Sovereignty
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Sovereignty can generally be defined as supreme authority.[1][additional citation(s) needed] Sovereignty entails hierarchy within the state, as well as external autonomy for states.[2] In any state, sovereignty is assigned to the person, body or institution that has the ultimate authority over other people in order to establish a law or change existing laws.[3] In political theory, sovereignty is a substantive term designating supreme legitimate authority over some polity.[4] In international law, sovereignty is the exercise of power by a state. De jure sovereignty refers to the legal right to do so; de facto sovereignty refers to the factual ability to do so. This can become an issue of special concern upon the failure of the usual expectation that de jure and de facto sovereignty exist at the place and time of concern, and reside within the same organization.
Etymology
The term arises from the unattested Vulgar Latin *superanus (itself a derived form of Latin super – "over") meaning "chief", "ruler".[5] Its spelling, which has varied since the word's first appearance in English in the 14th century, was influenced by the English word "reign".[6][7]
Concepts
The concept of sovereignty has had multiple conflicting components, varying definitions, and diverse and inconsistent applications throughout history.[8][9][10][11] The current notion of state sovereignty contains four aspects: territory, population, authority and recognition.[10] According to Stephen D. Krasner, the term could also be understood in four different ways:
- Domestic sovereignty – actual control over a state exercised by an authority organized within this state
- Interdependence sovereignty – actual control of movement across the state's borders
- International legal sovereignty – formal recognition by other sovereign states
- Westphalian sovereignty – there is no other authority in the state aside from the domestic sovereign (such other authorities might be e.g. a political organization or any other external agent).[8]
Often, these four aspects all appear together, but this is not necessarily the case – they are not affected by one another, and there are historical examples of states that were non-sovereign in one aspect while at the same time being sovereign in another of these aspects.[8] According to Immanuel Wallerstein, another fundamental feature of sovereignty is that it is a claim that must be recognized if it is to have any meaning:
Sovereignty is a hypothetical trade, in which two potentially (or really) conflicting sides, respecting de facto realities of power, exchange such recognitions as their least costly strategy.[12]
There are two additional components of sovereignty that should be discussed, empirical sovereignty and juridical sovereignty.[13] Empirical sovereignty deals with the legitimacy of who is in control of a state and the legitimacy of how they exercise their power.[13] Tilly references an example where nobles in parts of Europe were allowed to engage in private rights and Ustages, a constitution by Catalonia recognized that right which demonstrates empirical sovereignty.[14] As David Samuel points out, this is an important aspect of a state because there has to be a designated individual or group of individuals that are acting on behalf of the people of the state.[15] Juridical sovereignty emphasizes the importance of other states recognizing the rights of a state to exercise their control freely with little interference.[13] For example, Jackson and Rosberg explain how the sovereignty and survival of African states were more largely influenced by legal recognition rather than material aid.[16] Douglass North identifies that institutions want structure and these two forms of sovereignty can be a method for developing structure.[17]
For a while, the United Nations highly valued juridical sovereignty and attempted to reinforce its principle often.[13] More recently, the United Nations is shifting away and focusing on establishing empirical sovereignty.[13] Michael Barnett notes that this is largely due to the effects of the post Cold War era because the United Nations believed that to have peaceful relations states should establish peace within their territory.[13] As a matter of fact, theorists found that during the post Cold War era many people focused on how stronger internal structures promote inter-state peace.[18] For instance, Zaum argues that many weak and impoverished countries that were affected by the Cold War were given assistance to develop their lacking sovereignty through this sub-concept of "empirical statehood".[19]
History
Classical
The Roman jurist Ulpian observed that:[20]
- The people transferred all their imperium and power to the Emperor. Cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem conferat (Digest I.4.1)
- The laws do not bind the emperor. Princeps legibus solutus est (Digest I.3.31)
- A decision by the emperor has the force of law. Quod principi placuit legis habet vigorem. (Digest I.4.1)
Ulpian was expressing the idea that the emperor exercised a rather absolute form of sovereignty that originated in the people, although he did not use the term expressly.
Medieval
Ulpian's statements were known in
Reformation
Sovereignty reemerged as a concept in the late 16th century, a time when civil wars had created a craving for a stronger central authority when monarchs had begun to gather power onto their own hands at the expense of the nobility, and the modern
- Absolute: On this point, he said that the sovereign must be hedged in with obligations and conditions, must be able to legislate without his (or its) subjects' consent, must not be bound by the laws of his predecessors, and could not, because it is illogical, be bound by his own laws.
- Perpetual: Not temporarily delegated as to a strong leader in an emergency or a state employee such as a magistrate. He held that sovereignty must be perpetual because anyone with the power to enforce a time limit on the governing power must be above the governing power, which would be impossible if the governing power is absolute.
Bodin rejected the notion of transference of sovereignty from people to the ruler (also known as the sovereign); natural law and divine law confer upon the sovereign the right to rule. And the sovereign is not above divine law or natural law. He is above (i.e. not bound by) only positive law, that is, laws made by humans. He emphasized that a sovereign is bound to observe certain basic rules derived from the divine law, the law of nature or reason, and the law that is common to all nations (jus gentium), as well as the fundamental laws of the state that determine who is the sovereign, who succeeds to sovereignty, and what limits the sovereign power. Thus, Bodin's sovereign was restricted by the constitutional law of the state and by the higher law that was considered as binding upon every human being.[4] The fact that the sovereign must obey divine and natural law imposes ethical constraints on him. Bodin also held that the lois royales, the fundamental laws of the French monarchy which regulated matters such as succession, are natural laws and are binding on the French sovereign.
Despite his commitment to absolutism, Bodin held some moderate opinions on how government should in practice be carried out. He held that although the sovereign is not obliged to, it is advisable for him, as a practical expedient, to convene a senate from whom he can obtain advice, to delegate some power to magistrates for the practical administration of the law, and to use the Estates as a means of communicating with the people.[citation needed] Bodin believed that "the most divine, most excellent, and the state form most proper to royalty is governed partly aristocratically and partly democratically".[22]
With his doctrine that sovereignty is conferred by divine law, Bodin predefined the scope of the divine right of kings.[citation needed]
Age of Enlightenment
During the Age of Enlightenment, the idea of sovereignty gained both legal and moral force as the main Western description of the meaning and power of a State. In particular, the "Social contract" as a mechanism for establishing sovereignty was suggested and, by 1800, widely accepted, especially in the new United States and France, though also in Great Britain to a lesser extent.
Thomas Hobbes, in Leviathan (1651) put forward a conception of sovereignty similar to Bodin's, which had just achieved legal status in the "Peace of Westphalia", but for different reasons. He created the first modern version of the social contract (or contractarian) theory, arguing that to overcome the "nasty, brutish and short" quality of life without the cooperation of other human beings, people must join in a "commonwealth" and submit to a "Soveraigne [sic] Power" that can compel them to act in the common good. This expediency argument attracted many of the early proponents of sovereignty. Hobbes strengthened the definition of sovereignty beyond either Westphalian or Bodin's, by saying that it must be:[citation needed][23]
- Absolute: because conditions could only be imposed on a sovereign if there were some outside arbitrator to determine when he had violated them, in which case the sovereign would not be the final authority.
- Indivisible: The sovereign is the only final authority in his territory; he does not share final authority with any other entity. Hobbes held this to be true because otherwise there would be no way of resolving a disagreement between the multiple authorities.
Hobbes' hypothesis—that the ruler's sovereignty is contracted to him by the people in return for his maintaining their physical safety—led him to conclude that if and when the ruler fails, the people recover their ability to protect themselves by forming a new contract.
Hobbes's theories decisively shape the concept of sovereignty through the medium of social contract theories. Jean-Jacques Rousseau's (1712–1778) definition of popular sovereignty (with early antecedents in Francisco Suárez's theory of the origin of power), provides that the people are the legitimate sovereign. Rousseau considered sovereignty to be inalienable; he condemned the distinction between the origin and the exercise of sovereignty, a distinction upon which constitutional monarchy or representative democracy is founded. John Locke, and Montesquieu are also key figures in the unfolding of the concept of sovereignty; their views differ with Rousseau and with Hobbes on this issue of alienability.
The second book of Jean-Jacques Rousseau's
Rousseau, in the Social Contract[26] argued, "the growth of the State giving the trustees of public authority more and means to abuse their power, the more the Government has to have force to contain the people, the more force the Sovereign should have in turn to contain the Government," with the understanding that the Sovereign is "a collective being of wonder" (Book II, Chapter I) resulting from "the general will" of the people, and that "what any man, whoever he may be, orders on his own, is not a law" (Book II, Chapter VI) – and predicated on the assumption that the people have an unbiased means by which to ascertain the general will. Thus the legal maxim, "there is no law without a sovereign."[27]
According to Hendrik Spruyt, the sovereign state emerged as a response to changes in international trade (forming coalitions that wanted sovereign states)[2] so that the sovereign state's emergence was not inevitable; "it arose because of a particular conjuncture of social and political interests in Europe."[28]
Once states are recognized as sovereign, they are rarely recolonized, merged, or dissolved.[29]
Post World War II world order
Today, no state is sovereign in the sense they were prior to the Second World War.
European integration is the second form of post-world war change in the norms of sovereignty, representing a significant shift since member nations are no longer absolutely sovereign. Some theorists, such as Jacques Maritain and Bertrand de Jouvenel have attacked the legitimacy of the earlier concepts of sovereignty, with Maritain advocating that the concept be discarded entirely since it:[32]
- stands in the way of international law and a world state,
- internally results in centralism, not pluralism
- obstructs the democratic notion of accountability
Efforts to curtail absolute sovereignty have met with substantial resistance by sovereigntist movements in multiple countries who seek to "take back control" from such transnational governance groups and agreements, restoring the world to pre World War II norms of sovereignty.[36]
Definition and types
There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.
Absoluteness
An important factor of sovereignty is its degree of
Exclusivity
A key element of sovereignty in a legalistic sense is that of exclusivity of
De jure and de facto
De jure, or legal, sovereignty concerns the expressed and institutionally recognised right to exercise control over a territory. De facto sovereignty means sovereignty exists in practice, irrespective of anything legally accepted as such, usually in writing. Cooperation and respect of the populace; control of resources in, or moved into, an area; means of enforcement and security; and ability to carry out various functions of state all represent measures of de facto sovereignty. When control is practiced predominantly by the military or police force it is considered coercive sovereignty.
Sovereignty and independence
This section needs additional citations for verification. (July 2015) |
State sovereignty is sometimes viewed synonymously with
Another complicated sovereignty scenario can arise when regime itself is the subject of dispute. In the case of
Additionally sovereignty can be achieved without independence, such as how the Declaration of State Sovereignty of the Russian Soviet Federative Socialist Republic made the Russian Soviet Federative Socialist Republic a sovereign entity within but not independent from the USSR.
At the opposite end of the scale, there is no dispute regarding the self-governance of certain self-proclaimed states such as the
Internal
Internal sovereignty is the relationship between sovereign power and the political community. A central concern is
With Sovereignty meaning holding supreme, independent authority over a region or state, Internal Sovereignty refers to the internal affairs of the state and the location of supreme power within it.[43] A state that has internal sovereignty is one with a government that has been elected by the people and has the popular legitimacy. Internal sovereignty examines the internal affairs of a state and how it operates. It is important to have strong internal sovereignty to keeping order and peace. When you have weak internal sovereignty, organisations such as rebel groups will undermine the authority and disrupt the peace. The presence of a strong authority allows you to keep the agreement and enforce sanctions for the violation of laws. The ability for leadership to prevent these violations is a key variable in determining internal sovereignty.[44] The lack of internal sovereignty can cause war in one of two ways: first, undermining the value of agreement by allowing costly violations; and second, requiring such large subsidies for implementation that they render war cheaper than peace.[45] Leadership needs to be able to promise members, especially those like armies, police forces, or paramilitaries will abide by agreements. The presence of strong internal sovereignty allows a state to deter opposition groups in exchange for bargaining. While the operations and affairs within a state are relative to the level of sovereignty within that state, there is still an argument over who should hold the authority in a sovereign state.
This argument between who should hold the authority within a sovereign state is called the traditional doctrine of public sovereignty. This discussion is between an internal sovereign or an authority of public sovereignty. An internal sovereign is a political body that possesses ultimate, final and independent authority; one whose decisions are binding upon all citizens, groups and institutions in society. Early thinkers believed sovereignty should be vested in the hands of a single person, a monarch. They believed the overriding merit of vesting sovereignty in a single individual was that sovereignty would therefore be indivisible; it would be expressed in a single voice that could claim final authority. An example of an internal sovereign is Louis XIV of France during the seventeenth century; Louis XIV claimed that he was the state. Jean-Jacques Rousseau rejected monarchical rule in favor of the other type of authority within a sovereign state, public sovereignty. Public Sovereignty is the belief that ultimate authority is vested in the people themselves, expressed in the idea of the general will. This means that the power is elected and supported by its members, the authority has a central goal of the good of the people in mind. The idea of public sovereignty has often been the basis for modern democratic theory.[46]
Modern internal sovereignty
Within the modern governmental system, internal sovereignty is usually found in states that have public sovereignty and is rarely found within a state controlled by an internal sovereign. A form of government that is a little different from both is the UK parliament system.
External
External sovereignty concerns the relationship between sovereign power and other states. For example, the United Kingdom uses the following criterion when deciding under what conditions other states recognise a political entity as having sovereignty over some territory;
"Sovereignty." A government which exercises de facto administrative control over a country and is not subordinate to any other government in that country or a foreign sovereign state.
(The Arantzazu Mendi, [1939] A.C. 256), Stroud's Judicial Dictionary
External sovereignty is connected with questions of international law – such as when, if ever, is
Following the
In international law, sovereignty means that a government possesses full control over affairs within a territorial or geographical area or limit. Determining whether a specific entity is sovereign is not an exact science, but often a matter of diplomatic dispute. There is usually an expectation that both de jure and de facto sovereignty rest in the same organisation at the place and time of concern. Foreign governments use varied criteria and political considerations when deciding whether or not to recognise the sovereignty of a state over a territory.[citation needed] Membership in the United Nations requires that "[t]he admission of any such state to membership in the United Nations will be affected by a decision of the General Assembly upon the recommendation of the Security Council."[50]
Sovereignty may be recognized even when the sovereign body possesses no territory or its territory is under partial or total occupation by another power. The
The
The
Just as the office of head of state can be vested jointly in several persons within a state, the sovereign jurisdiction over a single political territory can be shared jointly by two or more consenting powers, notably in the form of a condominium.[56]
Likewise the member states of international organizations may voluntarily bind themselves by treaty to a supranational organization, such as a continental union. In the case of the European Union member-states, this is called "pooled sovereignty".[57][58]
Another example of shared and pooled sovereignty is the Acts of Union 1707 which created the unitary state now known as the United Kingdom.[59][60][61] It was a full economic union, meaning the Scottish and English systems of currency, taxation and laws regulating trade were aligned.[62] Nonetheless, Scotland and England never fully surrendered or pooled all of their governance sovereignty; they retained many of their previous national institutional features and characteristics, particularly relating to their legal, religious and educational systems.[63] In 2012, the Scottish Government, created in 1998 through devolution in the United Kingdom, negotiated terms with the Government of the United Kingdom for the 2014 Scottish independence referendum which resulted in the people of Scotland deciding to continue the pooling of its sovereignty with the rest of the United Kingdom.
Nation-states
A community of people who claim the right of
Federations
In a
Different interpretations of
Sovereignty versus military occupation
In situations related to war, or which have arisen as the result of war, most modern scholars still commonly fail to distinguish between holding sovereignty and exercising military occupation.
In regard to military occupation, international law prescribes the limits of the occupant's power. Occupation does not displace the sovereignty of the occupied state, though for the time being the occupant may exercise supreme governing authority. Nor does occupation effect any annexation or incorporation of the occupied territory into the territory or political structure of the occupant, and the occupant's constitution and laws do not extend of their own force to the occupied territory.[67]
To a large extent, the original academic foundation for the concept of "military occupation" arose from
In 1946, the Nuremberg International Military Tribunal stated with regard to the Hague Convention on Land Warfare of 1907: "The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing International Law at the time of their adoption ... but by 1939 these rules ... were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war."
Acquisition
A number of modes for acquisition of sovereignty are presently or have historically been recognized in international law as lawful methods by which a state may acquire sovereignty over external territory. The classification of these modes originally derived from Roman property law and from the 15th and 16th century with the development of international law. The modes are:[68]
- Cession is the transfer of territory from one state to another usually by means of treaty;
- Occupation is the acquisition of territory that belongs to no state (or terra nullius);
- Prescription is the effective control of territory of another acquiescing state;
- Operations of nature is the acquisition of territory through natural processes like river accretion or volcanism;
- Creation is the process by which new land is (re)claimed from the sea such as in the Netherlands.
- Adjudication and
- Conquest
celestial bodies , and their orbits)
| |||||||
national airspace | territorial waters airspace | contiguous zone airspace[citation needed] | international airspace | ||||
land territory surface | internal waters surface | territorial waters surface | contiguous zone surface | Exclusive Economic Zone surface | international waters surface | ||
internal waters | territorial waters | Exclusive economic zone | international waters | ||||
land territory underground | Continental shelf surface | extended continental shelf surface | international seabed surface | ||||
Continental shelf underground | extended continental shelf underground | international seabed underground | |||||
Justifications
There exist vastly differing views on the moral basis of sovereignty. A fundamental polarity is between theories which assert that sovereignty is vested directly in the sovereigns by divine or natural right, and theories which assert it originates from the people. In the latter case there is a further division into those which assert that the people effectively transfer their sovereignty to the sovereign (Hobbes), and those which assert that the people retain their sovereignty (Rousseau).[69]
During the brief period of absolute monarchies in Europe, the divine right of kings was an important competing justification for the exercise of sovereignty. The Mandate of Heaven had similar implications in China for the justification of the Emperor's rule, though it was largely replaced with discussions of Western-style sovereignty by the late 19th century.[70]
A republic is a form of government in which the people, or some significant portion of them, retain sovereignty over the government and where offices of state are not granted through heritage.[71][72] A common modern definition of a republic is a government having a head of state who is not a monarch.[73][74]
Democracy is based on the concept of popular sovereignty. In a direct democracy the public plays an active role in shaping and deciding policy. Representative democracy permits a transfer of the exercise of sovereignty from the people to a legislative body or an executive (or to some combination of the legislature, executive and Judiciary). Many representative democracies provide limited direct democracy through referendum, initiative, and recall.
Parliamentary sovereignty refers to a representative democracy where the parliament is ultimately sovereign, rather than the executive power or the judiciary.
Views
- Classical liberals such as John Stuart Mill consider every individual as sovereign.
- Realists view sovereignty as being untouchable and as guaranteed to legitimate nation-states.[citation needed]
- Rationalists see sovereignty similarly to realists. However, rationalism states that the sovereignty of a nation-state may be violated in extreme circumstances, such as human rights abuses.[citation needed]
- Internationalists believe that sovereignty is outdated and an unnecessary obstacle to achieving peace, in line with their belief in a global community. In the light of the abuse of power by sovereign states such as Hitler's Germany or Stalin's Soviet Union, they argue that human beings are not necessarily protected by the state whose citizens they are and that the respect for state sovereignty on which the UN Charter is founded is an obstacle to humanitarian intervention.[75]
- Anarchists and some sovereignty of the individual and self-ownership.
- Imperialists hold a view of sovereignty where power rightfully exists with those states that hold the greatest ability to impose the will of said state, by force or threat of force, over the populace of other states with weaker military or political will. They effectively deny the sovereignty of the individual in deference to either the good of the whole or to divine right.[citation needed]
According to Matteo Laruffa "sovereignty resides in every public action and policy as the exercise of executive powers by institutions open to the participation of citizens to the decision-making processes"[76]
See also
- Air sovereignty
- Autonomous area
- Basileus
- Mandate of Heaven
- National sovereignty
- Plenary authority
- Self-ownership
- Self-sovereign identity
- Sovereignty of the individual
- Souverainism
- Suzerainty
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Further reading
- Benton, Lauren (2010). A Search for Sovereignty: Law and Geography in European Empires, 1400–1900. Cambridge University Press. ISBN 978-0-521-88105-0.
- Grimm, Dieter (2015). Howard, Dick (ed.). Sovereignty: The Origin and Future of a Political and Legal Concept. Columbia Studies in Political Thought / Political History. Translated by Cooper, Belinda (e-book ed.). Columbia University Press. ISBN 9780231539302.
- Paris, R. (2020). "The Right to Dominate: How Old Ideas About Sovereignty Pose New Challenges for World Order." International Organization
- Philpott, Dan (2016). "Sovereignty". Stanford Encyclopedia of Philosophy. Metaphysics Research Lab, Stanford University.
- ISBN 9781403913234.
- ISBN 9781845401412.
- Thomson, Janice E. (1996). Mercenaries, pirates, and sovereigns: state-building and extraterritorial violence in early modern Europe. Princeton University Press. ISBN 978-0-691-02571-1.
External links
- The dictionary definition of sovereignty at Wiktionary
- Quotations related to Sovereignty at Wikiquote