Uses and abuses of sovereignty: international order and state powers

During the 'euphoria' period of the post Cold War era, the so called “S“ word was considerably perceived as an impediment to the further realization of a globalized world, sharing common values and promoting universal goals. Concepts like justice, accountability and peace appeared to obtain an almost constitutional normative content accepted by the “international community as a whole“. However during the last years we witnessed an invocation of abusive popular sovereignty. Authoritarian leaders in the name of sovereignty impose domestically their unlimited rule and even invade foreign countries. Within this context the current contribution will attempt to shed light into different layers of the 'sovereignty dedalus', questioning our response to the threat of abuse and pure power.

Populism is mainly studied as the driver of an alternative constitutionalism or even as the nemesis thereof. Yet, the succession of crises prompts to ask whether such concept finds its roots in a narrative denying political conflicts to back a certain worldview. This applies to the European Union, as many legal tools point to the rise of a law eventually silencing rights and interests of a sensitive nature. Four points are raised to support this claim. First, the post-World War II creation of an International Law of Courts via special ‘original intent arguments‘ forging fictitious ties with the will of the peoples concerned. Secondly, the juris-generative narrative of common values. Third, the decoupling of capital-labour regulation, the former shielded from parliaments' control - finally, the de-politicization of conflictive fields by technical lawmakers. The combination of the four outlines a Euro-Atlantic 'public & collective morality' backing an (expansionist?) EU/Western law.

Sovereignty based arguments have been used in disparate ways. Some political institutions resorted to such arguments to defend domestic choices departing from international or European integration processes. At times, courts have backed up those arguments by interpreting constitutional mandates as systematic prioritization of domestic interests over international integration. Against this backdrop, courts and scholars suggested that constitutions are inherently cosmopolitan and open to external normative integration. In their view, a) sovereignty-based arguments are indistinguishable from claims of pure and unrestraint political power - b) the only sovereignty that is worth protecting is that of the constitution. This paper will shed lights on this debate with a view to distinguish claims of pure (or unrestrained) sovereignty from constitutionally sound arguments. It will then suggest on what conditions sovereignty claims are consistent with an actual commitment to international law.