The transformation of sovereignty

Sovereignty encapsulates the rules that define the locus of political authority and set the context for relations between states. Modern sovereign authority is centralized and rests with the government ruling a population within a defined territory.

Constitutional independence is the juridical core of sovereignty. But sovereignty is more than that; it is also a set of rules regulating how sovereign states go about playing the game of sovereignty and how conduct relations with each other. There are two basic regulative rules in the classical game of sovereignty: non-intervention and reciprocity. Non­intervention means that states have a right to choose their own path, to conduct their affairs without outside interference. States are free to decide what they want without meddling from others. Reciprocity means giving and taking for mutual advantage. States make deals with each other as equal partners; there is no preferential treatment or positive discrimination.

Several scholars think that the substance of states has been transformed, not least because of globalization (Scholte 2000; Elkins 1995, Lapidoth 1992). According to them, the state today has fewer opportunities for control­ling and regulating what goes on inside its borders. Electronic communica­tion and mass media; global financial flows; cross-border environmental problems; global multinational corporations. All this means that states are in a process of moving beyond sovereignty or into ‘the twilight of sovereignty’ (Wriston 1992).

Sceptical scholars retort that these developments concern the substance of statehood; they have to do with the state’s actual capacity for controlling a variety of crossborder flows and conditions.

The sceptical scholars also find that proponents of the ‘twilight’ idea tend to misrepresent history, because they overstate the actual degree of state control in earlier days. There has never been some golden age in the past, where states could effectively control transborder flows. And states have grown very much stronger over time when it comes to military power and the capacity for control and surveillance of citizens as well as effective tax-collection (Thomson and Krasner 1989).

These remarks focus on the substantial changes in statehood and the consequences for sovereignty; now let us zoom in on sovereignty as a legal institution. Have there been changes in the core content of sovereignty (constitutional independence) or in the regulative rules of sovereignty and if so, what are the results of such changes?

As regards constitutional independence, the vast majority of scholars agree that it remains in place. Sovereignty as constitutional independence is the one dominant principle of political organization in the international system. But when it comes to drawing the implications of that situation, there is no agreement at all. Those sympathetic to the ‘twilight’ thesis tend to see the persistence of sovereignty as little more than an empty shell disguising the radical changes that have taken place (Camilleri and Falk 1992). The sceptical scholars, by contrast, see in the continued dominance of sovereignty as constitutional independence the sustained viability of the institution of sovereignty. the sovereign state remains the preferred form of political organization; no serious competitor has emerged (Jackson 1999).

Let us turn to the regulative rules of sovereignty. In this area, there is agreement that changes have taken place but, once again, the implications of those changes are interpreted quite differently. Those supporting the ‘twilight’ thesis find that new patters of authority are emerging which place regulative powers in the hands of non-state actors. In this way, the game of non-intervention that leaves all political authority in the hands of the sovereign state is gradually being replaced by a different game of ‘post-sovereignty’ (Scholte 2000: 138), where political authority is dispersed among several different actors. The results is that states are under pressure, because they lose their traditional monopoly on political regulation and control.

Sceptics beg to differ. They make two different arguments. First, the emergence of new sources of political authority at the supranational level (such as for example the EU and, in smaller measure, the WTO) is not seen as a loss or even a debilitating constraint on those states that are subjected to it. The new sources of authority are rather seen as a way of complementing or even strengthening the regulative powers of the individual state.

Take the EU. During the past two decades, institutions at the European level have gained considerable influence over areas that were traditionally the prerogatives of national politics: currency, border controls, social policy, and so on. But sceptics maintain that this has happened in ways that have nothing to do with the ‘twilight’ thesis. States consent to comply with supranational regulation, but they do it in their own best interest because, as a collective, states are themselves the sources of such regulation, and seen from the single state, the new set-up allows for increased influence over fellow states. The single state thus gets new possibilities for controlling events outside its territorial jurisdiction.

The other argument made by sceptics against the ‘twilight’ thesis is a historical one.

In sum, the debate about sovereignty in the face of globalization is not so much about change or continuity. Scholars agree that the juridical core of sovereignty - constitutional independence - stays in place. They also agree that some changes are taking place in the actual substance of statehood and in the regulative rules of sovereignty. The real debate is about the appro­priate interpretation of these new developments, including the extent to which they deviate or not from earlier historical phases of sovereign state­hood. Let me suggest my own view on the implications of the changes recorded here.

The substance of advanced statehood is changing in context of globaliza­tion. This is particularly evident in the case of the EU. Instead of distinct national economies, major parts of the economic activity is embedded in cross-border networks. Instead of national polities, there is multi-level governance involving supranational institutions. These developments have spurred changes in the regulative rules of the sovereignty game. Instead of non-intervention, EU member states conduct comprehensive intervention in each other’s affairs. That is, they agree to accept rules made by outsiders (fellow members) as the law in their own states, their own jurisdiction. They do so in order to regulate transnational affairs over which the individual state would have little or no control. This could be called ‘regulated intervention’.

EU members have also modified the rule of reciprocity. They sometimes give preferential treatment, or unequal treatment to members according to special needs. For example, poor regions in the EU get such preferential treatment. Additional economic resources are redistributed to those regions because of their special needs. This could be called ‘co-operative reciprocity’.

Some scholars argue that these changes in sovereignty are not merely relevant for the EU; they will increasingly pertain to other states also, spurred by economic globalization and multi-level governance. If this is true, a major change in the institution of sovereignty is under way. That does not mean that we have moved beyond or into the ‘twilight’ of sovereignty. Sovereignty in the form of constitutional independence remains the globally dominant principle of political organization. But the actual game of sovereignty, as expressed in the regulative rules of the institution, will surely develop and change, not least due to the challenges brought about by globalization.