ЕСЕЈ
III
Monistic
Theories and Sovereignty
For the solution of the problems of
sovereignty, then, there is only a monistic solution of the relation between
international law and state law, that is to say, either the primacy of international
law or the primacy of state law. The difference between these two monistic
constructions reaches only the basis of the validity of international law and
of state law, and not to the content of these legal systems. The content of
international laws just the same in both cases. And from a juridico-theoretical
standpoint, both constructions are equally possible. Their opposition to each
other is simply opposition of two different frames of reference.
If one’s point of departure is state law as
normative system having the validity of ought, then the question arises
of how, from this point of departure, the validity of international law can be
established. This can be done solely by means of assumption that international
law is valid for a state only if it is recognized by the state as valid for the
state, and, indeed, is recognized as valid in its actual form at the moment of
recognition. Since this recognition can also be tacit, in that the state in
question with and applies, in practice, the norms of international law, it is
this theory of recognition, then, that also underlies the view of international
law as valid for all states. Prevalent in Anglo-American law, this view is
given expression in modern constitutions containing provisions that require
law-applying organs to observe general international laws as well as the
particular international law created by treaties of the state in question.
Thus, international law is understood as a component of the state legal system,
as ‘external state law’, and the basis of the validity of international law is
shifted to the state that serves as the point of departure for constructing the
relation between the two systems. This construction represents the primacy of
the state law over international law, and it is this primacy of state law that
is characterized, within the framework of a legal theory, as the sovereignty of
the state.
Sovereignty in this sense does not represent a
perceptible or otherwise objectively identifiable quality of a real object. Rather,
it represents the presupposition of a normative system qua highest system, not
derivable in its validity from any higher system. The question of whether the
state is sovereign cannot be answered by enquiring into natural or social
reality. The state sovereignty that is of interest from the standpoint of legal
cognition is not a particular magnitude of real power. States that have no
power comparable to at all to that of the great nations are no less ‘sovereign’
than these. The question whether the state is to be presupposed as the highest
legal system. And this is the case where international law is considered to be
valid for the state only if it is recognized by the state and its basis of
validity is seen as the ‘will’ of the state.
If, however, one’s point of departure is
international law as a valid normative system, then the question arises of how,
from this point of departure, the validity of the state legal system can be
established. The basis of the validity of the state legal system must, in this
case, be found in international law. And this is feasible, since the principle
of effectiveness, a norm of positive international law, determines the basis as
well as the sphere of validity of the state legal system. This norm of
international law, representing the basis of the validity of the state legal
system, is expanded upon to the effect that, according to general international
law, the government of a community existing within certain clearly
circumscribed territory, independent of other governments of similar
communities and exercising effective control over the members of its community,
is the legal government; and the community under this government is a state in
terms of international law even if the effective control exercised by the
government is based on the constitution first established by the government
through revolution. This means that a norm of general international law
empowers an individual or a group of individuals to establish and apply, on the
basis of an efficacious constitution, a normative coercive system, thereby
legitimizing this coercive system as the valid legal system for the territorial
and temporal sphere of its actual efficacy, and legitimizing the system’s
community as a state in terms of international law. If the efficacy of the
state legal system is seen as a condition for the system’s validity, and if
this condition is set by a norm of international law, then the basis of the
validity of the state legal system can be seen in this norm of international
law. An international law, therefore, can be interpreted as universal legal
system above the state legal systems, encompassing them all as a legal system
qua subsystems, and making possible their coexistence in space and succession
in time.
This construction of the relations between
international law and state law rules out the notion of state sovereignty in
the original; and proper sense of expression. What is ‘sovereign’ qua highest
system is international law, not the state legal system. If one speaks of
‘sovereign’ states in the context of this construction, the concept takes on a
meaning that is altogether different from the original and proper sense. Here,
it expresses simply the notion that the state legal system is subject to
international law alone and to no other state legal system, and that therefore
– in the personifying terminology of the law – the state is legally independent
of other states. The so-called ‘sovereignty’ of the state, then, is nothing
other than its immediate relation to international law. If one’s point of
departure is the primacy of the international law, then the misleading
expression ‘state sovereignty’ ought to be replaced by the expression of the
state immediate relation to international law. One may not speak of a
‘relative’ sovereignty of the states, for this expression amounts to a contradictio
in adjecto.
...
(HANS KELSEN: “Sovereignty”; Berlin: De
Gruyter, 1960-2/vol. III Worterbuch des Volkerrechts)
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