Sovereignty

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.

Ulpian's statements were known in medieval Europe, but sovereignty was 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.[4] Sovereignty existed during the Medieval period as the de jure rights of nobility and royalty.[21]

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 nation state was emerging. Jean Bodin, partly in reaction to the chaos of the French wars of religion, presented theories of sovereignty calling for a strong central authority in the form of absolute monarchy. In his 1576 treatise Les 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:[4]

• 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 (ie. 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. 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.

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:[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 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 regarding 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.[24][25]

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]

Today, no state is sovereign in the sense they were prior to the Second World War.[30] Transnational governance agreements and institutions, the globalized economy,[31] and pooled sovereignty unions such as the European union have eroded the sovereignty of traditional states. The centuries long movement which developed a global system of sovereign states came to an end when the excesses of World War II made it clear to nations that some curtailment of the rights of sovereign states was necessary if future cruelties and injustices were to be prevented.[32][33] In the years immediately prior to the war, National Socialist theorist Carl Schmitt argued that sovereignty had supremacy over constitutional and international constraints arguing that states as sovereigns couldn't be judged and punished.[34] After the Holocaust, the vast majority of states rejected the prior Westphalian permissiveness towards such supremacist power based sovereignty formulations and signed the Universal Declaration of Human Rights in 1948. It was the first step towards circumscription of the powers of sovereign nations, soon followed by the Genocide Convention which legally required nations to punish genocide. Based on these and similar human rights agreements, beginning in 1990 there was a practical expression of this circumscription when the Westphalian principle of non-intervention was no longer observed for cases where the United Nations or another international organization endorsed a political or military action. Previously, actions in Yugoslavia, Bosnia, Kosovo, Somalia, Rwanda, Haiti, Cambodia or Liberia would have been regarded as illegitimate interference in internal affairs. In 2005, the revision of the concept of sovereignty was made explicit with the Responsibility to Protect agreement endorsed by all member states of the United Nations. If a state fails this responsibility either by perpetrating massive injustice or being incapable of protecting its citizens, then outsiders may assume that responsibility despite prior norms forbidding such interference in a nation's sovereignty.[35]

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]

An important factor of sovereignty is its degree of absoluteness.[38][39] A sovereign power has absolute sovereignty when it is not restricted by a constitution, by the laws of its predecessors, or by custom, and no areas of law or policy are reserved as being outside its control. International law; policies and actions of neighboring states; cooperation and respect of the populace; means of enforcement; and resources to enact policy are factors that might limit sovereignty. For example, parents are not guaranteed the right to decide some matters in the upbringing of their children independent of societal regulation, and municipalities do not have unlimited jurisdiction in local matters, thus neither parents nor municipalities have absolute sovereignty. Theorists have diverged over the desirability of increased absoluteness.

A key element of sovereignty in a legalistic sense is that of exclusivity of jurisdiction. Specifically, the degree to which decisions made by a sovereign entity might be contradicted by another authority. Along these lines, the German sociologist Max Weber proposed that sovereignty is a community's monopoly on the legitimate use of force; and thus any group claiming the same right must either be brought under the yoke of the sovereign, proven illegitimate or otherwise contested and defeated for sovereignty to be genuine.[40] International law, competing branches of government, and authorities reserved for subordinate entities (such as federated states or republics) represent legal infringements on exclusivity. Social institutions such as religious bodies, corporations, and competing political parties might represent de facto infringements on exclusivity.

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.

State sovereignty is sometimes viewed synonymously with independence, however, sovereignty can be transferred as a legal right whereas independence cannot.[41] A state can achieve de facto independence long after acquiring sovereignty, such as in the case of Cambodia, Laos and Vietnam.[41] Additionally, independence can also be suspended when an entire region becomes subject to an occupation. For example, when Iraq was overrun by foreign forces in the Iraq War of 2003, Iraq had not been annexed by any country, so sovereignty over it had not been claimed by any foreign state (despite the facts on the ground). Alternatively, independence can be lost completely when sovereignty itself becomes the subject of dispute. The pre-World War II administrations of Latvia, Lithuania and Estonia maintained an exile existence (and considerable international recognition) whilst their territories were annexed by the Soviet Union and governed locally by their pro-Soviet functionaries. When in 1991 Latvia, Lithuania and Estonia re-enacted independence, it was done so on the basis of continuity directly from the pre-Soviet republics.[41][42]

Another complicated sovereignty scenario can arise when regime itself is the subject of dispute. In the case of Poland, the People's Republic of Poland which governed Poland from 1945 to 1989 is now seen to have been an illegal entity by the modern Polish administration. The post-1989 Polish state claims direct continuity from the Second Polish Republic which ended in 1939. For other reasons, however, Poland maintains its communist-era outline as opposed to its pre-World War II shape which included areas now in Belarus, Czech Republic, Lithuania, Slovakia and Ukraine but did not include some of its western regions that were then in Germany.

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 Republic of Kosovo or Somaliland (see List of states with limited recognition, but most of them are puppet states) since their governments neither answer to a bigger state nor is their governance subjected to supervision. The sovereignty (i.e. legal right to govern) however, is disputed in all three cases as the first entity is claimed by Serbia and the second by Somalia.

Internal sovereignty is the relationship between sovereign power and the political community. A central concern is legitimacy: by what right does a government exercise authority? Claims of legitimacy might refer to the divine right of kings, or to a social contract (i.e. popular sovereignty). Max Weber offered a first categorization of political authority and legitimacy with the categories of traditional, charismatic and legal-rational.

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]

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. John Austin argued that sovereignty in the UK was vested neither in the Crown nor in the people but in the "Queen-in-Parliament".[4] This is the origin of the doctrine of parliamentary sovereignty and is usually seen as the fundamental principle of the British constitution. With these principles of parliamentary sovereignty, majority control can gain access to unlimited constitutional authority, creating what has been called "elective dictatorship" or "modern autocracy". Public sovereignty in modern governments is a lot more common with examples like the US, Canada, Australia and India where the government is divided into different levels.[47]

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;

External sovereignty is connected with questions of international law – such as when, if ever, is intervention by one country into 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 norm of noninterference in the affairs of other states, so-called Westphalian sovereignty, even though the treaty itself reaffirmed the multiple levels of the sovereignty of the Holy Roman Empire. This resulted as a natural extension of the older 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. It is a myth, however, that the Treaties of Westphalia created a new European order of equal sovereign states.[48][49]

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. 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 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, a 59-year period during which 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 is the Sovereign Military Order of Malta, the third sovereign entity inside Italian territory (after San Marino and the Vatican City State) and the second inside 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 an UN-type general assembly; confirmed 1620. These sovereign rights were never deposed, only the territories were lost. Over 100 modern states maintain full diplomatic relations with the order,[51] and the UN awarded it observer status.[52]

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.[53] The government of Republic of China was recognized as sovereign over China from 1911 to 1971 despite that its mainland China territory became occupied by Communist Chinese forces since 1949. In 1971 it lost UN recognition to Chinese Communist-led People's Republic of China and its sovereign and political status as a state became disputed; therefore, it lost its ability to use "China" as its name and therefore became commonly known as Taiwan.

The International Committee of the Red Cross is commonly mistaken to be sovereign. It has been granted various degrees of special privileges and legal immunities in many countries, including Belgium, France, Switzerland,[54] Australia, Russia, South Korea, South Africa and the US, and soon in Ireland. The Committee is a private organisation governed by Swiss law.[55]

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.

A community of people who claim the right of self-determination based on a common ethnicity, history and culture might seek to establish sovereignty over a region, thus creating a nation-state. Such nations are sometimes recognised as autonomous areas rather than as fully sovereign, independent states.

In a federal system of government, sovereignty also refers to powers which a constituent state or republic possesses independently of the national government. In a confederation, constituent entities retain the right to withdraw from the national body and the union is often more temporary than a federation.[64]

Different interpretations of state sovereignty in the United States of America, as it related to the expansion of slavery and fugitive slave laws, led to the outbreak of the American Civil War. Depending on the particular issue, sometimes both northern and southern states justified their political positions by appealing to state sovereignty. Fearing that slavery would be threatened by results of the 1860 presidential election, eleven slave states declared their independence from the federal Union and formed a new confederation.[65] The United States government rejected the secessions as rebellion, declaring that secession from the Union by an individual state was unconstitutional, as the states were part of an indissoluble federation in perpetual union.[66]

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 On the Law of War and Peace (1625) by Hugo Grotius and The Law of Nations (1758) by Emmerich de Vattel. Binding international rules regarding the conduct of military occupation were more carefully codified in the 1907 Hague Convention (and accompanying Hague Regulations).

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."