Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory.[1] 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. In theoretical terms, the idea of "sovereignty", historically, from Socrates to Thomas Hobbes, has always necessitated a moral imperative on the entity exercising it.
For centuries past, the idea that a state could be sovereign was always connected to its ability to guarantee the best interests of its own citizens. Thus, if a state could not act in the best interests of its own citizens, it could not be thought of as a “sovereign” state.[2]
The concept of sovereignty has been discussed, debated and questioned throughout history, from the time of the Romans through to the present day. 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 Peace of Westphalia (1648), which, in relation to states, codified the basic principles:
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Different cultures and governments have, understandably, had different ideas about sovereignty.
The Roman jurist Ulpian observed that:
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. "sovereignty." Encyclopædia Britannica. Encyclopædia Britannica Online Academic Edition. Encyclopædia Britannica, 2011. Web. 05 Oct. 2011. <http://www.britannica.com/EBchecked/topic/557065/sovereignty>.
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.[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]
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 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: "sovereignty." Encyclopædia Britannica. Encyclopædia Britannica Online Academic Edition. Encyclopædia Britannica, 2011. Web. 05 Oct. 2011. <http://www.britannica.com/EBchecked/topic/557065/sovereignty>.
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.
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:
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."[6]
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.
| “ | 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. | ” |
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— Lassa Oppenheim, an authority on international law[7]
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An important factor of sovereignty is its degree of absoluteness. 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. 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, or actual, sovereignty is concerned with whether control in fact exists. 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 predominately by military or police force it is considered coercive sovereignty.
It is generally held that sovereignty requires not only the legal right to exercise power, but the actual exercise of such power. Thus, de jure sovereignty without de facto sovereignty has limited recognition.
Internal sovereignty is the relationship between a sovereign power and its own subjects. 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).
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.[8] 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 in relation to keeping order and peace. When you have weak internal sovereignty organization such as rebel groups will undermined the authority and disrupt the peace. The presence of a strong authority allows you to keep 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.[9] 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.[10] 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. It has been said that a more decentralized authority would be more efficient in keeping peace because the deal must please not only the leadership but also the opposition group. While the operations and affairs within a state are relative to the level of sovereignty within that state, there is still an argument between 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 believe 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 or monarch is Louis XIV of France during the seventeenth century; Louis XIV claimed that he was the state. Jean-Jacques Rousseau rejected monarchial 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.[11]
Modern Internal Sovereignty: Within the modern governmental system you usually find internal sovereignty in states that have public sovereignty and rarely find it within a state controlled by an internal sovereign. A form of government that is a little different from both is the UK parliament system. From 1790-1859 it was argued that sovereignty in the UK was vested neither in the Crown nor in the people but in the "Monarch in Parliament". 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 USA, Canada, Australia and India where government is divided into different levels.[12]
External sovereignty concerns the relationship between a 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 is a foreign sovereign state. | ” |
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— (The Arantzazu Mendi, [1939] A.C. 256), Strouds Judicial Dictionary
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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.[13]
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 effected by a decision of the General Assembly upon the recommendation of the Security Council."[14]
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[15] (now de facto "the most prestigious service club"), and the UN awarded it observer status.[16]
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.
Commonly mistaken to be sovereign, the International Committee of the Red Cross, having been granted various degrees of special privileges and legal immunities in many countries, that in cases like Switzerland are considerable,[17] which are described as amounting to de facto sovereignty, is a private organisation governed by Swiss law.[18]
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 forms of a condominium or a co-principality (e.g. Andorra).
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, but in a federation member states or republics do not hold that right.
Controversy over states' rights contributed to the outbreak of the American Civil War. Eleven southern states in which slavery was legal declared their independence from the United States and formed the Confederate States of America. The position of the United States government was that this act was unconstitutional and that secession was not a right that the states possessed, and thus that the states were not sovereign entities.
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.
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 or natural right, and theories that assert it originates from 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).
Absolute monarchies are typically based on concepts such as the divine right of kings in Europe or the mandate of Heaven in China.
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.[19][20] A common modern definition of a republic is a government having a head of state who is not a monarch.[21][22]
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 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 and not the executive power nor the judiciary.
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.
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"