AJIL Symposium: Pushing Benvenisti Further – International Sovereignty as a Relative Concept

by Armin von Bogdandy and Dana Schmalz

[Armin von Bogdandy is Director and Dana Schmalz is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law]

In another seminal piece, Eyal Benvenisti continues his well-balanced middle course between utopian cosmopolitan aspirations and resigned state pragmatism, this time by reconstructing contemporary sovereignty. Like many others, he considers the Westphalian model of state power to be neither an appropriate description of today’s world order nor a normatively appealing model for the future. Starting from an assessment of democratic deficits and dilemmas arising from limited space and resources, Benvenisti shows why a different conception of sovereignty is morally required. He then accomplishes a brilliant reconstruction of important court decisions and doctrinal evolutions that support his normative findings. Within this reconstruction, Benvenisti integrates a great variety of legal phenomena, ranging from a vessel’s right to innocent passage, to consultation duties in WTO-law, to the responsibility to protect.

These normative and legal reconstructions are impeccable, and we are sympathetic to the general thrust of Benvenisti’s argument. However, we suggest a more pluralist approach, mainly in two respects. For one, we would complement Benvenisti’s private law paradigm with a stronger focus on international public authority, which plays little role in his reconstruction. Depending on the subject matter and the institutions available, some issues might be resolved more effectively and inclusively through international institutions. At the same time and on a more basic level, we suggest construing the international sovereignty of a country in a more pluralist manner, taking into account its relevant constitutional law. We think that Benvenisti’s legal reconstruction can be thickened, in this way, while avoiding his problematic reliance on humanity as a source of public authority.

International sovereignty has changed from a founding concept to a functional concept: once, international sovereignty provided a point of closure where legal thinking could stop. Georg Jellinek perfectly captured this paradigm in 1882 when he stated that everything could be explained “through sovereignty and from sovereignty”. Today, as Benvenisti’s analysis shows, it is far better to conceive of international sovereignty functionally, so as to serve other principles, such as self-determination, human rights, or reasonable allocation of resources. Pushing Benvenisti’s reconstruction further, we propose that the functional concept should also be conceived as relative: The specific meaning of a state’s international sovereignty should be informed by its constitutional law and practice.

Benvenisti’s article perhaps presents the world in an overly uniform manner. To start with his fabulous image of the “small apartment in the densely packed high-rise”: Great as the picture is, it neglects huge differences between states. Sticking with the metaphor, we might say that some owners possess special voting rights in the owners’ association, have special access to the common property, and own a mansion out of town, to which they can escape when fed up with the neighbors. Others, by contrast, do not have such privileges, and still others have pooled their rights for common exercise. On a more legal note, the constitutional orders of China, Germany, or Lebanon enshrine deeply different understandings of the international order and the country’s place therein. A reconstructive proposal should take those differences into account. Accordingly,  international sovereignty could be informed by the respective constitutional openness towards common projects and willingness to recognize shared responsibility.

Yet, how can such relativization take place without endangering the autonomy of international law and the equality of states under international law? European Union law shows one possibility with its protection of “national identity”. This concept can be compared to the concept of sovereignty, as it regulates the interaction of the various legal orders. The meaning of this EU concept is shaped by public law on the European as well as on the domestic level: While the EU framework prescribes some common elements, the specific meaning is determined in light of the basic constitutional principles of the member state in question. Similarly, international sovereignty could be reconstructed with a composite legal status, responding to the constitutional self-understanding a country has of its place in the regional and global order. Accordingly, some political communities might be more advanced than others in the pathway Benvenisti outlines.

Such relativity of sovereignty might also mend the weakness that flows from Benvenisti’s heavy reliance on “humanity”. Though we share the general normative perspective of conceiving sovereigns as agents or trustees of humanity, we think that Benvenisti’s reconstruction treats “Humanity” too much as a singular actor with almost anthropomorphic features, for instance when stating that humanity “assigns to certain groups of citizens the power to form national governments” (p. 306).  This replicates the old metaphysics of state sovereignty at the global level, creating yet another social macrosubject with a will and deeds of its own. We do not see such agency.  What we see are specific institutions at the domestic and the international level. Precisely because “humanity” can neither articulate its preferences nor form a singular will, fair and efficient decision-making processes on the domestic, the supra- and international level matter. A relative concept of sovereignty will make it possible to show the crucial role domestic constitutions and constitutional practice play in legitimating Benvenisti’s normative project. Of course, the emerging international sovereignty will be far more nuanced and variegated, depending on the role each constitution attributes to international law in general and human rights in particular. But for this very reason, such a concept of sovereignty fits better with the pluralistic world order while furthering what Benvenisti compellingly calls “other-regardingness”.

http://opiniojuris.org/2013/07/24/ajil-symposium-pushing-benvenisti-further-international-sovereignty-as-a-relative-concept/

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