Sovereignty

' Leviathan, depicting the Sovereign as a massive body wielding a sword and crozier and composed of many individual people.]]

Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. 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 is often traced back to 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 the supreme lawmaking authority within its jurisdiction.

History

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

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.

Medieval

Sovereignty existed during the Medieval Period as the de jure rights of nobility and royalty, and in the de facto 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.

A later English Arthurian romance, The Wedding of Sir Gawain and Dame Ragnell (c. 1450), 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.

{{bquote|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)| 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."

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.

Definition and types

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 (absolutely) 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.

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.

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: # 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.) # 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.

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).

External

External sovereignty concerns the relationship between a sovereign power and other states. The United Kingdom uses the following criterion (as an example of typical criteria) 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 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 norm of noninterference in the affairs of other nations, so-called Westphalian sovereignty, even though the actual treaty itself reaffirmed the multiple levels of 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.

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 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 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 (now de facto "the most prestigious service club"), and the UN awarded it observer status.

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.

Another similar case is the International Committee of the Red Cross, a private association registered in Switzerland enjoying various degrees of special privileges and legal immunities in many countries, that in cases like Switzerland are considerable, and described as amounting to de facto sovereignty, but it is not a sovereign entity.

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.

Tribal

Nation-states

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

Federations

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 confederation or a federation (such as the United States). Controversy over states' rights ultimately contributed to the start of the American Civil War.

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.

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.

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'. 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.

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.

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.

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"

See also

* Air sovereignty

Basileus

Electronic leviathan

Neo-medievalism

Plenary authority

Souverainism

Sovereigntist

Suzerainty

References

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Further reading

Category:Constitutional state types Category:Emergency laws Category:Heads of state Category:International law Category:International relations Category:Monarchy Category:Philosophy of law Category:Political philosophy