Academic journal article Studia Politica; Romanian Political Science Review

Is Sovereignty Dead? the Transformation of International Politics*

Academic journal article Studia Politica; Romanian Political Science Review

Is Sovereignty Dead? the Transformation of International Politics*

Article excerpt

Understood in its most widely accepted sense in the legal doctrine, as exclusivity of jurisdiction and non-intervention in another state's internal affairs1, sovereignty is challenged nowadays both from domestic politics and the international - and, what is more, even this distinction between domestic and international has become blurred. The purpose of this article is to document the way in which the transformation or the emergence of different institutions, practices and discourses lead to the transformation of the content of the notion of "sovereignty", as well as the consequences of this process for international politics. We will thus develop an argument about the challenges to which state sovereignty is subjected, as well as about the reaction to those challenges. This argument will unfold into four steps. We will show the way in which the emergence of certain international institutions, such as international jurisdictions and the doctrine of the responsibility to protect, is challenging sovereignty in both its internal and external dimensions. Then, we will argue that the phenomenon of globalization actually undermines the ontological foundations of sovereignty: the territorial nature of the modern state, and the cohesiveness of its body politic. Finally, the counterweight to these processes, which is an attempt to re-institute sovereignty through a tighter control of the state over society, will be discussed. We will conclude with a reflection upon the consequences of this process, which fundamentally affect the very relation between the individual, the state and the international system.

International Jurisdiction

The exclusivity of jurisdiction of the state over its citizens is undermined by the emergence of two different types of international courts. The European Court of Human Rights (ECHR) can judge complaints by individuals against the state. The International Criminal Court (ICC) can judge, in the name of a universal jurisdiction, certain categories of crimes against mankind. Both courts are acting on the basis of a body of law which is not part of, neither hierarchically linked to, international law: human rights.

Paul Magnette draws the attention that the ECHR is an "unprecedented protection mechanism", however based on a "relatively little original"1 text which is the European Convention on Human Rights, signed in 1949. The acceptance, by the signatory States, to submit to the jurisdiction of the ECHR is, historically, the first voluntary limitation of their right to exclusive jurisdiction. The Court can be referred to by states, individuals, non-governmental organizations or groups of individuals2. It is true that the ECHR steps in only after the exhaustion of all domestic remedies3, but this only reinforces the challenge it puts to the content of sovereignty as traditionally understood. The Court can rule against the State Parties and its final decision is binding. This is why we are witnessing

"a fundamental institutional innovation. The principle of this device consists in the recognition by the state of some binding limits to their internal sovereignty, by placing these fundamental rights above their legislative powers. Its form consists in the assignment, to a superior court, of the task of ensuring compliance with these rights, which can be interpreted as a self-limitation of their external sovereignty..."4.

The gesture of placing a body of law above the legislative powers of the sovereign is, on the one hand, a confirmation of sovereignty as the right to decide exception, but on the other hand, it fundamentally undermines sovereignty in its dimension of never submitting to a higher authority.

The case of the ICC is different in its technical aspects from that of the ECHR, but it is linked to the same process of erosion of the exclusivity of jurisdiction. The ICC does not condemn states in order to protect individual rights, but condemns individuals for criminal offenses in the name of universal human rights. …

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