Samantha Besson, Sovereignty in Conflict, European Integration online Papers (EIoP), Vol. 8, No. 15, 2004
Besson – Sovereignty in Conflict
Background
The processes of globalization, but even more so of European integration, call into question traditional notions of national sovereignty, and thus the foundation of the Westphalian State system. States today are part of extensive cooperation networks in an integrated world or regional economies reliant upon complex value chains. Prosperity and security no longer can be assured by individual states alone, and thus depend upon cooperation. Some argue that the concept of national sovereignty is therefore antiquated, while others seek to redefine and reshape the concept for our times. Some leave sovereignty with the nation state, others transfer it to overarching, unitary supranational organizations, including particularly the EU. Sovereignty, in other words, is conceived of as a matter of ‘competence-competence’, or of ‘who has the last word on issues’.
As part of this debate, Samantha Besson published a seminal paper in 2004 focused on the idea of cooperative sovereignty. Her main contribution therein was invoking the philosophical idea of the essentially contested concept, which is a concept that is inherently open to differing perceptions and interpretations and deliberately vague in formulation in the interest of avoiding rigid constitutional conflict. A moral duty to cooperate obliges actors to consider other points of view and to critically question their own perceptions. This process entails creative potential for getting around stalemate and the conflicts inherent with static concepts of sovereignty without allowing outright rejection of sovereignty.
This approach offers an important underpinning for conceptualising sovereignty in terms of allocating regulatory powers to different levels of governance with a view to producing appropriate public goods. It facilitates focusing on the goals of sovereignty, which are to produce welfare effects for society. And such an approach also demonstrates the importance of deliberation and democratic processes in allocating constitutional powers, reflecting in many respects the idea of reasonable disagreement. This concept is at the heart of Samantha Besson’s monography The Morality of Conflict: Reasonable Disagreement and the Law, published in 2005, which lays out important foundations for the theory of multi-level governance.
Summary
This complex and dense paper addresses sovereignty from a political and legal philosopher’s point of view. Stating that the political and legal dimensions of sovereignty are difficult to disentangle in terms of description and normativity, concepts of sovereignty should neither be entirely closed nor entirely open, leaving room for development and different views. Such a concept is fundamentally contestable, offering a framework for debate, upon which agreement cannot be expected in the absence of immutable criteria, as reflected in the paper title.
Sovereignty is about underlying values and is a complex concept that should be embedded between democracy and rights, and should not be limited to the issue of competence-competence, or ‘who has the last word in a particular polity’. The paper addresses the distinction between internal and external sovereignty, which today is no longer clear, particularly in light of human rights concerns and the advent of jus cogens. The paper discusses absolute versus limited sovereignty and expounds upon the differences between popular, undivided, shared and cooperative sovereignty – the latter concerning interaction between different unshared sovereigns. It addresses the central issue of allocating powers as well as the role of subsidiarity. Most of the paper is devoted to applying these insights in the area of European integration and the European Union. The author finds that constitutional pluralism in Europe is difficult to reconcile with traditional conceptions of unitary sovereignty, either on the level of member states or of the Union.
Setting out differing views of sovereignty in the context of European integration, the paper elaborates on the implications of cooperative sovereignty and its pros and cons. In the pluralist order, there is an overriding obligation to work towards coherence of the legal order in a continuous process of renegotiating and readjusting legal relations and solving constitutional conflicts between different entities within multilevel governance. Cooperative sovereignty, it is noted, reinforces European constitutional legitimacy.