CIAO DATE: 06/01

Reconstructing Sovereignty:
A research note on aspects of the constitutional system of the state and the development of imperative international law

Sovereignty as supreme rule

The concept of sovereignty designates an institution of supreme rule which seems common to all politically organized peoples throughout history. Every people since the ancient polities to the most recently constituted states, concerned with the control, organization and uses of power, has also found a fundamental utility in institutionalizing various forms of the principle of the supreme rule. Quoting from Mountague Bernard’s historical account of the neutrality of Great Britain during the American Civil War, Henry Maine observes in one of his 1887 lectures on international law that by "sovereign state" it is meant "a community or number of persons permanently organized under a sovereign government of their own", where "sovereign government" means "a government, however constituted, which exercises the power of making and enforcing law within a community, and is not itself subject to any superior government".

Exercise of power and absence of superior control, would thus "compose the notion of sovereignty and [be] essential to it" ₁. A remarkable aspect of this institution is that it seems to have emerged in every case as a result of an autonomous process, like an inherent trait of the organization of political power among people, and not as a transplant in a pattern of external expansion and influence from from one people to another. Territorial conquest in the past has not usually meant that sovereignty was established for the first time in that land, but rather the substitution, often violent, of the local territorial supreme rule structure by that of the occupant power.

Two sources of sovereignty

Ruling supremacy and the authority to govern over people, resources, and common issues, in a given territory, have been interrelated attributes of independent political systems. Political theories of the state and the political system have persistently focused on those attributes —ruling supremacy, authority to govern, political independence of the state or system in question— with no basic disagreement on their structural association. There have been however substantial differences on the sources, or on the bases of which such structure of ruling supremacy or sovereignty and authority to govern was, and had to be, constituted.

Generally, monarchical, absolutist and autocratic concepts of the political system, whether tribal, feudal or state like, found the sources of sovereignty in dynastical or kingship factors which were presented as bound with prerogatives dispensed by divine powers, administered by the corresponding churches and the clergy or bureaucracies of the supernatural, who held a decisive political influence before the advent of rational enlightenment and scientific understanding. In contemporary politics there persist some residual cases of such forms of state, but the new autocratic and totalitarian concepts of the political system, even if somewhat receding after the defeat of fascism in World War II and the dissolution of the Soviet state system in 1991, have substituted the divine or supernatural sources of authority by the values underlying military and communist party dictatorships.

Democratic sovereignty and revolution

Democratic theory of the state, since the fith century Athens, B. C., has found the sources of sovereignty in the consent of the people. The process of achieving democracy has been hard, long, and bloody in history, and so it remains still in many regions of the world. The most influencial episodes in shaping the pattern of contemporary democracy are probably the English revolutions and civil wars of the 16th and 17th centuries, which culminated with the Bill of Rights of 1689; the French Revolution of 1789 which, though truncated by the Bonaparte’s regime, proclaimed the Declaration of the Rights of Man and put an end to absolute monarchies in France and Spain and many other European countries; and the American Declaration of Independence in 1776, a political prologue in fact to the adoption of the Constitution of the United States in 1789 by the Philadelphia Convention.

There are differences of emphasis in the conceptual frameworks derived from these decisive episodes of the history of the political system of democracy. In the 1689 English Bill of Rights the Parliament is squarely conceived as the locus of sovereignty. The 1789 French Declaration of the Rights of Man proclaims that "the principle of all sovereignty resides essentially in the nation", this latter being a concept somewhat obscure, though presumably related to, perhaps even determined by, that of "the general will", from which law is supposed to emanate. The 1776 American Declaration of Independence explicitly postulates that governments derive "their just powers from the consent of the governed", but it also, for the first time, establishes that the end of government is to secure fundamental rights of the people such as "life, liberty, and the pursuit of happiness".

There are other, perhaps qualitative differences between these hallmarks of democracy, in their approaches to sovereignty. Probably one of the main ones stems from the way these patterns of democratic development have related to a third intellectual framework on the sources of the supreme rule. This third framework on the sources of sovereignty has been historically minoritarian, surely among other reasons because of the subtle and complex intellectual constructs it proposed, not readily amenable to practical, or ideological, simplifications. It was first spoused perhaps by the Pythagorean Circles in the late 6^th century B. C., somewhat incorporated into the Stoic schools of the 5^th century, and more throughly conceptualized by Plato in his writings on justice and government. It emphasized rather abstract notions of righteousness based on ethical concepts of the good, wisdom of judgment or reason, and knowledge of the truth. It was perhaps through the juristic strands of the Stoic schools that it became influencial among the ancient Rome jurists to given shape the Roman Republic’s particularly robust, if still primitive, concept of legal sovereignty. The concept was to persist in England through the judicial incorporation of Roman cannon law. The English civil wars were dominated by the conflict for the control of the sovereign prerogative between Parliament and the Crown, but they had been preceded by another contest between them and common law courts ₂. In 1610, Judge Coke ruled in the Bonham’s case that, "when an act of Parliament is against common right or reason or repugnant or impossible to be performed, the common law will control it, and adjudge such act to be void" ₃. The theory of judicial supremacy as a source of legal sovereignty was overruled in England by the High Court of Parliament, but at the turn of the eighteenth century it passed on to the courts of the American Territories through the Calvin’s case of 1702. Professor Louis Fisher observes that, even if the Bonham’s case "provides inadequate support for the American concept of judicial review, it was accepted as good law and precedent by those who wanted to break with England" ₄.

Sovereignty in America

The American Declaration of Independence is a historical preamble of the Constitution which is to establish in fact a precise juridical concept of sovereignty. The Federalist Papers were to examine and vigorously contend this juridical reconstruction of sovereignty by focusing on four aspects of the prerogative to govern. First, how the largest sovereign function transferred to the American people as a whole through the establishment of the Union constituted a safeguard "against domestic faction and insurrection" ₅. Second, on how it could be divided, or shared among the Union and the States through the specification and enumeration of the powers granted by the Constitution ₆. Third, how it was structured and secured through the republican institutions by guaranteeing both separation and reciprocal constitutional controls ₇. Fourth, by establishing the supremacy of the Constitution and providing the federal government, through a concurrent mechanism in which the States shared the sovereign treaty-making power of the Republic ₈. Though a matter of controversy among constitutionalists, the juridical construction of sovereignty which placed its source directly in the supreme law of the land, can be derived from a textual interpretation of the Constitution itself by finding the normative coherence and determinacy of the relationship between the judicial power which extends "to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties which shall be made under their authority", in Article 3, Section 2, clause 1, and the provisions, in Article 6, paragraph 2, that "this Constitution, and the laws which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding" ₉.

Constitutional sovereignty

The juridical construction of sovereignty in the processes of constitutional development of Great Britain, France, and the United States more decisively, had the effect of providing the historical institution of the supreme rule with an objective legal texture and standard political system functions. I contend the process of constitutionalization of sovereignty is politically and normatively bound by the parallel evolution of judicial supremacy, in that this latter is instrumental for elevating the locus of sovereignty even over the contingent will of the constituent. A concomitant element of my proposition is that the constitutionalization of sovereignty would not be complete if the principle of a supreme rule would have been exclusively dependent upon the conditions of political representation.

The tension between the functions of majoritarian democracy and the now abstract, objective principle of a juridical supreme rule, appears thus essential for the constitutionalization of sovereignty or, if we will, its legalization. However, in terms of the actual, descriptive pattern of constitutional development, as it is going to articulate the complexion of the sources of authoritative public decisionmaking in the political system of democracy, it may be accepted that the constitutionalization of sovereignty consists of a political moment of its own, which is not identical to its jurisdictional reconstruction. In other words, it may be accepted that the constitutionalization of sovereignty would have taken place in the first new nation, the Republic of United States of America, without the Marbury jurisprudence. Marbury, however, could not have happened without the background of the actual texture of the American Constitution as it was adopted by the Founders.

There are significant elements of both logic and interpretational incidents in the Records of the Philadelphia Convention and in the exegesis of the constitutional plan in the Federalist Papers, which anticipate Marbury. There is also significant jurisprudence in federal and state courts anticipating the 1803 Marbury decision of the U. S. Supreme Court ₁₀. Moreover, there where the constitutionalization of sovereignty remained shaped only by the political representative moment of democratic development, as it was the case in a number of European continental countries, the overall thrust of the constitutionalization and legalization of the supreme rule, and constitutional democracy itself, were tragically to fail. The most catastrophic failures were the Kerenski’s Republic in Russia and the Weimar Republic in Germany. But also the Third and Fourth Republics in France failed, as it did the Republic in Spain.

The concept of failure here is not meant to place the exclusive burden of responsibility on those political systems. Perhaps the forces of destruction were overwhelming, as we can see by the deadly controlling combination of extremist political ideologies. Yet the fact is that, when democracy was restored, with direct international intervention in Japan in 1945-46 ₁₁, under direct international supervision in Italy in 1947-48 ₁₂, in Western Germany in 1948-49 ₁₃, or indirect international monitoring in Spain in 1977-78 ₁₄, the renewed constitutionalization of sovereignty was institutionally linked this time around with an explicit establishment of the jurisdictional control of constitutional legality, a power checking structure over the political conditions of majoritarian democracy in the form of powerful Constitutional Courts.

The effects of the constitutional function of sovereignty

The constitutional function of sovereignty has had three structural, or redefining, effects on the power basis of the political system of the state. It has vertebrated the relationship between the interests of the constituent —the people— and public policymaking through the mechanisms of democratic representation. It has standardized and provided with relative efficiency, transparency and accountability the constitutional decisionmaking rules and the operation of the government. Last but not least, it has helped finding, and establishing the closest we can get this far among human communities to a set of objective, general or universal, and normative criteria, mostly procedural but also with some substantive fundamentals, for conducting the political system.

These three constitutional components of the redefinition of the power basis of the state’s political system are also essential for the new system of international law whose basic design is established after WWII, and that has been slowly but rather steadily evolving in both its configuration and complexion in this half-century. I focus on this question further

on this part one in examining the international law function of sovereignty, and at various moments of parts two and three, respectively on the characteristics of the contemporary crisis of the state, and on the second reconstruction of sovereignty as the rules of the international jus cogens have become of direct application by the international community. I find useful, however, to pause here briefly to anticipate some explanations of what it may mean that these three elements of the redefinition of the power basis of the state are also essential for the system of international law. I’ll be synthetic in stating the basics of these links, as I am ellaborating on them later.

Vertebrating the interests of the people:
the popular reconstruction of sovereignty

The first redefining effect of the constitutional reconstruction of sovereignty I have identified is the vertebration of the insterests of the people, the aggregated will of which constitutes the last, and by now the only legitimate, subjective basis of the historical sovereignty, and the goals, or value contents, of public policymaking, in the system of democracy. There is a robust corpus of rigorous literature on this subject in political science. Perhaps Robert Dahl’s latest published investigations could be a basic element of reference in this respect for anybody to pursue that intellectual journey, if found necessary at this point ₁₅.

I propose to consider this effect of constitutional sovereignty essential for the new system of international law for three reasons, three decisive, qualitative reasons, I’d say. One reason is that, when the interests of the people become the general basis of national public policymaking in the democratic state, so do by extension these interests, articulated across nations, become, potentially at least in the first place, the basis of a democratic international political system: international public policy in the large global policy arenas of economics, environmental protection, peace and security or human rights and criminal justice, of which the new international law is instrumental, are bound to become also increasingly representative of the transnationally vertebrated interests of the peoples of the international community.

Another reason is that the redefinition of national sovereignty on the basis of the sovereignty of the people changes the subjective complexion of the international personality of the state, of which sovereignty remains the defining outcome attribute ₁₆: the state may remain the fundamental or constitutive international legal person because its sovereignty is the sovereignty of its people ₁₇, which may conversely mean, as increasingly does in actual international practice, that the state may lose its sovereignty when its people is no longer sovereign, at least in such a manifest way as both its capacity for government and for conducting international relations become impaired. Finally, a third powerful reason why the popular reconstruction of sovereignty is essential for international law lies in the fact that such an effect has turned out absolutely instrumental for the codification, development, implementation and incorporation of the international law of human rights. The three historical acts of popular sovereignty which put an end to the conceptual framework of dynastical sovereigns, and thus terminated the ancient regime forever —the 1689 English Bill of Rights, the 1776 American Declaration of Independence and the subsequent 1789 Constitution, and the French 1789 Universal Declaration of the Rights of Man— are national acts which provided the conceptual background, the historical imagination, of the most formidable forces of political change of our world: civil liberties and fundamental freedoms, and the right of self-determination. In so accomplishing, these revolutionary national acts were also the beginning of the end of the purely institutional, bureaucratic concept of statehood as the sole basis of the international persona.

Constitutional decisionmaking rules for effective governance

The second redefining effect of the constitutional reconstruction of sovereignty —the standardization of the constitutional decisionmaking rules for operating the government, in American terms, or the state, in European terms— is generally of a procedural nature, and it should also be regarded as essential, indeed a necessary condition, a sine qua non, of the contemporary system of international law, because it determines the characteristics of how the state meets its structural requirements. Under international law the state retains its international personality because it fulfils two ‘passive’ or given requirements, population and territory, and because it is capable of exacuting two other ‘active’ or dynamic requirements, capacity for governing, and capacity for conducting international relations ₁₈. In terms of the popular reconstruction of sovereignty, internal or domestic government is now a far more complex operation, and one which is not severable from the status and the obligations of that particular state in the international system. And both status and obligations are functions of similarly complex patterns of practice concerning the three constitutional procedural principles of the system of international law, good faith, consent, and pacta sunt servanda ₁₉.

Supremacy of the rule of law

The third redefining effect of the constitutional reconstruction of sovereignty, whereby the basis of political authority are restablished in terms of the supremacy of the rule of law itself, appears more abstract, and therefore more obscure for purposes of common sense. The underlying concept is a persistent reference of the American jurisprudence, a simple political statement of which might well be John Adams’ dictum that "the very definition of a republic is an empire of laws, and not of men" ₂₀. It is supposed to have been embodied also in the supremacy clause in Article VI, paragraph 2, of the American Constitution, which provides that "[t]his Constitution, and the Laws of the Unites States which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land". The supremacy clause is generally recognized as one of the direct sources of the power of judicial review. Equivalent provisions have been incorporated in other contemporary constitutions ₂₃, though in some cases courts are explicitly denied the power to determine the constitutionality of legislative acts ₂₄ or that power may be restricted by law ₂₅, whereas in others the constitutional review of legislative acts has been made almost mandatory as a condiction of its promulgation ₂₆.

Variations of emphasis in constitutional instruments on the principle of the supremacy of the rule of law may not be very significant in the actual practice of strong democracies. For example, the Constitutions of the United States and Japan explicitly postulate their supremacy and the controlling role the judiciary plays in ensuring it, whereas the Constitutions of Canada, Denmark and Netherlands confer stronger roles to subjective institutions such as the monarchy and the church, and provide for more limited judicial intervention.

The end result of the operation of these political systems is however quite similar as to the paramount position of the rule of law and its discharge under likewise common criteria of independence and objectivity, impartiality, equability and due process or procedural justice. Even the role of courts becomes increasingly comparable across constitutional democracies as a consequence of their relatively better position to deal with the growing complexity of conflicts, perhaps as a consequence also of their relatively more proportionate equidistance with respect to the contradictory sources of those conflicts. Factors outside the original scheme on the role of the judicial power, such as the territorial complexion of the political system, may end strengthening naturally the position of the courts as equidistant constitutional decisionmakers, as it has been the case with the Canadian and Australian Supreme Courts.

We are thus left with uncertainties as to what is then the meaning and the practical significance of the abstract principle of the rule of law, especially when we are trying to understand how does the ‘internal’ or constitutional function of sovereignty relate to its ‘external’ or international law function, and how does such an interrelationship work, given that both functions appear respectively central and instrumental for so perceptibly separated and different legal systems. But such uncertainties seem more influenced by the perceived differences in the comparative constitutional statement of the principle, than by the expectations of entitlements and responsibilities which, though not taken for granted even in strong democracies, are generally associated with the political system governed under the rule of law. Whereas constitutional differences should be construed as evidence of the flexibility with which the principle may be articulated and does evolve across political cultures, there are surely certain elements in it which are common to all. At the most basic level of its functions, that which is common may be considered the law itself, in the Austinian sense, "a general command of a sovereign addressed to his subjects", where sovereign may also be understood as a legislative body ₂₇. Experience shows, however, that law may be expression of divides, and that it may encourage them too, in political societies.

Moreover, for obvious reasons related to the nature of this material at this time, diffusing these uncertainties must be provided now in a clear way, simple and succint. Three basic levers of comprehension, or ‘epistemic hunches’ can help much here: The first is the need for system. The second is that the rule of law, the core outcome of the constitutional reconstruction of sovereignty —its first reconstruction and also its first, internal, function— is what makes the system possible. And the third is that, once we have a system based on a universal institution, or at least universalizable —the rule of law— every system, municipal, national or constitutional, may relate coherently with each other, and may relate coherently above all, for our purposes in this discussion, with the system of international law.

Sovereignty in the system of international law

In the system of international law, the trajectory of the institution of the supreme rule, sovereignty, has followed a coherent path with the process of its progressive legalization, or constitutionalization, in the system of the state, yet one also of increasing complexity in relation to its political process of articulation as a function of representative democracy. In terms of the three structural, redefining effects which the constitutional function of sovereignty has had on the power basis of the political system of the state, under international law it has fared the best on the third, the thrust toward stronger objective and universal criteria as basis of international rights and obligations, including those which concern the relations between states, and between states and the other entities provided with different degrees of personality, or entitlement and capacity for action in relation to it.

The constitutional recognition of the fundamental rights and liberties of people, within the system of the state, has had its coherent correspondence in the progressive development, codification and incorporation into general international law through international practice of the principles and rules integrating the body of international jus cogens or imperative international law. The legalization of sovereignty in the system of international law has also contributed stronger, more objective and procedurally efficient decisionmaking rules for the conduct of the relations among states and for purposes of international public policy making concerning the commons, the domains of internationally protected interests and the common heritage of humankind. In terms of the relationships between these two aspects, and in turn between them and what was identified as the first effect on the power basis of the state system — the vertebration of constituent’s interests and public policymaking through the mechanisms of democratic representation — the complexity of the problem which arise is simply next to the fundamental questions of world order, and therefore appalling, and the difficulties are really immense.

And the international law function of sovereignty

The international law function of sovereignty is now recognized generally to have a dual nature. Professor Bleckman provides an excellent survey of the characteristics of this duality in his essay on Article 2(1) of the United Nations Charter, for thecommentary of the Charter edited by Professor Simma on the occasion of the fiftieth anniversary of the Charter ₂₈. Article 2(1) of the Charter, establishing the first enumerated principle of the Organization and its member states, provides that "[t]he Organization is based on the principle of the sovereign equality of its Members", and it is an excellent concept of departure for understanding the status of the institution of the supreme rule in the international system, and the way this latter perceives it, at least as an organized multilateral structure.

The provision has of course inspired the core of the basic thrust of the international legislation — the ‘universal’ contents of multilateral treaties — ₂₉, of the political jurisprudence of the United Nations, particularly through the resolutions of the General Assembly ₃₀, and the spirit of the law in the international judicial jurisprudence, in the first place that of the International Court of Justice ₃₁. But it has been seriously challenged from the very beginning of its adoption. The very structure of the Organization, with the distinct hierarchy on the nature of the obligations derived from the acts of the two political organs, particularly as expressed in Articles 24, 25 and 27, on the functions and powers of the Security Council, by comparison with the powers provided for the General Assembly, has encouraged such challenges. Goodrich, Hambro and Simons, in their commentary on the Charter, note that "according to the report of the technical committee which considered the matter at San Francisco, ‘sovereign equality’" was supposed to include "the following elements: 1) that states are juridically equal, 2)that each state enjoys the rights inherent in full sovereignty, 3) that the personality of the state is respected, as well as its territorial integrity and political independence, and 4)that the should, under international order, comply faithfully with its international duties and obligations" ₃₂.

The structure of normative tension in the rights and duties of states

There is obviously a normative tension among these different aspects of this dualistic principle, which is however not a random development. The 1949 Draft Declaration on Rights and Duties of States explicitly articulates such a tension in declaring that "the states of the world form a community governed by international law" [Preamble, para. 1], under which every state has the right to independence [Article 1], and the right to equality in law with every other state [Article 5], but also the duty to treat all persons under its jurisdiction with respect for human rights and fundamental freedoms and without distinction as to race, sex, language or religion [Article 6], and the duty to ensure that conditions prevailing in its territory do not menace international peace and order [Article 7] as well as to settle its disputes with other states by peaceful means "in such a manner that international peace and security, and justice, are not endangered" [article 8] ₃₃.

Not unlike the characteristics of the legalization of sovereignty within the state system, there is a varying gap between the ideal normative framework of the Declaration of Rights and Duties of States and the realities of international practice. Does that mean the normative tension, which is inherent into the relationships between rights and obligations of any large-scale democracy —to use Dahl’s term— is wrongly established or flawed in terms of the values underlying such principles for the chartering of international relations? Where do such practical gaps appear? Let me pause for a moment on the first question.

What the Declaration does, and so it is verifiable in the records of the International Law Commission when it was being prepared, is to establish an unquestionable juridical concept of both independence —one of the essential attributes of the endowment provided by the organized structure underlying the institution of the supreme rule— and equality. This was a form of inducing precision into a principle, or compounded principle —sovereign equality— which had appeared as fundamentally political. I would like to say, rather constitutional, but the constitutionality of the acts embodied in the Charter, given the predominantly interstate nature of the international system, is by definition political or perhaps metapolitical, for as long as the international practice, when pursued with a sense of juridical conviction or with a sense of legal fundamental obligation does not transform them into directly applicable constructs, capable of shape, providing structure and also integrity —in the Dworkinian aception— the international acts.

What matters here is the fact, almost an absolute one in the constitutive horizon of the organized international order, that without such a juridical determination, there is neither independence nor equality, and therefore there is no sovereignty either, in as much as this latter is, beyond the imaginary construct of the will to abide by superior, paramount principles of political order, an actual outcome of a number of specific functions, which are given, which exist, and produce sovereignty, or do not exist, and yield political dependence first, and potentially may carry with it next legal external intervention: the instant when such state has lost its sovereignty pro tempore, it may be presumed. Since nations and states, like people, are by nature materially unequal, only juridical equality establishes a variation of the Rawlsian original position, which did not exist as a political function in the first place. The same applies to sovereignty both as the will to supreme and general rule and as a practical outcome designating the infinitely open-ended process of exercising self-government. In fact, it has been a long, bloody and protracted history of extricating themselves from the departing material and political inequality to arrive at the paramount principle where internal and external sovereignty converge into a sort of working, permanently adjustable and conflictive construct which perhaps could be captured by the old-fashioned term of the common law. That would explain why roughly comparable equals in material terms, in the community of states, may be substantially unequals in juridical terms; and conversely, why extremely unequal states, in material terms, may be and are, and you can find the cases immediately, fundamental equal in juridical terms.

Par in parem non habet imperium

The international law community has been since the earliest times a sort of "epistemic community" of its, never completely integrated on either side of the functional equation of the practice of the rule of law in international relations. Sovereignty, the institution of the supreme rule, was logically a fashionable construct at the time of the Treaties of Westphalia and perhaps for near three centuries after that. During most of that time the institution was conceived as a external instrument, reflecting the ‘absolute control of the prerogative to govern’, and the impenetrability of the nation state. In terms of the foreign policy of states, it reflected the will to maintain by all necessary means the independence which had been bloodily achieved from preexisting imperial and subordinating structures. As a matter of fact the very principle of the jus gentium was in that context viewed as a residual of the imperial system.

There was a Spaniard scholar, Vitoria, who reflecting upon the expansion of the empire into the Americas had produced an interesting concept, in his Relecti de Indis in the second decade of the sixteenth century, the ordo ordinata securitatis. The idea was that the security of the international order had to be based on a real order determined by the equality of those which integrated it. This was an intellectual concept and it could not prosper at that time. Instead, the general principle of the jus gentium as an imperial construct, was in fact substituted by a working outcome of the agreements of Osnabruck and Munster: Par in parem non habet imperium. The irreductible nature of the nation state now was not to be questioned by any other principles than those which simply recognized its absolute sovereignty. This, though apparently a very practical stance, was no less untenable a position over time, and depending on the nature of the specific cases, than the historical jus gentium.

In an early writing, before completing De Jure Belli ac Pacis in 1623 or 1624, which has been only recently identified and edited, Hugo Grotius himself would have found a whole array of arguments to challenge the validity of the principle, when it affected the rights of the Dutch people to independence from Spain ₃₄. Throughout these centuries of predominance of the absolute sovereignty principle it has been paradoxically the transgression of sovereign rights at different intervals and episodes what has prompted defensive responses which shifted increasingly its value neutrality to value contents, in the ordering of international relations, with growing restraints on the discretion it was supposed to grant.

Legal absolute sovereignty

Every major war in the process has been initiated in connection with varying aspects of trespass or infringement upon the principle, and yet premised on the ultimate freedom of the sovereign to determine the fundamental nature of its interests. From the Napoleonic wars to World War II, every major episode of this kind may be considered an excess of sovereignty which was bound to end with additional curtailments. When the United States joined into this process after it became an independent nation, it also embraced the absolute sovereignty concept almost immediately. But it was going to do so with and through the legal mind which characterized its own constitutional state.

In 1812, when Europe was still bleeding from imperial clashes that were simultaneously tearing apart and redefining sovereignty, Chief Justice Marshal, delivering the opinion of the Supreme Court of the United States, rejected the claims of two American citizens as to that their vessel had been wrongfully seized by France, on the basis that this was a sovereignty act, and that a foreign government could not be subject to the jurisdiction of the courts of another country, even if it was in the territory of that country that event had taken place ₃₅. When we ponder on the growing number of foreign sovereigns which are and have been involved in processes of litigation in American and foreign courts, it seems a substantial change has taken place with respect to the meaning of absolute sovereignty. Yet, that may not be quite the case if we observe that in most of those cases the foreign sovereigns are in fact legally construed as private persons, as determined by the nature of their acts.

From the Lotus case to Nuremberg

The turning point in the international trajectory of sovereignty in our century may be shaped by the interval between two very different jurisdictional acts, the proceedings of the Case of the S. S. Lotus (France v. Turkey), decided by the Permanent Court of International Justice in 1927, and the Judgment of the International Military Tribunal at Nuremberg in 1946. In well-known dicta in the Lotus the Court declared that international law "governs relations between independent states", and "restrictions upon [such] independence [ ] cannot therefore be presumed".

Echoing Chief Justice Marshall’s opinion in The Schooner Exchange, it went on to state that, nevertheless, "the first and foremost restriction imposed by international law upon a state is that —failing the existence of a permissive rule to the contrary— it may not exercise its power in any form in the territory of another state" ₃₆.

The Nuremberg Judgment did not deal with the question of sovereignty as an absolute principle, but it went on to modify the international status of some of its fundamental tenets. It established in the first place that any person who commits an act which constitutes a crime under international law "is responsible therefore and liable to punishment", that such a responsibility is not relieved by the fact "that internal law does not impose a penalty for an act which constitutes a crime under international law", and that the person is not relieved from such a responsibility either by the fact that he "acted as head of state or responsible government official", or "pursuant to order of his government or of a superior". It then categorized, for the first time in the history of international relations, a number of acts which are "punishable as crimes under international law": a) crimes against peace, with could be of two types: "planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances", and "participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under the [first type of acts]"; b) war crimes, which the Judgment defined as

and c) crimes against humanity, such as "murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in connection with any crime against peace or any war crime" ₃₇.

In their comments on this case, Professors Henkin, Pugh, Schachter and Smit observe that it was never adopted a definition of war of aggression, "[a]lthough the United States representative tried to have such a definition included in the Charter, his efforts were rebuffed". One of the core concerns of the Nuremberg Tribunal, they note, "was the imputation of individual criminal responsibility", and therefore the "use of the concept of aggressive war was influenced by the notion of criminal conspiracy" ₃₈.

In 1974 a limited agreement was to be reached on the definition of aggression, by reference to the external behavior of the first use of armed force by a state, as constituting "prima facie evidence of an act of aggression". Then, during the early 1990s, as a consequence of the nature of the internal wars in the Balkans and in central Africa, more expansive concepts of aggression were adopted, linking them to new international legislative developments on the categories of war crimes and crimes against humanity, first identified by the Nuremberg jurisprudence. In 1998, an international diplomatic conference was to adopt the Rome Statute of the International Criminal Court, Article 5 of which categorizes four crimes within its jurisdiction: genocide, crimes against humanity, war crimes, and aggression. This latter remaining the main bone of contention again in the technical debates which have followed in the multilateral state system for purposes of carrying into effect the Statute and establishing the Court.

In less than twenty years, from the Lotus case to the Nuremberg jurisprudence, a qualitative shift in the status of the principle of the supreme rule in the international system took place. Perhaps not very many were conscious of the process, but those who were had a clear awareness of the sea-change which was taking place. Writing in the wake of that process, Wolfgang Friedmann was pessimistic on the capacity of nations to reach consensus on the fundamental question of aggression, the differences, he observed "are primarily ones of objectives [ ], essentially of a political and ideological, not of a logical character" ₃₉. He had also seen national sovereignty as an "anachronism". Almost thirty years later, in his course at the Hague Academy, Professor Henkin agreed generally with such a diagnosis, "[f]or legal purposes at least, we might do well to relegate the term sovereignty to the shelf of history as a relic from an earlier era" ₄₀.

Universal juridical sovereignty

The construct I believe Professors Friedmann and Henkin refer to in these observations is a political, maybe rather ideological concept of uncontrollable power, supposedly exercised, somewhat regardless of the means, through the system of the nation state.There seem to have been emerging as a consequence of both the constitutional process of the state and the imperative international law which takes its first solid roots with the Nuremberg jurisprudence, a juridical concept of sovereignty with two corresponding manifestations. One is the territorial structure, which provides the spatial basis of the outreach of political authority in the system of the nation state, that was the concept so identified by the Permanent Court of International Justice in the case of the Lotus in 1927. Such a territorial sovereignty, established in the form of jurisdiction, has however a life of its own, in order to determine the legal status of conduct and the protection of persons and interests which, whether directly, or indirectly in the form of effects, have largely a territorial configuration. The legal system of the state would now be in charge of effecting such a territorial jurisdictional function. The other is an evolving universal juridical sovereignty, historically the result of a process of convergence between the constitutional law of the state and the body of customary rules and principles which constitute the international imperative law.

Technically, there remains a configurative tension in that the interactions between and across the constitutional law of the state constitute by their nature a corpus of coordination law, at the best of cooperation law, whereas the dynamics of international imperative law is one which tends to elevate the very locus of universal juridical sovereignty to its logical corollary, a global system of supreme rules of subordination.

Evidently such a system is not concerned with every aspect of social and political life, but with a fairly limited yet central category of interests, which perhaps could be, on the basis of the available evidence stemming from the various processes of international and transnational interactions, narrowed down to these the prohibition of aggression (internal and external), the right of democratic governance, and fundamental human rights and equal justice before the law. There is substantive evidence concerning these internationally protected interests. I suspect however that the communities of people more attentive to, or affected by other dimensions of life in the planet, such as economic relations or the protection of the earth’s environment, may find these categories of imperative values too limited to constitute an effective system of universal juridical sovereignty.

Universal juridical sovereignty does not seem incompatible with, but rather instrumental for the achievement of the basic constitutional values of the state, as the territorial structure where both democratic representation and control are exercised, and where the principles of self-government and self-determination are deepened in the face of ever growing complexities which require permanent adaptation between the fundamentals of home rule in the context of diversity. At the same time the weltgrundnorm evolves from the positive interaction of the globalization of democracy and the rule of law, a neo-Westphanian trend emerges from within and across the system of states, putting forward a counter-juridical entropics which affects old democracies and new ones. The reconstruction of sovereignty interval, against the background of the new forces of entropy in the international system, appears thus as the most dangerous and complex challenge of the next

Endnotes

Note 1: International Law by Henry Maine, Lecture III, The Avalon Project at the Yale Law School, <http://www.yale.edu/lawweb/avalon/econ/int03.htm>; Henry Maine, INTERNATIONAL LAW: A SERIES OF LECTURES DELIVERED BEFORE THE UNIVERSITY OF CAMBRIDGE, 1887, New York: Holt (1888). Compare Bryce, The Nature of Sovereignty, II STUDIES IN HISTORY AND JURISPRUDENCE 503-555; Raz, THE CONCEPT OF A LEGAL SYSTEM 5-11, 27-33, 34-43 (1980). Back

Note 2: See Smith, CASES AND MATERIALS ON THE DEVELOPMENT OF LEGAL INSTITUTIONS 324-335 (1965); Holdsworth, IV HISTORY OF ENGLISH LAW 84ff. (1909). Back

Note 3: Engl. Rep. 646, 652; Plucknett, Bonham’s Case and Judicial Review, 40 HARVARD LAW REVIEW 52-54 (1926). Back

Note 4: Louis Fisher, AMERICAN CONSTITUTIONAL LAW 39 (3^rd edition 1999). Back

Note 5: FEDERALIST PAPERS 9 (Hamilton). Back

Note 6: Id., 15, 30 to 36. Back

Note 7: Id., 39 to 44, 47-48, 51 (Madison). Back

Note 8: Id., 44 (Madison), 64 (Jay), 75 (Hamilton). Back

Note 9: Wechsler, Neutral Principles in Constitutional Law, HARVARD L. REV. ; Marbury v. Madison, 5 U. S. (1 Cr.) 137 (1803), "[ ] the people have an original right [ ] [and] [t]his original and supreme will organizes the government [ ] [under] the Constitution [which] controls any legislative act repugnant to it [ ]"; and McCulloch v. Maryland, 17 U. S. (4 Wheat.) 315 (1819); Fischer, AMERICAN CONSTITUTIONAL LAW 48-53. Back

Note 10: Hayburn’s Case, 2 Dall. 409 (1792); Hylton v. United States, 3 Dall. 171 (1796); Holingsworth v. Virginia, 3 Dall. 378 (1798); Haines, THE AMERICAN DOCTRINE OF JUDICIAL SUPREMACY (1914), reports that in 1789 to 1802 eleven state judiciaries exercised judicial review over state statutes; Fisher, supra note at 43-44. Back

Note 11: International Constitutional Law, Japan Index, at <http://www.uni-werzburg.de/law/ja_indx.html>. Back

Note 12: Id., Italy Index, at <http://www.uni-wuerzburg.de/law/it_indx.html>. Back

Note 13: Id., Germany Index, at <http://www.uni-wuerzburg.de/law/gm_indx.html>. Back

Note 14: Id., Spain Index, at <http://www.uni-wuerzburg.de/law/sp_indx.html>. Back

Note 15: Dahl, ON DEMOCRACY, especially "What Political Institutions Does Large-Scale Democracy Require?", in part three on actual democracy, at 85ff. (1998). Back

Note 16: Supreme Court of the United States, 1812, The Schooner Exchange v. McFaddon, 11 U. S. (7 Cranch) 116, 3 L. Ed. 827; Permanent Court of International Justice (1927), The Case of the S. S. Lotus (France v. Turkey), PCIJ Ser. A No. 10; Henkin, Pugh, Schachter, Smit, INTERNATIONAL LAW-CASES AND MATERIALS 1126, 1129-1131, 63-70; Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW 26-27, 71 (1979). Back

Note 17: Franck, The Emerging Right to Democratic Governance, 86 AMERICAN JOURNAL OF INTERNATIONAL LAW 1 46 (1992); Crawford, Democracy in International Law, Inaugural Lecture, University of Cambridge (1993). Back

Note 18: 1949 International Court of Justice, Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion; 1933 Montevideo Convention on the Rights and Duties of States; RESTATEMENT (THIRD), THE FOREIGN RELATIONS LAW OF THE UNITED STATES # 201, Comment e. Back

Note 19: 1969 Convention on the Law of Treaties, Preamble, para. 3, Arts. 26, 34; but see Articles 38, 53, 63, and 75. Back

Note 20: Thoughts on Government c. 1776; JOHN ADAMS 1735-1826: CHRONOLOGY, DOCUMENTS, AND BIBLIOGRAPHY (Bremmer editor 1967); and at A Hypertext on American History (G. M. Welling, Project Coordinator), <http://odur.let.rug.nl/~usa/P/ja2/writings/tog.htm>. Back

Note 21: FEDERALIST PAPERS 27, 33, 34 (Hamilton); 39, 44 (Madison).

Note 22: Fischer, supra note at 37-38.

Note 23: Constitution of Germany, Art. 28(1); Italy, Arts. 101(2), 134, 136, 139 ["the Republican form of the State cannot be changed by way of Constitutional amendment"]; Israel, Basic Law on Human Dignity and Liberty, Section 11; Japan, Preamble, paragraph 3, Arts. 76(3), 81, 98 [probably the closest in contemporary constitutional law in force to the supremacy clause in Article VI(2) of the U. S. Constitution; Portugal, Art. 2; South Africa, Preamble, para. 5, Section 1(c) ["the Republic of South Africa is [ ] founded on the supremacy of the constitution and the rule of law"]; Spain, Preamble, Arts. 9(1), 117(1), 161, 163; Sweden, Ch. 1, Art. 1; Switzerland, Art. 5(1). Back

Note 24: Constitution of the Netherlands, Art. 120 ["The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts"]. Back

Note 25: Constitution of Norway, Article 88(1). Back

Note 26: Constitution of Ireland, Article 26(1.1). Back

Note 27: John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED (1861, 1954); Raz, supra note at 5 (1980). Back

Note 28: Bleckman, Article 2(1), THE CHARTER OF THE UNITED NATIONS 77-89 (Simma editor 1994). Back

Note 29: The first universal instrument of international legislation in the new system of international law was the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly resolution 260/A (III) on 9 December 1948, entry into force 12 January 1951, at <http://www.unhchr.ch/html/menu3/b/p_genoci.htm>; in 1949 the four Geneva Conventions were adopted by a diplomatic conference, and the General Assembly ratified the International Law Commission’s draft which became the Declaration on Rights and Duties of States; see Kelsen, Draft Declaration on Rights and Duties of States, 44 AMERICAN JOURNAL OF INTERNATIONAL LAW 2 259 (1950); in 1950 the General Assembly was to adopt also the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, at <http://www.un.org/law/ilc/texts/nurnfra.htm>. Back

Note 30: The powerful opening of the political jurisprudence of the General Assembly which has rechartered the course of international law was the 1948 Universal Declaration of Human Rights, the Magna Carta for Humanity, see at <http://www.unhchr.ch/udhr/index.htm> Back.

Note 31: The first case decided by the International Court of Justice in the new era was the Corfu Channel case (United Kingdom v. Albania), the importance of which lies in the first place in its political process: both Britain and Albania accepted the recommendation of the Security Council to submit their dispute —two British destroyers struck mines in Albanian waters— to the International Court of Justice. In 1947 and 1948 the Court issued two landmark advisory opinion which were two rechart as well the map of the international legal system, Conditions for Admission of a State to Membership in the United Nations and Reparation for Injuries suffered in the Service of the United Nations. Back

Note 32: UNCIO, Documents, VI, 457; in CHARTER OF THE UNITED NATIONS-COMMENTARY AND DOCUMENTS 36-40, 37 (3^rd edition 1969). Back

Note 33: International Law Commission, at <http://www.un.org/law/ilc/texts/decfra.htm>. For a recent survey of "challenges to the traditional international law system of sovereignty and equality", see Kingsbury, Sovereignty and Inequality, 9 EUROPEAN JOURNAL OF INTERNATIONAL LAW 4 (1998). Back

Note 34: Peter Borschberg, HUGO GROTIUS "COMMENTARIUS IN THESES XI" AN EARLY TREATISE ON SOVEREIGNTY, THE JUST WAR, AND THE LEGITIMACY OF THE DUTCH REVOLT (1994). Back

Note 35: The Schooneer Exchange v. McFaddon, 11 U. S. (7 Cr.) 116; Henkin et al., supra note at 1129-1131. Back

Note 36: Case of the S. S. Lotus. Back

Note 37: Judgment of the International Military Tribunal at Nuremberg. Back

Note 38: INTERNATIONAL LAW 880. Back

Note 39: THE CHANGING STRUCTURE OF INTERNATIONAL LAW 255. Back

Note 40: INTERNATIONAL LAW: POLITICS AND VALUES 10 (1995). Back