Theorizing Sovereignty and European Integration

• Author: Matej Avbelj
• Published date: 01 September 2014
• Date: 01 September 2014
• DOI: http://doi.org/10.1111/raju.12046

Theorizing Sovereignty

and European Integration

MATEJ AVBELJ

Abstract. This article examines the relationship between the concept of sovereignty

and the process of European integration. It is argued that the nature of this

relationship has been both mutually informative and transformative. As a particu-

lar understanding of sovereignty has influenced and determined the perception of

European integration, i.e., its conceptualization, so the process of European inte-

gration has reflected back on sovereignty and entailed its rethinking. This poses a

particular challenge for legal theorists: how to pin down the meaning of sover-

eignty and European integration so as to put both in the best conceptual and

normative light. The article begins by looking at the traditional perspective on

sovereignty and how this has been challenged by European integration. The focus

then shifts from sovereignty to European integration in order to examine how

different perspectives on sovereignty, when used as an epistemic lens for under-

standing the process of European integration, have produced uneven conceptions

of this integration. Finally, the article concludes by making a choice between the

various conceptions of sovereignty and European integration. It is argued that the

best conception of European integration is offered by the constitutional form of a

union founded on pluralist sovereignty.

1. Introduction

For some scholars, sovereignty is dead (Krasner 2001, 20; Bellamy and Castiglione

1997, 421); for others it offers the best explanation of the configuration of the EU

(Glencross 2009, 25). While many more could be quoted, these are just two

examples of sharply conflicting views on the fundamental question of the meaning

and potentially constitutive role of sovereignty in conceptualizing European inte-

gration. Inspired by this curious phenomenon of sometimes completely diverging

views of the relationship between sovereignty and European integration, this article

subjects it to a closer analysis. It argues that the nature of this relationship has been

both mutually informative and transformative. As a particular understanding of

sovereignty has influenced and determined the perception of European integration,

i.e., its conceptualization, so the process of European integration has reflected back

on sovereignty and entailed its rethinking.

The initial definitional closure, inevitable openness and practical mutual-

dependence of the concept of sovereignty and the nature of European integration

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pose a particular challenge to theorists of European integration, as they appear to

lack any conceptual constants and are left with variables only. The question this

raises is how to pin down the meaning of sovereignty and European integration so

as to cast both in the best conceptual and normative light. In pursuit of the answer,

the article will begin by looking at the traditional perspective on sovereignty and

how this has been challenged by the process of European integration. The focus

will then shift from sovereignty to European integration in order to examine how

different perspectives on sovereignty, when used as an epistemic lens for under-

standing European integration, have produced uneven conceptions of this integra-

tion. An evaluation will then be made of the various conceptions of sovereignty and

European integration with a view to identifying the most persuasive one.

2. Transformation of the Foundational Concept

There is perhaps no subject in legal and political theory more burdened by

intellectual clichés and received ideas with a negative resonance than the concept

of sovereignty. Sovereignty has been blamed both for causing an unprecedented

intellectual confusion in theory (Bartelson 1995, 12) and international lawlessness in

practice (Malanczuk 1997, 17). It was said to be, if not dead (Bellamy and

Castiglione 1997, 421), then certainly in deep trouble (Falk 1993, 851–3). It has also

been referred to by many other names (Croxton 1999, 569).1The disputes among

puzzled scholars (Lee 1997, 253) have raged on four fronts, concerning the

concept’s origin, its meaning, its present relevance and its role in the future.

The conventional wisdom relates the emergence of the modern concept of

sovereignty to the Peace of Westphalia. This term stands for two treaties: the Treaty

of Munster and the Treaty of Osnabruck which ended the Thirty Years War and

which, according to the traditional argument, established a modern system of

sovereign states. However, many have objected to this construction (Croxton 1999,

584) proclaiming it a myth (Caporaso 2000, 1), even a fallacy derived from “the

theological interpretation of what happened in the subsequent three hundred years

and an assumption that the seeds must have lain in this event” (Keating 2003, 194).

While some argue that the origins of modern sovereignty should be traced further

back in history (Bueno de Mesquita 2000, 94; Hinsley 1986; Spruyt 1994), and others

claim that it is a much more recent phenomenon (Croxton 1999, 571), the most

balanced and therefore accurate view appears to be that the Peace of Westphalia is

a symbol of the emergence of a modern system of sovereign states, rather than a

literal moment of that event (Jackson 1999, 439).

The classical definition, by which sovereignty is an absolute, indivisible, unitary

property of a territorially delimited state that ultimately autonomously governs its

internal affairs and enjoys equal independence in relation to other states, has

crystallized in recent decades. This definition, the intellectual authorship of which

is often attributed to Bodin (1576), has, however, time and again and for various

reasons, come under strong attack. Some have rejected it on conceptual grounds,

claiming that sovereignty is simply an indefinable concept (Bartelson 1995, 13).

Others have raised descriptive, normative or both types of objections against it and

1“Sovereignty is described in recent works as ‘perforated, defiled, cornered, extinct, anach-

ronistic, even interrogated’.”

Sovereignty and European Integration 345

© 2014 The Author. Ratio Juris © 2014 John Wiley & Sons Ltd.Ratio Juris, Vol. 27, No. 3