A normative theory of sovereignty transfers.

• Author: Verdirame, Guglielmo
• Position: I. The Liberty and Sovereignty Questions Before the Courts F. The ICJ through IV. Conclusion, with footnotes, p. 396-426

6. The ICJ

   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.

   2. 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.

1. 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...