Photo: Neda Radulovic-Viswanatha
Photo: Neda Radulovic-Viswanatha

Sovereignty is more important than a trade deal. That has been repeated in the House of Commons. Sovereignty is understood as the (real) power or the (legal) right to act unilaterally; to take back control over “our borders, our laws, and our money”. Given the political and economic interdependence of people and nations, the meaning of unilateralism is not straightforward, however. (See my book Politička vrednovanja, 1985, in Serbian.)

Bodin’s initial idea of sovereignty is that of the power, of the real ability of the government to get things its own way, legitimately or illegitimately (i.e., with or without consent), internally and internationally. Risking adverse response, i.e., resistance, domestically and internationally. So, sovereignty so understood is the power to rule and the responsibility that springs from its exercise: the power to prevail and the responsibility for unilateral decisions and acts.

Hobbes argued that internally sovereign power is limited by its purpose: the sovereign is responsible for the security of the citizens, otherwise the individuals will take it on themselves to look after their own security, even if that meant disobeying the government, and the nation will disintegrate into the state of nature. Internationally, he argued, sovereignty might be the basis for the balance of power and may support the thriving of domestic industry as the government aims to increase its strength in economic and military terms to match those of other nations. This idea that wars, or rather the preparations for a war, support full employment and growth as well as the balance of powers has been endorsed by many.

Kant, by contrast, argued that the balance of powers disintegrates into every nation against every other nation, a state of nature with disastrous consequences – thus the need for international law and a world confederation. Indeed, the post-Napoleonian system of the Concert of Europe was based on the balance of powers which went together with increased military might of the balancing powers in order to keep the balance, until the system broke down disastrously. (Vladimir Gligorov, A Kantian idea of sovereignty).

This notion of sovereignty as power, as real ability, was the basis for the Westphalian Settlement which was resurrected in the Concert of Europe. It eventually was the basis of the legal notion of sovereignty. It divides sovereignty into internal and external, the former being the right to unilateral exercise of power over the nation’s citizens on its own territory while external sovereignty is responsibility under international law. If the law is violated, there are real remedies, the real means of enforcement, to unilateral actions of states, including the collective use of force, which is to say sanctions or war. This distinction survives in the principle of non-interference in internal affairs in the UN Charter.

The distinction between internal and external sovereignty as well as the related one between real and legal responsibility is not easy to reconcile with unilateral political decisions. External sovereignty is the power or the right to enter into bilateral or multilateral agreements or disagreements, which may very well condition or limit internal sovereignty. Or, to put it the other way around, the power or the right to exercise internal sovereignty is the condition for external sovereignty. If a country cannot implement international agreements by the appropriate changes in its laws or regulations, it cannot sign international treaties and therefore it is not externally, internationally sovereign. The same applies if it cannot mobilise domestic resources to impose its will internationally.

So, the power or the right to take unilateral decisions depends on international obligations, either bilateral or multilateral, either existing or desired. If unilateral actions violate international obligations, sovereignty reverts from legal to real. It is the power, the might, rather than a right.

This comes clear in the justification to break international law given in the UK Parliament. If, it is argued, there is no agreement on the trade deal with the EU, the UK will break the withdrawal agreement it signed with the EU with the full understanding that it is breaking international law – because, and this is the usual rationalisation, it needs to provide legal clarity and certainty on the way people are to live and business is done on the Island of Ireland. That is an assertion of sovereign power, not of sovereign right. Eventually, the UK gave up on such an exercise of sovereignty.

The problem of power is of course that it is a relation of interdependence and not necessarily a bilateral one. To take an example, it is often repeated that it is routine for parties seeking a business deal to threaten to walk away without a deal as a way to get a deal on more favourable terms. Indeed, the threat to break international law was advertised as one such move. That did not work. Perhaps more important is the difference between a bilateral deal and a multilateral one. A business deal is often competitive, which means that there are a number of potential partners on both sides, thus the solution in the Edgeworth box gets very close to the Nash equilibrium of the multilateral deal making. In international relations, however, the number of potential deal makers tends to be limited. While, for instance, it has been argued that the US can substitute for the EU, or that the rest of the world is more than a substitute for the EU, it is in fact hard to find the proper substitute for the EU once the UK walks away from the deal.

The issue of the limits of unilateralism can be seen perhaps most clearly in the dispute over fishing rights. Boris Johnson has argued that the UK would end up being the only coastal nation which does not have full control over its waters. But that only means that the UK is not ready to enter into a trade deal which includes fishing. Then there may not be a deal to be made. That may be because the other side is trying to threaten that it will walk away from the deal if it does not include the agreement on fishing. Then the argument is that this is mal intended because the EU has a trade deal with Canada which is much less comprehensive than the one it is ready to sign with the UK. Thus, bad will.

The UK, however, is seceding. And one principle of secessions, as long as it is not just a unilateral exercise of power to secede, is that it should not change for the worse the rights of one or of both of the sides, internally and externally. In the case of fishing, the UK seceding from the EU without the agreement of access to UK waters is clearly disadvantageous to the rest of the EU. So, the EU may live with the UK unilaterally denying fishing rights to the EU, hopefully without resistance and confrontation, but may lack the needed internal consent, i.e., legitimate internal sovereignty, to agree to a trade agreement which takes away fishing rights from EU fishers.

The same argument applies to the level playing field. If the UK wants to take control over its laws and if that means the right to unilateral changes to the laws that are consequential for e.g., trade with the EU, and if the EU could not react by changing its own laws to counter such an adverse development, perhaps because it did not want to harm its internal market, then the EU will not give up on the instruments that it can use to have the countervailing power over potential changes in UK laws and policies, e.g., on the use of tariffs or other trade policy instruments. In which case, there will be no trade deal.

The expected outcome of this conflict between unilateralism and international cooperation may be a temporary reversal to the state of nature so to speak. The UK secedes from the EU without a deal and after a period of time long enough that both sides can get used to living with no free trade agreement – they might start negotiating a new one. Taking back control would then come to mean what sovereignty indeed means – the power and the right to sign a trade deal with the EU as well as others, bilaterally and multilaterally. Then perhaps it can be argued that it is the sovereign, unilateral decision to enter into a trade agreement – it is indeed an instance of taking back control.

Pešč, 22.12.2020.