(a) The First Part of the 20th Century: Formalizing International Sovereignty
36 The first part of the 20th century is usually regarded as the time of conception of modern international law and of the so-called law of international cooperation (Co-operation, International Law of). The League of Nations was created in 1919 and new fields fell into the material scope of international law. First attempts to secure the prohibition of the use of force and to consolidate duties of peaceful dispute settlement were made, albeit not always successfully.
37 At least in its first part, the 20th century also corresponds to a period of emergence of the modern model of external sovereignty. This is particularly clear when one reads the first decisions of the Permanent Court of International Justice (PCIJ), and in particular the Lotus and Wimbledon judgments (Lotus, The; Wimbledon, The). There, sovereignty is conceived as limited and law-based, but only because this equates with being self-limited by consent-based legal rules.
38 According to the Court in its 1923 Wimbledon decision, far from being an abandonment of sovereignty, ‘the right of entering into international engagements is an attribute of State sovereignty’ (at 25). This was confirmed by the PCIJ in 1927 in the Lotus case:
39 This formalization of the 19th-century concept of external sovereignty in the international legal order was matched by the emergence of a more formal and empirical conception of sovereignty in political and legal theory.
40 In the first part of the 20th century, the concept of sovereignty entered into a formalization phase which progressively emptied it from any evaluative content and consequently of the normative constraints which were inherent to it since Locke. Sovereignty remains a function or property of the State or the legal order, but it is no longer limited by external values, and this is reminiscent of Bodin’s and Hobbes’ early modern approach to sovereignty. One finds this formal concept of sovereignty at work in Kelsen’s, but most vigorously in Schmitt’s writings.
41 According to Kelsen’s legal theory, sovereignty remains a normative concept, but it is a legally normative concept and not a moral or political one. State sovereignty implies that its legitimacy and authority can be established exclusively by reference to the legal system itself. It requires no reference to principles outside that very legal order. According to Schmitt, by contrast, the concept of sovereignty is not even normative in a legal sense anymore. It is a legal concept, but a purely empirical one in that it refers to a factual situation; the sovereign is that entity which is vested with the ultimate power of solving extreme situations. For Schmitt, the mixture of legal and moral elements in earlier conceptions of sovereignty actually constituted the fundamental problem of sovereignty throughout its history.
(b) From 1945 Onwards: Modernizing International Sovereignty
42 The second part of the 20th century corresponded to the establishment of modern international law and of the new conception of international law qua law of cooperation between sovereign States.
43 From that time onwards, international law has developed to allow sovereign States to cooperate and not only to coexist. As of 1945, IOs and institutions have proliferated at a regional level and more globally to organize and enhance those forms of cooperation. The creation of the UN in 1945 is an example, but one can also mention the EU’s predecessor entities: the three European Communities created in 1951 and 1957. European integration remains a unique example of post-national integration and political autonomy beyond the State.
44 Gradually, and sensibly more so since the end of the Cold War (1947–91) and the 1990s, new subjects of international law have been recognized (by sovereign States): IOs, of course, but also, even though to a lesser extent, individuals and groups of individuals. Furthermore, with increased interdependence and cooperation among States, international law has gradually applied to areas that previously belonged to the domestic sphere. This is the case in the field of international economic law and international human rights, of course, but also, more recently, of international migration law or international environmental law. Finally, new forms of relative normativity have emerged in international law by which States can be bound through objective legal norms they have not consented to, or cannot derogate to imperative norms even if they want to (Ius Cogens).
45 Those three phenomena, ie delegation of sovereign powers to IOs, international law’s internal subject matters and its relative normativity, have at first been interpreted as restrictions on both internal and external sovereignty. In an increasing number of cases, international law seems to be limiting States’ sovereignty without their consent; sovereignty is therefore limited but no longer only in a self-limiting fashion. Sovereignty is often said, as a result, to have been circumscribed and tamed or even relinquished in the second half of the century.
46 Reading these developments as the end of or as a reduction of sovereignty amounts to a misconception, however. They are in line with modern sovereignty as it was conceived of in the domestic context since the late 18th century and are merely signs of its adaptation to new circumstances. Just as modern domestic sovereignty became an impersonal function of the State for the people, modern international sovereignty finally became a function distinct from the legal persona of the State. Moreover, just as modern domestic sovereignty emerged through a limitation of classic and early modern sovereignty, modern international sovereignty is a limited version of its classic correspondent. Further, just as modern domestic sovereignty is law-based, modern international sovereignty finds its sources in international law and not only the other way around. Finally, just as modern domestic sovereignty has an internal and an external dimension, modern international sovereignty is no longer only external, but it also has a growing internal dimension as international law regulates elements of internal State organization and competence. In short, modern international sovereignty is as important for the self-determination of democratic States in international law as ever, but to serve the same purpose its modalities have changed.
47 To understand how this internationalization of modern sovereignty finally came about, it is useful to distinguish two key developments: the internationalization of popular sovereignty, and the development of sovereignty beyond the State.
48 First of all, with the democratization of States and the correlative development of human rights protection within States in the second half of the 20th century, domestic sovereignty had gradually become more and more limited and found its source in a democratically legitimate legal order. Post-1945, international law was seen by modern democracies as a new way to secure their democratic development and, given the relationship between human rights and democracy, to entrench human rights protection from the outside through minimal international standards. This was captured by Hannah Arendt’s famous idea of a ‘right to have rights’, which was the only properly universal human right there could be as it was a right that only international law could guarantee.
49 International sovereignty objectively limited in this way became, in other words, a direct way to secure domestic sovereignty in a legitimate fashion. As a result, modern State sovereignty now finds its source both in constitutional and international law—and this in turn explains the circumstances of constitutional and legal pluralism where distinct valid legal orders overlap. Seen differently, the sovereigns behind international law are peoples within States, and no longer States only. Importantly, however, international sovereignty protects a collective entity of individuals—a people—and not individual human beings per se. Of course, their fates are connected, in the same way democracy and human rights are correlated. But sovereignty, and sovereign equality, in particular, protects democratic autonomy in a State’s external affairs and remains justified for this separately from international human rights.
50 This development explains, for instance, why it is wrong to oppose sovereignty to human rights in the second part of the 20th century; without sovereignty, many human rights-related developments, such as decolonization, would not have taken place and without the role human rights played in their creation, many of today’s sovereign States would not exist. Of course, this is not to say that sovereignty cannot be in tension with human rights. However, when it is, the tensions are reminiscent of those between popular sovereignty and human rights in the domestic context and ought actually to be resolved in the domestic context.
51 Interestingly, many of those new international limitations to internal sovereignty are not consent-based, but stem from customary norms or general principles. This may be explained by the fact that these norms can be understood as the reflection of the minimal common denominator to the practice of all democratic sovereign States constituting the international community and are produced as a result by accretion of the gradual recognition of those norms at the domestic level by modern democracies. Once internationalized, those norms may as a result work as a legitimate limit on the autonomy of those States to contextualize and hence to flesh out those minimal international standards in their respective jurisdictions, thereby contributing to the development of the international standards themselves bottom-up.
52 Of course, the internationalization of modern sovereignty goes hand in hand with the democratization of international law itself. If international law is allowed to regulate internal matters, its democratic legitimacy has to be guaranteed. As this is clearly not yet the case, even in a non-statist minimal model of democracy, the legitimacy of international law is still open to debate. And so is that of its role in the limitation and constitution of domestic sovereignty. As long as those questions have not received a satisfactory answer, the resilience of the Wimbledon self-limitation approach in certain parts of international law, as exemplified in the International Court of Justice (ICJ)’s Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America) (‘Nicaragua Case’; at para. 263) and arguably in the ICJ’s Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) (‘Kosovo Advisory Opinion’; at paras 56 and 123), should not come as a surprise.
53 Secondly, material and economic interdependence between States has meant increased institutional cooperation at a transnational, international, and supranational level, and the creation of corresponding IOs. The delegation of sovereign competences to IOs is compatible with the sovereignty of Member States and does not turn IOs into sovereign States (see Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion]).
54 With time, however, increased integration in IOs has given rise to new channels of political decision-making that do not fit the intergovernmental framework of the 19th century and first half of the 20th century and hence also to new fora of human rights protection beyond the State. The EU is the paradigm example of such a supranational organization. One may find a confirmation in the gradual democratization of its decision-making processes and the recent transformation of its human rights framework into a municipal human rights body.
55 Of course, such developments may potentially lead eventually to a new non-State sovereign or a new larger sovereign State depending on one’s conception of the State, and hence to a loss of sovereignty and accordingly of statehood on the part of Member States. Thus, treaties for confederations of States constitute a legitimate act of sovereignty, even though they may eventually terminate a specific State’s sovereignty by leading to a federal State. When conceived in modern terms qua democratic sovereignty, there is nothing in sovereignty that prevents it from being eventually abandoned in favour of a larger and different form of sovereignty if that new sovereign entity better protects the values and purposes of the people qua subject of sovereignty. But that is yet to be done, even in the EU.