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Sovereignty Today

The answer to these questions cannot be found in the history of the concept of sovereignty. As we have shown, no clear standard exists for applying the concept. The constellations to which it has referred are too different, the meanings it has taken on in fluctuating relationships and ideas too numerous, and the functions it has fulfilled at various times and in various places too uneven. But this does not render a historical examination unnecessary. Precisely because it reveals the variety of meanings, the context dependence and adaptability of the concept, such an examination prevents overhasty determinations and prognoses.¹ There are many gradations and combinations of conceptual elements between the medieval use of the word and the Hobbesian idea of sovereignty.

The number of works seeking an answer has grown apace.² We are facing a veritable sovereignty boom in the legal and political literature, such as only a crisis can generate. No consistent view has yet emerged. More and more authors advocate abandoning the concept because it has lost its object and is no longer helpful in explaining the current situation. In their view, all that remains is a variety of powers, distributed among several levels and holders, which can no longer be meaningfully bundled into a concept of sovereignty. Thus sovereignty would no longer serve its purpose as the key to understanding the state and the international order.

Yet declarations of the death of sovereignty, as history reveals, are nothing new. Earlier claims that the concept could not be reconciled with current ideas of legitimate political rule, or that the object it described had disappeared and therefore the concept itself had to be eliminated from the legal and political vocabulary, generally proved on closer examination to involve the disappearance of the conditions for a very specific concept of sovereignty. The same cannot be ruled out for the most recent diagnoses. Sovereignty deniers must therefore take a position on the possibility that the concept can be adapted to changed conditions or values without losing substance or function.

This seems all the more advisable since sovereignty continues to play an important role in domestic and international legal documents as well as in international relations. States raise and reject claims in the name of sovereignty, and international organizations are reluctant to deny states their sovereignty. The state of positive international law and political practice both lend sovereignty considerable resilience, which should not be ignored in scholarly works.³ A number of authors have found it more important to develop a notion of sovereignty that meets present conditions and needs than to prove its obsolescence.⁴

The authors who take this path, hoping to adapt the concept of sovereignty to changing conditions, appear to be greater in number than the sovereignty deniers. Yet no consensus has been reached so far on explanations of the concept. However they would like to interpret sovereignty, sovereignty advocates must provide evidence that the concept still has explanatory value and fulfills a function that cannot be expressed by related concepts or those incorporating elements of sovereignty, such as public power, sovereign rights, self-determination, or the monopoly of force. Like the obsolescence of sovereignty, its continued value must be explained.

The task is made no easier by the fact that, in clarifying this question, a distinction must be made between the concept and its object. The object and the concept are neither unrelated nor identical. They are located on different levels: the object on the level of actual conditions, the concept on the level of the imagination of reality, its meaningfulness or value. Both are subject to change, but because of the different levels on which they operate the changes are not necessarily synchronous. The process of change can also be different at the same time, depending on the countries or regions or on academic and political trends.

Even if movements on the two levels are unsynchronized, they cannot remain completely independent of each other. This protects the use of the term from arbitrariness. The concept of sovereignty is certainly open to interpretation, depending on perception and assessment, but not to all interpretations simultaneously. What was always unique to it, even in its use before Bodin, was its quality as highest and ultimate authority regarding the right to make decisions and give orders that are binding on others. Sovereignty in its legal usage has a connection to rule, in the sense that it involves the right to rule, in which the holder of this right, as far as it extends, is controlled by no one else.

Bodin’s contribution was to separate the concept of sovereignty from individual prerogatives or powers and to consolidate them into public power per se, including the right to make law, as well as the concentration of this power in one holder, thereby eliminating the numerous, mutually independent holders. Where this step toward uniformity and indivisibility was taken, the necessary result was the territorialization of rule. Because territorialization, together with concentration of force, ended in the emergence of the modern state system, the external independence of the state was implicit. The coexistence of various highest authorities with a claim to exclusivity was made possible by the territorial limitation of sovereignty.

Strictly speaking, a concept of sovereignty existed only from that point on. In its medieval usage, sovereignty was only a word used to describe specific positions of rule. As Reinhart Koselleck has explained in the introduction to his encyclopedia of basic historical terms, a concept is associated with a word, but is also more than that word. “A word becomes … a concept when the abundance of a socio-political context of meaning, in which—and for which—a word is used becomes part of the word in its entirety.”⁵ This was the case with Bodin’s theory: the word sovereignty now disclosed the character of a new system of rule, whereas the medieval world order could not have been subsumed under this expression.

However, the lack of substantive limits on the holder of this concentrated power was not an element of Bodin’s notion of sovereignty. It was declared only later to be a marker of sovereignty and was never uncontested. Nor was sovereignty in Bodin’s sense bound to a particular holder of political power. It is true that Bodin imagined the holder to be a person, so that holding and exercising sovereignty were joined. A single individual was not the only possible holder of sovereignty, however, but also a collective of people. Ascription of sovereignty to an abstract entity like the state was a product of later developments, however much Bodin’s concept may have laid the groundwork for it.

An always controversial issue, answered in the negative by Bodin, was whether sovereignty is divisible. The most important reason for the persistence of this issue was the variation in the political structures of the territories that lagged behind France in concentrating power, or simply refused to do so, but could not escape the pull of the concept of sovereignty. One could be called sovereign even if one was not the sole possessor of public power. Either a bundle of sovereign rights was enough upon which to base sovereign status, or it had to be recognized that several holders could cooperate in exercising sovereignty, so that none of them alone was supreme.

The most successful way to deal with this difficulty was to depersonalize the holder of sovereignty. The concentration and uniformity of public power, in contrast to the separation of sovereign rights, could be maintained if sovereignty was ascribed to the state that thereby became a legal person. The depersonalized holder of sovereignty, it is true, was no longer able to exercise the powers linked to it by itself, but had to utilize persons or groups of persons that acted as its organs. The state itself was but the entity to which sovereignty was ascribed and symbolized the unity of the sovereign rights exercised separately by the various branches of government.

This solution was not available, however, for federal entities—in particular for federal states—because federal states are constituted from individual states; therefore the distribution of state power cannot be limited to the level of its exercise, but extends to the level of the holder. The federal state thus remained a constant source of irritation for the doctrine of sovereignty. Yet it was the actual existence of federal states that forced a deeper reflection on sovereignty and produced a significant number of variants of the concept—some of them monist, some dualist. Given the distribution of sovereign rights between states and international organizations, these variants have gained renewed significance today.

With the emergence of the constitutional state, the step to depersonalization of sovereignty was complete. When fully formed, it could recognize only democracy as the legitimating principle for political rule. Sovereignty thus meant popular sovereignty. The people were not capable of acting politically, however. Sovereignty therefore found expression only in the act of constitution making. The powers connected with sovereignty were exercised by delegates or representatives as derived powers. This made it easier to reconcile sovereignty with limitations of power, because the limitation took place only below the level of sovereignty, at the level of its exercise.

Something similar is now happening at the international level. An international legal order is emerging that no longer depends exclusively on self-determination by states but is imposed on them regardless of their consent. To this extent, parallels may be observed with the constitutionalization of state power, which likewise occurred as a transition from self-limitation by the absolute ruler to a limitation on political rule by way of legal norms emanating from a source other than the ruler and not at his disposal.⁶ This parallel is the backdrop to the ubiquitous discussion on the constitutionalization of international law, even if it tends to neglect the significant differences between a full-fledged constitution and the present state of international law.

Nevertheless, it is becoming clear that the development encapsulated in the notion of constitutionalization far exceeds prior alterations of sovereignty, because recent developments concern the territoriality of political rule. They present a much more severe challenge to sovereignty because they involve the external self-determination of states, fundamentally untouched for centuries, and thus necessarily narrow their internal self-determination. This plays out most strongly in the European Union, where the opening of the member states to legal acts emanating from nonstate sources has progressed the farthest. However, the union itself has not become a superstate, which would have led the sovereignty discussion back to the familiar question of the federal state.

The Westphalian order of territorially limited states in full possession of public power within their borders, and protected against external claims to rule, is being replaced by an as yet unclear framework in which the condensed public power exercised by the state is again split into its components, individual sovereign rights. These rights—some as larger or smaller bundles, some as individual powers—are exercised by various holders, neither clearly equal nor clearly hierarchically structured, and are applied in part functionally, in part territorially, and at times once again displaced onto new agencies within existing authorities such as the European Monetary Union or the Schengen Agreement.

This raises the question whether we have returned to a pre-Bodin state of affairs and therefore can now only employ the medieval concept of sovereignty. However, one difference is immediately apparent. While the Middle Ages saw only the first signs of state formation, the states in this post-Westphalian world continue to form the fundamental units of the newly emerging order. Even if they are no longer in full possession of the public power that operates on their territory, they are the source of supranational power and hold the majority of sovereign rights. This is also true of the members of the European Union.

If we ignore this difference and look only at the supranational level, then the individualization of the sovereign rights exercised there, and their distribution among many mutually independent holders, may recall medieval conditions. But in this regard, too, the differences are significantly greater than the parallels. In the Middle Ages the juxtaposition of a large number of holders of personally oriented, functionally limited powers of rule resulted in a comprehensive system of rule. In contrast, the institutions that may exercise international public power today rise like islands from a sea in which, as before, traditional states predominate, though reduced to the extent of the rights they have transferred to supranational actors.

Additionally, the medieval holders of sovereign rights were bound to a comprehensive legal order that, at least in its foundations, was considered God-given and therefore sacrosanct. This legal order allocated to each his position and his rights and duties within the overall order. The order itself was overarching, and decentralized only in its preservation and implementation. In contrast, international law is fragmented and broken up into a range of unconnected legal regimes—trade, environmental protection, human rights, migration, and so forth—whose agents operate not in concert, but separately and committed to their specific agenda, so that often the allocation of a problem to a particular regime determines in itself in whose favor it will be resolved.⁷

Thus medieval analogies do not help in understanding the present. Today’s reality is too strongly affected by modern concepts of sovereignty, and too permeated by current claims to sovereignty, for the recent conceptual tradition to be laid aside. Nor, however, can it be maintained unchanged. The characteristics that have become questionable are in fact those that, until recently, were considered fundamental. “If one understands sovereignty,” Laband taught, “as the supreme, highest, only self-determined power, this concept logically includes the characteristic of unlimitedness, and consequently also the characteristic of indivisibility,” for division meant limitation and would be “a complete contradictio in adjecto.”⁸

If the unlimited nature of the right to rule were necessary to the concept of sovereignty, no sovereignty would be left today. Political rule, in terms of its purposes and means, has long been limited in the constitutional state, as well as more recently under international law. Even the constituent power that sets the limits of state power in the constitution is no longer sovereign, in the sense of completely unlimited freedom, although this absolute freedom is still maintained in the concept of popular sovereignty. A constitution that, for example, deprived a certain group of people of all rights would violate international law and, if enforced, could justify intervention.

The situation is similar, though more complicated, for indivisibility. Given the transfer of sovereign rights to the supranational level, sovereignty would be at an end if the only way to define it were the concentration of all public powers in one place. The states have lost the monopoly of public power, but no supranational organization has gained it.⁹ If the concept of sovereignty is to continue to be applicable, it must be separated from the full possession of public power. This can happen by reducing the standard of indivisibility or accepting divisibility or developing a different concept of sovereignty. All three methods have been attempted.

The indivisibility of sovereignty, under today’s changed conditions, can be maintained only if a distinction is made between abstract sovereignty and concrete sovereign rights. Such attempts can be observed in the European discourse on sovereignty.¹⁰ Some authors insist on the indivisibility of sovereignty, but do not consider it to be affected by the distribution of sovereign rights. The only controversial point, as in German constitutional law after the founding of the Reich, is who is sovereign, the European Union or the member states. Although the issue at the time was only the location of sovereignty in the (federal) state, while today sovereignty is debated in connection with a supranational institution, the arguments are similar.

Advocates of member-state sovereignty rely on the source of the primary law of the European Union, which is adopted by unanimous decision of the member states. They remain the “masters of treaties” and, according to the principle of conferral, retain the legislative Kompetenz-Kompetenz. Advocates of European Union sovereignty rely on the effect of community law, which enjoys primacy over national law—even the highest-level national law, the constitution—and on the power of the ECJ to decide conflicts about the distribution of competences, which gives it the so-called judicial Kompetenz-Kompetenz.

But only the two points of view together yield the full picture. The state-friendly alternative ignores the fact that, within the scope of European Union powers, states are prevented from making their own decisions and are subject to external decision making. The fact that they may participate, at least in legislative decisions by the Council, does not change this; it does not guarantee that their wishes will be implemented by the community bodies. The European Union–friendly alternative overlooks the fact that the European Union is not the master of its own legal basis—it has no right of self-determination in that respect—and that the ECJ’s right of final decision in conflicts of authority is controversial.¹¹

This unitary thesis recently gained strong support, in its state-friendly variant, from the Federal Constitutional Court of Germany. Sovereignty played a crucial role in its Lisbon judgment, in contrast to the Maastricht decision.¹² The difference was expressed in the court’s statement that the Basic Law not only presumes sovereign statehood but guarantees it. The court did distance itself from a “rigid” interpretation of sovereignty, which is not compatible with the transfer of sovereign rights to supranational institutions; it distinguished between sovereign rights and sovereignty. Membership in a political union such as the European Union means the common exercise of certain public powers, not divided sovereignty.

The boundary, and therefore the fundamental difference, between the member states and the union as a nonstate entity is self-determination regarding the constitutional basis of the political entity. Sovereignty is expressed primarily in the constituent power. While the member states possess this power, the European Union does not. It cannot constitute itself. Its basic order is derived from the states. They remain the masters of the treaties. In a confederation there is no shift of sovereignty.¹³ Nor is there an independent popular sovereignty belonging to citizens of the Union as a whole, but only European representation by individual nations at the level of community bodies, below the level of sovereignty.¹⁴

Germany’s right of self-determination, guaranteed by sovereignty, is not, however, limited to the constituent power. It continues on the level below the constitution, in political decision making. There, too, the Federal Republic must retain substantive opportunities for decision making. The German Constitutional Court listed matters it considered “sensitive” for a constitutional state’s ability to structure itself and that therefore could not be transferred completely to the European Union. Even less may the European Union avail itself of these powers. The principle of conferral is constitutive for the protection of the sovereignty of the member states.

Derived from this is the idea that the primacy of community law over national law is treaty based and not inherent in community law. The national constitution allows it to be applied domestically. If this permission has not been given, European law is not applicable in Germany. Moreover, because sovereignty remains in the hands of the member states, they cannot be denied the right to review European laws and legal acts as to their conformity with treaties. This review power, which the Constitutional Court earlier claimed for conflicts over basic rights, on the model of the Solange II judgment,¹⁵ as well as for “deviating acts,” has now been extended to the constitutional identity of the Basic Law.

By claiming the judicial Kompetenz-Kompetenz in these matters, the German Constitutional Court avoided leaving gaps in its arguments for sovereignty, which would be the case if the European Court had the last word in conflicts of authority. In that case, the German Constitutional Court would no longer be able to stop expansions of union power through treaty interpretations that might amount to treaty amendments. The position of the member states as “masters of the treaties” would thus lose value. With the judicial Kompetenz-Kompetenz, claims of sovereignty remain coherent and can only be attacked by questioning their premises.

The Constitutional Court found the basis for this view in the principle of democracy, which is indissoluble under article 79(3) of the Basic Law, as long as the Basic Law is in force. The Court interpreted democracy as self-determination regarding a state’s own basic order, as well as political decision making within this basic order by organs that act at the behest of the people and are accountable to them. It saw the member states as a “constituted primary political sphere” that is protected in its substance by the Basic Law. Sovereignty’s task is to guarantee national democracy. The Constitutional Court is authorized to give effect to this guarantee.

The European Court maintains the opposite view. It does not deny the member states’ sovereignty, but starts with the assumption that a part of it has been transferred to the European Union, including the right of final decision in conflicts over authority. The fact that the Union’s legal basis consists of international treaties in which the member states are the masters is a more difficult obstacle to overcome. The Court has attempted to clear this hurdle by looking beyond member states as treaty parties and ascribing treaties to the peoples of the member states in order to provide them with a normative authority independent of the states. This system also seems to be open to question only on its premises.

Oliver Beaud has proposed an unconventional solution to the problem of sovereignty in federally organized political entities. Federations, in his view, cannot be comprehended using the concept of sovereignty. He gave the corresponding chapter in his book the title “Setting Aside Sovereignty to Conceptualize Federalism.”¹⁶ Sovereignty cannot be divided and is therefore reserved to states. A federation, in contrast, is “a political order without sovereignty.”¹⁷ In consequence, a federally organized entity cannot be a state. Beaud indeed comes to this conclusion and develops new rules for such an entity’s external relations, alongside international law, which is reserved for relations between sovereign states.

In order to hold on to sovereignty, numerous authors avoid these difficulties by abandoning the element of indivisibility. They accept a “pooled, shared, divided, split or partial sovereignty” (“divisibility, alienability, compossibility and mixity”) for the newly emerging international order,¹⁸ as well as for the special case of the European Union. In this view, there may be several sovereigns on one and the same territory. If sovereigns are still to be characterized by the fact that they have no one above or next to them, this is only possible if final say is limited to their respective areas of authority—that is, each holder of sovereignty is only the highest “in his sphere,” as Waitz expressed it.

In fact, when dealing with the possibility of divided sovereignty today, some observers are once again invoking Waitz and earlier German constitutional law doctrine, which was superseded soon after the foundation of the Reich by constitutional positivism and its rigid concept of sovereignty.¹⁹ For an older generation, the federal state was characterized more by the equal relationship of its members than by hierarchical relations. Federal powers and the powers of the individual states had to be independent, Waitz wrote, “The former may not receive its power from the latter, and the latter may not be based on a transfer of power from the former.”²⁰ A division of sovereignty is more easily reconciled with this than with a hierarchical concept of national unity.

However, the older doctrine took shape around the idea of a federally organized nation. Therefore, it is not clear that it applies to the relationship between states and supranational organizations as well as it does to different members within a nation-state. In contrast to nation-states, which as a rule are not merely alliances of convenience but communities of solidarity based on common traditions and values, international organizations generally pursue limited goals and therefore do not produce deep bonds in the population. This makes it doubtful that a concept of sovereignty based on belonging can be transferred to them.

Furthermore, in contrast to territorially limited states, which have retained, even in the post-Westphalian order, a large majority of public tasks and public power, supranational organizations are typically functionally limited, often in the interests of a single task, and—to the extent they are equipped with any public power—only possess the powers necessary to fulfill that task. No supranational organization has yet been granted the right to use physical coercion. States continue to hold the monopoly of legitimate force. When supranational organizations depend on the use of force to implement their measures, they must engage the states.²¹

This is true even for the United Nations. If it wishes to intervene militarily in the interests of maintaining peace or protecting human rights, it must borrow troops from cooperating states. The European Union, too, with its comparatively greater breadth of functions and organizational density, and corresponding powers, has no coercive apparatus of its own. If its measures can only be enforced through physical force, it depends on the coercive apparatuses of member states. It might issue legal provisions for their use, to a limited extent. But it cannot give them any orders.

One may still ascribe sovereignty to states despite the loss of unlimited self-determination. But this is much more difficult for supranational entities that only have enumerated tasks and can use public power only to the extent necessary to fulfill these tasks. And, except for the European Union, this is not how these organizations see themselves. If supranational organizations, with their limited tasks and related powers, were sovereign, this would in fact resemble an unspecific, premodern concept of sovereignty in which it is enough for someone to exercise various prerogatives as a final arbiter.

If sovereignty, therefore, even under today’s conditions, requires that a political entity not only exercise a special function with related sovereign rights, but that it possess a broader set of tasks with the corresponding range of public powers, then it is at least imprecise to speak generally of divided sovereignty in the relationship between states and supranational organizations. Divided sovereignty means that each side possesses a piece of sovereignty and not merely some of the sovereign rights that, in their entirety, used to comprise sovereignty. The sovereign rights that have been surrendered do not, as a rule, consolidate back into (partial) sovereignty in the supranational organizations.

The European Union falls into another category, however. In its number of tasks, range of powers, and organizational density, it outstrips all other supranational organizations, without having crossed the threshold to a federal state. Therefore those who believe that one cannot do justice to the new circumstances using monist concepts of sovereignty with the mere division of sovereign rights, but only through the divisibility of sovereignty itself, find their most convincing case in the European Union.

Nevertheless, one would hesitate to use the term sovereign to refer to a political entity that does not possess the right of self-determination regarding its existence, purpose, powers, and organization. As mentioned before, this is the case with the European Union. Sovereignty means, among other things, self-determination, albeit within legal limits, but the European Union lacks constituent power. As far as its legal foundation is concerned, it is heterodetermined. It therefore seems incorrect to characterize the European Union as a political entity with divided sovereignty.

Is it at least correct then to speak of pooled or shared sovereignty, meaning that the nation-states united in the European Union exercise their sovereignty jointly within or through the union? This may have seemed to be the case in the early years of European integration, when European decision making required unanimity among the member states. Meanwhile, however, the European Union has become an entity that may act independently of its member states, though with binding effect on them. A member state that receives an order from the European Union does not obey the other member states, but the European Union.

There is, however, no necessity for sovereignty to persist. Neil MacCormick’s “post-sovereignty” is not an impossibility, certainly not in Europe. Rather, one might imagine a situation in which sovereignty will be completely absent in the European Union. This could happen if the member states either transferred or lost so many powers that those remaining would no longer deserve to be called sovereign, but without the European Union gaining constituent power. This situation would not be identical with Schmitt’s suggestion that, in a Bund, the sovereignty question is left open. Rather, the sovereignty question would no longer be posed within the European Union, while sovereignty might survive in the external relations of the union and its member states.

However, the European Union has inspired still other ideas of how the concept of sovereignty can be adapted to the new situation by renewing its meaning. They employ labels such as “constitutional pluralism,” “late sovereignty,” and “contrapunctual law”²² and start with the premise “that no unitary approach, however nuanced, can adequately capture the diversity of the emerging constitutional order.” Therefore, a fourth way must be found that overcomes the dualism of state and nonstate, original and derived powers, constitution and treaty, superior and subordinate, in favor of a concept that avoids renewed unity formation or hierarchization, but also fragmentation of political authority.

The difference from the divisibility and the indivisibility theories is that these authors recognize the sovereignty claims of both sides, take seriously their inherent demands for exclusivity, and do not resolve them in favor of one side but concede sovereignty to both sides, the union and the member states. Since sovereignty always involves the highest ordering power and preservation of identity, it includes an “irreducible core, the non-negotiable given of any sovereign order.” Neither side may demand preference for its sovereignty claims from the other. Each must allow the other to count. “Identity is lost if it is not self-determined.”²³

The union and the member states, along with their courts, are forced in this way to enter into dialogic rather than confrontational methods of settling conflicts, which Neil Walker considers necessary to his concept of “constitutional pluralism.” If none can trump the others by appealing to its own sovereignty, the only remaining possibility is to negotiate opposing standpoints. Because the issue is ultimately about defending identity, however, the theory factors in the possibility that negotiation may not succeed and tensions must be tolerated. Such is the cost of abandoning attempts at hierarchy, which can only be avoided if the European Union transforms into a federal state.

This indicates that today, too, the possibility of adapting the concept of sovereignty to changed conditions exists. There is, however, no absolute necessity to stick to sovereignty, for instance in order to prevent anarchy. Since sovereignty is not identical with political rule, but represents a particular form of political rule, its absence cannot be equated with civil war or anarchy. It is true that modern sovereignty formed in order to overcome civil wars. But anarchy did not prevail in the presovereign world; nor would the postsovereign world have to descend into anarchy. Effective political rule is indispensable, but it does not need to be imagined as sovereign.

Nor does basing powers of rule in the people depend on sovereignty. It is common to describe constitution making as an act of sovereignty originating with the people, who can at any time take up this power again. To this extent, it may be said that the sovereignty absent in the constitutional state withdraws into the people’s constitution-making authority. But the people are only capable of acting after having been constituted as a political entity by the constitution, and then, like the various branches of government, act only as bearers of specific powers, not bearers of the constituent power. The locus of this sovereignty remains fictional, as does sovereignty itself.

This is not an argument against popular sovereignty as the basis of political rule. But popular sovereignty does not involve sovereignty in the sense of the highest, irresistible power. Rather, it comes into play in its capacity as a legitimizing principle for rule determined by the constitution. It indicates that political rule can be legitimized not by an original right of the ruler, nor by divine law, nor by superior insight into the common good, and certainly not by the mere control of the means of force, but only by popular mandate, and can only be exercised with responsibility toward the people. Everything achieved by popular sovereignty as a principle for legitimizing and organizing political rule is expressed in the concept of democracy.

In contrast, where it refers to the external dimension, the concept of sovereignty cannot simply be replaced. In political rhetoric, the concept of sovereignty is, anyway, omnipresent. But in the scholarly literature, too, the tendency to abandon “sovereignty” is generally weaker than the disposition to retain the concept, though perhaps with a change in meaning. These changes even sometimes take up traditional elements accompanying the history of the concept. The absolute nature of sovereignty was never uncontested. Its plausibility was generally limited to historical situations involving extreme threats to a polity. Without such a situation, the need to legally limit even the highest, irresistible power regularly came to the fore.

When its unlimited nature was asserted, this was largely irrelevant to the actual exercise of rule, either because sovereignty was pushed into the constituent power or was ascribed to an abstract entity that only became capable of action through its organs, which were not omnipotent. Self-limitation was the means through which the unlimited nature of the right to rule could be reconciled with the limitation of its exercise. The same result was achieved by the distinction between possessing and exercising sovereignty. But there was always a concept of sovereignty that was legally limited from the outset.

Divisibility also had an older tradition, generally forced by the structure of the political system, in the form of either a distinction between sovereignty and sovereign rights or a distribution among various holders, each one of which had pieces of sovereignty at its disposal or could only take advantage of undivided sovereignty in cooperation with the others. Even an unbridgeable dualism, as has been proposed in the most recent suggestions for adapting sovereignty to the European situation, was thought earlier in history to be reconcilable with sovereignty. What is new is the international constellation, not the repertoire for dealing with it.

In a political world whose basic units continue to be the states, external sovereignty is not simply brought along as an obsolete relic. It is still more or less obvious. The boundaries between states, and therefore their claims to territorial exclusivity, may have been relativized in a way that makes an absolute concept of sovereignty seem implausible. But the boundaries have by no means dissolved; even in the European Union they largely retain their earlier significance in the horizontal dimension—that is, in the relationship of states among themselves. They are porous in the vertical dimension—that is, in the relationship of states to international organizations and their laws and military actions—but, even there, only occasionally.

As far as the evidence of sovereignty is concerned, it must always be kept in mind that interventions by the organized international community, the United Nations and functionally specialized institutions like the WTO, remain only potential for most states and are seldom or never actualized. For failed or fragmented states, or for rogue states, the impact of international missions on their territory can be quite severe; but the purposes of these missions are temporary and aimed at the restoration of functioning states. Therefore, in the world outside Europe, sovereignty has far greater plausibility than in integrated Europe. It is still perceptible and more or less effective.

It would therefore be wrong to assess the conditions under which sovereignty continues to be possible from only the European perspective. The European Union is a special case in comparison with the rest of the world. Nowhere has the traditional interpretation of sovereignty been so strongly challenged. But this special status would disappear if the European Union were to be transformed into the United States of Europe. Also, in terms of quantity, the special European case does not carry much weight. The member states of the European Union make up less than 15 percent of all the states in the world. Incidentally, on its outer borders and in the relationship of the member states to nonmember states, the usual conditions prevail.

The fact that, given this reality, it is not implausible to continue to think in terms of sovereignty with regard to foreign policy does not mean that the function of sovereignty must remain the same. Whenever sovereignty is invoked, power claims are at stake. These claims are addressed to those who are supposed to accept and respect them. Inherent in this observation is the idea that all claims to sovereignty have their opponents. They can refuse any rule that is based on sovereignty. They can also combat the prevailing interpretation of sovereignty by disputing its justification or proposing a different meaning. The history of sovereignty is filled with such debates.

For this reason, the actual lines of conflict deserve attention. Many older differences have paled over time. This is especially true for the opposition between absolute and limited sovereignty. At least to the extent that constitutionalism has prevailed, this dispute has been decided in favor of the latter. Controversy continues over the divisibility of sovereignty. However, this conflict has weakened considerably through the understanding that sovereign rights can be distributed among various holders. This also eliminates the conflict between an abstract, unitary concept and a concrete plural concept of sovereignty. The question, therefore, is what is being defended and contested when claims of sovereignty are raised.

There is much evidence that the lines of conflict at present run mainly between particular and cosmopolitan norms, democratic self-determination in state-organized entities and claims to universal validity of moral postulates, “new sovereigntists” and “internationalists.”²⁴ Among the cosmopolitan norms, human rights stands out. In contrast, external sovereignty took its meaning from the outset from the self-determination of states. It guaranteed internal sovereignty. It is true that in the constitutional state sovereignty has retreated into the constituent power, but this leaves the right of external self-determination unaffected. It continues to be guaranteed to states, due to their sovereignty, and includes, in particular, decisions on the foundations and design of the political system.

Human rights movements frequently view sovereignty as morally unacceptable because it places national interests above universal values. Indeed, the protective wall sovereignty placed around the self-determination of states was originally impenetrable. International law recognized only states as legal subjects. How they acted on their own territory was a domestic matter, regulated by national law, but uninteresting for international law. Human rights could not be asserted at the international level. One of the greatest changes in the postwar era, however, is that this concept of sovereignty is disappearing.

International law now penetrates state borders and also applies to the relationship between states and their inhabitants. To a limited degree, these inhabitants also gain international legal subjectivity, specifically as possessors of human rights, which are now internationally guaranteed. Even military interventions by the international community are accepted to protect human rights.²⁵ Essentially, states can no longer claim sovereignty as a defense against humanitarian intervention. This development is new, and its details are still unsettled. In principle, however, the opposition between sovereignty and human rights has been overcome. The right of self-determination no longer covers violations of international humanitarian law.

Some authors find it insufficient, however, to understand human rights as mere limitations on sovereignty. They advocate subordinating sovereignty to human rights. Accordingly, conflicts between sovereignty and human rights would be solved not by balancing, but with a presumption in favor of human rights. Sovereignty would thus lose its status as a first principle of international law and would be replaced by a new normative foundation that is no longer centered on the state. Instead, the whole system of international relations would be centered on the individual. This does not mean that states would disappear. But they would be entitled to invoke the sovereign right of self-determination only insofar as it would serve individual well-being. This concept is presented under the heading of “humanization of sovereignty” or “humanized sovereignty.”²⁶

Yet individual well-being is always realized in a community—a collective entity that is more than the sum of its individual members and that has developed a collective identity distinguishing it from other communities. Even if a community shares the view that the well-being of its individual members is the ultimate goal, there will always be different opinions about the meaning of well-being. A consensus that individual well-being depends on the recognition of human rights may narrow the area of controversy but does not eliminate it. Even in this case, the scope and range of human rights and the best way to accommodate conflicting rights are controversial issues and thus require political decisions.

The primary space for making these collectively binding decisions is still the state. International law protects the right of states to make these decisions according to their rules and preferences. The same is true for a nation’s choice of its political system. One may be convinced that the most favorable environment for human rights is a democratic system, because only in a democracy do individual citizens have a chance to participate in collective decision making in a meaningful way. But it would be difficult to argue that democracy is a necessary precondition of human rights. Certainly, no state is obliged by international law to organize itself in a democratic fashion.

If “humanized sovereignty” meant that only political systems that combine human rights with democracy could enjoy sovereignty, many states would lose the legal protection of self-determination. Depriving them of sovereignty in this sense might be regarded as an invitation for all sorts of interventions by other states. For this reason, the idea of replacing sovereignty with human rights as the highest principle of international law has met with considerable criticism.²⁷ Even a proponent of “humanized sovereignty,” Anne Peters, admits that the principle of self-determination should “still be understood to protect the capacity to choose a political system commensurate with one’s national culture, even if this results in an illiberal and authoritarian regime.”²⁸ And humanized sovereignty is still sovereignty.

Yet human rights are threatened not only by states but also by international organizations. Most international organizations, even if charged with the protection of human rights, are not themselves bound by these rights. At a time when the impact of international organizations is growing, it is a serious postulate that they, too, should be obligated to respect and not only protect human rights.²⁹ The same is true with regard to self-determination. It can also be threatened by international organizations, if they succumb to institutional self-interest or allow themselves to serve the interests of certain states. Power is prone to misuse, whether in the hands of states or of international institutions.

Democracies are dependent, to a particularly great extent, on states’ right to self-determination because democratic principles currently find the best conditions for their realization in the context of the state. The more ambitious the concept of democracy, the less likely it is to be realized beyond the state.³⁰ Democracy should not be reduced to periodic elections. Rather, elections will fulfill their function only if they are embedded in a constant process of opinion formation and articulation of interests. This is a demanding process dependent on mediation by parties, associations, and the media, which provide for constant feedback between the government and the governed, even between elections. Political participation works more or less well within the framework of the state, while it is increasingly diluted the more international organizations depart from the state level.

For now, democratic self-determination still depends largely on the state. This is true in relation not only to global but also to regional institutions. The laws and orders of the European Union are heteronomous acts from the perspective of the member states, if they have not agreed to them or have had no opportunity to participate in them, because their representative, the Council, had no say in the decision-making process. This is the case, for example, when the union takes away from member states the right to decide which areas to leave to market regulation and which to regulate publicly, in the interest of compensating for market failures.

The Lisbon judgment of the German Constitutional Court was based on these considerations. It defended the sovereignty of the Federal Republic not in the interests of the nation-state but in the interests of democracy,³¹ which enjoys better conditions in the nation-state than in the European Union and under article 79(3) of the Basic Law cannot be relinquished. It also did not defend it against European integration, which is not only permitted by the Basic Law but, according to the Court, even required. The Court thus also did not deny the primacy of community law, but defended it against the danger of depletion through overeager surrender and creeping deprivation of powers.

Apart from that, the defense is confined to threats to the identity of the state’s constitutional order. The judgment contains no statement regarding the incompatibility of European secondary law with the treaties. This is reserved for the European Court of Justice, which is the authentic interpreter of the treaties. The German Constitutional Court limited itself to determining under what conditions, according to German constitutional law, European legal acts could not apply on the territory of the Federal Republic. It is the authentic interpreter of the Basic Law. This should be compatible with the “fourth way” advocated by Walker and other authors.

Sovereignty’s most important function today lies in protecting the democratic self-determination of a politically united society with regard to the order that best suits it. The progressive supranational fulfillment of public tasks that exceeds the abilities of individual states, as well as the further juridification of internationally exercised public power, are not hindered by this developing concept of sovereignty. As long as there is no convincing model of a global democracy, the source of democratic legitimacy and supervision must not run dry at the state level. Today sovereignty protects democracy.