Sovereignty

From Open Encyclopedia

Sovereignty (French souveraineté, from medieval latin superanus which derives from classical Latin superus "superior" or "overness"; and from the Greek concept Basileus) is the exclusive right to exercise supreme political (legislative, judicial and/or executive) authority over a geographic region, group of people or oneself.

The source or origins of sovereignty (God or the people) must be distinguished from its exercise by branches of government. In democracies, sovereignty is held by the people, which may exercise it directly, as in a popular assembly, but it is usually exercised by the constitutional delegation to institutions constituting the legislative and/or the executive power in all representative democracies, including constitutional monarchies, or mixed, by intermittent use of the referendum. In another model, sovereignty is of an eternal origin, such as nature, or 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.

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

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A brief history of the concept of sovereignty

Basileus is the Greek concept for "Sovereign", which designs whom detains the auctoritas, which is to be distinguished from simple imperium, detained 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 that : "Sovereignty is a Republic's absolute and perpetual power". Sovereingty 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 doesn't expire with its holder (as auctoritas). In other words, sovereignty is no one's property: by essence, it is inalienable.

These characters 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 on that the people is 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 of the unfolding of the concept of sovereignty.

Carl Schmitt (1888-1985) would then define 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 disjointed of 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.

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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. This, pushed to its conclusion, may translate into a system of absolute monarchy.
Democracy is based on the concept of popular sovereignty. Representative democracies permit (against Rousseau's thought) a transfer of the exercice of sovereignty from the people to the parliament or the government. Parliamentary sovereignty refers to a representative democracy where the Parliament is, ultimately, the detenter of sovereignty, and not the executive power.
Anarchists and some libertarians deny the sovereignty of states and governments. Anarchists often argued for a specific individual kind of sovereignty. Salvador Dali, for instance, talked of "anarcho-monarchist"; Antonin Artaud of Heliogabalus (Elagabalus) : Or, The Crowned Anarchist; Max Stirner of The Ego and its Own; Georges Bataille of a kind of "antisovereignty", as did Jacques Derrida put it. 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 did Nietzsche demonstrated (see also Pierre Klossowski's book on Nietzsche and the Vicious Circle).
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.

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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 posession of sovereignty from the sovereign ruler to the nation and its people.

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Sovereignty in international law

In international law, sovereignty is the 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, while the Republic of China exercises its effective administration over Taiwan. 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.

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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.

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 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. Calhoun contributed to the theoretical basis for acts of secession, as occurred just before the American Civil War. However, Calhoun 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. These self-same southern states refused to accept that non-slave states had any such nullificatory right and insisted that the Federal government enforce the Fugitive Slave Act over any state's attempt to nullify it. However the premises of the Act was explicit in the Constitution, which required that all prisoners or slaves who escaped into other states, must be returned to their state of origin.
According to the theory expounded in the Federalist Party, 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 (Federalist No. 39).

During the first half-century after the Constitution was ratified, the right of secession was generally taken for granted, and various states considered secession several times. It was not until later, c. 1840, that activists such as Joseph Story and Daniel Webster began to publish the theory that secession was illegal, and that the United States was a supremely sovereign nation over the various member-states; such claims were based on revisions of actual history, such as claiming that the United States was declared as a single nation in originally separating from Great Britain. These writers likewise inspired Lincoln in his claim that "no state may lawfully get out of the Union by its own mere motion."

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Miscellaneous

Tribal sovereignty refers to the right of tribes or of federally recognized American Indian 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. Compare the Māori term rangatiratanga, and the concept of self-determination.

The Holy See is recognized as sovereign subjects under international law (separate entity in international law vis-à-vis Vatican City, which has a very small amount of territory).

The above are quotes from the 1911 Encyclopædia Britannica.

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 Holy Roman Empire, granting a seat in the Reichstag, at the time the closest permenent 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.

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Sovereign as a title

In rare cases, the title sovereign is not just a generic term, but the actual 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 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"

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