Barcelona Metropolis

Sovereignty and government power

As Dieter Grimm has pointed out, States’ loss of the monopoly of government power in the post-Westphalian order has not, however, been accompanied by its acquisition by any supranational organisation: there is no, and perhaps never will be, a global state. If we are to continue to use the concept of sovereignty, it should be separated from the full possession of public power. For Grimm, its most important function today is “protecting the democratic self-determination of a politically united society with regard to the order that best suits it”. In other words, sovereignty protects societies from outside interference and facilitates their internal self-determination. And this, whatever the power – military, economic, cultural – enjoyed by each sovereign unit: Malta can do less than France, but France cannot do everything. Moreover, sovereignty must be defended; as the Russian invasion of Ukraine demonstrates, claiming sovereignty is not enough. This is why Europeans are contemplating whether they shouldn’t gain strategic autonomy, rather than relying on the US to defend them against external military threats.

If we add to this the fact that constitutional democracies set legal limitations on State action, we can conclude that sovereignty in the classical sense of the term no longer exists. Instead, there are powers distributed on the basis of functional criteria: legislative, executive and judicial. The fact is that the possession of power is one thing, and its exercise is another: sovereignty is held by the nation’s people, but its exercise is delegated according to predetermined limits. The sociological populace must not be confused with the sovereign populace; the latter is an abstraction that manifests itself in the constituent moments and then remains latent: not even the biggest mass demonstrations can be considered to encapsulate the latter. That is why there are perfectly legitimate constitutions that citizens have not endorsed with their vote, as in the case of the German constitution.

It so happens that government powers can be organised in different ways within States. Territorially, too: Some choose a centralised design (France), while others prefer decentralisation (Germany and Spain). As democratic States, all of them envisage the “right to self-determination”, in the sense in which it is understood in international law. Even the centralists! What matters is that citizens have political rights and can participate in determining the direction of their political community. From this point of view, there would be no clash between democracy, sovereignty and territory: there are sovereign states that exercise their dominion over a territory demarcated by their constitution and which, moreover, organise themselves internally in a democratic manner. And just as sovereignty is unavailable, since it is the element that allows for democratic self-determination, its territorial delimitation is not open to negotiation either.

The internal threat to State sovereignty

Nevertheless, sovereignty is still a bone of contention within contemporary liberal States. The resurgence of nationalism in recent decades has led many sub-State political movements to challenge State sovereignty, demanding greater political autonomy or the right to have their own State. Some thinkers even advocate the need to move towards co-sovereignty between States and their supposedly internal nations. But the fact that sovereignty is organised in accordance with constitutional liberalism means that the political dispute cannot be about sovereignty. Sovereignty has been recast and, if we take its classic version as a reference point, dismantled. In any case, it is a matter of questioning the way in which sovereignty is organised internally, for example, in terms of the distribution of powers between different institutions or territorial levels. But sovereignty, as such, cannot be shared: it is impossible for two rule systems to represent us that must be in force in the same place and be mutually independent; as the eminent Austrian jurist Hans Kelsen taught us, this would undermine the uniqueness of the regulatory system. It is a different matter when sovereign powers can be exercised in such and such a way, based on a particular territorial or functional distribution.

This is where the tension between sovereignty and nation can surface: those who feel part of what are called stateless nations understand that sovereignty cannot be held over the nation. Does the same territory not host them, believing they belong to a different nation? But to speak of stateless nations is more confusing than enlightening: if we were to say that only those who have a State are nations, the scenario would be simplified considerably. Within that nation, of course, there will be particularist sensibilities or beliefs that can be accommodated (Spain) or ignored (France). From a prescriptive point of view, territorial power-sharing seems advisable: Recognising the internal diversity of modern nations naturally leads to federal or quasi-federal systems wherein parts of the system enjoy autonomy to decide within their established scope of decision-making.

However, a viable distribution of territorial power calls for the parts to be loyal to the whole: since we cannot prevent identities from playing a role in the political life of constitutional democracies, their potential for destabilisation must be contained through the rigorous design of institutions and the demand for that Bundestreue or federal loyalty without which no decentralised State can survive in the long run. The problem is clear: nationalism is not characterised by its loyalty to the whole nation and, once it gains power, it rolls out nationalisation policies designed to increase dissatisfaction with the whole nation, usually through a clever combination of victimhood and the suppression of pluralism.

What then? This conflict can only be resolved through a mutual pact of accepted frustrations: just as the former absolutist State had to reconvert itself into a constitutional State, and ended up accepting that power had to be distributed within it, the beneficiaries of this process would have to accept that there is no right to self-determination in a democracy and dedicate themselves instead to using the resources at their disposal - which are generally in abundance – to realise their identity without bothering anyone, respecting at all times the rights of those citizens who do not subscribe to the nationalist ideology. Otherwise, collective identity will be put before democracy, on the understanding that we are talking about a liberal democracy dedicated to protecting the individual and not collectivities.

Bibliographic references

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