Sovereignty

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Sovereignty is the quality of having supreme, independent authority over a territory.^[1][2] It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided. The concept has been discussed, debated and questioned throughout history, from the time of the Romans through to the present day, although it has changed in its definition, concept, and application throughout, especially during the Age of Enlightenment. The current notion of state sovereignty was laid down in the Treaty of Westphalia (1648), which, in relation to states, codified the basic principles of territorial integrity, border inviolability, and supremacy of the state (rather than the Church). A sovereign is a supreme lawmaking authority.

Contents 1 History 1.1 Classical 1.2 Medieval 1.3 Reformation 1.4 Age of Enlightenment 2 Definition and types 2.1 Absoluteness 2.2 Exclusivity 2.3 De jure and de facto 2.4 Internal 2.5 External 2.6 Shared 2.7 Tribal 2.8 Nation-states 2.9 Federations 3 Acquisition 4 Justifications 5 Views on 6 Relation to rule of law 7 Sovereign as a title 8 See also 9 Footnotes 10 References 11 External links

[edit] History

Different cultures and governments have, understandably, had different ideas about sovereignty.

[edit] Classical

The Roman jurist Ulpian observed that:

• The imperium of the people is transferred to the Emperor,
• The Emperor is not bound by the law,
• The Emperor's word is law. Emperor is the law making and abiding force.

Ulpian was expressing the idea that the Emperor exercised a rather absolute form of sovereignty, although he did not use the term expressly. Ulpian's statements were known in medieval Europe, but sovereignty was not an important concept in medieval times. Medieval monarchs were not sovereign, at least not strongly so, because they were constrained by, and shared power with, their feudal aristocracy. Furthermore, both were strongly constrained by custom.

[edit] Medieval

Sovereignty existed during the Medieval Period as the de jure rights of nobility and royalty, and in the de facto right and capability of individuals to make their own choices in life.

Around c. 1380-1400, the issue of feminine sovereignty was addressed in Geoffrey Chaucer's Middle English collection of Canterbury Tales, specifically in The Wife of Bath's Tale.^[3]

A later English Arthurian romance, The Wedding of Sir Gawain and Dame Ragnell (c. 1450)^[4], uses much of the same elements of the Wife of Bath's tale, yet changes the setting to the court of King Arthur and the Knights of the Round Table. The story revolves around the knight Sir Gawain granting to Dame Ragnell, his new bride, what is purported to be wanted most by women: sovereignty.

We desire most from men,
From men both rich and poor,
To have sovereignty without lies.
For where we have sovereignty, all is ours,
Though a knight be ever so fierce,
And ever win mastery.
It is our desire to have master
Over such a sir.
Such is our purpose.

—The Wedding of Sir Gawain and Dame Ragnell (c. 1450), ^[4]

[edit] Reformation

Sovereignty reemerged as a concept in the late 16th century, a time when civil wars had created a craving for stronger central authority, when monarchs had begun to gather power into their own hands at the expense of the nobility, and the modern nation state was emerging. Jean Bodin, partly in reaction to the chaos of the French wars of religion; and Thomas Hobbes, partly in reaction to the English Civil War, both presented theories of sovereignty calling for strong central authority in the form of absolute monarchy. In his 1576 treatise Six livres de la république ("Six Books of the Republic") Bodin argued that it is inherent in the nature of the state that sovereignty must be:

• Absolute: On this point he said that the sovereign must not 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 to 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 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 (ie. not bound by) only positive law, that is, laws made by humans. 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. How divine and natural law could in practice be enforced on the sovereign is a problematic feature of Bodin's philosophy: any person capable of enforcing them on him would be above him.

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.

With his doctrine that sovereignty is conferred by divine law, Bodin predefined the scope of the divine right of kings.

[edit] Age of Enlightenment

Hobbes, in Leviathan (1651) introduced an early 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 is able to compel them to act in the common good. This expediency argument attracted many of the early proponents of sovereignty. Hobbes deduced from the definition of sovereignty that it must be:

• 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 safety, led him to conclude that if the ruler fails to do this, the people are released from their obligation to obey him.

Bodin's and Hobbes's theories would decisively shape the concept of sovereignty, which we can find again in the social contract theories, for example, in Rousseau's (1712–1778) definition of popular sovereignty (with early antecedents in Francisco Suárez's theory of the origin of power), which only differs in that he considers the people to be the legitimate sovereign. Likewise, it is inalienable – Rousseau condemned the distinction between the origin and the exercise of sovereignty, a distinction upon which constitutional monarchy or representative democracy are founded. Niccolò Machiavelli, Thomas Hobbes, John Locke, and Montesquieu are also key figures in the unfolding of the concept of sovereignty.

The second book of Jean-Jacques Rousseau's Du Contrat Social, ou Principes du droit politique (1762) deals with sovereignty and its rights. Sovereignty, or the general will, is inalienable, for the will cannot be transmitted; it is indivisible, since it is essentially general; it is infallible and always right, determined and limited in its power by the common interest; it acts through laws. Law is the decision of the general will in regard to some object of common interest, but though the general will is always right and desires only good, its judgment is not always enlightened, and consequently does not always see wherein the common good lies; hence the necessity of the legislator. But the legislator has, of himself, no authority; he is only a guide who drafts and proposes laws, but the people alone (that is, the sovereign or general will) has authority to make and impose them.

Rousseau, in his 1763 treatise Of the Social Contract^[5] 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 in order 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 furthermore 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."sovereignty started from the concept of Westphalia treaties and thirty years wars.

The 1789 French Revolution shifted the possession of sovereignty from the sovereign ruler to the nation and its people.

Carl Schmitt (1888-1985) defined sovereignty as "the power to decide the state of exception", in an attempt, argues Giorgio Agamben, to counter Walter Benjamin's theory of violence as radically disjoint from law. Georges Bataille's heterodox conception of sovereignty, which may be said to be an "anti-sovereignty", also inspired many thinkers, such as Jacques Derrida, Agamben or Jean-Luc Nancy.

[edit] 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.	”
	— Lassa Oppenheim[6], an authority on international law

[edit] Absoluteness

An important factor of sovereignty is its degree of absoluteness. A sovereign power has absolute sovereignty if it has the unlimited right to control everything and every kind of activity in its territory. This means that it is not restricted by a constitution, by the laws of its predecessors, or by custom, and no areas of law or behavior are reserved as being outside its control. For example, parents are not guaranteed the right to decide some matters in the upbringing of their children independently of the sovereign power, municipalities are not guaranteed freedom from its interference in some local matters, etc. Theorists have diverged over the necessity or desirability of absoluteness. Historically, it is doubtful whether a sovereign power has ever claimed complete absoluteness, let alone had the power to actually enforce it.^{[citation needed]}

[edit] Exclusivity

The key element of sovereignty in the legalistic sense is that of exclusivity of jurisdiction. Specifically, when a decision is made by a sovereign entity, it cannot generally be overruled by a higher authority, usually another state.

[edit] De jure and de facto

De jure, or legal, sovereignty is the theoretical right to exercise exclusive control over one's subjects.

De facto, or actual, sovereignty is concerned with whether control in fact exists. It can be approached in two ways:

1. Does the governing power have sufficient strength (police, etc.) to compel its subjects to obey it? (If so, a type of de facto sovereignty called coercive sovereignty exists.)
2. Are the subjects of the governing power in the habit of obeying it?

It is generally held that sovereignty requires not only the legal right to exercise power, but the actual exercise of such power. That is, "No de jure sovereignty without de facto sovereignty." In other words, neither claiming/being proclaimed Sovereign, nor merely exercising the power of a Sovereign is sufficient; sovereignty requires both elements.

[edit] Internal

Internal sovereignty is the relationship between a sovereign power and its own subjects. A central concern is legitimacy: by what right does a political body (or individual) exercise authority over its subjects? Possible answers include: by the divine right of kings or by social contract (popular sovereignty).

[edit] External

External sovereignty concerns the relationship between a sovereign power and other states. The United Kingdom uses the following criteria when deciding under what conditions other states recognise a political entity as having sovereignty over some territory, as an example of typical criteria used by state when deciding this:

“	"Sovereignty." A government which exercises de facto administrative control over a country and is not subordinate to any other government in that country is a foreign sovereign state.	”
	— (The Arantzazu Mendi, [1939] A.C. 256), Strouds Judicial Dictionary

External sovereignty is connected with questions of international law, such as: when, if ever, is intervention by one country onto another's territory permissible?

Following the Thirty Years' War, a European religious conflict that embroiled much of the continent, the Peace of Westphalia in 1648 established the notion of territorial sovereignty as a doctrine of noninterference in the affairs of other nations, so-called Westphalian sovereignty. This resulted as a natural extension of the principle of cuius regio, eius religio (Whose realm, his religion), leaving the Roman Catholic Church with little ability to interfere with the internal affairs of many European states.

In international law, sovereignty means that a government possesses full control over its own 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 de jure and de facto sovereignty exist at the place and time of concern, and rest in the same organization. Foreign governments recognize the sovereignty of a state over a territory, or refuse to do so.

For instance, in theory, both the People's Republic of China and the Republic of China considered themselves sovereign governments over the whole territory of mainland China and Taiwan. Though some foreign governments recognize the Republic of China as the valid state, most now recognize the People's Republic of China. However, de facto, the People's Republic of China has jurisdiction only over mainland China but not Taiwan, while the Republic of China has jurisdiction only over Taiwan and some outlying islands but not mainland China. Since ambassadors are only exchanged between sovereign high parties, the countries recognizing the People's Republic often entertain de facto but not de jure diplomatic relationships with the Republic by maintaining "offices of representation", such as the American Institute in Taiwan, rather than embassies there.

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 Holy See was in this position between the annexation in 1870 of the Papal States by Italy and the signing of the Lateran Treaties in 1929, when it was recognised as sovereign by many (mostly Roman Catholic) states despite possessing no territory – a situation resolved when the Lateran Treaties granted the Holy See sovereignty over the Vatican City. Another case, sui generis, though often contested, is the Sovereign Military Order of Malta, the third sovereign mini-state based in an enclave in the Italian capital (since in 1869 the Palazzo di Malta and the Villa Malta receive extraterritorial rights, in this way becoming the only "sovereign" territorial possessions of the modern Order), which is the last existing heir to one of several once militarily significant, crusader states of sovereign military orders. In 1607 its Grand masters were also made Reichsfürst (princes of the Holy Roman Empire) by the Holy Roman Emperor, granting them seats in the Reichstag, at the time the closest permanent equivalent to a UN-type general assembly; confirmed 1620). These sovereign rights never deposed, only the territories were lost. 100 modern states still maintain full diplomatic relations with the order^[7] (now de facto "the most prestigious service club"), and the UN awarded it observer status. Another case is also the International Committee of the Red Cross.

Similarly, the governments-in-exile of many European states (for instance, Norway, Netherlands or Czechoslovakia) during the Second World War were regarded as sovereign despite their territories being under foreign occupation; their governance resumed as soon as the occupation had ended. The government of Kuwait was in a similar situation vis-à-vis the Iraqi occupation of its country during 1990-1991.

[edit] Shared

Just like the office of Head of state (whether sovereignty is vested in it or not) 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 forms of a condominium or of (as still in Andorra) a co-principality.

[edit] Tribal

[edit] Nation-states

Nations, claiming the right of self-determination, often establish sovereign states for themselves, thus creating nation-states. An aspiring nation-state must have sovereignty recognized by other nation-states in order to become one.

[edit] Federations

This section requires expansion.

In federal systems of government, sovereignty also refers to powers which a state government possesses independently of the national government. Whether state sovereignty is superior to the sovereignty of the national government or vice versa determines whether the country is considered a federation (such as the United States) or a confederation (such as Switzerland). Controversy over states' rights ultimately contributed to the start of the American Civil War.

[edit] Acquisition

A number of methods of acquisition of sovereignty are presently or have historically been recognised by international law as lawful methods by which a state may acquire sovereignty over territory.

[edit] Justifications

There exist vastly differing views on the moral basis of sovereignty. A fundamental polarity is between theories that assert that sovereignty is vested directly in the sovereign by divine right or natural right, and theories that assert it is vested in the people. In the latter case there is a further division into those that assert that the people transfer their sovereignty to the sovereign (Hobbes), and those that assert that the people retain their sovereignty (Rousseau).

• Democracy is based on the concept of popular sovereignty. Representative democracies permit (against Rousseau's thought) a transfer of the exercise of sovereignty from the people to the parliament or the government. Parliamentary sovereignty refers to a representative democracy where the Parliament is, ultimately, the source of sovereignty, and not the executive power.
• The republican form of government acknowledges that the sovereign power is founded in the people, individually, not in the collective or whole body of free citizens, as in a democratic form. Thus no majority can deprive a minority of their sovereign rights and powers.
• Absolute monarchies are typically based on belief in the divine right of kings or the equivalent Chinese concept of the Mandate of Heaven.

[edit] Views on

• Realists view sovereignty as being untouchable and as guaranteed to legitimate nation-states.
• 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.
• Internationalists believe that sovereignty is outdated and an unnecessary obstacle to achieving peace, in line with their belief of a 'global community'. Supporting this is their belief that the concept of nation-states, based on the Treaty of Westphalia, is also outdated and should be abolished.
• Anarchists and some libertarians deny the sovereignty of states and governments. Anarchists often argue for a specific individual kind of sovereignty, such as the Anarch as a sovereign individual. Salvador Dalí, for instance, talked of "anarcho-monarchist" (as usual for him, tongue in cheek); Antonin Artaud of Heliogabalus: Or, The Crowned Anarchist; Max Stirner of The Ego and Its Own; Georges Bataille and Jacques Derrida of a kind of "antisovereignty". Therefore, anarchists join a classical conception of the individual as sovereign of himself, which forms the basis of political consciousness. The unified consciousness is sovereignty over one's own body, as Nietzsche demonstrated (see also Pierre Klossowski's book on Nietzsche and the Vicious Circle). See also 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 or 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.

[edit] Relation to rule of law

Another topic is whether the law is held to be sovereign, that is, whether it is above political or other interference. Sovereign law constitutes a true state of law, meaning the letter of the law (if constitutionally correct) is applicable and enforceable, even when against the political will of the nation, as long as not formally changed following the constitutional procedure. Strictly speaking, any deviation from this principle constitutes a revolution or a coup d'état, regardless of the intentions.

[edit] Sovereign as a title

In some cases, the title sovereign is not just a generic term, but an actual (part of the) formal style of a Head of state.

Thus from 22 June 1934, to 29 May 1953, (the title "Emperor of India" was dropped as of 15 August 1947, by retroactive proclamation dated 22 June 1948), the King of South Africa was styled in the Dominion of South Africa: "By the Grace of God, of Great Britain, Ireland and of the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India and Sovereign in and over the Union of South Africa." Upon the accession of Elizabeth II to the Throne of South Africa in 1952, the title was changed to Queen of South Africa and Her other Realms and Territories, Head of the Commonwealth, parallel to the style used in almost all the other Commonwealth realms. The pope holds ex officio the title "Sovereign of the Vatican City State" in respect to Vatican City.

The adjective form can also be used in a Monarch's full style, as in pre-imperial Russia, 16 January 1547 – 22 November 1721: Bozhiyeyu Milostiyu Velikiy/Velikaya Gosudar'/Gosudarynya Tsar'/Tsaritsa i Velikiy/Velikaya Knyaz'/Knyaginya N.N. vseya Rossiy Samodyerzhets "By the Grace of God Great Sovereign Tsar/Tsarina and Grand Prince/Princess, N.N., of All Russia, Autocrat"

[edit] See also

• Basileus
• Neo-medievalism
• Plenary authority
• Souverainism
• Sovereigntist
• Suzerainty

[edit] Footnotes

[edit] References

This article incorporates text from the Catholic Encyclopedia of 1913, a publication now in the public domain.

• The Changing Character of Sovereignty in International Law and International Relations by Winston P. Nagan and Craig Hammer of the Levine College of Law, University of Florida
• Etymology OnLine
• Stanford Encyclopedia of Philosophy entry
• The Extinction of Nation-States
• Protection of national sovereign rights under international law
• WorldStatesmen
• Electronic leviathan
• Catalan bid for 'sovereignty', BBC NEWS
• The Jacobs Elements of Sovereignty
• Sourcebooks
• Transformation of Sovereignty and Globalization by Leonid Grinin.

[edit] External links

Look up sovereignty in Wiktionary, the free dictionary.

• A Brief Primer on International Law
• Official United Nations website
• Official UN website on International Law