Sovereignty

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Sovereignty is the exclusive right to exercise supreme political (e.g. legislative, judicial, and/or executive) authority over a geographic region, group of people, or oneself. A sovereign is the supreme lawmaking authority, subject to no other. Thus the legal maxim, There is no law without a sovereign.

1 Notion
2 A brief history of the concept of sovereignty
3 Different views of sovereignties
4 Territorial sovereignty
5 Sovereignty in international law
6 Sovereignty and federalism
7 Miscellaneous
8 Sovereign as a title
9 See also
10 Sources and external links

[edit] Notion

The source or justification of sovereignty ("by God" or "by people") must be distinguished from its exercise by branches of government. In democratic states, sovereignty is held by the people. This is known as popular sovereignty; it may be exercised directly, as in a popular assembly, or, more commonly, indirectly through the election of representatives to government. This is known as a representative democracy, a system of government currently used in most western nations and former colonies. Popular sovereignty also exists in other forms, such as in constitutional monarchies, usually identical in political reality as in the United Kingdom and Commonwealth realms. Systems of representative democracy can also be mixed with other methods of government, for instance the use of referendums in many countries.

In another model, national sovereignty is of an eternal origin, such as nature, or a god, legitimating the divine right of kings in absolute monarchies or a theocracy.

A more formal distinction is whether the law is held to be sovereign, which constitutes a true state of law: 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.

In constitutional and international law, the concept of sovereignty also pertains to a government possessing full control over its own affairs within a territorial or geographical area or limit, and in certain context to various organs (such as courts of law) possessing legal jurisdiction in their own chief, rather than by mandate or under supervision. Determining whether a specific entity is sovereign is not an exact science, but often a matter of diplomatic dispute.

[edit] A brief history of the concept of sovereignty

Basileus is the Greek concept for "Sovereign", which designs who has the auctoritas, which is to be distinguished from simple imperium, retained by archons (or "magistrates").

Jean Bodin (1530-1596) is considered to be the modern initiator of the concept of sovereignty, with his 1576 treatise Six Books on the Republic which described the sovereign as a ruler beyond human law and subject only to the divine or natural law. He thus predefined the scope of the divine right of kings, stating "Sovereignty is a Republic's absolute and perpetual power". Sovereignty is absolute, thus indivisible, but not without any limits: it exercises itself only in the public sphere, not in the private sphere. It is perpetual, because it does not expire with its holder (as auctoritas does). In other words, sovereignty is no one's property: by essence, it is inalienable.

These characteristics 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, which only differs in that he consider 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. Machiavelli, Hobbes, Locke and Montesquieu are also key figures in the unfolding of the concept of sovereignty.

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 an "anti-sovereignty", also inspired many thinkers, such as Jacques Derrida, Agamben or Jean-Luc Nancy.

[edit] Different views of sovereignties

There exist vastly differing views on the moral bases of sovereignty. These views translate into various bases for legal systems:

Partisans of the divine right of kings argue that the monarch is sovereign by divine right, and not by the agreement of the people. Taken to its conclusion, this may translate into a system of absolute monarchy.
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.
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.
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, 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 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 and Sovereignty of the individual.
Some supporters of democratic globalization consider that nation-states should yield some of their power to a world government controlled by world citizens instead of being organized as now in an intergovernmental basis.

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. Further, it is generally held that another legal element of sovereignty requires not only the legal right to exercise power, but the actual exercise of such power. ("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] Territorial sovereignty

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

[edit] Sovereignty in international law

In international law, sovereignty is the legitimate exercise of power by a state. De jure sovereignty is the legal right to do so; de facto sovereignty is the ability in fact to do so (which becomes 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 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 exercises sovereign power over mainland China but not Taiwan, while the Republic of China exercises its effective administration 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 Taiwan by maintaining 'offices of representation', such as the American Institute in Taiwan, rather than embassies there.

The autonomous province of Kosovo in Serbia provides a somewhat similar example, where the government of Serbia remains the de jure sovereign power but the United Nations has exercised de facto control since 1999. The province is still recognized as part of Serbia, though the Serbian government has no practical authority on the ground.

The same principle applies to internationally unrecognized separatist states such as Abkhazia in Georgia and Transnistria in Moldova. All are treated in international law as territory subject to the authority of the internationally recognized national government, even where that government has no de facto control of the territory.

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. The Sovereign Military Order of Malta is likewise a non-territorial body that claims to be a sovereign entity, though it is not universally recognized as such.

Similarly, the governments-in-exile of many European states (for instance, Norway and the Netherlands) 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-á-vis the Iraqi occupation of its country during 1990-1991.

[edit] Sovereignty and federalism

In federal systems of government, such as that of the United States, sovereignty also refers to powers which a state government possesses independently of the federal government, this is called "clipped sovereignty."

The question whether the individual states, particularly the so-called 'Confederate States' of the American Union remained sovereign became a matter of debate in the USA, especially in its first century of existence:

According to the theory of Thomas Jefferson, James Madison and John C. Calhoun, the states had entered into an agreement from which they might withdraw if other parties broke the terms of agreement, and they remained sovereign. These individuals contributed to the theoretical basis for acts of secession, as occurred just before the American Civil War. However, they propounded this as part of a general theory of "nullification," in which a state had the right to refuse to accept any Federal law that it found to be unconstitutional (this pre-dated the concept of judicial review). These self-same southern states accepted that non-slave states had such nullificatory rights, but protested that the Federal government enforce the Fugitive Slave Act over any state's attempt to nullify it-- but only by sanction, never by military force. However the premises of the Act was explicit in the Constitution under Article IV, Section 2, which required that all prisoners or slaves who escaped into other states, must be returned to their state of origin. Some states argued that, in addition to violating the rights of the alleged slave, because the Constiution provided for no mechanism of enforcement by the federal government, it was reserved to the states,

Likewise, according to the theory put forth by James Madison in the Federalist Papers "each State, in ratifying the Constitution, was to be considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution [was to be] a federal, and not a national constitution." In the end, Madison likewise compromised with the Anti-federalists to modify the Constitution to protect state sovereignty: At the 1787 constitutional convention a proposal was made to allow the federal government to suppress a seceding state. James Madison rejected it saying, "A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."^{[citation needed]}

During the first half-century after the Constitution was ratified, the right of secession was asserted on several occasions, and various states considered secession (including, for example, the New England states during the War of 1812; in response, not a single state objected on the grounds that such was unlawful. It was not until later, c. 1830, that Andrew Jackson, Joseph Story, Daniel Webster and others began to publish the theory that secession was illegal, and that the United States was a supremely sovereign nation over the various member-states. These writers inspired Lincoln's later declaration that "no state may lawfully get out of the Union by its own mere motion", based on the premise that "the Union is older than the Constitution."

Modern legal scholars, however concur with Madison's initial claims that the states ratified the Constitution acting in the capacity of sovereign nations.

[edit] Miscellaneous

Tribal sovereignty refers to the right of tribes or of federally recognized Native American nations to exercise limited jurisdiction within and sometimes beyond reservation boundaries.
In some regions of the world, such as Quebec and Indian Kashmir, the word "sovereignty" has become the preferred synonym for national independence (referring in this case to "national sovereignty" or the right of national self-determination, as explicited by example in US President Wilson's Fourteen Points - 1918). Compare the Māori term rangatiratanga, and the concept of self-determination.
The Holy See is recognized as sovereign subject under international law (separate entity in international law vis-à-vis Vatican City, which has a very small amount of territory enclaved in the Italian capital Rome).
A 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 by the Holy Roman Emperor Reichsfürst ('prince of the Holy Roman Empire', granting a seat in the Reichstag or Imperial Diet, at the time the closest permanent equivalent to a UN-type general assembly; confirmed 1620), the sovereign rights never deposed, only the territories lost; several modern states still maintain full diplomatic relations (94) with the order (now de facto 'the most prestigious service club'), and the UN awarded it observer status.
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] Sovereign as a title

In rare 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 British Monarch 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", only thereafter (to 31 May 1961) "Queen of South Africa and Her other Realms and Territories, Head of the Commonwealth" parallel to the style in most commonwealth realms.

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"