Factors of effective sovereignty

There is a distinction to be made between headline and effective sovereignty. The former concerns the formal aspect. The surface level. It is limited to the historically legal-political conception of sovereignty as the normative foundation of an internationally recognised and self-determined nation state. Whereas the latter is substantive. It treats sovereignty as supreme authority within a political whole. This amounts to the control over the means of governance, broadly understood. The two can be decoupled. There can be instances where on paper a state is considered sovereign, when in actuality it has little to no margin for its self-determination. And vice-versa.

Headline sovereignty is the kind one finds at the formal level of international relations, such as the United Nations. The three main facets of such sovereign authority are enshrined in Article 2 of the UN Charter. More specifically in provisions 1 and 4 (emphasis added):

Article 2.1. The Organization is based on the principle of the sovereign equality of all its Members.

Article 2.4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

From the UN’s references to sovereignty we may infer the following set of principles:

  • Equality. All nation states that are members of the UN are considered equal in terms of their sovereignty. In other words, the sovereignty of one does not take precedence or is superior to that of another (Article 2.1).
  • Independence. All sovereign nation states are independent from interventions from other states, including the use of threats or outright force. Independence is the other side of the principle of equality, while it also means that all sovereign states are considered political wholes, as being discrete, distinguishable from one another (Article 2.4).
  • Territoriality. Sovereign authority is confined to a physical space, the area within which a nation state’s independence may be exercised. Territoriality is, in this regard, the physical embodiment of the constitutional order and, consequently, partakes of the same principle of indivisibility and integrity. Territoriality cannot be divided, with a portion of it no longer qualifying as part of the independent and equally sovereign nation state.

To the above principles, we may also include the following implicit ones:

  • Continuity. Every state continues to exist as a state even if its people may change or its legal order undergoes a period of crisis.
  • Uniformity. The state is understood as the primary actor of diplomatic affairs in the international order and is treated as a single personality.
  • Nationhood. The identification of the state with a given culturally-defined people.

These two lists form a solid understanding of sovereignty, especially in its emanation as national sovereignty. Many instances of international politics can be analysed and indeed comprehended in those terms. Where the lists fall short is with regard to their application on atypical (rather ‘atypical’) cases. Instances of civil war, armed conflicts, outright invasion of one state or group thereof into another’s space. These cannot conform with notions of equality between states, independence from external influences, territorial integrity, whatever the justification and its reasonableness.

But it is not just the implosion of a certain normality or equilibrium that defies the aforementioned. Transnational state-building such as in the case of the European integration process, even though seldom referred to as such, has similar implications. Independence becomes interdependence. Territoriality no longer is uniform in terms of jurisdiction, for the policies implemented therein may have been delegated to non-national entities or political processes at the supranational level. Equality is contextualised in light of demographics, economic policy, and the like, so that it may imply equality of citizens though not necessarily of states in terms of their actual impact or involvement.

Effective sovereignty is a matter of analytics

There is value to be had in an analysis of such phenomena through the prism of headline sovereignty. Though its conclusions would be incomplete if taken in isolation. The traditional view of sovereignty can thus lead to erroneous conclusions.

Here we draw a distinction between what holds true in formal terms and what does in effect. All states are perceived as sovereign. That is the law. Yet their capacity to realise such principle is contingent on the prevailing conditions of the international order as well as qualitative aspects of quotidian life.

As concerns the latter, we need to examine in a different light a set of factors that underpin the exercise of governance. Effective sovereignty is about the things that enable the presence of a supreme authority. In broad terms these include the following, which we will proceed to discuss in the subsequent sections:

  • territoriality
  • rule of law
  • economic welfare
  • social cohesion
  • self-conscious demos

Territoriality

States are sovereign within a given territory. Though the term “territory” may etymologically refer to a land mass, we are here using it to denote areas over which the polity can exert rightful control. Sea and air are included in this definition, as well as the more abstract notion of cyber.

Territoriality is the space within which the law of the polity reigns supreme. No person, be it legal or natural, nor group thereof, can exercise greater authority than the state institution competent over that defined area. The ‘polity’ is not necessarily the nation state. It is neither fixed nor monolithic. In addition to the national institutional order, it can be the supranational level competent over the policy at hand. For example, supreme authority over monetary affairs in the euro area is exercised by the European Central Bank. No single nation state that is part of the eurozone (the defined area) can override that authority even within its own borders (where it is thought to have headline sovereignty).

This is the vertical dimension of territoriality. It concerns the distribution of competences within its boundaries. Powers that apply to a given territory may be held by multiple agents of political initiative. Sub-national government, national administration, supranational institutions that are possibly linked to more than one international organisation or platform. Verticality may thus be heterogeneous, of multiple kinds.

The horizontal dimension is intimately linked to citizenship or rather to the fact that persons within the territory are equally subject to the law of the polity. This is distinct from the normative claims on the rights of human and citizen. It is not substantive, as it merely describes the relationship between persons as well as their position vis-à-vis the state.

In a more quotidian sense, territoriality is the space within which all formal political processes take place. Relations between persons are regulated, framed, or otherwise determined by the prevailing conditions within the polity. These range from rules of custom to statutes, from social stratification to moral outlook, from underlying values to current behavioural or intellectual trends.

Territoriality must therefore not be limited to the drawing of borders on a map. That is but a formal starting point. Territoriality is, in effect, the manifestation of statehood and constitutional identity. In this respect, it is the single most important indicator of sovereignty, insufficient as it may be when taken in its own capacity.

Rule of law

A polity can practically be understood as a network of laws. Laws are codified commands that perform a number of functions to the effect that they:

  • draw the limits of legality within the boundaries of territoriality (territory itself being defined by laws, including of the international community at large);
  • institute authorities, their scope and ends;
  • establish the qualities of institutions and interrelations thereof;
  • provide for the regulation of daily activities;
  • demarcate private and public spheres, by outlining what may be considered a common good and what may remain under proprietary control.

This non-exhaustive list can be summarised as law being the underlying enabling factor in every aspect of political life. By likening law to a codified system we are not attempting to describe it as precise, devoid of ambiguity, and thoroughly syntactical. Law typically is subject to interpretation and remains somewhat generic in its description of triggers for its activation. Hence the presence of institutions specialising in its application and its context-dependent interpretation.

Law is here treated as a system of code in an attempt to suggest that its every item is contingent on the quality of the code base and structure. If the system malfunctions, there must be some tension between its various parts, something not behaving as expected. This is what we actually mean by the “rule of law”: a legal system that operates in accordance with its predefined functions. There is no substantive aspect to it. That would require a further qualification, such as the democratic rule of law.

The integrity of the legal order is a factor of sovereignty in that it provides for at least two consubstantial political qualities that facilitate the effective exercise of supreme authority. These are (i) the indiscriminate nature of the law and (ii) its coherence and consistency over specific cases and the passing of time.

  • Indiscriminate. The capacity to treat similar cases as similar and dissimilar ones as dissimilar. This guarantees the predictability of interpersonal or social affairs, while it also ensures that authorities operate within their remit.
  • Absolute. The preservation of the equality of opportunity or outcomes, typically understood as the temporal coherence of the law’s effect or else its consistent, non-arbitrary application. It underpins the sense of trust in the state and its effectiveness, or more specifically the belief in the near-sacrosanct status of the law, practically understood as rules not being rigged.

What the rule of law does is guarantee a modicum of social peace and cohesion. It provides for consistency among political processes. It predefines the margin of the authorities’ discretion and preempts abuses of power. If the subjects of the law recognise that the horizontal dimension of territoriality is respected, i.e. that all citizens are equal qua citizens, then they will also accept that the vertical dimension, that of the polity being able to rule, is worth keeping in tact.

Where the legal system begins to lose its integrity there emerge all sorts of problems and tensions. Social unrest, economic uncertainty, worsening of the relations with other countries. This is not about the substance of the law becoming less democratic per se. Deterioration of this kind is not normative but functional. It refers to an unexpected, unforeseen, or otherwise contentious drift towards a new equilibrium. Such changes have far-reaching ramifications, not just in legal terms, but in the very social-political order of the state: the compact that once held everything in place, defining that normality.

The rule of law is a polity’s organic defence against endogenous tendencies for the violent settlement of social affairs, i.e. rebellion, revolution, terrorism, or civil war. Adding democracy to it only makes it more robust due to (i) the intrinsic justice of human rights and fundamental freedoms, (ii) the inherent value of pluralism and participation in decision-making, and (iii) the compatibility with the law of the international community which makes relations with other countries more straightforward.

Economic welfare and social cohesion

Similar to the previous section, economic welfare and social cohesion are critical for ensuring social peace, and hence for providing the conditions for the unencumbered exercise of effective sovereignty.

Widespread economic well-being and social peace jointly are a factor of sovereignty because they bestow on the subject a sense of duty towards the commons. Civic obedience. This moral quality underpins one’s disposition to e.g. recognise the institutions of the state as indeed legitimised in what they do, to identify in statutes and courts a source of legality, and so on.

In other words, it provides the subject with a justification to preserve and iterate on the institutional order of their polity, rather than be inimical to it to the point of seeking its total annihilation. And therein lies the factor of sovereignty: in the recognition that a perpetually formed-and-confirmed bond exists between the authorities and the individuals that make up the political whole.

Economic exclusion, vast inequalities in the access to resources and the actual opportunities available to the person, can undermine the polity’s ethical role. The law will not be seen as delivering justice, but as sustaining an undesirable state of affairs. Social exclusion and marginalisation, based on economic, cultural, religious, racial or other factors forces the excluded group to rely on its own mores. It is a practical necessity since the polity does not provide for them. Parallel societies may thus emerge, whose connection to the body politic is tenuous at best, existing only in a formal sense.

A subject of persistent social-economic inequality, be it individual or group, may harbour no sense of civic obedience, no respect toward the state they live in. Phenomena such as that of homegrown terrorism might as well be partially influenced by a feeling of revolt to what they perceive as endemic injustice: unequal opportunities in the marketplace, inadequate representation in political affairs, etc.

From the perspective of the sovereign, where such parallel societies exist, all sorts of obstacles are placed in the efforts to optimally organise social life. The capacity to tax those groups is hindered, as are other functions of statehood, such as public education, provisions for public health and safety, law and order, and so on.

Self-conscious demos

By default, the demos of the state is the legally recognised totality of citizens. Citizenship is a legal condition. It is created as law and is given selectively. It can be taken provided certain irregular circumstances. Its substantive qualities, the rights conferred to the individual and the obligations derived therefrom, are contingent on the polity’s practical morality. What sort of fundamental rights it protects, whether the rule of law is respected, and the like.

Yet the demos cannot be instituted as such by virtue of a mere edict. The citizens also need to harbour a basic feeling of belonging to their citizenry. Law as such cannot foster that. It is the participation of the individual in the commons that brings them into the fold. The more inclusive the public space, the higher the consciousness of the demos in its presence as an organic whole.

The reason this is considered a factor of sovereignty can be understood in terms of social cohesion, as mentioned above, but also as a mutually invigorating feedback between the state and the subjects of its laws. Take the European Union as a case in point. There exists a legal instrument which bestows on any EU national the status of European citizen. The legal aspect is more or less covered. What is missing is the sense of participation in the “Europeanness” of said citizenship.

When the people in Greece react to the austerity measures of the ‘troika’, they do not object to ‘their’ policy-makers, but to their country’s international creditors. The sense of being Greek takes precedence over that of being European. And that feeling extends to the other electorates across Europe, for the troika was indeed designed as an international grouping of creditors to reinforce the idea that the Greek economic woes are indeed ‘Greek’, not European.

The point is not the politics of Europe’s single currency. It is that in the absence of a self-conscious demos the executive—in our example the EU—can find it extremely difficult to legitimise the segment of its actions that aim to promote the general good. If the European Commission were to somehow restructure the debts of the ‘European periphery’ in search of pursuing the good of the EU as a whole, chances are that the ‘European core’ would have reacted in the most vociferous of fashions, risking a fracture in the system.

Without sufficient space for legitimising state initiatives, effective sovereignty is reduced. The scope of what can be done is in many ways define by whether the demos thinks of its own as a whole, and whether it is prepared to make sacrifices over the short term in order to further reinforce its own cohesion qua demos.

National sovereignty does not equal power

The traditional view of sovereignty is that supreme authority rests in—and emanates from—the nation. Only nation states can be sovereign. Through this chapter we have tried to contest that view. To argue that this is a formal convention, not a description of actual phenomena.

The argument rests on the premise that there is a distinction to be made between the surface aspects of sovereignty and the substantive qualities thereof. We have labelled the former headline sovereignty. The latter is effective sovereignty. The headline is indeed that: the impression of a certain state of affairs. A judgement made prima facie. Whereas the effective is decoupled from formalities. It is about the means of governance, the factors of supreme authority within a political whole.

A polity that does not exercise control over the factors of effective sovereignty is unable to be self-determined. Its determination proceeds in accordance with the direction set by the forces that influence those factors.

Global affairs are replete with cases where national sovereignty is but an empty shell. It exists in name only. From failed states to protectorates to de facto colonies of hegemonic powers and/or multinational corporations, there is ample evidence to suggest that the theoretical framework is too rigid. Perhaps out of sync with the times.

By distinguishing between form and substance we can develop a better understanding of phenomena. A few examples:

  • Is a nation state truly sovereign when it cannot tax sufficiently a multinational corporation? On paper it is. In practice any attempt to raise taxes may lead to capital outflows.
  • Is the European Union sovereign? In formal terms it is not. Only its nations are. Its competences are transferred to it by the nations to pursue certain functional ends. And yet, the EU does exercise effective sovereignty over those policies where it is competent (as in the case of the euro).
  • Is Syria or Libya sovereign? They have national sovereignty. In practice there is no national compact to speak of.

The more subtle point is that statespersonship is not sufficed with securing headline sovereignty. It is concerned with the factors of effective sovereignty. How to control them and maximise their potential. As for the overarching theme, it lies in the fine distinction between the static entity that is the state and the adaptable one that is the polity. The former is the body recognised as holding public authority. The latter is the emergent province of effective sovereignty, which may encompass multiple levels of ‘state’, including supranational political processes or prevailing conditions. The two sometimes overlap, depending on the area of policy and whether the nation state has control over the full array of the means of governance. That is case-dependent. The general truth is that they are distinguishable, much like to magnitudes of headline and effective sovereignty.

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