sovereignty


{{redirect|Sovereign}}Lassa Oppenheim, an authority on the subject of international law, explained that "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."(1)Sovereignty is the exclusive right to control a government, a country, a people, or oneself. A Sovereign is the supreme lawmaking authority.An important attribute of sovereignty is its degree of absoluteness. A sovereign power (whether an individual or an assembly such as a parliament) 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 behaviour are reserved as being outside its control; eg. 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. This last point raises, in passing, the important distinction between de jure and de facto sovereignty. 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: Another distinction is between external and internal sovereignty. External sovereignty concerns the relationship between a sovereign power and political bodies outside itself, such as other nation states. The central question is, under what conditions do nation states recognise a political entity as having sovereignty over some territory? The following criteria, used by Britain in regarding other powers, are typical:

"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?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 are, by divine right, by natural right, or — the consentual or contractarian hypothesis — that each of its subjects has actually or tacitly transferred to it that right.

History

Ideas about sovereignty have changed over time. 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.

Ulpian was expressing — although he did not use the term — the idea that the Emperor exercised a rather absolute form of sovereignty. 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 reemerged as a concept in the late 1500s, 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: 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 an 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 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(2)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.

Different Views

There exist vastly differing views on the moral bases of sovereignty. These views translate into various bases for legal systems: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). The European theorists of the 1500-1750 period generally insisted that sovereignty must be absolute, perpetual, and indivisible (or exclusive). Their definitions of absoluteness, however are not always the most stringent possible. Later theorists have often held that absoluteness may be considerably limited, for example by a constitution. The above points are treated more fully in the History section of this article. Related articles: Divine right of kings, Absolute monarchy.

• 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 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 and Sovereignty of the individual.
• 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.
• 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.

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.It is generally held that 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.In constitutional law, sovereignty may pertain in some contexts to various organs possessing legal jurisdiction in their own chief, rather than by mandate or under supervisionAnother 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.

External 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.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 organisation. 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. 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, 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.

Sovereignty and United States federalism

{{globalize}}{{POV|date=January 2008}}{{Citations missing|date=January 2008}}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 Confederate States of America, remained sovereign became a matter of debate in the U.S., especially in its first century of existence. This was not only one of the fundamental debates of the Civil War; the neo-Confederate movement and its opponents, along with debates over other secessionist and anti-federal political movements, have kept the controversy alive to the present day. Often overlooked in the heat of this battle is a highly relevant sentence from the original Constitution, Article VI, which states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Since federal law is supreme over state law (even over state constitutions), and since even state judges are required to strike down their states' laws if they conflict with federal law, it is clear that in ratifying the Constitution, the states gave up supreme sovereignty--unless the Constitution itself, or its ratification, is invalid. This doesn't mean states gave up all sovereignty. Congress' power to pass laws is limited by the Constitution, both by clauses specifically limiting its powers and by omission (Congress' lack of authorization to legislate beyond its enumerated powers). If Congress does legislate in a prohibited area, this legislation can be set aside by federal courts as unconstitutional, removing any barrier to conflicting state laws. In fact, the Tenth Amendment expressly guarantees that such areas remain within the realm of state sovereignty:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

However, 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. Some proponents of this doctrine also propounded 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, regardless of judicial review. 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." BOOK, Rives, William, History of the Life and Times of James Madison,weblink 2008, April, 2, 1866, In his Report on the Virginia Resolutions, James Madison wrote that, "The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.” Madison even made a dire prediction of what would happen if this was denied, stating that “If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared."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 Hartford Convention after the War of 1812) in response. Andrew Jackson, Joseph Story, Daniel Webster and others published 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 or the even states," in effect an assertion that the 1781 confederation had consolidated the states into a single nation.Opponents of Lincoln's claim argue that the states, in forming the union of the Constitution, each seceded from the prior Confederated union of 1781, thereafter nine of them joined in Constitutional union on June 21, 1788 – when New Hampshire became the ninth state to ratify the Constitution, thereby establishing it among those nine states as per Article VII; meanwhile other states refused to ratify until various conditions were met – including the addition of the Bill of Rights, ultimately ratifying by 1790. Therefore, their argument proceeds, both unions continued to exist in perpetuity between 1788 and 1790 (whereupon the final state of Rhode Island likewise joined the Constitutional union, thus ending the original confederated union. For this reason, the United States could not have been a single sovereign nation at any time prior to the Constitution, if ever.An update forwarded from the discussion page:

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 U.S. 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 (100) 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
• Thomas Hobbes wrote that Sovereignty was the very soul of the Leviathan.
• Christianity and more specifically the systematic theology of Calvinism asserts that God is sovereign in all things, including salvation.
• Baha'u'llah, founder of the Baha'i Faith, also commonly referred to the sovereignty of God.

An underdeveloped aspect of sovereignty is individual sovereignty, meaning the ability of individuals to have effective control over their everyday lives. While it may appear that individuals are bound by laws, jobs, obligations, and such on a daily basis; in reality the only true and pure sovereignty is individual sovereignty.

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

• Seigniorage, the sovereign power to issue money
• Basileus
• Rousseau's classic theory of popular sovereignty
• Carl Schmitt's theory of sovereignty as the power to decide the instauration of the state of exception (according to Giorgio Agamben, a response to Walter Benjamin's theorization of a "pure violence" unrelated with law)
• Choice can it be
• Colonization
• Constitutive theory of statehood
• Declarative theory of statehood
• Dictatorship
• Divine right of kings (Bodin, Hobbes, etc.)
• Leadership
• Montevideo Convention
• Neo-medievalism
• Non-intervention
• Pareto
• Parliamentary sovereignty
• Popular sovereignty
• Plenary authority
• Self-determination
• Self-ownership
• Social contract theories (Hobbes, Locke, Rousseau)
• State
• Sovereigntist
• Suzerainty
• Westphalian sovereignty
• Souverainism
• Sovereignty-association

References

1. 1 LASSA OPPENHEIM, INTERNATIONAL LAW 66 (Sir Arnold D. McNair ed., 4th ed. 1928)



2. Of the Social Contract, Book II, Chapter III.

• {{Catholic}}
• 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
• Catalan bid for 'sovereignty', BBC NEWS
• The Jacobs Elements of Sovereignty
• weblink George W. Bush: "Tribal sovereignty means that; it's sovereign. I mean you're a -- you've been given sovereignty, and you're viewed as a sovereign entity. And therefore the relationship between the federal government and tribes is one between sovereign entities." Washington, D.C., August 2004

External links

• A Brief Primer on International Law
• Official United Nations website
• Official UN website on International Law
• Official website of the International Court of Justice

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(...as imported from WP)

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