Issue 8. Sovereignty

Sovereignty is often spoken of as something that states either have or lose. But what defines it? And who, in the end, is sovereign: the law itself, or the person who decides when it no longer applies? In this interview, professor of international law Martti Koskenniemi argues that sovereignty is not a fixed, legal fact but a fragile and contested idea – one that exists both inside and outside the law. Sovereignty can be claimed, performed, and challenged. From Russia’s war against Ukraine to Trump’s threats on Greenland, the question of sovereignty is about the tension between law and power.

How do you approach the question of what sovereignty is?

I see the notion of sovereignty as an interdisciplinary, intellectual and epistemological question. It is a question about the foundations of what we can know. Sovereignty doesn’t appear only in law, it appears in politics, it appears in every field of knowledge as a question about what the supreme authority lies in that field of knowledge. I am especially interested in the paradoxical nature of responses to that question: how that authority is located both outside and inside of the field of knowledge, and can always be open to challenge.

Can you give some examples of how different disciplines tackle the notion of sovereignty?

Maybe I could illustrate this with the Gödel theorem in mathematics. In the 1920s the Austrian mathematician Kurt Gödel proved that mathematics itself is unable to prove all of its axioms. Mathematics is, in systems theory terms, an open system. It cannot prove its own foundations. Theologians of the late middle ages had that same experience when they debated the question of God’s omnipotence. How do we know that what we know is true? For example, how do we know that the sun rises every morning? If God is omnipotent, then he may one day decide that the sun will not rise. But this means that we can never be sure about anything. So, rationalists such as Thomas Aquinas responded that God is bound by the rules of natural law – rules of reason – he has created. But in this case, we no longer need God in our lives, we can simply go about reasoning. Neither position is theologically satisfying – either we cannot really know anything, or we do not need God.

You can transpose that to the political world. You can say: we live in these polities – Ukraine, Finland, the European Union. They have their rules. They have their bureaucracies. The bureaucrats follow the rules. They enact laws. We follow those rules because the constitution says that the rules should be followed. And so on. Until somebody, at some point, says: Why should I follow the constitution? At that point, you must either respond “because the Constitution says so” – which is a circular argument, and no response at all – or you point to something outside the constitution – a moral or political idea, or some authority (people, king, God, revolution…) that says you must do so. In which case, you may challenge the authority of that something. And so on.

As lawyers, conventionally, we have produced two ways of thinking about sovereignty, two discourses, which seek to answer the question: ”why should we follow the constitution?” One is the legalistic (or internal) one. It says that constitutions are binding according to their terms. There is no other legal response to be given. Another set of arguments goes outside the constitution itself: a constitution must be followed because – and to the extent that – there is a power or a knowledge outside it that ensures the hierarchical relationships enacted in the constitution can be enforced.

The former argument, the formalistic one, is usually associated with the Austrian legal theorist Hans Kelsen. He developed the idea of Grundnorm, a German term for the basic norm. Every society is based on the basic norm that says the constitution should be followed. Kelsen received that norm from the constitution itself. He said it was a “transcendental presupposition” embedded in the very idea of a constitution. Kelsen was a neo-Kantian lawyer, so he argued in the Kantian fashion: the foundation of knowledge came from the very idea of “knowing” itself. In the same way, sovereignty, for him, was simply the binding force of the whole legal order. As a legal question, “sovereignty” did not point outside the legal order (to a king, a value, a revolution etc.) but to the pragmatic fact that a separate legal order existed.

The second argument says that behind the law, somewhere outside it, is a power that upholds and secures the constitution. This is usually associated with the German right-wing interwar lawyer Carl Schmitt and his theory of the sovereign. The first sentence of his book on sovereignty is famous among lawyers. It says: “Sovereign is he who can decide on the exception.” That’s a significant sentence because it shows that at the end point of the discourse about law, constitutionalism and sovereignty is the power of a human being. It is a human being who can enact an exception to the constitution and who, in that sense, stands outside the constitution and has supreme authority over it.

It’s obvious that the opposition between these two arguments – the philosophical-theoretical and the political realist position – embodies an opposition between two quite fundamental sensitivities about political matters. It’s no surprise that Hans Kelsen was a good Austrian Social Democrat, and one of the drafters of the 1922 Austrian constitution. He embodied constitutionalism also in a very historically significant sense. Carl Schmitt, on the other hand, was a member of the Nazi party in Germany, who was later expelled from it. The debate between them was a debate about how to understand supreme authority over legal knowledge, the knowledge we have of what the legal order says. Is that to be determined from the inside of that order (Kelsen) or from the outside (Schmitt).

Incidentally Kelsen and Schmitt were both involved in a large German Supreme Court case which led to Hitler’s regime taking over Prussia. Prussia, as a part of the Federation, had its own constitutional law. Schmitt argued that the constitutional position of Prussia must be determined from outside Prussia, from the power which enclosed Prussia, that is to say, the federal law of the Reich, with Kelsen deriving the conditions of application of Prussian law from that law itself. Here, there is a certain parallel with what Donald Trump is doing now in the US. Kelsen would say: you have to follow the constitution. There is nothing beyond the constitution. If a problem arises, the Supreme Court must decide. Whereas Trump might argue like Schmitt: I am the supreme guardian of the constitution; I must be able to decide when to apply it, and when to make an exception. Either the law is sovereign (internal), or its guardian (external) is sovereign.

What about sovereignty in the context of Russia’s invasion of Ukraine?

One aspect of sovereignty is territorial sovereignty, which is an international legal concept. It is obviously raised in relation to the claims Russia makes on several regions of Ukraine. The claim has been made openly and aggressively that Ukraine should no longer have territorial sovereignty over these three territories. Articulating the matter as a territorial conflict makes it easier to deal with than if the Russians were to challenge Ukraine’s sovereignty in the first place. That would be one technical-legal way to answer your question.

As professor of international law, I would anyway simply dismiss as political rhetoric and legally unserious any Russian statements about the illegitimacy of Ukrainian sovereignty. They are obviously both outrageous and unacceptable, and there is no way legal discourse alone can deal with that.

Legal discourse can, however, deal with territorial claims. One of the tasks of law is to “cool down”, or rephrase in legal terms, hot political tensions. Lauterpacht’s important 1933 study, The Function of Law in the International Community, was precisely about the cooling significance of law. Law doesn’t deal with political or moral claims thrown around in the heat of political discourse. Instead, it tries to operate with those bits and pieces which can be articulated in terms of comprehensible legal claims. And a claim of territorial sovereignty is a legal claim. International organs, such as the International Court of Justice in The Hague, deal on a daily basis with territorial disputes between adjoining countries. For many decades, there has been a border problem between Thailand and Cambodia: should certain temples be on the Cambodian side or the Thailand side. It’s one of the disputes that have originated from the colonial era. Africa is full of such disputes. Rephrasing the dispute between Ukraine and Russia as a territorial dispute could contribute to its “cooling off” and open the way for its legal treatment.

But isn’t that precisely Russia’s manipulation? To keep attention focused on this as a “territorial sovereignty” issue? Because its claims and actions can be seen as genocidal: there is the kidnapping and forced deportation of Ukrainian children, the intentional destruction of Ukrainian cultural sites, museums, archives, libraries, the torture camps and filtration camps, the daily terrorism of air attacks.

The territorial sovereignty part of the law is not the only part of the law that has to do with this war. Another big part of the law deals with the question of aggression. That’s another international legal concept that brings to focus different kinds of concerns – for example those of responsibility and compensation for any damage. At present, a diplomatic process led by British lawyers aims to set up a tribunal to deal with Russian aggression. That’s a second part of the law. It doesn’t speak directly to sovereignty, but focuses instead on the original illegality of the attack and its consequences. It is useful to bear in mind that whatever the dispute about territorial sovereignty, it cannot be resolved by the use of force.

Then there’s a third part of the law, which is international criminal law. It has to do with war crimes, crimes against humanity, and so on. That is dealt with by the International Criminal Court, and also by most countries that have these crimes as part of their national legislation. You could add that a fourth set of rules has to do with human rights, and economic, social and cultural rights, including cultural rights violations and so on. 

So, how does the UN Charter, which embodies non-aggression, relate to humanitarian law, which isn’t included in the Charter itself, but features in particular in the Geneva Conventions and in the operations of the International Committee of the Red Cross? Human rights law is again a different body of law whose rules are encompassed in two covenants: the UN Civil and Political Rights Covenant and the Economic, Social and Cultural Rights Covenant. There is also, of course, the European Convention on Human Rights. And there are also many other types of law, multilateral treaties having to do with, for instance, UNESCO cultural heritage issues, or conventions about the rights of children and disabled persons. All of this is relevant, in one way or another, with regard to the Russia-Ukraine war.

International law speaks with many different voices. Some of those voices are closer to the concerns about sovereignty, others are further away. What, for example, is the relationship between sovereignty and treaties dealing with individual rights (children’s, disabled persons)? Because the human mind seeks coherence, we want to see these parts of law in a determinate relationship to each other. Unfortunately, that is not really possible. Those different sets of rules reflect different human pursuits. Pursuits such as, for example, the pursuit of the Ukrainian population to enjoy sovereign rights to decide what happens on its territory. And Russian pursuits to reestablish the imperial realm. These are human constructions, fragile and vulnerable to criticism. What we have, as international lawyers, are these different bits of treaty here, convention there, and customary rule or practice over there. It’s a very fragmented, weak system of law in that sense.

One place of weakness that we’re seeing is the failure to implement the law. For example, the International Criminal Court arrest warrant for crimes against humanity. Putin traveled to Mongolia in 2024, and this year to Tajikistan. Both countries are signatories to the ICC, yet in neither place was he arrested. Is the missing piece the willingness or agency to implement this arrest warrant?

Let me retreat a little bit to the two fundamentally opposite positions about law. The position which says: law is the law, and it is to be implemented as such. And the other one, which says: law is the person who applies it. Your question leads us to oscillate between these two. We can say, on one hand, from the legalistic perspective: yes, it is a scandal that the law is not being applied. A political realist perspective would say: the law cannot apply itself, it must somehow find a way for someone to have an interest, a position or a stake, in actually applying it. In this respect, all law is weak. We don’t notice the weakness of domestic law because its routines are so deeply embedded. One can always, for example, ask the question: “Why should I follow the constitution?” But we don’t ask that, mostly because applying the constitution is good, the cost of deviation would be too great.

In the international legal field, there is no constitution, so everybody is constantly asking the question about individual rules: why should I obey? Some obey because they want to be good members of the international community. For others, that’s just abstract, idealistic nonsense: “As a statesperson, I will do what is the best for my country.” Let’s say I am Tajikistan. I am pretty dependent on Russia. Why should I placate some group of Western “humanitarians” when my regime is dependent on Putin? My task is to uphold my regime, not show myself acceptable to Western “humanitarians”.

That’s a really interesting sovereignty question – the difference between regime and sovereignty. In a talk you gave at Harvard in 2023, you mentioned sovereignty as performance, the performance of sovereignty. In this example with Tajikistan, it becomes: My regime is dependent on Russia, I performed sovereignty in order to become a member of the International Criminal Court, and I’m likewise performing sovereignty by protecting my regime, by choosing not to apply the arrest warrant of the International Criminal Court.

Excellent point. So if we take the political realist route, one can say that there is a way in which Russia is sovereign over Tajikistan. Yes, absolutely. So we see how the regime is dependent on something external. The validity of the system cannot be produced by the system itself. It’s produced by something else, something that is, in fact, superior to it. In the case of Tajikistan, that’s Putin.

And Russia (as the Russian empire, the Soviet Union, the Russian Federation) claims some sort of outside-itself power to be an empire, to be a sovereign power, and enacts that by aggression, territorial conquest, and occupation.

Yes, we can call that imperial sovereignty. That’s what the British empire exercised over its colonies. The British empire was performing imperial sovereignty in the dominions, in the sense that the Privy Council in London was the highest juridical authority within the imperial realm. And the Soviet Union performed imperial sovereignty in the Soviet realm, though in a more informal fashion. Putin’s great hangover is the loss of that imperial sovereignty, the desire to reestablish it. There is naturally a way in which imperial sovereignty in the metropolis denies the sovereignty of the periphery. Through this logic, Russia’s sovereignty over Tajikistan raises the question of Tajik sovereignty. At least as a political argument. When Tajikistan’s representatives attend the meeting of countries that signed up to the International Criminal Court, they perform sovereignty in that context. But when they then turn towards Moscow, they are no longer sovereign. So again, sovereignty is inside and outside. This is what I mean: you can’t quite capture it because you do not always know who’s in charge – and the answer may depend on which relationship you are looking at. In its relations to the UN system, say, Tajikistan is sovereign. In its relations with Russia, not.

There’s a performance of imperial sovereignty where an essential part of the performance is saying “this is not a performance, this is ‘real’ power, it’s given”. In the example of Russia as a performance of imperial sovereignty, it says: Ukraine’s sovereignty is illegitimate, it’s false, it’s artificial, it’s not real. So, a performance of sovereignty says: this is real, and this isn’t.

That would be an attempt at a performance of sovereignty. People in the audience could say: well, no. And so far that is what they say. But there is no guarantee that they would continue to say the same thing tomorrow. You can see this, for instance, in the question of Taiwan. In any statistical manner - looking at population, territory, economy, power – Taiwan is a state. But it is unable to conduct a performance as a state. Whereas Luxembourg performs as a state. Because the audience accepts that. Whether the performance is successful or not depends less on how real it is, than on what impression it produces on the audience. And that impression doesn’t only have to do with how much power an entity has, whether it fulfills the so-called classical criteria of statehood (territory, population, and effective government). It may have all of these, and people may still not accept it as a sovereign state. That’s Taiwan. After World War II, during the decolonization period, people were able to accept performances of sovereignty although they would never have accepted them before the emergence of decolonial ethos.

For Ukraine to be strong in its sovereignty, it is really important that it can, on a daily basis, carry out a performance that is very widely seen around it as a performance of a sovereign. This performance can fail for many reasons – it can fail because of military disaster, it can fail because of internal disaster. For instance, if the corruption issue leads to some sort of a collapse inside the state structures, or creates a revolutionary situation. So it’s really important that Zelenskyy is received as head of state, that his performance is regarded as a performance of sovereignty. It’s quite remarkable, the extent to which he has succeeded in that. But again, there’s no guarantee he will be able to do that tomorrow. Or whoever takes his place.

A very strong aspect of Ukrainian culture and society is the practice of citizenship – the practice of democracy. How do you see the relationship between this and sovereignty?

A couple of intuitions. One would be that a powerful demonstration of citizenship, a powerful civil society is an important element in the performance of sovereignty towards the outside world. For instance, if the population were very divided, then that would erode the persuasive power of that performance. I don’t think there’s any clear line or rules here. This is now less a legal point than a point about politics in the European Union. In the EU fora, the activism of Ukrainian civil society last summer for instance, in reaction to the dismantling of anti-corruption agencies, made a powerful impression, and strengthened the argument in favor of supporting Ukrainians’ struggle.

Have there been cases where the statehood of an entity, a territory, would somehow have depended on cultural or civil society homogeneity versus non-homogeneity? In a decolonization situation, those kinds of considerations have been important. They were important when, in Africa, boundaries were set between communities – not often very successfully. But in regard to older established parts of the political world such as Europe, no, I can’t quite see that.

I come from Finland, so I don’t have any difficulty in understanding Russia’s effort to exercise imperial sovereignty and the cultural manipulation that goes with it. None. And I find it hard to take that manipulation seriously. I suspect that it may be taken seriously in some places, but I don’t think the Russian imperial cultural claim, frankly, has much persuasiveness outside Russia, apart from some really marginal groups of extremists. Of course, nowadays, people with extreme positions tend to rule large countries.

How do Trump’s Greenland grab and the US capture of Maduro in Venezuela affect the overall debate on sovereignty?

They both appear as flagrant violations of Venezuelan and Danish sovereignty. That is the uncomplicated legal assessment, shared by most conventional lawyers, including myself. But one may be dubious about such a legal assessment – and I suppose Trump and his people do not regard it as relevant. They instead share a notion of imperial sovereignty, one that derives rights from military and economic power. That’s how Trump’s adviser Stephen Miller put it: might makes right. Or, as the Athenian historian Thucydides put it in the mouths of Athenian nobles, in the famous Melian dialogue: The powerful take what they can, and the weak suffer what they must. This involves a notion of sovereignty that is external to law, and draws law simply from somebody’s ability to impose their will on others. It is a notion that is utterly contrary to the internal-legal notion of sovereignty, as well as any notion of the rule of law.