Concept of Sovereignty

Meaning of Sovereignty

What is Sovereignty?

• Sovereignty is regarded as an essential element of the state. 
• The term ‘Sovereignty’ derived from the Latin word ‘superanus’ meaning supreme.  
• In the present context, sovereignty refers to supremacy or supreme power of the state. 
• J.W. Garner, in his introduction to political science (1910), had defined sovereignty as that ‘characteristics of the state by virtue of which it cannot be legally bound except by its own will or limited by any other power than itself’. 
• All classical definitions of sovereignty focus on supremacy of the state in the legal sense. 
• The basic idea is that the sovereign – be it monarch, chief executive or an assembly – is able to declare law, issue commands and take political decisions. 
• Each sovereign state is equal to every other in international law. 

“International Law – A set of general principles and specific rules which are duly recognized by the members of the international law is primarily concerned with the regulation of their mutual relations, peaceful settlement of their disputes, and the rights of belligerent as well as neutral nations during the times of war.”

• The concept of sovereignty attributes supreme power to the will of the sovereign, it is by nature an absolute, unlimited and perpetual power. 

“Perpetual – Continuing for a long period of time without stopping.”

Historical Development

• Jean Bodin, a French writer of the 16th century, was the first to formulate the concept of sovereignty systematically. 
• In ancient days Aristotle had talked of supreme power located in different bodies according to the form of government, he had not given the idea of sovereignty because in his view, the power of the ruler or ruling body was restricted by law which existed above them. 
• Conditions in the Middle Ages were not favourable to the development of the concept of sovereignty because the emperor’s power was limited on the one side by the rights of the feudal lords and on the other side by the claims of the Pope to superior authority. 
• Towards the end of the medieval period a number of causes combined to create new political ideas.  
• The feudal nobles were weakened by the crusades and by their own quarrels. 
• Commerce and growth of towns destroyed their monopoly of wealth; new methods of warfare destroyed their military supremacy. Taking advantage of their weakness, the king increased his power and importance until he became supreme in the state. 
• The ruling monarchs of national states like England and France has achieved a degree of unification and centralization of authority never attained before, so that they freed themselves from control of Pope as well. 
• Thus, the ground has been prepared for the development of the theory of sovereignty. 
• Jean Bodin, who held Henry III, King of France, in highest esteem, became the chief exponent of this theory. 

Jean Bodin

• Jean Bodin (1530-96), the French philosopher, defined sovereignty as ‘the absolute and perpetual power of commanding in a state’, as the ‘supreme power over citizens and subjects unrestrained by law’. 
• Bodin places the sovereign above law. 
• The medieval world conceived law as part of the universal and eternal order. 
• Bodin treated the sovereign above law but not above duty and moral responsibility. He imposed two important limitations on the power of the sovereign: (a) firstly, there are some fundamental laws (such as, the salic law of France, which excludes females from dynastic succession); the sovereign could not lawfully abrogate such laws; and (b) Secondly, private property, being granted by the natural law or the law of nature, was inviolable; therefore, the sovereign could not tax his subjects without their consent.  

“Natural Law – A set of rules of good conduct which exist independently of conventional law. These are directly derived from nature which can be discovered through moral intuition and by the application of the human faculty of reasoning. Champions of natural law regard it as the source of all law as superior to any other law.” 

Hugo Grotius

• After about half a century of Bodin’s enunciation of the theory of sovereignty, Hugo Grotius (1583-1645), a Dutch jurist, widely known as the father of International Law, made an important contribution in sovereignty. 
• He brought out the implications of sovereignty of the state in the international sphere, I.e., independence from foreign control. 
• Thus, Grotius, like Bodin, attributed moral responsibility to sovereignty, but he extended it to the external sphere also. 
• In the second place, he made it clear that nations respected international law not because it curtailed their sovereignty, but because they voluntarily chose to do so, of their free consent.  
• In this way, Grotius introduced the idea of external sovereignty to the existing idea of internal sovereignty. 

Thomas Hobbes

• In the 17th century, Thomas Hobbes (1588-1679), an English political thinker, further developed the concept of sovereignty. As an exponent of the theory of the social contract, Hobbes argued that the state was the product of the will of the people. Sovereignty is an attribute of the state; its character is determined by the terms of the social contract. 
• Hobbes’s chief contribution to the theory of sovereignty consists in adding an element of legitimacy to authority of the sovereign, because he held: (a) that the sovereign is the product of the will of the people; and (b) that the sovereign enjoys his supreme authority for its functional value, that is by virtue of providing order, peace and security in place of anarchy and oppression. 
• John Locke (1632-1704), another English exponent of the theory of the social contract, did not concede absolute sovereignty of the state.  
• He thought that the supreme power in society was held by the people who came into existence before the formation of the state. 

Jean-Jacques Rousseau

• In the 18th century, Jean Jacques Rousseau (1712-78), the French exponent of the theory of the social contract, made an important contribution to the theory of sovereignty, by introducing the doctrine of popular sovereignty. 
• While Hobbes created a sovereign apart from people, Rousseau made the people themselves sovereign. 
• In his opinion, the social contract was concluded between the people in their individual capacity on the other hand, and the people in their corporate capacity. According to this line of argument, when people surrender their natural liberty in their individual capacity, sovereignty is retained by the people themselves in their corporate capacity, represented by the general will, while their actual will is subordinated to their real will. 
• Rousseau, therefore, suggested that sovereignty belongs to the people. 
• Rousseau believed that man’s freedom lies in obeying the dictates of the general will even if he feels constrained. That is why he quipped that ‘man can be forced to be free’. 

“General Will – According to Jean-Jaques Rousseau (1712-78), a French philosopher, the general will refers to the point of convergence of the real will of the people which embodies not only their common good but also everybody’s real and long-term good. Man realizes his freedom by submitting his particular will to the direction of the general will.” 

Jeremy Bentham

• Jeremy Bentham (1748-1832), the famous English Utilitarian, argued that sovereignty was not limited by law, but was subject to moral limitations. 

John Austin

• In the 19th century, the legal notion of sovereignty was brought to its logical conclusion by John Austin (1790-1859), an English jurist. He is regarded as the greatest exponent of the monistic theory of sovereignty. 
• In his Province of Jurisprudence Determined (1832), Austin observed: – “If a determinate human superior, not in the habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and that society (including the superior) is a society political and independent.” 
• Austin’s theory of sovereignty was influenced by the then prevailing condition in England. 
• Early Utilitarians sought to remove the anomalies of the common law by subordinating it to a superior law and the state could neither ignore nor abrogate that superior law.  
• Repudiating these arguments, Austin advanced his theory of positive law which expressed the will of the legal sovereign of the state and hence not bound by the dictates of natural law or any other superior law. 

“Positive Law – The law that expresses the will of the sovereign, and that is duly enacted by a legislative body and recognized by the judiciary. Positive law is binding on all those coming within its jurisdiction, and its violation is effectively met with punishment. Positive law is judged by its legal validity, and not by its conformity to morals, customs or conventions unless these are enshrined in the body of law itself.” 

• Austin does not declare the state as a ‘perfect embodiment of reason’ as the idealist theory had maintained. 

Characteristics of Sovereignty

Viewed as a purely legal concept, sovereignty may be identified by the following characteristics: 

1. Absoluteness 
2. Permanence 
3. Universality 
4. Inalienability 
5. Indivisibility 

Absoluteness

• Jean Bodin, the first exponent of sovereignty, said: ‘Sovereignty is the absolute and perpetual power of commanding in a state’. 
• Sovereignty is regarded as absolute because it cannot be limited or restricted by any superior power or authority. 

Permanence

• Permanence of sovereignty is the corollary (result) of its absoluteness. 
• Bodin describes sovereignty as perpetual power because, ‘if power be held only for a certain time (it does not matter how long a time), it is not a sovereign power, and he who holds it for that time is not a sovereign. 
• To understand the permanence of sovereignty, it is necessary to understand the difference between state and government. Sovereignty belongs to the state. Government may be formed and dissolved but the state will not be affected by such changes. 
• On the other hand, if a state loses its independence and is placed under the suzerainty of another state, its sovereignty is also lost. 

Universality

• Sovereignty is a universal, all-pervasive or all-comprehensive quality in the sense that it extends to all individuals, groups, areas and things within the jurisdiction of the state. 
• International associations and multinational corporations operating within the territories of different states are also subject to the sovereignty of the respective states. 

Inalienability

• As an essential element of the state, sovereignty cannot be transferred or given away without destroying the state itself. 
• As Lieber has put it: “Sovereignty can no more be alienated than a tree can alienate its right to sprout, or a man can transfer his life and personality without self-destruction.” 
• When a state cedes its portion of territory to another state, the ceding state is not wholly destroyed. But from the point of view of the ceded portion, the original state no longer exists, and sovereignty of a new state comes into existence. This also proves that the sovereignty of a state over any area is not transferred but replaced by the another state. 

Indivisibility

• As sovereignty is an absolute power, it cannot be divided between or shared by different sets of individuals or groups.  
• In every state, sovereignty must be vested in a single body, legally competent to issue the final commands. 
• The principle of the federal state is usually cited as an exception to this characteristics of sovereignty.  
• Federalism involves the allocation of powers between the federal (central or union) government and state government which are regarded as independent and coordinate in their respective spheres. 
• A.L. Lowell, an American writer, argued that there can exist within the same territories two sovereigns issuing commands to the same subjects touching different matters. 
• This paradox can be resolved by making a distinction between ‘sovereignty’ and ‘power’ in the legal sense. Power emanates from sovereignty. Sovereignty vests in the state; power is assigned to the government. Sovereignty is supposed to be exercised by the state; power is exercised by the different organs of government – legislative, executive and judicial.