The prospect of international intervention legitimacy: case study of 2011 libyan armed conflict

2.3.2 Relationship between Sovereignty and Competence

According to the classical definition of German constitutional law which is very often referred to, sovereignty is the 'competence competence' (the «Kompetenz-Kompetenz" of the German Constitutionalist Georg Jellinek), that is one who decides what competent people for such or such material is the sovereign.^44(*) The sovereign can therefore delegate or transfer skills, unless this affects its sovereignty, as long as it retains the possibility of resuming these abilities.^45(*)

In French constitutional law, the Constitutional Council distinguished transfers of competence by the French State to the European communities from the transfers of sovereignty. The first are allowed: they consist of a transfer that is reversible, while the latter are unconstitutional, because final. However, many critics of the Union consider this difference as of only semantic in nature, since even if it is possible that the France sort of Union and finds its full powers, it is highly unlikely.^46(*)

But the sovereign delegates not all his exercise. With the emergence, under the effect of political liberalism, of the theory of a minimalist interventionist State, the powers in the State were restricted to what is called its regalia functions, i.e. the minimum of all sovereign powers, which cannot be the subject of any delegation. However, by the theory of the welfare State, developed in reaction against the minimalist State, other competences, social order, are parts of the exercise of sovereignty.

2.3.2.1 Typology of Sovereignties

According to Jean-Fabien Spitz in John Locke and the foundations of modern freedom (2001), introduction of the concept of sovereignty in political philosophy at the beginning of the modern era seems to have resulted in a final move of the relevant issues: it is more whether a power is fair (which amounts to make the existence of the power on its character), but to know who owns the power of order and how that power was conferred. ^47(*)

However, this typology based on people who have sovereignty and the manner in which it was conferred to them shows its limits today, since it causes confusion. Modern typologies are therefore based on the forms of sovereignty. For instance in classical typology, there is confusion of the sovereignty of divine right of Kings and Royal sovereignty.

2.3.2.1.1 Sovereignty of Divine Law

In theocratic regimes, sovereignty belongs to God's representative. There were attempts of theocracy in the 13^th century, when Popes tried to impose their will on the Kings. The very example on that can be disputes between Philippe le Bel and Boniface VIII thereon.

2.3.2.1.2 Royal Sovereignty

In a monarchy, sovereignty belongs to the King. In this type of regime, the people keep a power of expression. There arises a certain confusion of royal and divine sovereignties. Most monarchical regimes are in reality of divine law and therefore Kings and popes were monarchs. One contrasts rather spiritual power (direction of believers) and temporal (secular) power. The Pope possessed two powers, the first on the Church (community of believers) while the second was limited to his lands. The King exercised that temporal power over his subjects.^48(*)

* ⁴⁴ Philpott, D., Revolutions in Sovereignty: How Ideas Shaped Modern International Relations, Princeton, NJ: Princeton University Press, 2001.

* ⁴⁵ Ibid.

* ⁴⁶ Spruyt, H., The Sovereign State and Its Competitors, Princeton, NJ: Princeton University Press, 1994, p 24.

* ⁴⁷ Jean-Fabien Spitz in John Locke, Introduction of the Concept of Sovereignty in Political Philosophy and the Foundations of modern freedom, Paris 2001, p.78.

* ⁴⁸ Pogge, T., `Cosmopolitanism and Sovereignty', Ethics, 103, 1992, pp. 48-75.