Leiden Law Blog

Sovereignty in the 21st Century

Posted on by Manel Moya Noguera in Public Law
Sovereignty in the 21st Century

Some voices have questioned the persistence of the Westphalian system, where the State is the holder of so-called ‘sovereignty’ that completely justifies the origin of all political power. First, certain scholars argue that differences between the ancient nation-states are fading away as they are joining various supranational organizations in order to have a better position on the increasingly complex planetary stage. Besides, we need to pay attention to the existence of processes concerning the political devolution of power from national authorities to subnational authorities since the ‘federalization’ of many countries is on the political agenda today.

On the one hand, the European integration process is one of the main concerns of those who think that national sovereignty is at stake. Are the EU Member States no longer sovereign or has full sovereignty been transferred to the EU? A unanimous response is highly unlikely since constitutional law, like everything else, is open to different interpretations. We can indeed find much evidence of EU law in our daily lives, such as consumer protection, environmental law, domestic administrative law procedures, certain sanitary or pharmacological regulations or the level of indebtedness of our administrations. Many might argue that this is the end of the nation-states, that we are going through very different dynamics of multilevel governance where the role of supranational instances is increasing.

What has happened to UK sovereignty? Undoubtedly, there has been a process of repatriation of British sovereignty. After a favourable referendum and subsequent parliamentary actions, the UK is recovering all the competences once transferred to the EU. The political negotiations will demonstrate up to what point that recovery will come, since eventual agreements could limit British sovereignty (for instance in the area of market regulation or EU workers’ legal status). Although the British Constitution (only partially written but not fully codified) clarifies that Westminster [Parliament] is the sovereign power, it freely decided to self-limit its power in favour of the EU and is now about to revoke that historic decision. This only proves the confederalist DNA of the EU where States retain  ‘ownership’ of sovereign competences though they freely decide to ‘delegate’ the exercise of these competences, a decision that can be revoked at any time.

On the other hand, not only supranational but also infranational authorities could threaten national sovereignty. Devolution processes can also represent a challenge to the sovereignty of States, as has been proved by the Catalan case. Despite wide social support and its electoral translation into seats in the regional parliament, and despite the support of various (public and private) mass media, the State has been able to impose itself. Without covering the suitability or not of the measurements taken (whether they fully respected Spanish law or not), the truth is that the State has undeniably imposed its will. The Catalan Prime Minister and all his ministers have been removed from office and have all escaped abroad or have been jailed. The  national authority has imposed direct rule on the Catalan administration, governed currently from Madrid. The legislative, the executive and the judicial branches, and of course, the Constitutional Court, have acted in harmony and together have beheaded the political institutions controlled by the pro-independent parties. All this has generated reasonable doubts as to whether the actions of the abovementioned authorities have respected the proper constitutional frame, or whether the separation of powers and the quality of democracy and the rule of law are at stake.

But in spite of the above doubts, the State has still won; it has reaffirmed and promoted what Article 1.2 of the Spanish Constitution proclaims: sovereignty belongs to the (whole) Spanish people (and not to a fraction of it). The world has changed very much from Westphalian times but its postulates are, undeniably, still current: States keep imposing themselves upon all those who threaten their sovereignty despite the clear limitation on their powers arising from supranational and infranational authorities.

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