent to any international obligation, whether through treaty or custom, entails the loss of some sovereignty: In accepting new binding limitations on its conduct, the state renounces a freedom it previously held. This is so, but it does not follow that any international obligation entails a sovereignty transfer. Even if every international obligation limits sovereignty, not every international obligation transfers sovereignty to another entity. The principle of non-refoulement, for example, limits the freedom of states to return refugees to their country of origin, but for this loss of sovereignty there is no correlated gain in sovereignty by another state or international organisation (there is, however, a gain in liberty for refugees). Another important point is that there can be no sovereignty transfer if there was no sovereignty to transfer in the first place. Let us take the example of the International Sea-Bed Authority. On one analysis, states created this organisation through a sovereignty transfer, that is by losing the sovereign powers they held over the sea-bed (and ocean floor and sub-soil thereof) under traditional international law, and by transferring those powers, or elements thereof, to an international organisation. On another analysis, the question of what rights states had over an area of the sea which was almost entirely beyond their reach in a technological sense is as abstract as that of what rights states had over the outer space in the days before outer space exploration was feasible. Once the technological capacities to exploit the seabed and to explore the outer space were developed, states might have acquired a raw power to that effect but not necessarily a right--unless, that is, one adheres to the Lotus-based idea that where there is no rule to the contrary a sovereign right must be presumed to exist.
(3) I have relied on the Suhrkamp edition of Kant's writings, IMMANUEL KANT, WERKE IN ZWOLF BA'NDEN (W. Weischedel ed., 1977), and, for the English translations, on IMMANUEL KANT, THE WORKS OF IMMANUEL KANT (Henry Allison et al. eds., Cambridge Univ. Press 1995-2007) [hereinafter THE CAMBRIDGE EDITION]. The most important writing for Kant's international political thought are: IMMANUEL KANT, Toward Perpetual Peace, in THE CAMBRIDGE EDITION: PRACTICAL PHILOSOPHY 311 (M. J. Gregor ed., 1999) (referencing "soulless despotism"); IMMANUEL KANT, Idea for a Universal History with a Cosmopolitan Aim, in THE CAMBRIDGE EDITION: ANTHROPOLOGY, HISTORY, AND EDUCATION 107 (G. Zoller & R.B. Louden eds., 2007); IMMANUEL KANT, On the Common Saying: "This May Be True in Theory but it Does Not Apply in Practice," in THE CAMBRIDGE EDITION: PRACTICAL PHILOSOPHY 273 (M. J. Gregor ed., 1999); IMMANUEL KANT, The Metaphysics of Morals, in THE CAMBRIDGE EDITION: PRACTICAL PHILOSOPHY 353 (M. J. Gregor ed., 1999) [hereinafter KANT, Metaphysics of Morals]; IMMANUEL KANT, Religion Within the Boundaries of Mere Reason, in THE CAMBRIDGE EDITION: RELIGION AND RATIONAL THEOLOGY 39 (A.W. Wood ed., 2001). An in-depth critical analysis of the text of Kant's Essay on Perpetual Peace is GEORG CAVALLAR, PAX KANTIANA: SYSTEMATISCH-HISTORISCHE UNTERSUCHUNG DES ENTWURFS "ZUM EWIGEN FRIEDEN" 100-252 (1992).
(4) I understand a cosmopolitan view to be one that seeks to replace the state as the central political entity with a world-wide political institution. I use the term "internationalist" to refer to softer forms of cosmopolitanism that generally welcome significant transfers of sovereignty from states to international organisations, but do not necessarily call for the demise of the state.
(5) There is no consensus among scholars on the legal nature of the EU, in particular, whether it still belongs to the genus of international organisations. One view is that it should be distinguished from other organisations because its purpose is integration rather than cooperation. M. V1RALLY, Definition and Classification of International Organisations: A Legal Approach, in THE CONCEPT OF INTERNATIONAL ORGANIZATION 51 (Georges Abi-Saab ed., 1981). The European Court of Justice has embraced this view since its decision in Case 6/64, Flaminio Costa v. ENEL, 1964 E.C.R. 585 (establishing the principle of the supremacy of EU law). Another view is that until the EU evolves into a proper federation, its extensive functions notwithstanding, there is no real factor that distinguishes it from other international organisations. HENRY SCHERMERS & NIELS BLOKKER, INTERNATIONAL INSTITUTIONAL LAW 19 (1999).
(6) The liberty deficit is different from the "democratic deficit," which has generated considerable debate, initially focussed on the EU but now extended to other international organisations. David Marquand is normally credited with first using the expression "democratic deficit." DAVID MARQUAND, PARLIAMENT FOR EUROPE 6 (1979). For one of the most insightful contributions to the debate on democratic deficit and the future of Europe, see generally LARRY SIEDENTOP, DEMOCRACY IN EUROPE (2001) (examining the poverty of constitutional thinking in the European Union). See also POLITICAL THEORY OF THE EUROPEAN UNION (Jurgen Nyer & Antje Wiener, eds., 2011) (addressing the democratic deficit in the EU). Authors who have discussed the democratic deficit of international organisations and international law in general include: GOVERNANCE AND THE DEMOCRATIC DEFICIT: ASSESSING THE DEMOCRATIC LEGITIMACY OF GOVERNANCE PRACTICES (Victor Bekkers, Geske Dijkstra, Arthur Edwards & Menno Fenger eds., 2007) (offering a variety of historical, empirical and normative assessments of democratic deficit in regional and international governance); HANS BORN & HEINER HANGGI, THE 'DOUBLE DEMOCRATIC DEFICIT': PARLIAMENTARY ACCOUNTABILITY AND THE USE OF FORCE UNDER INTERNATIONAL AUSPICES (2004) (arguing that the use of force under international auspices has often taken place with little regard to democratic accountability); JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 205 24 (2005); STEPHEN WHEATLEY, THE DEMOCRATIC LEGITIMACY OF INTERNATIONAL LAW (2010) (arguing that the lack of democratic legitimacy in international institutions should not be addressed by replicating domestic models); Robert A. Dahl, Can International Organisations Be Democratic? A Skeptic's View, in DEMOCRACY'S EDGES 19 (Ian Shapiro & Casiano Hacker Cordon eds., 1999) (maintaining that international organisations cannot operate in a democratic way); Andreas L. Paulus, Subsidiarity, Fragmentation and Democracy, in THE SHIFTING ALLOCATION OF AUTHORITY IN |NTERNATIONAL LAW 193 (Tamer Broude & Yuval Shany eds., 2008) (discussing the tension in the international system between growing demands for democracy and the steady movement towards technocracy and fragmentation).
(7) The literature on UN compliance with human rights has grown steadily over the last few years. See ANDREW CLAPHAM, HUMAN RIGHTS OBLIGATIONS OF NON-STATE ACTORS (2006) (providing a doctrinal analysis of the formation of international legal obligations for non-state actors); GUGLIELMO VERDIRAME, THE UN AND HUMAN RIGHTS: GUARDING THE GUARDIANS (2011) (examining the legal issues arising from the failure of the UN to observe human rights obligations); Mac Darrow & Louise Arbour, The Pillar of Glass: Human Rights in the Development Operations of the United Nations, 103 A.J.I.L. 446 (2009) (discussing the uncertain position of human rights in the development operations of the UN); Frederic Megret & Florian Hoffmann, The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities, 25 HUM. RTS. Q. 314 (2003) (providing one of the first analyses in the legal literature of violations of human rights committed by the UN); Chanaka Wikremasinghe & Guglielmo Verdirame, Responsibility and Liability for Violations of Human Rights in the Course of UN Field Operations, in TORTURE AS TORT: COMPARATIVE PERSPECTIVES ON THE DEVELOPMENT OF TRANSNATIONAL HUMAN RIGHTS LITIGATION 466 (Craig Scott ed., 2001) (discussing the difficulties with implementing responsibility vis-a-vis the UN for breaches of human rights). Other studies have focused on specific activities of the UN. See, e.g., GUGLIELMO VERDIRAME & BARBARA HARRELL-BOND, RIGHTS IN EXILE" JANUSFACED IIUMANITARIANISM (2005) (discussing the administration of refugee camps); MARTEN ZWANENBURG, ACCOUNTABILITY OF PEACE SUPPORT OPERATIONS (2005) (discussing peacekeeping); Guglielmo Verdirame, Testing the Effectiveness of International Norms: UN Humanitarian Assistance and Sexual Apartheid in Afghanistan, 23 HUM. RTS. Q. 733 (2001) (discussing the provision of humanitarian assistance in breach of the principle of discrimination).
(8) GRUNDGESETZ FUR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGBI. 24(1) (Ger.); Art. 11 Costituzione [Cost.] (It.).
(9) JEAN-JACQUES ROUSSEAU, EMILE OR ON EDUCATION 466 (A. Bloom trans., 1979).
(11) See Quentin Skinner, The Sovereign State: A Genealogy, in SOVEREIGNTY IN FRAGMENTS: THE PAST, PRESENT AND FUTURE OF A CONTESTED CONCEPT 26 (Hent Kalmo & Quentin Skinner eds., 2010) (giving a history of the concept of the sovereign state).
(12) See Guglielmo Verdirame, 'The Divided West': International Lawyers in Europe and America, 18 E.J.I.L. 553 (2007) (discussing the anti-theoretical disposition of international law scholarship on the two sides of the northern Atlantic).
(13) In this Article I do not use the terms liberal and liberalism with the meaning they have acquired in political debates in the United States, where they are essentially synonymous with leftwing. Nor do I use them as shorthand for the fundamental attributes of the present international order a usage that has become common in much international law and international relations scholarship (and where, more often than not, the so-called liberal theory of the international order plays the role of straw-man). The liberal tradition is far more diverse and nuanced than its critics are often prepared to admit. For example, see Larry Siedentop, Two Liberal Traditions, in FRENCH LIBERALISM FROM MONTESQUIEU TO THE PRESENT DAY (Raf Geenens & Helena Rosenblatt eds., 2012) (discussing the differences between French and English liberalism). Two excellent comprehensive studies of Western liberalism are GUIDO DE RUGGIERO, STORIA DEE LIBERALISMO EUROPEO (1925), published in English as HISTORY OF EUROPEAN LIBERALISM (R. G. Collingwood trans., 1977), and HISTOIRE DU LIBERALISME EN EUROPE (Philip Nemo & Jean Petitot eds., 2006).
(14) An exception is the work of Jean Cohen to which I refer extensively. The theory of constitutional pluralism, as developed by Cohen and Neil Walker, is one with which my argument has considerable affinity. JEAN L. COHEN, GLOBALISATION AND SOVEREIGNTY: RETHINKING LEGALITY, LEGITIMACY, AND CONSTITUTIONALISM (2012) (developing a comprehensive account of constitutional pluralism as both explanatory and normative theory); Neil Walker, The Idea of Constitutional Pluralism, 65 MOD. L. REV. 317 (2002) (setting out the main tenets of constitutional pluralism).
(15) LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 8 (1995).
(16) Corte Cost., 16 December 1965, n. 98 (It.). On the Italian constitutional jurisprudence, see generally M. Cartabia, Principi Inviolabili e Integrazione Europea (1995) (discussing the impact of European integration on fundamental constitutional principles).
(17) CorteCost., 18 December 1973, n. 183 (It.); CorteCost., 5 June 1984, n. 170 (It.).
(19) A thorough analysis of the jurisprudence of constitutional courts in Europe on these issues is found in: K. J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe 64-181 (2003) (discussing Germany and France).
(20) Bundesveffassungsgericht [BVerfG] [Federal Constitutional Court] May 29, 1974, BVerfGE 37, 271 (English trans, at 93 I.L.R. 362) ("Solange I") (Ger.). The literature on German constitutional jurisprudence on Europe is vast. Articles published in English include: Dieter Grimm, The European Court of Justice and National Courts: The German Constitutional Perspective after the Maastricht Decision, 3 Colum. J. Eur. L. 229 (1997); Pavlos Eleftheriadis, Begging the Constitutional Question, 36 J. of Common Mkt. Stud. 255 (1998); M. Herdegen, Maastricht and the German Constitutional Court." Constitutional Restraints for an Ever Closer Union, 31 Common Mkt. L. Rev. 235 (1994); Julia Kupfer, How the European Community's Banana Regulation Brought Back Solange II: The German Constitutional Court's" Decision of June 7, 2000, 7 Colum. J. Eur. L. 405 (2001); MacCormick, The Maastricht-Urteil: Sovereignty Now, 1 Eur. L.J. 259 (1996); J.H.H. Weiler, Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision, 1 Eur. L.J. 219 (1995).
(21) Id. at 390.
(22) Id. at 395.
(23) Case 4/73, Sold v. Comm'n, 1974 E.C.R. 491,507. For a full discussion of this line of cases of the European Court of Justice, see Andrew Clapham, Human Rights Obligations Of Non-state Actors 180-85 (2006). The conferral of human rights competence on the EU has radically changed the legal landscape on these matters.
(24) Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Oct. 22, 1986, BVerfGE 73,339; Case No. 2 BvR 197/83, 93 ILR 403,433,436 ("Solange II") (Ger.).
(25) Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Oct. 15, 1993, BVerfGE 89, 155; Case No. 2 BvR 2134/92 & 2159/92,  1 C.M.L.R. 57, para. 13 [hereinafter the Maastricht Decision or the Brunner case]. This decision, like those that preceded it, has been the object of extensive academic commentary. For a synoptic discussion, see H. Gerald Crossland, Three Major Decisions Given by the Bunderverfassungsgericht (Federal Constitutional Court), 19 Eur. L. Rev. 202, 205 (1994).
(26) Maastrict Decision, supra note 25, [paragraph] 13.
(27) Id. [paragraph] 52.
(28) Id. [paragraph] 107.
(29) See Federico Mancini, Europe: The Case for Statehood, 3 Eur. L.J. 29 (1998); see also Manfred Zuleeg, The European Constitution under Constitutional Constraints: The German Scenario, 22 Eur. L. Rev. 19 (1997). It may also be worth noting, en passant, that the "nationalist" label attached to Herder and Schmitt conceals fundamental differences between these two thinkers. Herder is representative of post-Enlightenment German philosophy, still inspired by the emancipatory promise of the Enlightenment but also animated by new ideas about national identity. Yet describing Herder as a forerunner of dangerous forms of nationalism is, to say the least, ungenerous. A similar description applied to Schmitt would risk giving too much credit to a thinker who is quite rightly tainted by his association with Nazism: No mere forerunner, Schmitt was the frontrunner of a theory of the state and sovereignty that is directly connected to national-socialist ideology.
(30) In the years between Brunner and Lisbon, the "banana litigation" erupted: Lower courts in Germany sought to rely on Brunner in various claims brought by German banana importers, until the German Constitutional Court put an end to this stream of litigation by declining to exercise its reserved jurisdiction on the grounds that the European legal order afforded equivalent protection. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Nov. 26, 1996, BVerfGE 102, 147; Case no. 2 BvL 1/97, 21 HUM. RTS. L.J. 251 (2000). On the "banana litigation" in lower German courts before the ruling of the Constitutional Court, see Norbert Reich, Judge-made "Europe h la carte": Some Remarks on Recent Conflicts between European and German Constitutional Law Provoked by the Banana Litigation, 7 Eur. J. Int'l. L. 103 (1996). See generally Lisbon Decision, supra note 1.
(32) Id. [paragraph] 100.
(33) Id. [paragraph] 216.
(34) Id. [paragraph] 226.
(35) Id. [paragraph] 249.
(36) Id. [paragraph] 231.
(37) Id. [paragraph] 231.
(38) Id. [paragraph] 246.
(39) Armin von Bogdandy, Prinzipien der Rechtsfortbildung im Europdischen Rechtsraum: Uberlegungen zum Lissabon-Urteil des BVerfGE, 64 Neue Juristische Wochenschrift 1-5 (2010); Alfred Grosser, The Federal Constitutional Court Lisbon Case: Germany's Sonderweg--An Outsider's Perspective, 10 Ger. L.J. 1263 (2009); Daniel Halberstam & Christoph Mollers, The German Constitutional Court Says "Ja zu Deutschland", 10 Ger. L.J. 1241 (2009); Jo Eric Khushal Murkens, Bundesverfassungsgericht (2 BvE 2/08): "We Want Our Identity Back"--the Revival of National Sovereignty in the German Federal Constitutional Court's Decision on the Lisbon Treaty, 2010 Pub. L. 530 (2010); Mattias Wendel, Lisbon Before the Courts: Comparative Perspectives, 7 Eur. Const. L.R. 96 (2011).
(40) Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Sept. 12, 2012, Massnahmen zur Griechenland-Hilfe und zum Euro-Rettungsschirm, BVerfGE 129, 124 2 BvR 987/10 & 1485/10 & 1099/10 [hereinafter The Aid to Greece Decision]; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Sept. 12, 2012, Ratifikation des Vertrages zur Einrichtung des Europaischen Stabilitatsmechanismus, 2 BvR 1390/12, 2 BvR 1421/12, 2 BvR 1438/12, 2 BvR 1439/12, 2 BvR 1440/12 [hereinafter the European Stability Treaty Decision].
(41) The Aid to Greece Decision, supra note 40, [paragraph] 136 (translation by author).
(42) Id. [paragraph] 128 (translation by author).
(43) Wolfgang Munchau, Stop Rejoicing: This Was No Victory for the Euro, Fin. Times (Sept. 11, 2011), http://www.ft.com/intl/cms/s/O/e39dcac6-dae9-11e0-a58b-00144feabdc0.html#axzz2TKfo7JH1
(44) J.H.H. Weiler, The Lisbon Urteil and the Fast Food Culture, 29 Eur. J. Int'l L. 505, 520 (2009). Some authors have argued that the post-Lisbon jurisprudence signals a retreat of the Court from its more extreme positions of the past. E.g., Asterios Pliakos & Georgios Anagnostaras, Who is the Ultimate Arbiter? The Battle over Judicial Supremacy in EU Law, 36 Eur. L. Rev. 119, 121 (2011). In particular, the Court has had at least two opportunities to apply the constitutional principles it set out in the Lisbon judgment and issue a declaration of unconstitutionality. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 2, 2010, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08 [hereinafter the Data Protection Decision], available at http://www.bundesverfassungsgericht.de/en/decisions/rs20100302_1bvr025608.html; Bundesverfassungsgericht [BVerwG] [Federal Constitutional Court] July. 6, 2010, BVerfGE 126, 286; 2 BvR 2661/06 [hereinafter the Honeywell Decision], available at http://www.bundesverfassungsgericht.de/entscheidungen/rs201007062bvr266106en.html. In one case, it chose not to declare unconstitutional the national legislation adopted to implement the Data Retention Directive; in another, it rejected a constitutional complaint which had alleged that the interpretation of EU law on discrimination by the ECJ was ultra vires on the grounds that, while it is constitutionally competent to review ultra vires acts of EU institutions, the threshold of transgression must be set at a very high level.
(45) The final sentence of paragraph 220 of the European Stability Treaty Decision reads: "In this context, an essential element of safeguarding the constitutional requirements resulting from Article 20 (1) and (2) in conjunction with Article 79 (3) of the Basic Law in European Union Law is the prohibition of monetary financing by the European Central Bank." European Stability Treaty Decision, supra note 40, [paragraph] 220.
(46) See Skinner, supra note 11, at 128 (for usage of the term souverainiste).
(47) Sadurski argues that these courts entangled themselves in a paradox: They see membership of the EU as a guarantee for democracy, the rule of law and human rights and yet, by adopting Solange, they also embrace a democracy and human rights-based argument against the EU. Wojeiech Sadurski, "Solange, Chapter 3": Constitutional Courts in Central Europe-democracy European Union, 14 Eur. L.J. 1, 4 (2008). However, it is a paradox that should hardly trouble us: Even if membership of the EU did in some ways strengthen democracy, human rights and the rule of law, it does not follow that the EU should be given carte-blanche on those matters.
(48) Nalez Ustavniho soudu ze dne 26.11.2008 (US) [Decision of the Constitutional Court of Nov. 26, 2008] sp.zn. 19/08 (Czech) (Treaty of Lisbon I) (English translation available at http://www.usoud.cz/en/decisions (search for "19/08"). Other leading cases of the Czech Constitutional Court are the sugar quotas cases (Nalez Ustavniho soudu ze dne 03.08.2006 (US) [Decision of the Constitutional Court of Aug. 3, 2006], sp.zn. 50/04, available at http://www.usoud.cz/en/decisions (search for "50/04")) and the European arrest warrant case (Nalez Ustavniho soudu ze dne 05.03.2006 (US) [Decision of the Constitutional Court of Mar. 5, 2006] sp.zn. 66/04, available at http://www.usoud.cz/en/decisions (search for "66/04")). See also Mattias Wendel, Lisbon Before the Courts: Comparative Perspectives, 7 Eur. Const. L. Rev. 96, 105-06 (2011).
(49) Id. (Treaty of Lisbon I decision) [paragraph] 97.
(50) Id. [paragraph] 110.
(51) Nalez Ustavniho soudu ze dne 3.11.2000 (US) [Decision of the Constitutional Court of Mar. 11, 2000], sp.zn. 29/09 (Treaty of Lisbon 11) [paragraph] 111, available at http://www.usoud.cz/en/decisions/(search for "29/09").
(52) Wendel, supra note 48, at 126-27.
(53) Conseil Constitutionnel [CC] [Constitutional Court] decision No. 2007-560DC, Dec. 12, 2007, Rec. 459 (Fr.).
(54) Id. [paragraph][paragraph] 7-8.
(55) Recent French constitutional jurisprudence on the implementation of EU directives aligns with the souverainiste liberalism of the Lisbon decision of the Conseil Constitutionnel. On a number of occasions the Conseil grounded the refusal to implement directives in their contrariety to the "constitutional identity of France." See generally Conseil Constitutionnel [CC] [Constitutional Court] decision No. 2006-540DC, July 27, 2006, Rec. 88 (Fr.) (striking down as unconstitutional certain provisions of a statute on copyright enacted to give effect to an EU directive); Conseil Constitutionnel [CC] [Constitutional Court] decision No. 2011-631DC, June 9, 2011, J.O. 10306 (Fr.) ((striking down as unconstitutional certain provisions of a statute on immigration enacted to give effect to an EU directive).
(56) Fernando Castillo de la Torre, Tribunal Constitucional, Opinion 1/2004 of 13 December 2004, on the Treaty Establishing a Constitution for Europe. 42 Common Mkt. L. Rev. 1169 (2005) (citing the Declaration of the T.C., Dec. 13, 2004 (Spain), available at http://www.tribunalconstitucional.es/es/jurisprudencia/restrad/Paginas/DTC122004en.aspx). As is well known, the Constitutional Treaty never entered into force, but many of its provisions were inserted into the Treaty of Lisbon.
(58) See, e.g., Joined Cases C-188/10 & C-189/10, In re Melki, 2010 E.C.R. 1-05667 (dealing with the compatibility with EU law of national legislation granting priority to an interlocutory review of constitutionality).
(59) Murkens, supra note 39, at 530.
(60) R. v. Ex parte Factortame (2),  1 AC 603 (H.L.) (Eng.).
(61) Id. [paragraph] 4 (Lord Bridge).
(62) Tom Bingham, The Rule of Law 164 (2010).
(63) The leading post-Factortame authority on parliamentary sovereignty--Jackson v. Her Majesty's Att'y Gen.,  UKHL 16 (Eng.) did not arise from the UK membership of the EU. Some judges observed en passant that membership EU was one of a number of developments that had changed the nature of the principle of parliamentary sovereignty. E.g., id. [paragraph] 102 (Lord Steyn).
(64) Al-Skeini v. Sec' of State for Def.,  UKHL 26 (Lord Bingham dissenting) (on appeal from  EWCA Civ 1609) (Eng.).
(65) Al-Jedda v. Sec'y of State for Def.,  UKHL 58,  1 A.C. 332 (H.L.)  (appeal taken from  EWCA (Civ) 327 (Eng.)) (Lord Bingham). See also Francesco Messineo, The House of Lords in Al-Jedda and Public International Law: Attribution of Conduct to UN-Authorized Forces and the Power of the Security Council to Displace Human Rights, LVI Netherlands Int'l L. Rev. 35, 39 (2009); see also Amanda Perreau-Saussine, British Acts of State in English Courts, 2008 Brit. Y.B. Int'l L. 179, 214-18.
(66) Al-Jedda [paragraph] 39. As pointed out by Milanovic, the speeches of Lady Hale and Lord Carswell contain similar qualifications. Baroness Hale maintained that the right was "qualified" but not "displaced" and that this was "an important distinction, insufficiently explored in the all or nothing arguments with which we were presented." ([paragraph] 126; see [paragraph][paragraph] 130, 136 per Lord Carswell). (2009).Unfortunately, she does not explore this distinction in her speech, and it is not clear whether there is any merit to it or not. See also Marko Milanovic, Norm Conflict in International Law: Whither Human Rights?, 20 Duke J. Comp. & Int'l L. 69, 82 83 (2009).
(67) Al-Jedda v. United Kingdom, 354 Eur. Ct. H.R. 1092, [paragraph] 109 (2011).
(68) This decision arose from different cases which were joined in one: Her Majesty's Treasury (Respondent) v. Jabar Ahmed and others (Appellants); Her Majesty's Treasury (Respondent) v. Mohammed al-Ghabra (Appellant); R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v. Her Majesty's Treasury (Appellant), collectively at  UKSC 2 (H.L.) (Eng.) ( appeal taken from  EWCA (Civ) 1187).
(69) Id. [paragraph] 76 (Lord Hope).
(70) Id. [paragraph] 154 (Lord Phillips).
(71) United Nations Act, 1946, 9 & 10 Geo. 6, c. 45, [section] 1 (U.K.).
(72) The Simms principle is found in R v. Sec'y of State for the Home Dep't, Ex parte Simms and another,  2 A.C. 115 (H.L.) 131 [paragraph] 193 (appeal taken from  Q.B. 349; ) Eng.) (Lord Hoffmann).
(73) In his classic study of the origins of the idea of popular sovereignty, Edmund Morgan summarizes this strategy as follows: "[The Commons] did not say to themselves, 'The king is wise and good. Therefore let us do what he wants.' Instead, they said, 'The king is wise and good, Therefore he must want what we want.'" Edmund Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America 29-30 (1988).
(74) In spite of the different position under the United Nations Act 1946, the reconciliation of Al Jedda with Jabar Ahmed remains difficult. The detention of Al-Jedda was based on a resolution adopted under Article 42, but it does not follow from this that the detention was an act within the prerogative of the Crown. Whether an act is within the prerogative or not is a constitutional question, which cannot be resolved on the basis of the classification of the measure under the UN Charter. Jabar Ahmed highlights the problematic nature of the domestic legal basis of the detention of A1-Jedda: It was not pursuant to an order in terms of Section 1 of the United Nations Act, nor was it an exercise of prerogative powers. If not a logical contradiction, there is at least some tension between Jabar Ahmed and Al-Jedda: The former says that the United Kingdom cannot violate human rights in giving effect to a Security Council decision adopted under Chapter VII; the latter says the opposite.
(75) Courts that resisted the principle of normative supremacy of Security Council resolutions include the Federal Court of Canada and the Bosnian Constitutional Court. In Abdelrazik v. Canada, the Federal Court of Canada ruled that the sanctions regime under Security Council Resolution 1267 constitutes "a denial of basic legal remedies" and is also "untenable under the principles of international human rights." Abdelrazik v. Canada,  1 F.C. 580, para. 51 (Can. F.C.). See also Antonios Tzanakopoulos, Disobeying the Security Council 87-111 (2010); A. Tzanakopoulos, An Effective Remedy for Josef K. Canadian Judge Defies Security Council Sanctions through Interpretation, Eur. J. International L. Blog (June 19, 2009), http://www.ejiltalk.org/an-effectiveremedy-for-josef-k-canadian-judge-defies-security-council-sanctions-through- interpretation. The Bosnian case on the effect of Security Council resolutions is Milorad Bilbija et al., No. AP-953/05, Constitutional Court of Bosnia, Mar. 23, 2007. In the United States, it is also settled law that the UN Charter "does not and cannot expand the scope of presidential war-making power." Michael J. Glennon, The Cost of "Empty Words": A Comment on the Justice Department's Libya Opinion 9 (2011), available at http://harvardnsj.org/wp-content/uploads/2011/04/Forum_Glennon_Final-Version.pdf.
(76) The term "executive-mindedness" comes from Lord Atkin's famous dissenting opinion in Liversidge v Anderson where he criticised his colleagues for being "more executive-minded than the executive" in a case concerning the liberty of the subject in times of emergency. Liversidge v. Anderson,  A.C. 206 (H.L.)  (Eng.). An illustration of executive-mindedness is in this candid remark in Baroness Hale's speech in AI-Jedda: "It would be so much simpler if the European Convention on Human Rights had contained a general provision to the effect that the rights guaranteed are qualified to the extent required or authorised by United Nations resolutions." Al-Jedda v. Sec'y of State for Def.,  UKHL 58,  1 A.C. 332 (H.L.) .
(77) Adjudication of the liberty and sovereignty questions by international courts raises difficult issues of responsibility, concerning in particular the attribution of conduct and the responsibility of a state in connection with the act of an international organisation. The International Law Commission has adopted a series of draft articles on the Responsibility of International Organisations which address some of these issues. See Rep. of the Int'l Law Comm'n, 64th Sess., May 7-June 1, July 2-Aug. 3, 2012, U.N. Doc. A/64/10; GAOR, 67th Sess., Supp. No. 10 (2012). The analysis that follows that does not deal with these questions of responsibility, which I have examined elsewhere. See Verdirame, The UN and Human Rights, supra note 7, at 91-143.
(78) M. & Co. v. Germany, App. No. 13258/87, 64 Eur. Comm'n H.R. Dec. & Rep. 138, (declaring inadmissible an application alleging that a ruling of the ECJ violated the human rights of the applicant) (1990).
(79) Id. at 6.
(80) Matthews v. United Kingdom, 2009-III 28 Eur. H.R. Rep. 361; Bosphorus v. Ireland, 2005-VI Eur. Ct. H.R. 1999.
(81) Matthews, 2009-III 28 Eur. H.R. Rep. 361.
(82) Id. [paragraph] 31.
(83) Id. [paragraph] 34.
(84) Id. [paragraph] 33.
(85) Bosphorus, 2005-VI Eur. Ct. H.R. 1999, [paragraph][paragraph] 149-66.
(86) In Nada v. Switzerland, 2012-II Eur. Ct. H.R. 1691, the Court treated as discretionary an act that was probably necessary. The act in question was the Swiss implementation of a binding decision of the Security Council imposing sanctions on Mr. Nada. This characterisation has been criticised. See, e.g., Antonios Tzanakopoulos, Sharing Responsibility for UN Targeted Sanctions, Eur. J. Int'l L. Blog (Feb. 14, 2013), http://www.ejiltalk.org/sharing-responsibility-for-un-targeted-sanctions/.
(87) Nada, 2012-II Eur. Ct. H.R. 1691, [paragraph][paragraph] 156, 166.
(88) Boivin v. France and Belgium, 2008-I Eur. Ct. H.R. 2.
(89) Id. [paragraph] 6.
(90) Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. Netherlands, 2009-I Eur. Ct. H.R. 19.
(92) Bosphorus, 2005-VI Eur. Ct. H.R. 1999, [paragraph] 155.
(93) Joined Cases Behrami v. France and Saramati v. France, Germany, & Norway, App. Nos. 71412/01 & 78166/01, 45 Eur. H.R. Rep. 85 (2007). Case notes on Behrami and Saramati include Marko Milanovic & Tatjana Papic, As Bad As It Gets: The European Court of Human Rights" Behrami and Saramati Decision and General International Law, 58 INT'L & COMP. L. Q. 267, 268 (2009) (concluding that the ECHR's decision was "at odds with the established rules of responsibility in international law"); Guglielmo Verdirame, Breaches of the European Convention on Human Rights Resulting from the Conduct of International Organisations, 2 Eur. Hum. Rts. L. R. 209, 212-13 (2008).
(94) In Al-Jedda, Lord Bingham distinguished the position of the multinational force in Iraq from that of KFOR because "[t]he analogy with the situation in Kosovo breaks down ... at almost every point." Al-Jedda v. Sec'y of State for Def.,  UKHL 58,  1 A.C. 332 (H.L.)  (appeal taken from Eng.). Lord Rodger, dissenting from the majority in that case, opined instead that Behrami was not distinguishable, ld. . Both views are premised on what Messineo rightly characterises as the false alternative between attribution to the state and to the UN. Francesco Messineo, The House of Lords in Al-Jedda and Public International Law: Attribution of Conduct to UN-Authorized Forces and the Power of the Security Council to Displace Human Rights, LVI Netherlands Int'l L. Rev. 35, 39 (2009).
(95) Behrami, 45 Eur. H.R. Rep. at [paragraph] 151 (emphasis added).
(96) The Behrami reasoning on attribution has also come under criticism by Giorgio Gaja, the ILC Special Rapporteur on the responsibility of international organisations. See Giorgio Gaja, Seventh Report on Responsibility of International Organisations, [paragraph] 30, UN Doc. A/CN.4/610 (Mar. 27, 2009). As I argued elsewhere, the fact that the impugned conduct in Behrami and Saramati took place outside the territory of the respondent states probably had a bearing on the outcome. Equivalent protection has normally been considered in relation to conduct within the territory of the respondent states. As the references to territory in the above-cited passage indicate, extraterritoriality resonated beyond the determination of territorial jurisdiction. Faced with the prospect of a significant expansion in its jurisdiction over peacekeeping operations as a result of the combined effect of its jurisprudence on extraterritoriality and on equivalent protection, the court chose to apply the brakes-a legitimate policy objective perhaps but one that required a properly reasoned juridical basis.
(97) Cedric Ryngaert, The European Court of Human Rights' Approach to the Responsibility of Member States in Connection with Acts of International Organisations, 60 Int'l & Comp. L.Q. 997, 1010 (2011).
(98) Waite & Kennedy v. Germany, 1999-1 Eur. Ct. H.R. 393, [paragraph] 67. For a full analysis of the jurisprudence of the European Court of Human Rights on the immunities of international organisations, see August Reinisch, The Immunity of International Organisations and the Jurisdiction of their Administrative Tribunals, 7 Chinese J. Int'l L. 285 (2008), which also considers the jurisprudence of national courts like the French and Italian Courts of Cassation.
(99) Waite & Kennedy, [paragraph] 68.
(100) Id. [paragraph] 72.
(101) Boivin v. Thirty-four State Members of the Council of Europe, 2008 Eur. Ct. H.R. 6.
(102) A similar approach characterized the judgments in Kokkelvisserij v. Netherlands, 2009 Eur. Ct. H.R. 13; Connolly v. Fifteen Member States of the EU, App. No. 73274/01 Eur. Ct. H.R. (Dec. 9, 2008).
(103) Gasparini v. Italy, 2009-XI Eur. Ct. H.R. 3 (available only in French). For a discussion of this case, see Ryngaert, supra note 97.
(104) Gasparini, 2009-XI Eur. Ct. H.R. at 4 (transl. by author).
(105) Id. at 10.
(106) Id. at 7.
(107) On the doctrinal challenges, see Verdirame, The UN and Human Rights supra note 7, at 104-13, 375-84.
(108) The Human Rights Committee has not yet developed its own version of equivalent protection. One of its most widely discussed recent decisions, Sayadi v. Belgium, would have provided an opportunity to do so. Comm. No. 1472/2006, U.N. Doc. CCPR/C/94/D/1472/2006. This case arose from a communication brought to the Human Rights Committee under the Optional Protocol of the International Covenant on Civil and Political Rights by a Belgian couple "black-listed," as in Kadi, by the 1267 Committee. The Human Rights Committee found that Belgium had violated Articles 12 (freedom of movement) and 17 (right to privacy) of the International Covenant on Civil and Political Rights, essentially because Belgian authorities were responsible for the presence of the couple on the Security Council lists, having communicated to the Sanctions Committee their personal information and details in the first place. Some members of the Committee appended individual opinions, with one in particular dissenting from the argument that the mere transmission of information to the Security Council could constitute a violation of the Covenant and pointing out that "it was not Belgium that ordered the authors' listing. ..." Id. at 32. Causation is one of the doctrinal issues that is too often barely, if at all, examined in equivalent protection or equivalent protection-type cases; Sayadi and Vinck suffered from such a flaw.
(109) See generally Joined Cases C-402/05 P & C-415/05 P, Kadi v. Council & Comm'n, 3 C.M.L.R. 41 (2008). For further discussion of Kadi, see Gianluigi Palombella, The Rule of Law Beyond the State: Failures, Promises and Theory, 7 Int'l J. Const. L. 442 (2009) (examining the challenge posed by Kadi and other decisions to a traditional understanding of the rule of law and making the case for a re-statement of this idea in light of these developments) August Reinisch, Should Judges Second-Guess the UN Security Council, 35 Int'l. Org. L. Rev. 257 (2009) (discussing theoretical and practical challenges to the review of the decisions of the Security Council by international and domestic courts).
(110) Kadi, 3 C.M.L.R. 41, [paragraph] 256.
(111) Id. [paragraph][paragraph] 320-25.
(112) Id. [paragraph] 319.
(113) Id. [paragraph] 326.
(114) Id. [paragraph] 327. With such telling elements, it is difficult to see how the contention that Kadi contains aspects of equivalent protection can be dismissed as "beauty that comes from the eye of the beholder." Joseph H.H. Weiler, Editorial, 19 Eur. J. Int'l L. 896, 899 (2008).
(115) See, e.g., Case 4/73, Nold v. Comm'n, 1974 E.C.R. 491,507.
(116) See Article 2 of the Treaty on European Union (as amended by the Treaty of Lisbon), which provides that the EU is founded, inter alia, on the value of respect for human rights; and Article 6(2) in the same Treaty, which obliges the EU to accede to the ECHR. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, O.J. (C 306) 2, 6(2) [hereinafter Treaty of Lisbon]. The interesting history of human rights in the EU has been told by Grainne de Burca, The Road Not Taken: The European Union as a Global Human Rights Actor, 105 Am. J. Int'l L. 649 (2011).
(117) This is illustrated, for example, by the Melki case, supra note 58, in which the Grand Chamber of the ECJ held that the effectiveness of EU law would be undermined if national courts failed to not apply a rule of national law, requiring courts to rule, as a matter of priority, on the submission to the constitutional court of a question of constitutionality, where a question of compatibility with EU law also arises.
(118) James Crawford, The Creation of States in International Law 41-42 (2d ed. 2006).
(119) Martti Koskenniemmi, The Politics Of International Law 44 (2011).
(120) Lotus, Judgment No. 9, 1927 P.C.I.J. (ser. A) No. 10, at 18.
(122) Id. at 19.
(123) Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403,478 (July 22) (declaration of Judge Simma) [hereinafter Kosovo Opinion].
(124) Id. at 436.
(125) Id. at 478.
(126) A similar point was expressed by the German poet Heinrich when he wrote: "Take note of this, you proud men of action. You are nothing but the unconscious servants of those men of thought, who, often in modest silence, have plotted out all of your doings in advance. Maximilian Robespierre was nothing but the hand of Jean Jacques Rousseau, the bloody hand, which, from the womb of this time, pulled out a body for the soul which Rousseau made." Heinrich Heine, On the History of Religion and Philosophy in Germany and Other Writings 77 (Terry Pinkard ed., 2007).
(127) See the discussion of Lotus in Part II.F.
(128) Lisbon Decision, supra note 1, [paragraph][paragraph] 212, 392-93. See also the Maastricht Decision, supra note 25, [paragraph] 13, which states:
The Federal Constitutional Court by its jurisdiction guarantees that an effective protection of basic rights for the inhabitants of Germany will also generally be maintained as against the sovereign powers of the Communities and will be accorded the same respect as the protection of basic rights required unconditionally by the Constitution.
(129) Kant, Metaphysics of Morals, supra note 3, at 483.
(130) Id. at 487.
(131) Kant, Perpetual Peace, supra note 3, at 336.
(132) See Massimo Mori, La Pace e La Ragione 130 (2004).
(133) Jurgen Habermas, Kant's Idea of Perpetual Peace, with the Benefit of Two Hundred Years' Hindsight, in Perpetual Peace: Essays on Kant's Cosmopolitan Ideal 113, 117 (James Bohman & Matthias Lutz eds. 1997). For an interpretation of Kant that leaves open the possibility of transferring sovereignty to an international organisation, see Pavlos Eleftheriadis, Cosmopolitan Law, 9 E.L.J. 241,245 n. 13 (2003). Contra Patrick Capps & Julian Rivers, Kant's Concept of International Law, 16 Legal Theory 229, 243 (2010).
(134) John Rawls, The Law of Peoples 36 (1999).
(135) Kant, Religion within the Limits" of Reason Alone, supra note 3, at 153. Kant expounded his ideas on progress in human history in The Conflict of the Faculties--an Old Question Raised Again: Is the Human Race Constantly Progressing? in The Cambridge Edition: Religion and Rational Theology 297-309 (A.W. Wood ed. 2001); see also Amanda Perreau-Saussine, Immanuel Kant on International Law, in The Philosophy of International Law 1.2 (Samantha Besson & John Tasioulas eds., 2010); Capps & Rivers, supra note 133 (discussing of Kant's international legal theory).
(136) See Perreau-Saussine, supra note 135, at 56.
(137) See Kant, On the Common Saying, supra note 3, at 63.
(138) J. G. Fichte, Review of Immanuel Kant, Perpetual Peace: A Philosophical Sketch, 32 The Philosophical Forum 311 (2001).
(139) Mori, supra note 132, at 116-18. These arguments are however still empirical and do not absolve Kant from the charge of having formulated an international political theory that contradicts the fundamentals of his moral philosophy. Mori refers to two further arguments that, while less relevant for present purposes, are important more generally. The first one Mori calls the "juridical argument," namely the rejection of the analogy between the domestic state of nature and the international one. Unlike individuals, "states are in an ambiguous position because, while they are in a state of nature as far as relations with other states are concerned, they have already adopted public law in their internal order and have thus left a condition of complete unlawfulness." ld. at 118. The second one is a logical argument that, according to Mori, Kant advances in the Perpetual Peace when commenting on the second definitive article for a perpetual peace. Kant writes that a Volkerstaat would be a contradiction (Widerspruch) since:
[E]very state involves a relationship between a superior (the legislator) and an inferior (the people obeying the laws), whereas a number of nations forming one state would constitute a single nation. And this contradicts our initial assumption, as we are here considering the right of nations in relation to one another in so far as they are a group of separate states which are not to be welded together as a unit.
KANT, Perpetual Peace, supra note 3, at 102.
(140) For the contrary view, that the EU actually embodies a Kantian ideal, see Eleftheriadis, supra note 133, at 241-63.
(141) Lisbon Decision, supra note 1, at [paragraph] 223.
(142) Id. at [paragraph][paragraph] 223-24.
(143) See Noel Malcolm, Aspects of Hobbes 432-33 (2003).
(144) "Concerning the Offices of one Sovereign to another, which are comprehended in that Law, which is commonly called the Law of Nations, I need not say any thing in this place; because the Law of Nations, and the Law of Nature, is the same thing." Thomas Hobbes, Leviathan 552-53 (Noel Malcolm ed., 2012) [hereinafter LEVIATHAN (MALCOLM EDITION)] (publishing the English and Latin texts of Leviathan side by side for the first time).
(145) See MALCOLM, supra note 143, at 438-40.
(146) For a critique of trade-off arguments on liberty and security, see Jeremy Waldron, Security and Liberty: The Image of Balance, 11 J. POL. PHIL. 191 (2003).
(147) See NORBERTO BOBBIO, THOMAS HOBBES 111 (1989).
(148) LEVIATHAN (MALCOLM EDITION) at 344-45.
(149) QUENTIN SKINNER, HOBBES AND REPUBLICAN LIBERTY 124 (2008).
(150) LEVIATHAN (MALCOLM EDITION) at 324-25.
(151) See, e.g., Stavros Tsakyrakis, Proportionality: An Assault on Human Rights? 5 (NYU Sch. of Law Jean Monnet Ctr. for Int'l & Reg'l Econ. Law & Justice, Working Paper No. 09/08, 2008) (providing a thoughtful critique of proportionality and balancing from a liberal perspective).
(152) Case 6/64, Flaminio Costa v. ENEL, 1964 E.C.R. 585; Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1, 12.
(153) See VERDIRAME, THE UN AND HUMAN RIGHTS, supra note 7, at 118; see also Esa Paasivirta & Pieter J. Kuijper, Does One Size Fit All? The European Community and the Responsibility of International Organisations, 36 NETH. Y.B. OF INT'L L. 169, 2.2 (2005); Stefan Talmon, Responsibility of International Organisations: Does the European Community Require Special Treatment?, in INTERNATIONAL RESPONSIBILITY TODAY: ESSAYS IN MEMORY OF OSCAR SCHACHTER 406 (M. Ragazzi ed., 2005).
(154) JOSEPH H.H. WEILER, THE CONSTITUTION OF EUROPE 292 (1999). Mattias Kumm has argued that democratic statism is wedded to this dichotomy and excluded the possibility of a "third way" between the constitutional and the international dimension. Mattias Kumm, How Does European Union Law Fit into the World of Public Law? Costa, Kadi, and Three Conceptions of Public Law, in POLITICAL THEORY OF THE EUROPEAN UNION 115 (Neyer & Wiener eds., 2010). An attempt to escape this dichotomy is Matej Avbelj's "third way" theory in Theory of the European Union. Matej Avbelj, Theory of the European Union, 36 E.L.REV. 818 (2011). This theory bears some similarity to the view that a consequence of the process of European integration is that neither member states nor the EU can now claim absolute sovereignty. See ALDA TORRES PEREZ, CONFLICTS OF RIGHTS IN THE EUROPEAN UNION: A THEORY OF SUPRANATIONAL ADJUDICATION (2009).
(155) On the failure of political imagination that plagues the European project, see PHILIP ALLOTT, THE HEALTH OF NATIONS: SOCIETY AND LAW BEYOND THE STATE 182-228 (2002).
(156) Consolidated Version of the Treaty on the Functioning of the European Union art. 355(5)(b), Oct. 26, 2012, 2012 O.J. (C 326/198) [hereinafter TFEU].
(157) Consolidated Version of the Treaty on the Functioning of the European Union art. 4.2, Oct. 26, 2012, 2012 O.J. (C 326/18).
(158) Consolidated Version of the Treaty on the Functioning of the European Union art. 50, Oct. 26, 2012, 2012 O.J. (C 326/43).
(158) Lisbon Decision, supra note 1, 329.
(159) Castillo de la Torte, supra note 56, at 1187.
(161) Consolidated Version of the Treaty on the Functioning of the European Union art. 5, Oct. 26, 2012, 2012 O.J. C 326/18.
(162) See Lisbon Decision, supra note l, at 331 ("With Declaration no. 17 Concerning Primacy annexed to the Treaty of Lisbon, the Federal Republic of Germany does not recognize an absolute primacy of application of Union law, which would meet with constitutional objections, but merely confirms the legal situation as interpreted by the Federal Constitutional Court.")
(163) See Marc Bossuyt & Willem Verrijdt, The Full Effect of EU Law and of" Constitutional Review in Belgium and France After the Melki Judgment, 7 EUR. CONST. L. REV. 335,355 (2011).
(164) Accordance with International Law of the Unilateral Declaration of Independence in Respect to Kosovo, Advisory Opinion, 2010 I.C.J. 403, [paragraph] 8 (July 22) (separate opinion of Judge Simma).
(165) On the various strands of positivism, see 3 GUIDO FASS0, STORIA DELLA FILOSOFIA DEL DIRITTO 176 (4th ed., 2007). Fasso's three volumes on the history of legal philosophy have no match in the English language.
(166) In this respect, Martti Koskenniemmi is right in writing that "[S]overeignty had always been a problem for the liberal mind." KOSKENNIEMMI, supra note 119, at 318. Elsewhere, however, he also seems to fall victim to the rather cliche account of liberalism, sovereignty, and international law. E.g., id. at 44-51.
(167) JEAN BODIN, ON SOVEREIGNTY 10, 31, 39 (J.H. Franklin ed., 1992). There was no contradiction for Bodin in sovereignty being at the same time absolute and subject to natural law, because "sovereignty is not arbitrariness, rather the purely formal power to impose laws the content of which can only be determined by the rational nature of what is to be regulated" ("la sovranith non arbitrio, bensi una facolta puramente formale d'imporre delle leggi, il cui contenuto non puo essere dato the dalla natura razionale delle cose da disciplinare"). GUIDO DE RUGGIERO, STORIA DELLA FILOSOFIA: RINASCIMENTO, RIFORMA E CONTRORIFORMA 384 (1961).
(168) GEORG W.F. HEGEL, HEGEL: ELEMENTS OF PHILOSOPHY OF RIGHT [paragraph] 330 (Allen W. Wood ed., 1991) (speaking of the state as a "completely independent totality" and of the stipulations they make with each other as "inherently provisional").
(169) Id. [paragraph] 331.
(170) See, e.g., THE BRITISH IDEALISTS 215-95 (D. Boucher ed., 1997) (essays on the state and international relations). For a contemporary neo-Hegelian theory of international relations, see MERVYN FROST, ETHICS IN INTERNATIONAL RELATIONS 190-96 (1996).
(171) An interesting line of argument is developed by Brad Roth, who argues that sovereignty should not be seen as a limit to the development of international law, but as the foundational principle with intertwined moral and pragmatic justifications which allows for the creation of a system of international law fit for an international community marred by moral disagreement. Brad E. Roth, State Sovereignty, International Legality and Moral Disagreement, in THE SHIFTING ALLOCATION OF AUTHORITY IN INTERNATIONAL. LAW 123, 127 (Tamer Broude & Yuval Shany eds., 2008).
(172) See generally BODIN, supra note 167.
(173) Julian H. Franklin, Sovereignty and the Mixed Constitution: Bodin and His Critics, in THE CAMBRIDGE HISTORY OF POLITICAL THOUGHT: 1450 1700, at 302-03 (J.H. Burns ed., 1991).
(174) Jean L. Cohen, Sovereignty in the Context of Globalisation: A Constitutionalist Pluralist Perspective, in THE PHILOSOPHY OF INTERNATIONAL LAW 261, 267 (Samantha Besson & John Tasioulas eds., 2010).
(175) The idea that sovereignty is more than the sum of its parts is not new. This is the point, for example, of Rousseau's comment, discussed below, that sovereignty must be distinguished from its emanations. The distinction between sovereignty and the exercise of sovereignty, which one encounters in analyses of territorial sovereignty, is also founded on an attempt to differentiate the general dimension of sovereignty from the particular one. See 1 HERSCH LAUTERPACHT, INTERNATIONAL LAW: COLLECTED PAPERS 372-73 (Elihu Lauterpacht ed., 1970).
(176) U.N. Charter, art. 51.
(178) See QUENTIN SKINNER, 2 THE FOUNDATIONS OF MODERN POLITICAL THOUGHT 287-88 (1978).
(179) JEAN-JACQUES ROUSSEAU, ROUSSEAU: "THE SOCIAL CONTRACT" AND OTHER LATER POLITICAL WRITINGS 57-58 (Gourevitch ed., 1997). Rousseau had argued earlier that, while power can be alienated, the will cannot, Id. at 56. To understand Rousseau's theory of sovereignty, and his approach to the questions of inalienability and indivisibility, one needs to understand his concept of the general will. Since these theories are principally focused on the internal dimension of sovereignty, I am leaving them out of this analysis.
(180) BODIN, supra note 167, at 1.
(181) Id. at 6.
(182) Id. at 10.
(184) Id. at 11.
(185) See generally ROUSSEAU, supra note 179, chs. 1-3.
(186) JOCHEN VON BERNSTORFF, THE PUBLIC INTERNATIONAL LAW THEORY OF HANS KELSEN 64 (2010). On the logical method behind Kelsen's theory of international law, see Jorg Kammerhofer, Kelsen Which Kelsen? A Reapplication of the Pure Theory of International Law, 22 LEIDEN J. INT'L L. 225 (2009).
(187) HANS KELSEN, GENERAL THEORY OF LAW AND STATE 383 (Anders Wedberg trans., 1945).
(188) The crucial element in the jurisprudence of the German Constitutional Court is inalienability of Kompetenz-Kompetenz. E.g., European Stability Treaty Decision, supra note 40, [paragraph] 209. Sir Elihu Lauterpacht, Sovereignty- Myth or Reality, 73 INT'L. AFF. 137, 149 (1997).
(190) Lisbon Decision, supra note 1, [paragraph] 231.
(191) Id. [paragraph] 216.
(197) See VON BERNSTORFF, supra note 186, at 235. "Non-absolutist" here does not mean non coercive. On the problem posed by the "coercive order paradigm" to Kelsen's theory of international law, see Kammerhofer, supra 186, at 236-40.
(198) This does not apply to constitutional pluralists who have been alert to this nexus. See generally COHEN, supra note 14, at 159; Neil Walker, The EU's Resilient Sovereignty Question, in POLITICAL THEORY OF THE EUROPEAN UNION 91 (Jurgen Neyer & Antje Wiener eds., 2010) (discussing the continued importance of sovereignty in political and legal argument on the EU)
(199) ROUSSEAU, supra note 179, Book I, ch. 8. Before entering the social state, man lacked morality, and had been governed by instinct and appetite tempered only by the natural sentiment of pity. It is this transformation in the nature of man which, according to Rousseau, makes the power of the state to coerce one who refuses to obey the general will not a contradiction of the principle of liberty but its affirmation: "this," he writes, "means nothing other than he shall be forced to be free." Id. ch. 7.
(200) NICOLA MATTEUCCI, IL LIBERALISMO IN UN MONDO IN TRASFORMAZIONE 211 (1972).
(201) See JOHN STUART MILL, ON LIBERTY 78-79 (John Gray ed., 1991) (discussing the despotism of custom in Mill's essay on liberty); see also ALEXIS DE TOCQUEVILLE, DE LA DEMOCRATIE EN AMERIQUE 648 (Jean-Claude Lamberti & Francoise Me1onio eds., 1986) (titling Tocqueville's famous final reflection in Democracy in America "Of the kind of despotism which democratic nations must fear").
(202) EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 135 (Conor C. O'Brien ed., 1982).
(203) See DOMENICO LOSURDO, HEGEL AND THE FREEDOM OF THE MODERNS (arguing that the political thought of Hegel transcended the divide between liberalism and conservatism) (2004).
(204) See THE NEW LIBERALISM: RECONCILING LIBERTY AND COMMUNITY (A. Simhony & D. Weinstein eds., 2001) (discussing the thought of pre-WWI neo-liberal thinkers in Britain, such as T.H. Green, J. Hobson and L.T. Hobhouse, and the influence that Hegel had on them).
(205) JEFFREY ABRAMSON, MINERVA'S OWL: THE TRADITION OF WESTERN POLITICAL THOUGHT 247 (2009).
(206) FROST, supra note 170, at 151.
(207) BENJAMIN CONSTANT, De la Liberte des Anciens Comparee a Celle des Modernes, in ECRITS POLITIQUES 589, 618 (Biancamaria Fontana ed., 1988).
(208) Id. at 589 (English trans, in CONSTANT: POLITICAL WRITINGS 311 (Biancamaria Fontana ed., 1988)).
(209) See MATTEUCCI, supra note 199, at 195.
(210) See FEDERICO CHABOD, L' IDEA DI NAZIONE 68-69 (1961). The distinction between voluntaristic and naturalistic conceptions is also found in Chabod, who argues that the Italian Risorgimento was inspired by voluntaristic conceptions of nationhood, ld. The literature on nationalism and national identity is vast, but Eric Hobsbawm's Begriffsgeschichte remains in many ways unsurpassed. E.J. HOBSBAWM, NATIONS AND NATIONALISM SINCE 1780: PROGRAMME, MYTH, REALITY (1990) (tracing the evolution of the idea of the nation from its revolutionary origins to its liberal interpretation and its eventual degeneration into late nineteenth century nationalism).
(211) Habermas has argued that:
As the examples of multicultural societies like Switzerland and the United States demonstrate, a political culture in which constitutional principles can take root need by no means depend on all citizens' sharing the same language or the same ethnic and cultural origins. A liberal political culture is only the common denominator for a constitutional patriotism (Verfassungspatriotismus) that heightens an awareness of both the diversity and the integrity of the different forms of life coexisting in a multicultural society.
JURGEN HABERMAS, BETWEEN FACTS AND NORMS 500 (1996). The overhaul of the collective identity behind the state is not ruled out by the German Constitutional Court, although it, rightly, emphasises that this can only happen if an existing constitutional order is replaced by a new one. In other words, the redefinition of the polity in a European or, perhaps, even global sense is possible, but requires a constitutional moment of the greatest import. In the Lisbon Decision, that court stated:
If however the threshold to the federal state and to the waiver of national sovereignty were transgressed, which would in Germany require a free decision of the people beyond the present applicability of the Basic Law, democratic requirements would have to be complied with on a level which would have to completely fulfill the requirements placed on the democratic legitimisation of a union of rule organised by a state.
Lisbon Decision, supra note 1, [paragraph] 263.
(212) Weiler's otherwise very insightful analysis of the European question does at times suffer from this failure. See Weiler, supra note 20, at 223,228.
(213) On the liberalism of the Italian Risorgimento and its approach to the ideas of liberty and nation, see CHABOD, supra note 210, at 70; see also THIERRY BAUDET, THE SIGNIFICANCE OF BORDERS 191-220 (2012) (analysing the three fallacies of universalism).
(214) Sheldon Wolin makes a similar point on the relationship between the constitution and the people. SHELDON S. WOLIN, THE PRESENCE OF THE PAST: ESSAYS ON THE STATE AND THE CONSTITUTION 12-13 (1989).
(215) See, e.g., COHEN, supra note 14, at 322.
(216) See Weiler, supra note 20, at 229 230.
(217) YAEL TAMIR, LIBERAL NATIONALISM 57 (1993). Nevertheless, the idea of a collective and political dimension of liberty has attracted significant attention in recent decades as a result of both the growth in the historiography on republican thought and of renewed interest in political theory. For examples of historical research on republicanism particularly relevant to the topic of this Article, see QUENTIN SKINNER, LIBERTY BEFORE LIBERALISM (1997) (discussing the concept of republican liberty in early modern political thought); 1-2 QUENTIN SKINNER, FOUNDATIONS OF MODERN POLITICAL THOUGHT (1978) (providing an account of modern political thought centred on the republican tradition) ANDREAS KALYVAS & IRA KATZNELSON, LIBERAL BEGINNINGS (2008) (exploring the relationship between liberalism and republicanism in the XVIII and early XIX centuries) For recent works by political theorists who, like Yael Tamir, defend the idea of the nation-state, see BAUDET, supra note 213; PIERRE MANENT, A WORLD BEYOND POLITICS: A DEFENSE OF THE NATION-STATE (2004) (defending the centrality of the state for liberals).
(218) See Guglielmo Verdirame, Pouring Away the Sweet Milk of Concord." A Call for Argument and Debate, in INTERNATIONAL LAW 1989-2010: A PERFORMANCE APPRAISAL, SELECT PROCEEDINGS OF THE EUROPEAN SOCIETY OF INTERNATIONAL LAW Vol. III 377, 377-79 (J. Crawford & S. Nouwen eds., 2011).
(219) The reason Kant gives for his opposition to the right to resist is that it would result in an:
Obvious contradiction; for then it would also have to contain a publicly constituted opposing power, so that there would have to be a second head of state to protect the people's rights against the first, and then yet a third to decide between the two, which of them had right on its side.
KANT, On the Common Saving, supra note 3, at 301 (emphasis in original).
(220) In international law, some of these ideas are expressed in the relationship between self determination and secession. The principle of self-determination may justify the creation of a new state when the government has conducted itself in such an oppressive way as to create a permanent and unredeemable fracture between the group now seeking secession and the rest of the polity. See CRAWFORD, supra note 118, 119-20 (discussing "remedial secession" in reference to the decision of the Canadian Supreme Court in Quebec Secession Reference).
(221) On the literature on democratic deficit, see supra note 6.
(222) See generally Waldron, supra note 146.
(223) See generally KANT, Idea for a Universal History, supra note 3.
(224) Id. at 115.
(225) Id. at 118.
(227) Id. at 117.
(228) Id. at 11 6.
(232) Some cosmopolitans still criticise the Kantian conception focused on individual moral duties as inadequate. It aspires Martha Nussbaum has argued to produce "a just global order through human psychology alone." Jack Goldsmith, Liberal Democracy and Cosmopolitan Duty, 55 STAN. L. REV. 1667, 1670 (2003) (citing Martha C. Nussbaum, Toward a Viable Cosmopolitanism, Castle Lecture 4 at Yale University 2 (Mar. 1, 2000)).
(233) This does not mean that we should think of state as a disabler of universality. On the contrary, the state might be a necessary mid-point between individuality and universality, How can human beings feel the common bond of humanity with nothing between their selves and abstraction? For Rousseau, for example, the state was necessary to give shape to the general will which exists within each individual but which can be suppressed by each one's particular will.
(234) See generally FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN (1992) (arguing the liberal democracy may be the endpoint in the social and political evolution of mankind).
(235) Lighthouses in Crete and Samos (Fr. v. Greece), 1937 P.C.I.J. (ser. A/B) No. 71, at 121 (Hudson, J., dissenting) (describing the Ottoman Sultan as a hollow sovereign in respect of Crete and Samos after 1899).
(236) COHEN, supra note 14, at 159-60.
(237) The literature on global constitutionalism and legal pluralism is vast. On global constitutionalism two edited collections are noteworthy: RULING THE WORLD? CONSTITUTIONALISM, INTERNATIONAL LAW AND GLOBAL GOVERNANCE (J. L. Dunoff & J. P. Trachtman eds., 2009) (offering a variety of constitutionalist perspectives on various issues of global governance) and THE CONSTITUTIONALISATION OF INTERNATIONAL LAW (J. Klabbers, A. Peters, & G. Ulfstein eds., 2009) (discussing the extent to which the international system is developing constitutional features). See also Bardo Fassbender, The United Nations Charter as Constitution 03" the International Community, 36 COLUM. J. OF TRANSNAT'L L. 529 (1998) (providing one of the first constitutionalist accounts of international law); Noah Feldman, Cosmopolitan Law, 116 YALE L.J. 1024 (2007) (discussing the relevance of cosmopolitan arguments to law today); Anne-Marie Slaughter & William Burke-White, An International Constitutional Moment, 43 HARV. INT'L L.J 1 (2003). On pluralism, see Armin von Bogdandy, Pluralism, Direct Effect and the Ultimate Say." On the Relationship Between International and Domestic Constitutional Law, 6 INT'L J. CONST. L. 397 (2008) (challenging the notion that the relationship between international and domestic law must be governed by a clearly defined hierarchy); NICO KRISCH, BEYOND CONSTITUTIONALISM: THE PLURALIST STRUCTURE OF POSTNATIONAL LAW (2010) (proposing a pluralist theory of international law that can account for the fragmented structure of the international legal order).
(238) See Joseph Raz, Human Rights Without Foundations, in THE PHILOSOPHY OF INTERNATIONAL LAW, supra note 135, at 321 (discussing an explanatory theory of the practice of international human rights); see generally CHARLES BEITZ, THE IDEA OF HUMAN RIGHTS (2009) (advancing a practical conception on which to base the idea human rights).
(239) See generally COHEN, supra note 14; WALKER, supra note 14.
(240) COHEN, supra note 14, at 154.
(241) Jurgen Habermas, The Crisis of the European Union in the Light of a Constitutionalisation of International Law, 23 EUR. J. OF INT'L L. 335, 342-45 (2012). See also Armin von Bogdandy, The European Lesson .for International Democracy: The Significance of Articles 9-12 EU Treaty for International Organisations, 23 EUR. J. OF INT'L L. 315 (2012) (discussing the emergence of a concept of international democracy through the practice of the EU); Samantha Besson, Sovereignty in Conflict, in TOWARDS AN "INTERNATIONAL LEGAL COMMUNITY"? 131 (Colin Warbrick & Stephen Tierney eds., 2006) (discussing the idea of cooperative sovereignty).
(242) KOSKENNIEMMI, supra note 119, at 316.
(243) Tocqueville's original comment was about the English.
(244) When the history of the rise of anti-statism in the twentieth century is written, an important section will have to be reserved for Ernst Cassirer's last major work, THE MYTH OF THE STATE (1946). Published posthumously shortly after WWII, this book was a reaction to the deification of the state typical of Fascism and National-Socialism. Cassirer, a neo-Kantian, denounces the state in terms that go well beyond Kant's cosmopolitanism, which was qualified by the principle of state sovereignty. In addition, both Karl Popper and Isaiah Berlin contributed to the post-war liberal critique of philosophical conceptions of the state and the individual (from Rousseau to Hegel, from Herder to Fichte) regarded as prodromal to Nazi-Fascism.
(245) The point that sovereignty is subject to liberty is elegantly made by Judge Cangado Trindade in his separate opinion in the Kosovo case, where he writes: "The rights inherent to the human person precede, and are superior to, the State." Kosovo Opinion, supra note 123, [paragraph] 198.
(246) Larry Siedentop, Where Does Europe Stand Now?, 45-46 ASPENIA 69, 72-73 (2009).
(247) Weiler, supra note 20, at 248.
(248) On this point see Philip Allott's writings on the European Union, supra note 195, Part II.
(249) Pierre Manent describes this as "one of the most important theoretical propositions of political science." MANENT, supra note 217, at 44.
GUGLIELMO VERDIRAME, Professor of International Law, King's College London. This Article is dedicated to the late Dr. Amanda Perreau-Saussine de Ezcurra, with whom I taught History and Philosophy of International Law in Cambridge for several years. I wish to thank James Crawford who acted as discussant for a paper I presented at a seminar at the Lauterpacht Centre for International Law in Cambridge. I am also indebted to Larry Siedentop, with whom I have had over the years several illuminating conversations on the historical and philosophical dimensions of the concepts of sovereignty and liberty. The participants of the ASIL-ESIL International Legal Theory workshop held in Cambridge on September 20-21, 2012 offered excellent comments in response to my paper, only some of which I have been able to incorporate before submission. I should mention, in particular: Patrick Capps who, as discussant, engaged with my arguments in the most thoughtful and patient way; Philip Allott; and Mortimer Sellers. I also benefited from comments received by colleagues at the University of Tel Aviv and at Queen's University, Belfast, where earlier versions of this paper were presented.
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|Title Annotation:||I. The Liberty and Sovereignty Questions Before the Courts F. The ICJ through IV. Conclusion, with footnotes, p. 396-426|
|Publication:||Stanford Journal of International Law|
|Date:||Jun 22, 2013|
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