A normative theory of sovereignty transfers.

• Author: Verdirame, Guglielmo
• Position: Introduction through I. The Liberty and Sovereignty Questions Before the Courts E. The ECJ and Equivalent Protection: If You Can't Beat Them, Join Them? p. 371-396

News of its imminent demise notwithstanding, state sovereignty remains a central concept in international law, in legal and political theory, and in the practice of states. Political factors no doubt play a prominent role in explaining its endurance, but its normative foundations are no less important. This Article examines those foundations in the context of the transfer of sovereignty from states to international organisations: Why should the sovereignty of the state continue to matter? To what limits should these sovereignty transfers be subject?

International and domestic courts have increasingly had to grapple with the "first principles" of sovereignty. This Article attempts, first, to east some philosophical light on the jurisprudence of international courts by distilling and examining the two central questions raised by sovereignty transfers: the liberty question (What limits does the liberty of the individual pose to sovereignty tranafers?); and the sovereignty question (How much sovereignty should a state be permitted to transfer?). The second objective of the Article is to formulate a normative argument for state sovereignty which, while accommodating and in most ways even supporting of supranational (or non-state) sovereignty, also identifies a principled liberal basis for setting limits to it.

INTRODUCTION I. THE LIBERTY AND SOVEREIGNTY QUESTIONS BEFORE THE COURTS A. The Development of the Doctrine of Equivalent Protection B. A Europe United By Souverainiste Liberalism? C. Britain Stands Alone D. The Idiosyncratic Approach of the ECHR E. The ECJ and Equivalent Protection: If You Can't Beat Them, Join Them? F. The ICJ II. THE PHILOSOPHICAL ORIENTATION OF THE DOMESTIC AND INTERNATIONAL JURISPRUDENCE ON SOVEREIGNTY AND LIBERTY A. The Kantian Liberalism of the German Constitutional Court B. England Between Hobbes and Burke C. What Philosophy For International Jurisprudence? III. LIBERAL LIMITS TO SOVEREIGNTY TRANSFERS A. The Conundrum of Sovereignty B. The Moral Quality of State Sovereignty C. Supranational Sovereignty in a Liberal Perspective D. Coda: Sovereignty Transfers and the Debate Between Global Constitutionalists and Pluralists IV. CONCLUSION INTRODUCTION

Sovereignty still vests exclusively in the state, but in our day sovereign functions are often exercised by international organisations. This phenomenon, which I will call supranational sovereignty, (1) originates from the transfer of sovereign functions from states to international organisations--a key feature of the modern system of international relations.

In this Article I deal with two fundamental questions about sovereignty transfers (2) and supranational sovereignty, each of which will be examined along three lines of investigation: analytical-doctrinal, theoretical-doctrinal, and theoretical-normative. The first fundamental question on sovereignty transfers is whether respect for human rights poses limits on the transfer of sovereignty from states to international organisations and, if so, what these limits ought to be ("the liberty question"). This question was central to the thought of Immanuel Kant, who advocated an advanced form of international organisation, but also feared the "soulless despotism" which could ensue from such an expansion in the range of government. (3) On one interpretation of Kant's thought, concern for liberty stood between him and cosmopolitanism.

Any cosmopolitan or internationalist legal and political theory must address the liberty question. (4) The reality of international organisations bears witness to its importance. International organisations are not subject to a system of administrative law and justice comparable with what is found in a liberal democracy; nor are the political controls of similar extent and quality. (5) It is hardly surprising that these features, combined with the growth in the powers of international organisations, should often produce a liberty deficit: Unchecked power is always prone to abuse. (6) A number of studies have indeed shown compliance with human rights to be a problem in various international activities-from peacekeeping to international administration of territory, from sanctions to the provision of humanitarian assistance. (7)

The second question addressed in this Article is whether state sovereignty should have an inalienable core ("the sovereignty question"). Most legal systems accept the principle that some sovereign functions may be transferred to international organisations, with many constitutions expressly contemplating such transfers. (8) But how far can these sovereignty transfers go? At what point can it be said that the sovereignty of the state has been hollowed out? These questions come down to what is probably the most fundamental problem in the theory of international law and international organisation, summarised by Jean-Jacques Rousseau in the Emile in these terms: "how far the right of confederation can be extended without jeopardasing that of sovereignty." (9) The analysis of the liberty and sovereignty questions in this Article, developed along the three lines of investigation mentioned above, will show that a close link exists between individual liberty and state sovereignty, and that supranational sovereignty--in Rousseau's words, "the right of confederation" (10)--has repercussions on the sovereignty and liberty planes.

Interestingly, the liberty and sovereignty questions have been addressed by courts; at times directly and at others indirectly. Of particular importance in this context is the doctrine of equivalent protection. While the doctrine's development was prompted by the process of European integration, equivalent protection has more general significance. The philosophical essence of this doctrine is that the transfer of sovereign powers from the state to an international institution must be governed by the principle of liberty. The transferee sovereign is expected to accord a degree of human rights protection equivalent to what was available under the legal system of the transferor sovereign; the expansion of the international system should not provide a justification for curtailing liberty.

The doctrine of equivalent protection might appear to produce a paradox. In dealing with the possibility that human rights may be violated by international actors, the doctrine reverts to a principle often considered antithetical to human rights: state sovereignty. But, as I will argue in this Article, the paradox exists only insofar as a mistaken view of sovereignty is maintained. It is common for scholars to claim that international human rights law has dealt a serious blow to the concept of sovereignty (almost inevitably accompanied by adjectives such as "traditional" or "Westphalian"). (11) But human rights also strengthen the state's claim to political authority; it is the state which the ultimate enforcer and protector of human rights, and--as the doctrine of equivalent protection indicates--it is to the state's sovereign power and legal responsibility that one turns to when confronted with a non-state actor which flouts liberty.

The souverainiste premise of the doctrine of equivalent protection indicates that the liberty of the individual and the sovereignty of the state are somehow intertwined. This is not a novel intuition. The nature of the relationship between the individual and the state is central to much liberal political thought and--as is evident from the writings of Rousseau and, especially, of Kant--anxiety about the power of international organisation is not necessarily a function of the fetishization of the sovereign state. This concern can also derive from apprehension about the consequences of the demise of the state for human liberty.

The endpoint of this Article is a sketch for a normative argument about liberal limits to sovereignty transfers. Although I could have presented this argument without any reference to the jurisprudence on equivalent protection, I chose to start the Article with an analysis of that jurisprudence because courts are, knowingly or unwittingly, addressing central questions of international legal and political theory. This merits attention, particularly at a time when international law scholarship is almost completely bent on avoiding those questions. (12) The reality of this jurisprudence should give those who are sceptical about the relevance of theoretical endeavours reason to reflect.

The analysis of the jurisprudence on equivalent protection is carried out in two stages. Part I provides an account of its development. In Part II, the jurisprudence is "philosophised": Its decisions are stripped to first principles in order to identify where they really stand in relation to the liberty and sovereignty questions. I argue that courts proceed on the basis of different philosophical assumptions about liberty and sovereignty, with the German Constitutional Court adopting an essentially Kantian position and the English House of Lords/Supreme Court swaying between Hobbes and Burke.

Part III of the Article is devoted to the normative argument on sovereignty transfers anticipated above. In essence, my argument is that, in a liberal perspective, (13) supranational sovereignty must remain subject to state sovereignty, in the sense that it render the sovereignty of the state hollow ("the sovereignty principle"); and that both supranational and state sovereignty must be subject to liberty ("the liberty principle"). Subject to these limits, the transfer of some state sovereignty to supranational or international entities is desirable because supranational sovereignty possesses certain distinct moral qualities ("the desirability principle").

The normative argument discussed in Part III of the Article has important consequences for the jurisprudence analysed in the Parts I and II. Indeed, subject to some qualifications, this argument on the liberal limits to sovereignty transfers accords with the...