Sovereignty and the Changing Role of Territoriality

Few principles in international law are so powerful and still so hard to grasp: While for some scholars of international law the “whole of the law could be expressed in terms of the coexist-ence of sovereignties”,⁴⁶⁶ others have predicted (and welcomed) its decline or even death.⁴⁶⁷ Sovereignty as a principle has been in permanent reconstruction,⁴⁶⁸ and the nexus between ter-ritoriality and sovereignty was not important to pre-modern concepts of sovereignty.⁴⁶⁹ An im-portant turning point in the theory of sovereignty is found in the works of Bodin, Hobbes and Rousseau, to name but the most influential authors. Bodin prominently re-conceptualized sover-eignty as the “absolute and perpetual power of a commonwealth”⁴⁷⁰ and reconstructed sover-eignty as an element of statehood⁴⁷¹. While still recognizing God as the ultimate authority whose divine laws limited the sovereign, these laws could not be invoked by citizens; rather, sovereign authority over a territory could not be shared or divided, as otherwise chaos and civil war would be the consequence: The legitimacy of sovereignty lies in “general security and well-being”.⁴⁷² Bodin and other theorists thus developed a political theory that helped to justify the claim of absolute sovereignty based on territorial boundaries.⁴⁷³ While still rather a political theory, the concept of absolute sovereignty soon became a fundamental principle of international law,⁴⁷⁴

465 Ibid.

466 Ian Brownlie, Principles of Public International Law (Oxford: Oxford Univ. Press, 2008), 7. ed., p. 289.

467 Christoph Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International Law?’, European Journal of International Law, 4 (1993), pp. 447–471; Sovereignty has been “de-throned”:

W. Michael Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’, American jour-nal of internatiojour-nal law (1990), p. 866, p. 668.

468 Koskenniemi explains these “shifts of meaning” by reference to what he calls non-legal „pure fact“ ar-guments: Koskenniemi, From Apology to Utopia (above, n. 13), p. 572.

469 Not only Greek political theory, but also Ancient institutions, for example during the Roman Republic, made reference to a somehow popular sovereign (Vincent Farenga, Citizen and Self in Ancient Greece (New York, NY: Cambridge Univ. Press, 2006), p. 327). Christianity later identified God as the only true sover-eign, so that all law existing and power exercised on earth was limited by God’s will (Donald S. Lutz, Prin-ciples of constitutional design (Cambridge, New York: Cambridge University Press, 2006), p. 36). An influ-ential doctrine of sovereignty until the writings of Bodin was the doctrine of the “two-swords” which stat-ed that two different but equal powers on earth are existing with different spheres of responsibility, namely the religious authorities headed by the pope, and the secular authorities headed by the emperor.

Neither power on earth, only God was truly sovereign; however, where God’s will did not command, hu-mans were free to act (Ibid., p. 41). This implies that sovereignty was not (directly) territorially bound but could, for example, be claimed by the Catholic Church over all religious matters worldwide.

470 Jean Bodin, On Sovereignty (Cambridge: Cambridge Univ. Press, 1992), p. 1.

471 Hermann Heller, Die Souveränität (Berlin: de Gruyter, 1927), p. 14.

472 Koskenniemi, From Apology to Utopia (above, n. 13), p. 78.

473 Daniel Philpott, Sovereignty, in: The Stanford Encyclopedia of Philosophy, 2016, available at:

<https://plato.stanford.edu/archives/sum2016/entries/sovereignty/>.

474 Whether and to what extent this interpretation of “traditional absolute sovereignty” is true, is not of major relevance here. See, for example: José Alvarez, The Impact of International Organizations on Interna-tional Law (Brill: 2017), p. 395. Even if this understanding of sovereignty as tradiInterna-tionally absolute is a myth, it was a powerful myth that influenced mainstream legal reasoning.

understood as the ultimate authority over a community and, increasingly a territory.⁴⁷⁵ Howev-er, at the beginning of the 20^th century, the traditional concept – or “myth” - of absolute sover-eignty came officially to an end. A controversial issue in the Wimbledon case was whether the application of Article 380 of the Versailles Treaty was reconcilable with Germany’s sovereignty.

The Permanent International Court of Justice rejected the idea of absolute sovereignty, and held that the right of states to conclude binding treaties is not an abandonment but an “attribute of State sovereignty”.⁴⁷⁶ This is another change or reconstruction of sovereignty, which is now gen-erally accepted. This recognition that sovereignty is not absolute but relative is more complex than can be described here. However, what is important to note is that the shift from absolute to relative sovereignty had normative and practical consequences. A state’s sovereignty could now only be defined in relation to other principles, in particular the sovereignty of other states or other principles of international law. With the emergence of new obligations and new principles of international law, the content of sovereignty quasi automatically changed. In the first half of the 20th century, the scope of sovereignty was mainly defined by balancing the competing claims of different states to sovereignty. It is in this context that the Permanent Court of Arbitra-tion clarified that sovereignty contains a right but also has as “corollary a duty: the obligaArbitra-tion to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its na-tionals in foreign territory.” ⁴⁷⁷ After World War II, other principles - in particular international core human rights - increasingly re-defined the scope and content of sovereignty.⁴⁷⁸ It is in the light of these developments that an emerging legal principle of affectedness can be conceptual-ized as a “corollary duty”: not only the “obligation to protect within the territory the rights of other States” as the Court held, but also to at least take into account the human rights of distant strangers who are significantly affected by a policy decision.

The content and scope of sovereignty is therefore not an absolute pre-existing value but rather a principle the scope of which is determined by other rules and principles - which may change over time.⁴⁷⁹ This is comparable with property rights: While physical things are pre-existing in

475 The early 20^th century “Lotus” interpretation of territorial sovereigny would still be difficult to recon-cile with a principle of affectedness: PCIJ, S.S. Lotus (France. v. Turkey.), 1927, P.C.I.J. (ser. A) No. 10.

Judgment, 7 September (Sept. 7), 1927. Similarly, the concept of what would now be called internal sover-eignty also changed. Soversover-eignty increasingly emancipated from a monarch and was attributed to the state vis-à-vis non-state actors on the territory – and in Anglo-Saxon legal traditions to the “sovereign”

Parliament. Anne Peters, ‘Humanity as the A and Ω of Sovereignty: European Journal of International Law’, 20 (2009), pp. 513–544, 515 f.

476 PCIJ, S.S. Wimbledon (1923), p. 25; Jan Klabbers, International law (Cambridge: Cambridge Univ. Press, 2013), 23 f.

477 Perm. Ct. of Arbitration, Island of Palmas (1928), p. 839. The conceptual shift has already been ob-served by scholars of that time such as Heller: Heller, Die Souveränität (above, n. 471). Heller entitles the first chapter of his book on sovereignty as Die geistesgeschichtliche Krisis des Souveränitätsdogmas (“the crisis of the sovereignty doctrine in the history of thought“).

478 Under current international law, the core principle of sovereignty is laid down in Article 2 (1) UN-Charter and specified by the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations

New York, 24 October 1970. The Declaration states that “equal sovereignty” consists “in particular” of six elements, including the “right freely to choose and develop its political, social, economic and cultural sys-tems”, but at the same time the “duty to comply fully and in good faith with its international obligations”.

This is a clear confirmation of a relative concept of sovereignty.

479 Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’, The Euro-pean Journal of International Law, 21 (2011), pp. 967–995, p. 976. In particular if one considers the

fluc-the real world, property as fluc-the authority over such things is a fluc-theoretical legal concept. Property is constructed and defined by law. Property rights – in particular the right to exclude others from the use of one’s property – must be justified. Various justification approaches exist, be it for land or IP rights, which find justification for why property serves a common public interest. In other words: “private property is continually in need of public justification”.⁴⁸⁰ The same is true with sovereignty: While land and people exist in the real world, sovereignty as the authority over portions of the earth (and over people) is a theoretical and legal concept constructed and defined by law.⁴⁸¹ If and insofar sovereignty also contains – like property – the right to exclude others, sovereignty should also be “continually in need of public justification”.

Against this background, sovereignty can be justified if it serves the interest of humanity. Ben-venisti, Bryde, Peters and others have pointed out that humanity – or the common interest of mankind⁴⁸² - should be an essential, if not the ultimate source of legitimacy in international law, and sovereignty should be reconstructed in the sense that sovereign actors are “agents of hu-manity”.⁴⁸³ Benvenisti has emphasized that the idea that sovereignty must be interpreted in the light of humanity is not new. For example, Vattel already assumed that sovereigns must take into account certain basic rights of foreigners, and that humanity imposes obligations among nations to the best of their societies. In the Law of Nations, he stated that “[n]ations being obliged by nature reciprocally to cultivate human society […] are bound to observe towards each other all the duties which the safety and advantage of that society require”.⁴⁸⁴ For Vattel, the right to ex-clude others based on sovereignty claims or property claims requires justification, at least where fundamental human interests are concerned: just like property cannot “be introduced to the prejudice of the right acquired by every human creature, of not being absolutely deprived of such things as are necessary - no nation can, without good reasons, refuse even a perpetual resi-dence to a man driven from his country.”⁴⁸⁵ While Vattel still bases his writings, at least to a cer-tain extent, on theological foundations pointing out that the earth is God's gift and thus belongs to “mankind in general”,⁴⁸⁶ Kant comes to a similar conclusion on more secular grounds. Kant emphasizes the “common possession of the surface of the earth” and that all human beings must

“tolerate one another as neighbors”, pointing out that “originally no one has more of a right to be tuation and development of the principle of sovereignty, it is slightly misleading if one nowadays des-cribes sovereignty in opposition to other norms such as human rights: Besson, ‘Sovereignty’ (above, n.

455), 48, 50.

480 Jeremy Waldron, Property and Ownership, available at:

https://plato.stanford.edu/archives/win2016/entries/property/ with further reference.

481 Besson, ‘Sovereignty’ (above, n. 455), para 46.

482 Bryde, ‘International Democratic Constitutionalism’ (above, n. 2), p. 107.

483 Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakehold-ers’ (above, n. 2), p. 300; Peters, ‘Humanity as the A and Ω of Sovereignty: European Journal of Interna-tional Law’ (above, n. 475).

484 Emerich de Vattel, The Law of Nations, or, Principles of the Law of Nature (Indianapolis: Liberty Fund, 2008), Book II. Ch. I § 1. Vattel, however, recognized that his claim to humanity was counterfactual and likely not to be endorsed by realist politicians: “The following maxims will appear very strange to cabinet politicians: and such is the misfortune of mankind, that, to many of those refined conductors of nations, the doctrine of this chapter will be a subject of ridicule. Be it so!” (ibid). For a closer analysis already: Ben-venisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’

(above, n. 2), p. 307 et seq.

485 Emerich de Vattel, The Law of Nations, or, Principles of the Law of Nature (above n. 484), , Book I § 231.

486 Ibid., Book I § 203; Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (above, n. 2), p. 310.

at a given place on earth than anyone else”.⁴⁸⁷ In consequence, “whatever the amount of re-sources one country has, it is withdrawn from the inhabitants of other countries.”⁴⁸⁸

The notion of equal moral worth is now widely shared and a fundamental basis of human rights.⁴⁸⁹ Based on this fundamental assumption, at least a liberal state based on human rights cannot be regarded as a “private club”, but rather requires “public dialogue by which each per-son can gain social recognition of his standing as a free and rational being”.⁴⁹⁰ Consequently, the equal moral worth of all human beings, combined with the current global interdependency, re-quire to enter into such a “public dialogue” even beyond territorial borders where distant strangers are affected. It requires, in other words, the “recognition of a fundamental legal obliga-tion upon sovereigns to note the interests of others when making policy choices that directly affect them”.⁴⁹¹

Consequently, the exclusion of humans in spite of their equal moral worth can be justified if such a concept of sovereignty is a vehicle for collective and individual self-determination and thus, in the end, serves humanity.⁴⁹² This would be the case if it were true that human rights and inter-ests were best served if each government of each sovereign state was solely responsible to pro-tect the rights and interests of citizens and residents living on its territory. The previous chapter has already examined some of the root causes why such an assumption is not true, at least not anymore in a world with transboundary pollution and in an economically interconnected world with significant power imbalances (see sections 1.1 and 3.2.1.2). Consequently, the justification for sovereignty must be re-examined. To resume the comparison with property rights: Under domestic law, the justification of property rights requires that the use of property must also re-spect the rights of others, for example a neighbor’s property. The right to exclude others from one’s property is, therefore, normatively justified if the owner also owes positive duties in the public interest.⁴⁹³ Applied to the principle of sovereignty, Benvenisti suggests to “conceive of international law as imposing the obligation on sovereigns as power-wielding property owners to take other-regarding interests into account when managing the resources assigned to them, and thereby to increase global welfare.”⁴⁹⁴ This is, in other words, a reconceptualization of the concept of sovereignty in light of a principle of affectedness. As will be seen, this reconceptual-ization of the concept of sovereignty is reflected in and supported by an increasingly developing set of rules and principles of national and international environmental, human rights and eco-nomic law. Before focusing on these developments, the next section will address the second

487 Immanuel Kant, Toward Perpetual Peace and other writings on politics, peace, and history (New Haven:

Yale University Press, 2006), p. 82.

488 Janos Kis, ‘The Unity of Mankind and the Plurality of States’, in: Ralf Dahrendorf (ed.), The Paradoxes of Unintended Consequences, pp. 89–125, p. 111.

489 Brun-Otto Bryde, Das Verfassungsprinzip der Gleichheit, 2012 (Halle an der Saale, 2012), p. 5; Benvenis-ti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (above, n.

2), p. 307 with detailed reference.

490 Bruce A. Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press, 1980), p. 93.

491 Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakehold-ers’ (above, n. 2), p. 317.

492 Ibid.

493 Morris R. Cohen, ‘Property and Sovereignty,’, Cornell Law Quarterly, 13 (1927), 8-30, p. 26; Benvenisti,

‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (above, n.

2), p. 311.

494 Ibid., p. 310.

jection that could be raised against an emerging principle of affectedness, namely sovereignty claims raised by the affected state.