The epochal transformation wrought by Bodin upon the concept of sovereignty in the sixteenth century was motivated by domestic politics. Concentrating the scattered powers of governance into a comprehensive public power situated in a single hand and extending them to lawmaking were conditions for overcoming civil war and pacifying society. But this had consequences for international politics. Unified territories formed as a result of this concept; they were now the locus of public power now referred to them. It was no longer defined personally, but territorially. People were subject to rulers based on their territorial connections.
The crucial phenomenon in understanding modern sovereignty, in contrast to its medieval counterpart, is the territorialization of political rule by means of state formation.
1 State rule is territorially limited rule. This creates a distinction between the internal and the external and, in relation to people, between nationals and foreigners;
2 the formation of national identities can be linked to these distinctions. Sovereignty is then manifested not only in control over the inhabitants of a territory but also in the ability to control ones’ own borders. This does not mean borders are impermeable, but that movement across them can be monitored.
The distinction between internal and external sovereignty necessarily accompanied the territorialization of political rule.
3 A ruler was sovereign only in his territory. Outside of it, there were other sovereigns who made the same claim for their own territories. This allowed a distinction to be made between internal and external aspects of sovereignty; yet only if both existed could a ruler be considered sovereign. It was not enough that there was no higher ruler internally. One had also to be free from any external control. The kinds of political pressures that can result from various power relationships were not enough, however, to form the basis for such subjection. For sovereignty as a legal status, all that mattered was freedom from subjugation to other rulers.
All sovereigns were equal in their legal independence, regardless of differences in actual power. Their legal relationships could therefore be based only on coordination and not on subordination. Thus an external law emerged—international law—that was distinct from constitutional, or internal, law. This, too, was a result of the territorialization of rule. It was territorialization that made legal regulation of external relations possible and necessary. The international law that emerged in the sixteenth century, with the formation of states, was thus different from the Roman ius gentium, although the word served as the basis for its translation into various languages.
For the formation of this type of law, it was also significant that the change from a personal to a territorial reference point in political rule made it possible to distinguish between the person of the ruler and the independent, spatially defined political association. This could be raised to a higher level of abstraction and conceived of as a state, even if—as was common in the phase when states were emerging—its sole representative was found in the person of the ruler. In contrast to internal sovereignty, which would remain linked to the person of the ruler for some time, modern international law referred from the start to the relationship among states, which were seen as legal persons in themselves.
International law, specializing in external relations among states, was not concerned with a state’s internal order. Human rights, which would later become a major theme in the legitimation of rule and would change internal sovereignty, could not be portrayed in international law. How the state treated its subjects was irrelevant to international law. It could also ignore the questions about the substance and holders of sovereignty that accompanied the development of internal sovereignty—questions that were often highly controversial and led to varying answers depending on circumstances. The concept of sovereignty in international law thus remained more stable than in constitutional law. It did not need to undergo all the changes experienced by internal sovereignty.
The fact that sovereign states were the legal subjects of international law ruled out the existence of a higher body above them that made and implemented law. This would have been tantamount to eliminating state sovereignty. International law thus consisted of customary law, which owed its validity not to acts of legislation but to a shared belief that it was law, and above all to norms agreed upon by treaty that bound only the parties to the treaty. Contractual bonds did not affect sovereignty because they imposed no external obligations on the state; they were self-imposed, corresponding to other sovereign states’ self-imposed commitments.
The fact that international law was based on the equal claim to sovereignty of all states required some general legal precepts, the existence and recognition of which were necessary for a legal system that was primarily based on treaties. The validity of these legal precepts did not depend on express agreement. The first of these necessary norms was the principle of pacta sunt servanda. Further, a prohibition on intervention in a state’s domestic affairs was implicit in the concept of the sovereignty of the legal subjects of international law, because intervention would have abrogated sovereignty. This was the case no matter how internal sovereignty was organized or dealt with.
Classical international law was essentially designed on the basis of internal sovereignty and built a protective barrier around it. At no point did it go beyond the external relations of states; it empowered and obligated only states, but not citizens. It had no influence whatsoever on domestic law. If an international legal obligation was to have domestic applicability, the state had to transform it into domestic law. The state could, in some circumstances, be required to do this. But there was no legal way to enforce a treaty obligation. Nor was there a general rule of primacy that would have resolved such a conflict.
The lack of a supranational authority to enforce law resulted in a situation in which the domestic pacification tool, the monopoly of force, was not available at the level of relations among states. Unlike the members of a federation, the states therefore retained the right to use force to enforce the law. In addition, the lack of a supranational authority prevented an authoritative determination of legal issues. The states therefore also had the power to determine whether they were acting lawfully. The situation thus resembled the state of nature in natural law doctrine, from which the authors had derived the justification for the state.
However, the literature on international law, which rapidly flourished, developed criteria to judge whether wars were just or unjust (
ius ad bellum), and established rules for the behavior of belligerents in wartime (
ius in bello). This was made easier by the fact that the universal Christian order that had emerged before the schism could serve as a point of reference.
4 Grotius’s 1625 work
De iure belli ac pacis, which is often considered the beginning of modern international law, also focused “less on international law than on the design of a universal Christian legal order,” though without the medieval centerpieces of empire, emperor, and pope.
5This international legal order is frequently dated to the Peace of Westphalia in 1648 and described as “Westphalian,” because that is where it found its first manifestation in positive law. In the Instrumentum Pacis Osnabrugensis, the territorial power of the estates and free cities of the empire was recognized, while sovereignty was attributed to the empire itself. Notwithstanding, the territorial powers in the empire were granted the right to form alliances among themselves and with foreign powers, which had been denied by the Peace of Prague in 1635, provided that they did not use them against the emperor and the empire.
This order remained stable for many centuries. This does not mean that it was always adhered to or that it experienced no changes. Martti Koskenniemi has pointed to significant transformations in international legal scholarship, especially since the last third of the nineteenth century.
6 But the system’s basis in sovereignty—states as the sole subjects of international law, with the right of internal self-determination, secured by the prohibition on intervention, and therefore with external independence, binding themselves legally only through treaties—was not called into question.
The system had weaknesses, however. On the question whether a state had violated the rights of another state, or whether legal claims were valid, each was its own judge. No guarantee existed that force would be used only to enforce law. There was certainly no international protection if a state deprived its own citizens of their rights. The applicability of international law presupposed a political entity with the attributes of statehood, regardless of its legitimacy. Even genocide domestically did not justify outside intervention. The resolution of international disputes was dependent on treaty agreements between the states affected. No higher dispute-resolution body existed above them.
Yet since World War II this system has been undergoing a fundamental transformation, though it is not entirely without precedent.
7 In the nineteenth century, treaty relations between states had already become far more dense, mainly due to the need for regulation created by scientific and technical progress. At the end of the nineteenth century, efforts were initiated to ensure a permanent peace; they included numerous states and culminated in the Hague Peace Conference, which in 1899 produced the multilateral Convention for the Pacific Settlement of International Disputes, as well as numerous additional treaties, including the Hague Convention Respecting the Laws and Customs of War on Land in 1907.
Following World War I, at the initiative of the United States but without America’s involvement, the League of Nations was formed, as well as the Permanent Court of International Justice in The Hague in 1922. The members of the League of Nations agreed to guarantee the territorial integrity and political independence of its member states and, in case of violations, to impose sanctions on the violator state. The league itself, however, could not use coercive force against states. It could make unanimous recommendations for preserving world peace and could take preventive measures, but these did not go beyond reprimands and proposals.
The Permanent Court of International Justice—unlike its predecessor, the Permanent Court of Arbitration in The Hague created in 1899 as the first international judicial body—was not an arbitral panel but a real court. Its judges were chosen by the organized community of nations, not by the parties themselves. However, the court had no general jurisdiction over international legal disputes among member states. Its jurisdiction was established ad hoc, by agreement of the parties to the dispute. The court could hear a case only if a state had previously accepted its jurisdiction.
The changes in the first half of the twentieth century thus did not demolish the foundations of the classical international legal order. They led to a tighter network of treaty-based obligations among states, and a larger number of states were tied into a system of collective alliances. But there was still no possibility of obligating a state to act against its will or forcing it to cease acting. The prohibition on intervention in internal affairs also remained unaffected. The changes left state sovereignty undiminished. The bounds of traditional sovereignty were only crossed in the wake of World War II.
The turning point was the formation of the United Nations in 1945. Though modeled organizationally on the League of Nations, its powers went far beyond those of its predecessor. It is true that, under article 2 of the UN Charter, the UN is also based on the sovereign equality of all its member states. But after the experience of the League of Nations, it was clear from the outset that it could only achieve its main goal—maintaining international peace and security and taking effective collective measures to that end, as article 1 of the charter provides—if state sovereignty were curtailed. Therefore, the members of the UN gave up their right to use force to assert legal rights. Military action is now only permitted for the purpose of self-defense against aggression.
If the matter had ended with this renunciation, however, the limits of traditional international law would not yet have been demolished. This only happened with the UN’s empowerment to use force to ensure world peace against those who would disturb it. The UN cannot do this using its own means, as it has neither the personnel nor the substantive resources for military operations. It must depend on military contingents placed at its disposal by the member states. When this happens, however, the troops act not at the behest of their states, but by UN mandate, and answer to an international commander. The affected states cannot invoke their sovereignty in regard to such operations.
The UN’s decision-making body for collective measures is the Security Council, in which each of the five permanent members has the veto power under article 27(3) of the charter. During the period of the Cold War, the veto power largely prevented collective action. Since the worldwide political transformation in 1989–90, however, the UN has, in the course of maintaining peace, increasingly displayed supranational powers that reach into states and supplant their own sovereign rights. While we cannot yet speak of the Security Council as a world legislature, under article 25 of the charter, it is permitted to take norm-creating measures that bind states.
In the context of increased protection of human rights, too, the prohibition on intervention in the internal affairs of states has been increasingly relaxed. The UN subscribed to human rights early on, adopting the Universal Declaration of Human Rights in 1948; it has since been backed up by a range of more specific agreements and treaties, most notably the International Covenant on Civil and Political Rights. Member states that have ratified the treaties are obligated to respect and observe these rights. However, the enforcement mechanisms are still weak and often limited to monitoring systems. Possibilities for individuals to seek relief in case of violations are developing slowly on the global level.
Nevertheless, human rights have gradually been gaining priority over the classical principles of self-determination and nonintervention in states’ internal affairs, including civil wars. Intervention was permitted by the UN Genocide Convention as early as 1948. Serious violations of human rights committed by states against individuals or groups are increasingly taken as justification for military intervention by outside states. Many of the details here are controversial: the compatibility of such actions with the UN Charter, the extent of human rights violations that justify humanitarian intervention, the proportionality requirements, and the like.
This is also true for the most recent development in international human rights law, the responsibility to protect the civilian population against serious violations of human rights. This responsibility was originally articulated by an expert group in 2001 and later adopted in a UN General Assembly resolution as well as a Security Council resolution.
8 The primary addressees of this responsibility are the states, which must protect their own populations. But if states fail to fulfill this duty, the responsibility devolves upon the international community. No consensus has been reached as yet regarding a duty to intervene on the part of other states.
9In this context, a crucial role is played by the development of international courts. The International Court of Justice, the UN’s judicial body, still operates entirely within the framework of classical international law and may only act if state parties have accepted its jurisdiction. But the international criminal tribunals for former Yugoslavia and Rwanda, which were not based on treaties among member states but on resolutions by the Security Council, could act without the agreement of the affected states, even on their territories and vis-à-vis their citizens.
Furthermore, under the influence of the UN, general international law is also changing in ways that have a limiting effect on sovereignty. Nontreaty international law remains customary law, but UN General Assembly resolutions have gained greater influence on the emergence of
opinio juris, which is necessary for the formation of customary law. Within customary law,
jus cogens is becoming more extensive; unlike other customary law, it cannot be waived by treaty, but in fact binds states in concluding treaties.
10Other international organizations also have a sovereignty-restricting effect. An important role is played by the World Trade Organization, founded in 1994.
11 The WTO has no rule-making powers but provides a forum for negotiations among member states aimed at multilateral agreements. As far as enforcement is concerned, however, the WTO has broken with the traditional international law model; it includes a courtlike institution, the Dispute Settlement Body, that can issue binding rulings in disputes over treaty violations and can impose severe sanctions.
That the UN’s sovereignty-changing effects have not yet been fully appreciated results primarily from the fact that most states have not felt these effects acutely, since they give the UN no reason to intervene. UN interventions occur mainly in situations in which no state, or no effective state authority, remains; where various pretenders are fighting for state power; or where states themselves have become the perpetrators of grave violations of human rights or war crimes. This does not change the fact that the legal institution of external sovereignty is no longer identical with the traditional Westphalian order.
All this is, however, surpassed by regional developments in Europe. Following World War II, two forms of international cooperation emerged there: the Council of Europe, formed in 1949 by ten European states and now comprising forty-seven states, with the purpose of achieving “greater unity between its members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress” (article 1 of the statute), and the European Union, founded by six countries in 1957 as the European Economic Community and since grown to encompass twenty-eight states and extend far beyond a common market.
Various agreements have been concluded by the states in the Council of Europe; they are not legislative acts of the Council of Europe itself, but remain entirely within the bounds of traditional international law. The most important treaty in regard to the sovereignty of the member states was the European Convention on Human Rights, adopted in 1950 and frequently amended. It is significant because of the body formed specifically to enforce it, the European Court of Human Rights; as a result of its powers, it ensures the convention far greater effectiveness than, for example, the human rights instruments of the UN or other regional covenants.
The European Convention on Human Rights departs from traditional concepts of sovereignty in two ways. First, it grants each member state the right to take another country’s human rights violations before the court (article 33) and thus to intervene in its internal affairs. Second, it not only pertains to relations between states but also allows individuals to bring proceedings against member states for violations of the rights protected in the convention (article 34). While little use is made of the possibility of complaints by states,
12 the right of individual petition has become a widely used instrument.
But the traditional concept of international law remains untouched, insofar as the decisions of the European Court of Human Rights have no direct effect within the states. The court does not have the status of an appellate court. It is limited to determining convention violations by member states, but it cannot quash acts of the member states. They are obligated, under article 46, to obey the decisions of the European Court of Human Rights, but this is an obligation under international law. They cannot be forced to fulfill this obligation even by the Committee of Ministers, which is appointed to oversee compliance with the court’s judgments.
In the European Union, in contrast, traditional international law categories prevail only in the field of intergovernmental cooperation. In the core areas of European integration, such as the Common Market, they no longer persist. It is still true that the legal basis of the European Union is an international treaty between sovereign states and not a constitution. However, in concluding the treaties, the member states transferred sovereignty rights to the European Union, which the union now exercises in its own name and with direct effect within the member states. European law does not need to be transformed into domestic law, and its interpretation and application by the Commission and the European Court of Justice are binding on the member states.
It was not expected from the outset that European Community law would have this effect. The Treaty of Rome outfitted the European Community with legislative powers but left open the manner in which these legal norms would take effect. Possibilities included an international law method according to which member states would have been obligated to bring their domestic legal systems into conformity with the treaty, or a quasiconstitutional method, according to which the treaty provisions would take direct effect within the member states and enjoy primacy over domestic law so that the citizens could invoke them against their states. It took two groundbreaking decisions by the ECJ in favor of the second option to resolve the issue; they initiated the process that would later be understood as a “constitutionalization” of community law.
13It is true that the body primarily responsible for legislation is comprised of the governments of the member states, while the European Parliament has only a right of participation, generally confined to the veto. However, we must distinguish between the body and its members. The members, as representatives of their states, determine how the states will vote in the Council. But the decision itself is a decision by a European Union body and thus, for the member states, a heteronomous act. While the primary law of the European Union is international treaty law, its secondary law, based on this primary law, is European legislation.
However, the primacy of community law does not go so far as to cancel the validity of contrary national law, since we are speaking of two separate legal systems with independent sources of law. National law that contravenes community law does not lose effect simply because it is found to be incompatible with community law. However, as long as the community law obstacle exists, the contravening national law may not be applied. The effect is essentially the same. The only difference is that national law is immediately revived when contrary community law ceases to exist. The member states are still the “masters of the treaties,” but they are no longer masters of the law that applies to their territories.
The only issues that remain controversial are whether this also applies to the core provisions of national constitutions that determine their very identities and who has final say in cases of doubt as to whether a legislative power has been transferred.
14 Aside from these reservations, the primacy of European law is uncontested, and it is applied by the member states as interpreted by the ECJ, which has freed itself largely from the methods of interpretation usual in international law and adopted a purposive approach common in national law. Yet since the European Union lacks a bureaucracy of its own in the member states, the implementation of EU law is left to the member states. Moreover, no member state has given up the monopoly of legitimate force, so that the union must rely on their coercive means in cases of noncompliance.
The consequences for the sovereignty of the member states long remained concealed, because until 1987 the Council of Ministers could only decide unanimously. Hence no member state had to submit to a European law without its consent. In addition, it went largely unnoticed that a second, clandestine way of enlarging the powers of the EU existed through the integration-friendly jurisprudence of the ECJ. In the meantime, however, majority voting has become the norm in the Council, so that the method of voting no longer assures that member states are only subject to rules to which their democratically elected and accountable representatives have agreed. Furthermore, the judicial activism of the ECJ has become a matter of public concern.
15Today, in foreign affairs, no state is sovereign in the sense in which states were sovereign in the nineteenth and even the first half of the twentieth century. This is clearly the case for the member states of the European Union. It is also true, however, for UN member states, and even more so for those that have ratified the treaty on the International Criminal Court. An exception may be made—not purely factual, but based on legal status—for states that do not belong to the European Union and hold a permanent seat on the UN Security Council, because no UN measures may be taken without their agreement. If they belong to the WTO, however, their sovereignty, too, has been compromised.
This has not ended the territorial linkage of political rule. States remain the basic units of the international order. But they are no longer the sole rulers on their territory. Instead, external acts of a legislative, administrative and judicial nature—often enacted with the cooperation of the affected states, but frequently without it—claim effect on this territory. The borders between states are not disappearing as a result, but they have become permeable and open to acts of external authority. The distinction between internal and external has become blurred. The state is changing in the same way. The twenty-first century state is different from the state in the Westphalian epoch.
Yet a distinction must be made between the horizontal and vertical dimension. A state’s power to rule still ends at its own borders. No state has the right to govern another state. No state must submit to the rule of another. Externally based acts of rule emanate from international or supranational institutions, established and equipped with sovereign rights by states themselves, as a result of modern challenges and in order to increase their capacity to solve problems. The tasks of these institutions can be narrowly or broadly defined, but all are built upon states. None of them is capable of replacing the state.
As a result, a twofold picture emerges for external sovereignty. It retains its traditional meaning in the horizontal relationship between states. In the vertical relationship of states to international organizations, however, it has shrunk. This is true for all states, but not in the same way. The degree to which sovereignty is impaired depends, first, on the extent of sovereign rights acquired by the various international organizations and, second, on whether individual states have been granted veto rights in the statutes of international organizations. Thus what varies is the intensity with which sovereignty is impaired, but not the basic fact that sovereignty in the traditional sense has been lost.
External and internal sovereignty may be distinguished, but not completely separated. It appears possible for a polity to be externally sovereign, even if there is no internal body that fully controls public power. This is the result of the fact that external sovereignty is linked solely to the existence of a state equipped with public power and is unaffected by questions regarding its internal allocation, separation, and limitation. To enjoy external sovereignty, it is sufficient that a state is capable of acting externally as a legal subject—though this ability, in turn, is not entirely independent of its ability to assert itself internally.
The converse is not the case, however; a polity cannot have internal without external sovereignty. If a political system loses its external sovereignty, it cannot maintain sovereignty internally. Lack of external sovereignty means nothing less than the subordination of state power to a foreign will and to that extent rules out self-determination. If the heteronomy were comprehensive, however, one would no longer be dealing with a state. The name state can only be claimed by an entity that retains powers that only it can exercise. This counts as sovereignty, however, only if it is based on a different concept of sovereignty than Bodin’s.
The fact that external sovereignty does not simply shrink but is actively relinquished, through transfer of sovereign rights to international organizations of which the transferring state becomes a member, makes no difference to the result. Even if it is relinquished in an act of self-determination, the result is heteronomy. The superior entity gains the power to issue orders that bind the members and supersede their own legal acts. If this may happen without the agreement of the affected member, or even against its express will, its own will no longer matters. It is no longer sovereign in the traditional sense.
This is the fundamental difference between self-limitation without transfer of sovereign rights to a superordinate organization, as has always been common, and self-limitation with the transfer of sovereign rights to a superordinate political entity, which did not happen until the mid-twentieth century, except when individual sovereign states formed a federal state. The older self-limitation might lend treaty parties a legal claim to adherence to the limitation, but gave no possibility of one-sided command that might overrule an opposing will. Here, sovereignty asserts itself against international law.
This observation does not depend on who holds sovereignty internally. If a body exists that is viewed as sovereign, such as the British Parliament, on which British national law sets no boundaries, its sovereignty is over if an external body has the right to obstruct the national body’s will or to prescribe decisions that it does not want to take. This situation emerged when the United Kingdom entered the European Community in 1972, while the Civil Rights Act of 1997, with which the European Human Rights Convention was adopted into national law, did not transgress the limits. The House of Lords admitted the loss of sovereignty in its decision in Factortame v. Secretary of State for Transport.
16This observation also affects states that are based on popular sovereignty, which is common today. Popular sovereignty is expressed in the act of constitution making. The constitution establishes the modalities by which the power to govern in the name of the people is granted and sets the conditions under which these powers may be exercised. The constitution’s claim to validity is comprehensive. Acts of governance may only be enacted within its ambit by those legitimized by the constitution, and they can only be binding if they correspond to the formal and substantive rules provided for in the constitution.
In many states that are potentially but not actually subject to the decisions of international organizations, this continues to be the case, so that the limits on sovereignty are not perceptible. But it is not true for the member states of the European Union. In these states a variety of legal acts claims validity on a daily basis, the authors of which are not included in the web of legitimacy and responsibility provided for in the national constitutions; furthermore, they need not fulfill the procedural and substantive requirements that the constitutions establish for acts of public authority within their jurisdictions. The constitution as an expression of popular sovereignty applies only with reservations.
17It makes no difference that ever more national constitutions have authorized the transfer of sovereign rights to supranational institutions, and thus opened themselves up to acts of governance from supranational sources of law. Such authorizations prevent this situation from being unconstitutional. But they cannot change the fact that these constitutions no longer control the use the European Union makes of these transferred sovereign rights, leading to results that could not have withstood constitutional scrutiny, whether measures prohibited by the constitution must be taken or measures required by the constitution may not be taken. Even a loss of sovereignty that conforms to the constitution is still a loss of sovereignty.
So not all acts of public authority that claim effect within the ambit of a constitution can still be ascribed to the people, to whom sovereignty is attributed. The constitution ensures the observance of the will of the people only to the extent that the state power they legitimize and limit acts independently. The legitimating principle of popular sovereignty fails in the case of acts emanating from a supranational power. The constitution, as its mode of expression, now only partially regulates the political process. To the extent that it retreats, popular sovereignty can no longer claim effect.
A description of the current situation would be incomplete, however, if it ended with the assertion that states have surrendered sovereignty, in the traditional sense of full possession of the public power and sole disposal over the means of governance, and are thus no longer sovereign in the sense they were until the mid-twentieth century. The depiction must also include the fact that supranational organizations have not attained sovereignty. They possess only a more or less large number of sovereign rights. No supranational or international organization, including the European Union, has full possession of public power. None has achieved a monopoly of legal force within its ambit.
The fact that the new international order, in contrast to the state order, is structured not hierarchically, but heterarchically, leads to a system of mutual entanglement and dependence. In order to understand it, one must distinguish between the existence and legal basis of the entities, on the one hand, and the acts of governance that emanate from them, on the other. In regard to the existence and legal basis, states continue to be autonomous. They themselves decide upon the purpose and form of their political unity. This is also true for the member states of the European Union. Certain forms of constitution, such as those that undermine the rule of law, would make a state unsuited for membership. But this does not lend the European Union the power to determine the constitutions of its member states. At most, it can only deny membership.
In contrast, no international organization possesses self-determination regarding its own existence and legal basis—that is, sovereignty in the sense of the constituent power. International institutions are brought to life by states, which determine their basic legal orders, purposes and tasks, organs and instruments, powers and procedures. Their legal basis is externally determined and differs in precisely this way from the constitutions that are the legal bases of states. The fact that the legal bases of supranational institutions are increasingly referred to as “constitutions” means that, tacitly, an essential element of constitutionalism is being surrendered.
18The picture changes, however, if we move from the level of the basic order to that of action. While in traditional international organizations this level also remains the responsibility of the member states, that is no longer the case for the newer international systems to which states have transferred sovereign rights. If the transferred powers are exercised by an organ of one of these international institutions, it decides autonomously, even if the member states participate in the decisions as part of this organ. If its acts are directly binding on the member states, the states have lost the corresponding degree of self-determination.
The situation is equally unclear at the level of the judicial system, since it is not completely hierarchical, as it is in the state. Instead, competing jurisdictional claims are made by the European Court of Justice, on the one hand, and national supreme courts, on the other. National constitutional courts, in particular, insist on their right to review European Union acts for conformity with basic national rights and preservation of the powers not transferred to the European Union, while the ECJ contests that right. As long as no clear superior/subordinate relationship exists, there is no way to overcome this discrepancy. Thus the judicial system, too, depends on mutual deference.
19A picture therefore emerges of a mutual intermingling of autonomy and heteronomy, in which states sometimes act in self-determined fashion and international organizations are heteronomous, while at other times international organizations operate autonomously and states must allow external determination. The gap is never bridged through the ascription of the public power of international organizations to an equivalent of the people as bearers of sovereignty. Even the European Union has no such collective holder of its public power.
20 It is this observation that leads one to ask whether the concept of sovereignty still reflects reality and continues to be useful in portraying that reality, or whether we have entered a “postsovereignty” era.
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