"Sovereignty in Conflict", Samantha Besson

http://eiop.or.at/eiop/texte/2004-015.htm

 

 

Sovereignty in Conflict(*)

Samantha Besson

European Integration online Papers (EIoP) Vol. 8 (2004) N° 15;
http://eiop.or.at/eiop/texte/2004-015a.htm

Date of Publication in : 23.9.2004

| Abstract | Back to homepage | PDF |
| This paper's comments page | Send your comment! to this paper |

 

Contents:


1

‘A different view would be that sovereignty and sovereign states, and the inexorable linkage of law with sovereignty and the state, have been but the passing phenomena of a few centuries, that their passing is by no means regrettable, and that current developments in Europe exhibit the possibility of going beyond all that. On this view, our passing beyond the sovereign state is to be considered a good thing, an entirely welcome development in the history of legal and political ideas.’(1)

Introduction

It is with this passage that Neil MacCormick started his now famous 1992 Chorley Lecture which was later published under the title Beyond the Sovereign State. He was then one of the first Anglo-American legal philosophers to analyse the legal and political nature of the European Union (EU) and to venture the possibility of doing so without the concept of legal and political sovereignty altogether.


2

His concept of post-sovereignty has gradually become very influential in Europe(2) and has recently led many authors to compete in finding the right vocabulary to pinpoint the very specificity of the shift in sovereignty which has characterized European politics over the years.(3) Sovereignty is clearly en vogue and even more so since constitutional talk has made its way to the European front stage, thus raising the spectre of European unitary sovereignty, on the one hand, and hence of renewed threats to national sovereignty, on the other. In fact, never has sovereignty been as fashionable as since its explanatory and normative force first came into doubt and its knell was tolled in the European Union. What makes sovereignty such a contestable concept is its very paradox: the high degree and diversity of criticism raised against state sovereignty for the past fifty years both in practice and theory, on the one hand, and its remarkable resilience in post-national(4) political debate and legal discourse, on the other. As Neil Walker rightly observes in his recent book Sovereignty in Transition, ‘the idea of sovereignty cannot just be wished away. […] It is the very challenge to the old order that demands such urgent re-examination of the building blocks of that order ’.(5)

This concern for the future of sovereignty is not new, however, and goes beyond the question of the political nature of the European Union.(6) For a long time the concept or principle(7) of (state) sovereignty was regarded as the cornerstone of both national and international political and legal organization, on the one hand, and of modern political thought, on the other;(8) it was the state’s ‘normal’ condition(9) to be the supreme power or ultimate authority in political and legal matters, whether internally or externally. The precursor of the current ‘international community(10) ’ resembled a ‘society’ of equal and independent states sovereign both on the outside and the inside.(11) In fact, not only was sovereignty regarded as a norm, but its content itself was perceived as self-evident and applicable to all matters of daily governance.(12) Of course, sovereignty has always been limited.(13) For a long time, however, these limitations have been regarded as inherent to the concept of sovereignty and as jeopardizing neither its function nor its justification.(14)

Recently, however, sovereignty has been subject to growing challenges both in theory and in practice. Over the last fifty years or so, lawyers, political theorists and specialists of international relations have become more and more divided on the issue of state sovereignty and sovereignty in general. The international community’s power has been constantly reinforced to the detriment of state sovereignty; this has happened through power transfers from states to international or supranational organisations such as the EU(15) , the development of ius cogens(16) and of the international community’s ‘constitution’(17) , the reinforcement of the principle of humanitarian intervention, the emergence of the concept of ‘failed state’, economic or legal globalization and, finally, the development of new international and transnational actors such as NGOs or multinational corporations.(18) Conflicts of sovereignty have increased in practice and conflicting claims to ultimate authority on all sorts of matters constitute a permanent feature in the now pervasive regimes of multilevel governance(19) . This is illustrated by the Kompetenz Kompetenz crisis and the recurrence of constitutional conflicts in the EU, i.e. conflicts of claims over matters falling into the field of ultimate national and European constitutional competence such as fundamental rights or basic principles.(20) Besides these threats on external sovereignty posed by the development of supra-state and post-state political entities, the emergence of infra-state claims to authority has contributed even further to the fragmentation of internal sovereignty.(21)

With this shift in authority away from the state to new sub-state, supra-state, post-state(22) and non-state entities, the question is whether the concept of ultimate authority or sovereignty is to be abandoned or, on the contrary, retained and, if so, in which form. Faced with these changes, most authors still regard the state as a central feature of the new national and international order, be it in the context of the conclusion or of the implementation of international law.(23)

 


3

Some claim, however, that sovereignty has become obsolete in the new post-Westphalian and pluralist constitutional order where different legal orders overlap within the same territory and population(24) , and that it should therefore be abandoned.(25) Although they usually refer to state sovereignty, some extend this verdict to sovereignty in general. Some authors even call for the adoption of new concepts that are more apt to seize the new national and international organization.(26) Others, on the contrary, advocate the concept of sovereignty’s continuity and emphasize the central role it continues to play in the current international structure.(27)

This theoretical and practical state of affairs has gradually given rise to a flourishing literature.(28) The issue has not yet been explored from every angle, however.(29) The debate raises interesting questions about the nature of the concept of sovereignty and its relationship to the changing political and legal reality of the state and the international order more generally. Viewed from a wider angle, it is the applicability of statist concepts like sovereignty to the post-national reality which is thrown into doubt and it reveals the necessity to translate those concepts into conceptions that do not constrain this new reality and hence to develop a post-national jurisprudence.(30) In this context, the question this paper addresses is the following: is it really necessary to choose, as most do, between, on the one hand, rejecting the concept of sovereignty in order to enter the era of post-sovereignty, and, on the other, maintaining it as it is, despite intense changes in the international order? Consequently, the paper aims at exploring a third way that would allow us to escape from the two types of dualism that contrast state and sovereignty, first, and rejecting and saving sovereignty, second.(31)

The first opposition will not be dealt with in great detail in this paper –the issues it raises have already been addressed extensively elsewhere.(32) It contrasts abandoning the concept of state in order to save sovereignty in a post-statist world, with abandoning the concept of sovereignty to save post-sovereign states.(33) The idea here is, on the contrary, to consider the capacity of adaptation of both the concepts of sovereignty and state.(34) Both may be withheld and remain important in practice. No one can deny that the state remains one of the key elements of the international order(35) nor that it is necessary to have a sovereign or ultimate authority(36) to settle conflicts. It is important, however, to realize that both concepts can evolve; this can occur either symmetrically when state and sovereignty are linked, or asymmetrically when they are dissociated as is often the case nowadays –it suffices to look at the Swiss cantons and at the European Union to see that some states are not sovereign and some sovereign authorities are not states.(37)

It is the second opposition between maintaining and rejecting sovereignty that will be addressed in more depth and that will hopefully be overcome.(38) It relies on a far too rigid and static approach to the concept of sovereignty. The choice should not be between retaining the concept in its state-like unitary and absolute conception thus seeking a Kelsenian or Schmittian finalité(39), and requiring an exclusive choice between national and European claims to sovereignty for instance, on the one hand, and abandoning sovereignty completely, on the other, thus ignoring the epistemic and normative resilience of the concept both in practice and theory.(40) The alternative is not to choose between realizing the tyranny of statist concepts like sovereignty and rejecting them en bloc, on the one hand, and their perpetuation in their rigid statist conceptions without further translation and adaptation to the post-national context, on the other.(41) It should be possible to retain the concept of sovereignty while allowing it to fluctuate along the lines of current changes in the international community and to adapt to the new reality of constitutional pluralism in Europe;(42) it has evolved in this way in the past without ever being rejected for doing so.(43) As a result, authors usually do not spend much time elaborating on what they take sovereignty to mean in general.(44) One finds limited references to supreme authority or ultimate power.(45) These two definitions refer to very different facets of sovereignty which correspond to its normative and empirical dimensions.(46) This built-in flexibility of the concept is even more important as the new international reality has not stabilized yet.(47)


4

If it is possible to conceive of such a third intermediary approach to sovereignty in a post-national order, how should this new form of sovereignty be conceptualized? Recently, some authors have explored this third path, in the European context in particular,(48) but without yet providing a detailed account of the nature of this new form of sovereignty and of its practical implications. This paper also aims therefore to develop a more complete account of the complex relationship among sovereign authorities in the same political and legal community. The cornerstone of this account is captured by the idea of sovereignty in conflict: rather than understanding constitutional conflicts and other clashes of sovereignty as a problem requiring either a unitary sovereign resolution or the rejection of all sovereign resolutions, the co-existence, competition and mutual adjustment of conflicting claims of sovereignty should be regarded as a normal and desirable political and legal condition. Conflicts over the concept of sovereignty and competing claims to political and legal sovereignty in practice(49) are to be understood as the best way to ensure unity in diversity through a reflexive and cooperative decision-making process in each case.(50)

To address these issues, the paper’s argument is five-pronged. The first section examines the relationship between conceptual analysis and political and legal change (Section 1.). The second section addresses the concept of essentially contestable concept (Section 2.). In the following section, I argue that the concept of sovereignty is essentially contestable, assess its different dimensions and draw some implications for the concept’s centrality in our daily political and legal debates (Section 3.). Finally, in the last section, I discuss the future of sovereignty in the European Union in the light of the theoretical conclusions of the paper (Section 4.).

1. Reality change and conceptual continuity to contents list

It is important at the opening of the present paper to start by clarifying the relationship between a political and legal concept like sovereignty and the object to which it refers. Of course, a certain distance between the philosophical analysis of a concept and its legal and political use(51) is unavoidable.(52) This paper’s starting point, however, is to claim that a minimal relationship must be maintained between a concept and its practice, or else political and legal analysis would become avoid.(53)

Until now, political and legal philosophers have not been very clear on what this relationship should be. A majority of authors argues that legal concepts are both descriptive in a first stage and prescriptive in a second stage when they constrain reality. Their function is to determine through observation and then to prescribe what the essential criteria of those concepts are. In the case of sovereignty, for instance, conceptual analysis is about determining the essential qualities of sovereignty by reference to its reality and then to capture them in conceptual criteria.(54) These in turn will entail certain prescriptions about what a sovereign state or a sovereign legal order can be.(55) It remains of course possible to adapt and revise the meaning of concepts whose use fluctuates. Once a concept has been reassessed, however, its function becomes prescriptive again and implies normative constraints on practice.(56) Other authors take a more realistic stance and regard legal concepts as mere reflections and descriptions of legal and political reality. Any other approach would amount to a purely metaphysical construction whose validity could not be tested in any objective way. According to legal realists, the task of legal philosophical concepts is to describe those institutions and principles on which positive law and political practice rely effectively.(57)

 


5

Neither approach is entirely satisfactory, especially when taken to apply to the concept of sovereignty. Intense recent developments in international and European law reveal the limits of both approaches of political and legal concepts.(58) While the prescriptive approach aims at testing legal and practical reality against a pre-existing model of the state and sovereignty, the descriptive one seeks to retrieve the content of the concepts of state and sovereignty entirely from a new reality. Both approaches put sovereignty at risk by, on the one hand, either corseting reality too tightly thus prematurely condemning new political and legal practices and cutting sovereignty off too early from reality by redefining it too strictly(59) or, on the other, by emptying it from any content whatsoever and thus limiting any possibility of conceptual continuity in the political and legal realm. It follows therefore that sovereignty is not a merely prescriptive political concept that insists on constraining political and legal reality according to an abstract standard. Nor is it a purely descriptive political concept that refers to an independent and objective reality. Sovereignty is more than what those entities which claim to be sovereign actually are, but it is less than what pre-existing abstract standards of sovereignty may require it should be.(60) Walker refers to these two ways of misunderstanding sovereignty as the descriptive fallacy and the fallacy of abstraction.(61)

Although neither approach is founded per se, they can be reconciled and propounded together.(62) Like other legal and political concepts, sovereignty should account for political and legal reality and should therefore be able to fluctuate with it, although this mirroring effect cannot always be perfect. This does not mean, however, that the concept of sovereignty should not retain a certain normative impact on political and legal reality, although this impact should not lead to corseting political reality.(63) A third and combined approach to legal and political concepts like sovereignty is therefore needed to reconcile the normative role of sovereignty with the profound changes in the political and legal reality. Sovereignty, like other central political and legal concepts, should be neither entirely closed nor entirely open; it should neither encompass all changes of reality, nor exclude any change of its paradigms, i.e. of its central exemplars in practice. Sovereignty is therefore best understood as what one calls in philosophy of language an essentially contestable concept.(64) Because the concept expresses one or many values it aims at protecting, different evaluations and conceptions of it can be given and this contestable nature is one of its main features.(65)

Sovereignty should be entitled to remain the same concept and hence establish a conceptual framework in which debates can take place,(66) while also fluctuating at the same time through changes of paradigms and of conceptions;(67) the essential contestability of sovereignty ‘can account for both change and for continuity in change(68)’. Instead of understanding sovereignty as a mere fact or as a purely normative standard, the concept’s essential contestability makes it possible to account for its institutional and discursive resilience while also respecting its normative input;(69) some authors also refer to the double hermeneutic of sovereignty(70) and the fact that the concept of sovereignty is not only an interpretation of the world, but that this interpretation is already part of that world and of its ‘sedimented discourse(71)’.

 

 

 

 

 

 

 


6

2. The concept of ‘essentially contestable concept’to contents list

2.1. A definition of the concept

One of the objectives of this paper is to establish that the concept of sovereignty not only amounts to a complex and normative concept, but also that it is an essentially contestable concept. As such, it is a concept that not only expresses a normative standard and whose conceptions differ from one person to the other, but whose correct application is to create disagreement over its correct application or, in other words, over what the concept is itself. The concept of ‘essentially contestable concept’ owes its original formulation to William Gallie.(72) Since then, the concept has been re-used and further developed in moral and political philosophy,(73) but also in legal philosophy(74) – although not always in a discerning manner.

Traditional approaches to normative concepts, like the concepts of democracy or justice, are extremely cautious about the role of contestation. They do not consider normative contestation as part of those concepts’ correct application. On the contrary, most authors distinguish between the phase of descriptive conceptual analysis, on the one hand, through which it is possible to identify and establish minimal criteria of application of normative concepts in an objective way and the normative discussion of these concepts, on the other, during which phase only it is possible to contest the assessment of the values those concepts encompass and protect.(75) It is crucial to understand, however, that disputes which surround normative concepts cannot be compared to those about criterial concepts such as ‘book’ or ‘chair’. In those cases, there is sufficient consensus to accept the existence of minimal criteria of correct application and contestation over those criteria can be explained in terms of error.(76) In the case of normative concepts, however, contestation goes to the heart of the concepts and is not limited to its peripheral cases of application,(77) without it being necessarily evident that those contesting so-called criteria of application are necessarily mistaken.(78) It is implausible in those conditions to separate prior conceptual analysis from normative contestation.(79)

To claim essential contestability, it is surely not enough to say that a concept is normative; it is a necessary condition for it to encompass one or many values, but it is not a sufficient condition since some normative standards might be pre-established in a criterial way. Nor is it enough to refer to the evidence of its historical and cultural variability and the disputes over its correct application. Empirical and contingent claims like these would be claims of mere contestedness. To claim that a concept is contestable is to make the analytical claim that debates about the criteria of correct application of a concept are inconclusive.(80) Finally, to claim that a concept’s subject matter is such that there are always good reasons for someone to dispute the propriety of any of its uses, is to claim its essential contestability; the ‘essentiality’ of its contestability does not mean that the disagreements that surround its meaning are irresolvable,(81) but that, on the one hand, disputes about the meaning of the concept go to the heart of the matter and can generate rival paradigms and criteria of application and that, on the other, it is part of the very nature of the concept to be contested and to raise questions as to its nature.(82)

In Connolly’s slightly refined version(83) of Gallie’s definition of essentially contestable concepts,(84) a concept is essentially contestable

  1. when it is appraisive in that the state of affairs it describes is a valued achievement which is initially variously describable,(85)

  2. when this state of affairs is internally complex in that its characterization involves references to several dimensions of meaning(86) as opposed to judging something to be ‘red’, and

  3. when its criteria of application – whether shared or disputed- are themselves relatively open, enabling parties to interpret even shared criteria differently, both across a range of familiar cases and as new and unforeseen circumstances arise.


7

2.2 Some implicationsto contents list

After this brief clarification of the concept of essentially contestable concepts, it is important to discuss two implications of the use of such concepts.

First of all, the recognition of the existence of essentially contestable concepts does not imply taking a sceptical stance.(87) It is entirely consistent with the existence of objective values; although the concept of justice is contestable and although parties to the disagreement hold reasonable but conflicting conceptions of it, this does not prevent one of them from being right and the other wrong. This explains why the recognition of essentially contestable concepts on the part of participants in the political discourse is compatible with the willingness to deliberate and exchange arguments with others; one may hope to convince others without, however, necessarily having to believe that it is possible to find the right conception in all cases.(88)

Secondly, the recognition of the essentially contestable nature of a concept is an analytical statement. It implies the possibility of conceiving a concept as normative, that is to say as encompassing a contestable value. It does not therefore protect against analytical mistakes or errors of judgement.(89) It is important to note that what enables the parties to know that their disagreement about an essentially contestable concept pertains to the same concept and not to two different concepts lies in the exemplars or paradigms they share before starting the discussion. These are provided by those central cases in which the concept clearly applies. What distinguishes paradigms from criteria and agreement over them(90), however, is the evolutive nature of the former; paradigms adapt to new circumstances and can be entirely ousted in favour of new paradigms in the course of discussion, provided these changes are made gradually and that some minimal paradigms are shared to start the discussion.(91)

3. Sovereignty qua essentially contestable concept to contents list

There are three main conditions to be fulfilled for the concept of sovereignty to be regarded as an essentially contestable concept: the concept must be normative, intrinsically complex and a-criterial.

3.1. Sovereignty qua normative concept

As a normative concept, the concept of sovereignty expresses and incorporates one or many values that it seeks to implement in practice and according to which political situations should be evaluated.(92) These values are diverse and include, among others, democracy, human rights, equality and self-determination.

Concept determination amounts therefore to more than a mere description of the concept’s core application criteria; it implies an evaluation of a state of affairs on the basis of sovereignty’s incorporated values. What lies behind the prima facie categorical use of central political and legal concepts like sovereignty are not facts that should be established, but conceptions and interpretations that should be evaluated and maybe amended in order to account better for the values encompassed by these concepts.(93) It follows therefore that the determination of the concept of sovereignty cannot be distinguished from the values it entails and from the normative discussion that generally prevails around it.(94)


8

3.2. Sovereignty qua complex conceptto contents list

The second condition for the essentially contestable nature of the concept of sovereignty is the complexity of the concept. The concept of sovereignty clearly encompasses different dimensions of meaning by contrast to a simple concept like ‘chair’. There are three main dimensions one should mention: the concept of sovereignty qua outcome, the concept of sovereignty qua question and the concept of sovereignty qua value. Sovereignty is therefore at once a result, a question as to what this result should be and a justification of this result in terms of values.(95)

3.2.1. The complexity of sovereignty qua outcome to contents list

The difficulty of general concepts like the concept of sovereignty is that they give rise to a plurality of criteria and principles whose content is extremely contestable. These different criteria constitute what can be referred to as the concept qua outcome or result-concept of sovereignty; they contribute to determining what sovereignty is as a state of affairs or achievement.(96) These criteria qualify the minimal and relatively uncontroversial statement of sovereignty as the ultimate and supreme authority or power of decision and are sometimes described as constitutive rules of sovereignty.(97) They are heavily contested in practice, not only per se, but also inside each group of oppositions where different conceptions can be defended.

3.2.1.1. Political and legal sovereignty

Political and legal sovereignty have always been closely linked in the history of the concept; most theories either derive legal sovereignty from political sovereignty or vice-versa. The paradox of pouvoir constituant and pouvoir constitué or of rule sovereignty and ruler sovereignty is inextricably tied to the claim to sovereignty; political sovereignty is difficult to conceive without rules to exercize and constrain that sovereignty, but legal sovereignty is hard to fathom without a political power to establish its legal rules in the first place.

Different accounts have been given of the priority between political and legal sovereignty across the centuries and have contributed to perpetuating the centrality of the concept of sovereignty. Some authors have even argued that this paradox and mutual claim are testimony of the conceptual incoherence of sovereignty.(98) While Austin and command theorists give priority to political sovereignty over legal sovereignty, Hart and recent positivists give priority to legal sovereignty over political sovereignty.(99) Other authors like Kelsen argue, on the contrary, that political and legal sovereignty are identical and cannot therefore be put in any relationship of priority.(100) More recently, some authors have tried to dissociate legal and political sovereignty and re-associate legal to institutional sovereignty.(101) At a time when state and law, and more generally the political and the legal tend to drift apart in practice, as demonstrated by the emergence of the European legal order, the development of lex mercatoria and other forms of transnational global law,(102) the sovereignty of law must somehow be able to be kept conceptually distinct from the state and maybe from political sovereignty. The question that arises is the following: while it must be possible to distinguish political and legal sovereignty from each other, is it possible to do so without giving one priority over the other but without, however, having to give one up for the other?(103)

 

 

 


9

The law remains a political instrument and creation, whether at the national, European or international level. As a consequence, legal sovereignty will most of the time match political sovereignty.(104) It is difficult to see how the sovereignty of European law, for instance, can be pertinent outside its relationship to political sovereignty in the EU in the field of competence of the legal norm in question. Conversely, however, it is difficult to understand how political sovereignty can be exercized in the EU without legal sovereignty, in particular with respect to the constitutional determination of the structure of political power and competences.(105) Sovereignty amounts to the competence of a political entity,(106) hence the idea of ‘competence of the competence’ (‘Kompetenz Kompetenz’) and the difficulty to establish one’s own competences without legal sovereignty. It follows therefore that legal and political sovereignty, even though they are conceptually distinct, are not separable in practice in the long run.(107) This also implies that when they are both granted, neither of them can be given priority over the other. There is, in other words, an imperfect relationship between the two forms of sovereignty.(108)

In fact, this interpretation of the relationship between political and legal sovereignty solves a long-standing paradox or at least makes the most of it.(109) Sovereignty should be situated at the boundary between politics and law or between democracy and rights, rather than being clearly embedded in one or the other. As Walker argues, the double claim to political and legal sovereignty should ‘be viewed more constructively as the conceptual key to sovereignty as a dynamic process of mutual constitution and mutual containment of law and politics’(110). It is crucial for the legitimating effect of the competitive and cooperative exercize of sovereignty in the EU that it be subordinated neither entirely to a legal and normative division of competences nor entirely to political power and to the rule of the majority.(111) On the contrary, both legal and political sovereignty should be kept in tension and mutual relationship for the values protected by both forms of sovereignty to be enforced.(112)

3.2.1.2. External and internal sovereignty

Traditionally, the concept of sovereignty has always operated in two distinct ways: sovereignty can be exercized in relation to one’s internal affairs, on the one hand, but also to one’s external affairs, on the other. Even though there exists a historical and link between these two forms of sovereignty, it is important to distinguish between them conceptually. First of all, different institutions exercize sovereignty in both cases: the executive acts as a sovereign in external affairs, while it is usually the legislative which is regarded as sovereign in internal affairs. Hence the difficulty there is sometimes of distinguishing between parliamentary sovereignty on the inside and national sovereignty on the outside.(113) Secondly, their functions differ; whereas internal sovereignty pertains to all political and legal matters, external sovereignty usually only relates to questions of cooperation among distinct sovereign entities. Finally, external sovereignty can less easily be described as final or ultimate; it can only be equally ultimate since a sovereign can only co-exist as an equal to other sovereigns.(114) In internal affairs, however, sovereignty is usually final.

Although both forms of sovereignty may be kept conceptually distinct,(115) they cannot be separated in practice; for there to be external sovereignty, there must be internal sovereignty and vice-versa.(116) Without external sovereignty, indeed, the internal sovereign cannot define the latter and without internal sovereignty in the constitutional determination of competences, there cannot be an external sovereign and no human rights limitations in particular.(117) It is difficult therefore to place one before the other in an order of emergence.(118) This issue is particularly relevant in the European context. Contrary to federal states, the European Union was not created through the gradual concession of Member States’ external sovereignty.(119)


10

Most transfers of competence relate to internal matters. Many authors have deduced from this that the only kind of sovereignty one should be concerned with in the European context is internal sovereignty.(120) This, however, underestimates the strength of the bond between these two forms of sovereignty; with less internal sovereignty, external sovereignty is also affected and has gradually shrunk at national level.(121)

3.2.1.3. Absolute and limited sovereignty

The question of the degree of power and amount of competence necessary for an entity to become or remain sovereign has given rise to a long controversy in the history of the concept. According to some authors, sovereignty can only be absolute. This is the classical conception of sovereignty one finds in Bodin and Hobbes in particular. This position does not hold, however, once internal sovereignty is understood together with external sovereignty. External sovereignty can never be regarded as ultimate or final; it is inherently limited since public international law and external sovereignty imply each other.(122) Without rules of international law, sovereignty would be reduced to mere factual power.(123) These inherent limitations to external sovereignty have also become constitutive limitations to internal sovereignty(124) given the internal impact of many external agreements, such as human rights instruments, for instance. Finally, this absolute conception of sovereignty cannot account satisfactorily for new developments in political and legal organization. More precisely, it ignores the plurality of sources of law and power in the new world order and what is often referred as constitutional pluralism, i.e. the post-Westphalian order characterized by the co-existence of autonomous constitutional orders in the same political and legal community and territory.(125)

In response to these difficulties, some authors have suggested the idea of limited sovereignty. The problem arising from this model is to know when sovereignty is so limited or fragmented that there can be no talk of sovereignty anymore. The concept of sovereignty implies a certain amount of intensity or of competence over a range of matters.(126) As we saw before, sovereignty is a general competence, i.e. a competence to determine one’s particular competence; as such, it requires a minimal level of control over those competences. In other words, is there a threshold below which sovereignty is emptied of any content and if so, where does it lie? Some authors have denied this identification of sovereignty with a threshold-concept.(127) One argument against it may reside in the contestation of sovereignty and hence of this minimal threshold. As I explained before, however, the essentially contestable nature of the concept of sovereignty is an analytical statement which is perfectly compatible with the recognition of the normative content of the concept and of its contestability. One might therefore consider that these minimal threshold constraints are part of the analytical framework one has to assume when using a contestable concept, i.e. that it is a concept, that it protects certain values, that it is contestable, etc.(128)

It remains difficult, however, to establish where the minimal threshold of sovereignty lies.(129) Some authors merely agree with the idea of a threshold without providing more information.(130) Others enumerate different co