philosophical approaches to the concept of sovereignty—the ‘legal’ and the ‘pure fact’
approaches—each of which he personifies in a champion, respectively Kelsen and Schmitt.87 For Schmitt, says Koskenniemi, a ‘State’s power is normative and that power is itself external to and constitutive of the law.’88 For Kelsen, by contrast, ‘[f]actual power cannot establish what ought to be. […] The legal argument is prior to factual power.’89 As Koskenniemi observes, both approaches appear to be fundamentally flawed when viewed from within the other system of thought. From within the pure fact approach ‘Schmitt’s system seems objective because “realistic” and directed towards concrete observable facts.’ Kelsen’s,
87 Martti Koskenniemi, From Apology to Utopia (Cambridge University Press 2005) 226 et seq.
88 ibid 226.
89 ibid 226–27.
meanwhile ‘appears utopian: his is only a scholar’s subjective construction’.90 From within the legal approach, by contrast, ‘Schmitt’s system is subjective because apologist, because it assumes that might makes right’, while ‘Kelsen’s own ideas seem objective because detached from such considerations.’91 This is a conflict based on the very foundations of the two systems:
But it does not seem possible to take a view about the extent of sovereignty without forming an anterior stand on the question of its justification. This is so because there is no “natural” extent to sovereignty. Its extent can only be determined within a conceptual system and the systems provided by the two approaches [the pure fact approach and the legal approach] are not only different but contradictory.92
This irreconcilability will be amply demonstrated by an account of the two approaches.
3.2.1 The Legal Approach
The legal approach presupposes the existence of “law” before the existence of a claim to the bundle of rights and competences called “sovereignty”. Thus, international law is antecedent to the State, constitutes the State, and defines its parameters:
According to this approach, sovereignty is a quality which is allocated to certain entities by international law which, in this sense, is conceptually anterior to them.
[…] The law delegates to certain entities the quality of statehood as a sum of rights, liberties and competences.93
According to such a view, there is no difficulty in subjecting States to international law: by their very nature they are and must inescapably be legal subjects. Clearly, though, such an approach must rely on a preceding, or “natural”, law. The existence of such a natural law—
even in its modern, nontheistic form, usually based upon sociability and common interests94—
90 ibid 227.
91 ibid.
92 ibid 238. [Emphasis in original].
93 ibid 229; see also Hans Kelsen, Principles of International Law (2nd Edn, Holt, Rinehart and Winston, Inc 1966) 581–84; Hans Kelsen, Pure Theory of Law (Max Knight, University of California Press 1967) 336–44; Hersch Lauterpacht, The Function of Law in the International Community (The Lawbook Exchange, Ltd 2000) 95–96.
94 Koskenniemi (n 87) 231.
is contested, however. Without agreement on the validity and content of such a pre-existing law the legal approach cannot but appear subjective. Kelsen argued that the Grundnorm of the international legal system is that ‘states should act the way they have customarily acted.’95 To describe this root as “natural” is, of course, controversial: Kelsen regarded his project as positivist in character, and he expressly rejected the application of natural law principles by other proponents of the legal approach.96 Nevertheless, Kelsen’s Grundnorm is, like natural law, not authorised by a higher norm, but must be ‘presupposed’:
At some stage, in every legal system, we get to an authorizing norm that has not been authorized by any other legal norm, and thus it has to be presupposed to be legally valid. The normative content of this presupposition is what Kelsen has called the basic norm. The basic norm is the content of the presupposition of the legal validity of the (first, historical) constitution of the relevant legal system[.]97
Whether one adopts Kelsen’s Grundnorm or a Grotian/Wolffian pre-existing moral code, therefore, the basis of the legal order under the legal approach remains controversial. While the legal approach claims to achieve an objective system by eliminating the politics of ‘might makes right’ from international law, its opponents point to its foundational uncertainty as evidence of its inherent subjectivity.
3.2.2 The Pure Fact Approach
The pure fact approach, by contrast, seeks to exclude the application of natural law, basing itself instead on the “objective” fact of pre-existing State liberty. For the pure fact approach all law must be created, it cannot simply exist, and the actor (the State) must logically be prior to the law, therefore. If States are prior to the law, they must have existed in a state of full
95 Jochen von Bernstorff, The Public International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge University Press 2010) 161. [Footnotes omitted].
96 ibid 160.
97 Andrei Marmor ‘The Pure Theory of Law’, The Stanford Encyclopaedia of Philosophy (Edward N. Zalta (ed.) Fall 2010 Edition) <http://plato.stanford.edu/archives/fall2010/entries/lawphil-theory/> accessed 10/05/2017.
natural liberty—a state of nature—before they chose to subject themselves to law in order to safeguard their liberties and ensure their survival.
In the pure fact view, ‘law is a means to fulfil the liberty of the State. This may sometimes require the restriction of liberty. But liberty can only be restricted through an unambiguous rule of law.’98 It is clear also that such a law must be contractual or voluntary in character: if States have full liberty of action prior to the institution of law they cannot be compelled to accept legal limitation. The creation of law is a political act. Ross objects to this—which he characterises as a species of self-limitation argument—saying that:
It is readily seen, however, that this construction is impossible. An obligation which is dependent on the will of the person bound is no real obligation. Either we must in all seriousness accept the idea that the state is only bound by its own will, but if so there is no real obligation, no real International Law. Or else we must seriously accept the international obligation, but in that case the state is bound by other factors that its own will, and the latter then is not “sovereign”.99
In other words, there is therefore a significant danger of sovereignty under the pure fact approach descending into what Koskenniemi calls ‘apologism’:
[T]he conclusion that a State’s liberty extends to anything the State itself thinks appropriate to extend it to. A fully formal idea of “freedom” is incapable of constructing a determinate, bounded conception of statehood as well as giving any content to an international order.100
Like Friedmann, Koskenniemi identifies that a reconciliation between the pure fact approach and an international legal order can only be effected by means of pre-existing normative content,101 the simplest version of which would be the principle pacta sunt servanda.102 This, though, is:
[…] a descending argument which stood in tension with [the] ascending denial of a pre-existing (natural) normative code and the very justification for assuming
98 Koskenniemi (n 87) 239.
99 Ross (n 75) 39–40.
100 Koskenniemi (n 87) 225.
101 ibid.
102 Friedmann (n 7) 85–86.
that States were “free” in the first place. Just like individuality can exist only in relation to community – and becomes, in that sense, dependent on how it is viewed from a non-individual perspective – a State’s sphere of liberty, likewise, seemed capable of being determined only by taking a position beyond liberty. The paradox is that assuming the existence of such a position undermines the original justification of thinking about statehood in terms of an initial, pre-social liberty.103
In this Koskenniemi must be taken to be correct. In order for the pure fact approach to avoid subjugating the existence of an obligation to the whim of the State and thus descending into apologism, it must accept a startling inconsistency: that the argument from liberty depends on a pre-existing limitation on liberty. It must, therefore, either accept apologism, or arrive at a conclusion which invalidates its premises.
3.3 Koskenniemi’s Critique – Mutual Exclusivity and Mutual Reliance