Establishing and Safeguarding of Sovereignty in Central and Eastern Europe

and in the Baltic States

 

The subject of sovereignty is a thorny and sensitive one in Central and Eastern Europe. While the Western democracies were not threatened in their substance after the Second World War, the Soviet Empire amputated the sovereignty of our countries either by blunt annexing, as in Moldova or the Baltic states, or by a hypocrite combination of ideological, political, and military control which limited drastically their fundamental rights. Ask the Hungarians of 1956, or the Czechs and Slovaks of 1998 if they were living in a sovereign state. The only difference between us and the Baltic states was that we had our own, national nomenclature, without a significant Soviet elite living inside our countries.

After Stalin’s death and after Khrushchev’s “de-Stalinization” from 1956 onwards, it was precisely this local elite who refused to share the benefits and prestige of power with the Moscow nomenclature, and triggered, quite successfully, the renewal of  a national conscience and the myth of absolute sovereignty of the state. In Romania, this revival touched a very sensitive point of the collective memory, because the Communist party was particularly offensive against Romanian national identity since its beginnings in 1921, when it adopted the Russian imperialist notion of an artificial Romanian state which should be thorn apart in four or even five historical provinces. The Stalinist politics after 1944 went along in the same direction, and the Romanians were highly anxious about their future as a nation.

That is why Ceausescu challenged Enver Hoxa for the championship of the National-Communist ideology and politics. Due to its dimensions, its intellectual traditions, and, not to forget, due to the harsh Stalinist offensive against not only the national sovereignty of Romania, but, even deeper, against Romanian identity, our country become the classical example of National-Communism.After the December Revolution, Ceausescu was replaced in this role by Milosevic and his Serbian nationalism. The obsession with an absolute sovereign power was in all three cases an expression of a dictatorial regime which did not accept any judgment about itsuse and abuse of power.       

We may doubt that either one of the three dictators was acquainted with the great French philosopher and lawyer, Jean Bodin. In his major work, the Six Books of the Commonwealth (Les Six livres de la République), published in 1576 -the sum of legal and political thought of the French Renaissance - Jean Bodin gave the first modern definition of sovereignty: Sovereignty -  which the Latins call Maiestas -  is the most high, absolute, and perpetual power over the citizens and subjects in a Commonwealth” (République, I, 8).

Jean Bodin wrote in a time when France was sundered by civil war between Huguenots and the Catholic monarchy. He viewed the problem of order as central, and did not think that it could be solved through outdated medieval notions of a segmented society, but only through a concept in which rulers and ruled were integrated into a single, unitary body politic that was above any other human law, and was in fact the source of all human law.

The sovereign state was occupying the European continent, piece by piece, in early modern times, eventually forming the system that came to occupy the globe.The sovereign states system that came to dominate Europe at Westphalia spread worldwide over the next three centuries, culminating in the decline of the European colonial empires in the mid-20th century, when the state became the only form of polity ever to cover the entire land surface of the globe.

Bodin’s definition was not challenged in its essence for almost five centuries. But not when, further in the same fundamental work, Bodin explains (République II, 5) that: If the prince is an absolute sovereign, whose authority is unquestionably his own, and not shared with any of their subjects, then it is in no circumstances permissible either by any of their subjects in particular, or in general, to attempt anything against the life and honor of the their king, either by process of law or force of arms, even though he has committed all the evil, impious and cruel deeds imaginable. This is a proposition which engendered the spirit of the Westphalia Peace, but which the contemporary international community, as it was shaped in the aftermath of the Second World War and then of the Cold War, with all their tragic experiences, is not prepared to accept today as such.

Perhaps the two most prominent attacks on sovereignty from political philosophers since World War II come from Bertrand de Jouvenel and Jacques Maritain. In his prominent work of 1957, Sovereignty: An Inquiry Into the Political Good, de Jouvenel acknowledges that sovereignty is an important attribute of modern political authority, needed to arbitrate disputes within the state and to muster cooperation in defense against outsiders. But he does not accept a concept of sovereignty which creates a power above the rules, a power whose decisions are to be considered legitimate simply because they emanate from his will. To de Jouvenel, sovereignty reached its peak in Hobbes, in whose “horrific conception everything comes back to means of constraint, which enable the sovereign to issue rights and dictate laws in any way he pleases. This was “the hour of sovereignty in itself,” writes de Jouvenel, who holds that sovereignty must be channeled so that sovereign authority wills nothing but what is legitimate.. “Authority, he writes, carries with it the obligation to command the thing that should be commanded”. De Jouvenel seems to doubt that judicial or constitutional design is alone enough. Rather, he places his hope in the shared moral concepts of the citizenry, which act as a constraint upon the choices of the sovereign.

In his enduring work of 1951, Man and the State, Jacques Maritain shows little sympathy for sovereignty at all, not even the qualified sympathy of  de Jouvenel: It is my contention that political philosophy must get rid of the word, as well as the concept, of Sovereignty: not because it is an antiquated concept, or by virtue of a sociological-juridical theory of “objective law”; and not only because the concept of Sovereignty creates insuperable difficulties and theoretical entanglements in the field of international law; but because, considered in its genuine meaning, and in the perspective of the proper scientific realm to which it belongs - political philosophy - this concept is intrinsically wrong and bound to mislead us if we keep on using it - assuming that it has been too long and too largely accepted to be permissibly rejected, and unaware of the false connotations that are inherent in it (29-30).

Any transfer of the authority of the body politic either to some part of itself or to some outside entity – be it the apparatus of the state, a monarch, or even the people in its non-political nature - is illegitimate. Sovereignty gives rise to three dysfunctionalities. First, its external dimension renders inconceivable international law. Second, the internal dimension of sovereignty, the absolute power of the state over the body politic, results in centralism, not pluralism. Third, the supreme power of the sovereign state is contrary to the democratic notion of accountability.

As a Catholic philosopher, Maritain’s arguments run similar to Christian philosophers of early modern Europe who criticized absolute sovereignty. Witnessing the rise of the formidable entity of the state, they sought to place limits on its power and authority. They are the ancestors of those who now demand limits on the state’s authority in the name of human rights, of the right to quell genocide and disaster and deliver relief from the outside, of an international criminal court, and of a supranational entity that assumes power of governance over economic, and now, maybe, military and international affairs.

The limits of a sovereign authority are far from being only a matter of philosophy. Since 1948, the vast majority of states signed the Universal Declaration of Human Rights, committing themselves to respect over 30 separate rights for individuals. Although it was not a legally binding declaration, which contained no enforcement provisions, it was a first step towards binding the states to international, universal obligations regarding their own internal affairs. Over time, these human rights would come to enjoy ever stronger legal status. the Genocide Convention, signed on December 9, 1948, committed signing states to refrain from and punish genocide. Roughly contemporaneous, the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in 1950, one of the most robust human rights conventions, curtails indeed sovereignty through its arbitration mechanisms. Then, in the mid-1960’s, two covenants - the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights - legally bound most of the world’s states to respect the human rights of their own people.

In all these documents, the signatories’ constitutional authority remained largely intact, at least in theory, since they declared in the very texts of these acts that they would not allow any of these commitments to infringe upon their sovereignty. In practice, on the other hand, the years after the Cold War started a historic revision of the Peace of Westphalia. In a series of several episodes, the United Nations or another international organization has endorsed a political action, usually involving military force, that the broad consensus of states would have previously regarded as illegitimate interference in internal affairs. The episodes have involved the approval of military operations to remedy an injustice within the boundaries of a state or the outside administration of domestic matters like police operations. They have occurred in Iraq, the former Yugoslavia, Bosnia, Kosovo, Somalia, Rwanda, Haiti, Cambodia, Liberia, and elsewhere.

Unlike peacekeeping operations during the Cold War, the operations have usually lacked the consent of the government of the target state. In exchange, as it were, these military or judicial actions enjoyed a massive support, and even a trigger, in a part of the public opinion, while their legitimacy and wisdom is often contested by other states or fractions, and often fail to elicit U.N. Security Council endorsement.    Eventually, the broad practice of intervention is likely to continue to enjoy broad endorsement, not unanimity, even within the U.N. Security Council and other international organizations. We cannot forget, however, that the right to intercede is not automatically used in good faith, as we have seen even recently in Georgia, for instance.

Another way in which sovereignty is being actually circumscribed is through European integration. This idea also arose in reaction to the repeated European generated wars, a calamity that many leaders attributed at least in part to the sovereign state’s lack of accountability. Historically, the most enthusiastic supporters of European integration have indeed come from Catholic Christian Democratic parties, whose ideals are rooted in medieval Christendom, where at least in theory, no leader was sovereign and all leaders were accountable to a universal set of values. European integration began in 1950, when six states formed the European Coal and Steel Community in the Treaty of Paris. This same model was expanded to a general economic zone in the Treaty of Rome in 1957. It was enhanced by a judicial body, the European Court of Justice, and a legislature, the European Parliament, a directly elected Europe-wide body. Over time, European integration has become deeper and wider, as a political union, and it is now struggling to acquire a collective identity..

When Bodin used the adjective “absolute” to define a sovereign, he did so as a Romanist, and as an historian of Roman law for whom the word absolutus was linked to legibus solutus—the prerogative of the one who is sovereign. For Bodin a sovereign is “not bound” (absolutus) by the civil or positive laws which he or his predecessors had promulgated. Nevertheless a sovereign is always bound to natural and divine law.  Far from being a replacement for national states, the European Union rather pools important aspects of their sovereignty into a “supranational” institution in which their freedom of action is willingly limited in each other’s interest. There is a huge dispute among political theorist on the definition of these constraints: shall we say that the 27 member states of the EU are no longer absolutely sovereign, or should we think, more radically, as Jean Bodin taught us, that sovereignty is by definition absolute and exists only as an absolute and perpetual power ? In my view, this is a false alternative, which tends to block not only the reflection on theoretical matters, but obviously the progress of the European institutions itself, as we can see in the recent rejection of the EU constitutional treaties.

We are not moving to a world without states, but to a complex political order with multiple sites of sovereign authority, and asymmetrical constitutional arrangements. This political order is new but at the same time old, as traditions of diffused authority and shared sovereignty, from before the rise of the nation-state, are rediscovered and rehabilitated. It may be too easy to coin a new concept, on the pattern of so many posts we are confronted with nowadays, from postmodernism to post-Marxism and backwards, of post-sovereignty. But a notion of shared sovereignty is in my view a working concept for the contemporary global world in which the proud and isolated Bodinian prince has no place at all.    

Transnational integration and other challenges to the nation-state have deprived it of its mystique and broken the automatic link between state and nation. This has encouraged the revival of stateless nationalisms, but also provided new means for their accommodation. These changes call for a radical rethinking of the nature of sovereignty to meet the twin challenges of recognition of nationality and of democracy.

The ethical dimension of de Jouvenel’s viewpoint, or the Christian concepts vivified by Maritain are essential for the inner functioning of a sovereign state. But what about the morality of a supranational institution or organisation as the EU? When the member states agreed to share their authority between their nation and the other member-states of European Union, they did so not only by signing a treaty, but also by a presumption of good faith. They conceded their own, absolute authority within their national boundaries in exchange of a fair and enlightened treatment at the level of the EU institutions. They were right in most of the cases, but not always. When a greater state, a founding member of the EU, (Germany) is negotiating its  energy policies with another great state, a non-EU member (Russia), in their sole interest and profit, without any consideration for the vital interests of other EU members, as Poland or the Baltic states; or when another founding member-state, a lesser one (Luxemburg), avoids any measures to reduce its own, very high industrial pollution, while insisting that a recent member state – Romania – which has recently reduced to a third its gas emissions, should be penalized if it does not reduce it more – these are conflicting areas of sovereignty which cannot be regulated without an ethical code of behavior.  We gladly conceded our recently vindicated sovereignty to our European friends, not to some competitors. There is no shared sovereignty without mutual trust and solidarity.

Democracy can no longer be confined to the framework of the nation-state but must extend to the new political spaces which are emerging above and below the state. Political movements and public opinion are increasingly embracing these ideas and are the harbingers of a shared sovereign political order. We trust that the EU will adopt shared values, not competitive goals, between its member states. We do hope that the EU is not only – not mostly - about markets and structural funds, it is about values and principles, the very values which were so desperately absent in our former experiences during the XX-th century, and which are, indeed, the essential rationale of our shared European destiny.