Blog

The concept of Sovereignty in International Law

Definition

Under current international law, sovereignty is defined as- “Sovereignty in the sense of contemporary public international law denotes the basic international legal status of a state that is not subject, within its territorial jurisdiction, to the governmental, executive, legislative, or judicial jurisdiction of a foreign state or to foreign law other than public international law[1] It is also defined as the ‘ultimate authority, held by a person or institution, against which there is no appeal’.[2] In other words, Sovereignty is the ultimate power, authority and/or jurisdiction over people and territory. No other person, group, tribe or state can tell a sovereign entity what to do with its land and/or people. A sovereign entity can decide and administer its own laws, can determine the use of its land and can do pretty much as it pleases, free of external influence (within the limitations of international law).

Origin and Evolution of the Sovereignty Concept

It is considered that the first known definition of sovereignty appears in Justinian's Digest in the following wording: “Liberi populus externus is qui nullius alterius populi potestatis est subiectus.[3]

In the Romanian specialized literature, the emergence of sovereignty is put into the equation along with the emergence of states. Grigore Geam?nu, for example, stated that sovereignty appears as an institution “from the moment the states begin to exist”. Another author considers similarly that “sovereignty appeared with state power, as a feature, under the conditions of the decomposition of gentile society and the creation of the state.[4]And in the foreign literature authors considered in the same sense, stating that the issue of sovereignty occurred when there were at least two states near one another, in an attempt to maintain independently of one another.[5] However, there are authors who believe that we can speak of sovereignty, broadly in terms of ancient Greek ancient state or the Roman State, considering that the name of the concept appeared only later on.[6]

P. Negulescu stated that the concept of sovereignty appears in the 15th century for designating the position of the king in the feudal hierarchy and it comes from Vulgar Latin, the preposition super (above), from which arose the adjective superanusand the noun supremitas, which means the situation a man who, in terms of hierarchy, has no one above him, he is not subordinated to anyone.[7]

In the Middle Ages the concept of sovereignty will record important developments. Jean Bodin, in his Les six livres de la Republique (1576)/Six books on the Republic (1576) defines sovereignty as summa potetas, which recognizes no other higher authority. In the conception of Bodin, sovereignty is absolute, perpetual, indivisible, inalienable and imprescriptible.[8] Jean Bodin believes that “sovereignty is the absolute and perpetual power of a Republic, which the Latins call majestatem/Majesty [...] Sovereignty is not limited, nor in power, nor in content, nor in time.[9]

The beginning of the modern era marks a change of system, after the peace treaties of Westphalia, ending the War of 30 years (1618-1648), in order to ensure the lasting peace in Europe, it is established that the main international actor is the State-nation, endowed with absolute sovereignty. This element will allow common approaches both from the representatives of jus-naturalism (especially Hugo Grotius) and of positivist doctrine in an attempt to clarify important notions in defining the concept of sovereignty relative to the principle of sovereign equality, an equal right recognized to all these international actors, for the non-interference in the internal policies of other states, for the territorial independence of states.

In the paper Der Kampf ums Recht (The struggle of Law), Jhering shows explicitly the right as a political force (Jhering 1991, p. 2), the object of struggle for collective interests and for power, the state is simply limited of only its will.[10] Any sovereignty is offensive, according to a Romanian author.[11]

The doctrine of the social contract and sovereignty of the people has been the basis of the first bourgeois constitutional acts. The end of the 18th century brought new developments in the concepts related to sovereignty. State sovereignty turns into national sovereignty, the attributes of sovereignty are transferred from the monarch to the nation and the people. The expression of this trend is illustrated eloquently by the American States Declaration of Independence (1776) and the Declaration of the Rights of Man and Citizen, and the constitutions of France during the revolution (1991-1793).[12]

Article 3 of the Declaration of the Rights of Man and Citizen expresses the idea of national sovereignty for the first time: “The source of all sovereignty resides essentially in the nation. Nobody, no individual can exercise authority that does not explicitly proceed from it”. The National sovereignty principle was taken by the French Constitution of 1791 stated in article 1 that sovereignty is indivisible, inalienable and imperceptible. Sovereignty belongs to the nation; no group of people, no individual may assume the exercise of sovereignty.

The 20th century will mark the evolution of the concept of sovereignty, the transition from classical senses considered more lenient interpretations, more flexible, with emphasis given by the interstate cooperation, of respecting the international obligations assumed by the States as international actors. In the first half of the 20th century, many authors already were talking about relative sovereignty of the state. Pasquale Fiore shows that a state can operate without the interference of other countries but within the limits set by international law. Furthermore, Jean Delvaux stated in 1935, that maintaining the principle of sovereignty is incompatible with the international law; on the contrary, with the limits set by international law, the sovereignty does no longer mean arbitrary power and without reservations.[13]

In the period after World War, it considerably develops negative conceptions of sovereignty, the motivation being that sovereignty in the classical sense made possible the abuse of power and the war. Some authors go so far as to challenge the legal personality of the state and therefore also its ability to have rights and obligations (Leon Duguit, Gaston Jeze, and others).

Depending on their political goals and the two major totalitarian systems of the 20th century, nationalism, socialism, and communism had a specific approach on sovereignty.[14]

We see that over time, the sovereignty was seen as incompatible with the international law, finding fundamental contradictions between his absolute character-building and the need of establishing the international legality. After 1945, with the adoption of relevant documents in this matter underlying the international legal order, it seems that they managed to reconcile the state sovereignty and ensuring the international legality.[15] The collaboration between states is achieved according to principles where respecting the sovereignty occupies an important place.[16] This principle is established among several international documents with universal value:

-       the UNO Declaration on the principles of international law concerning the friendly and cooperative relations between the States, Session XXV, 1970;

-       the CSCE Final Act of Helsinki, 1975;

-       Charter of the United Nations:

The United Nations Declaration of 1970, for example, stated that the main constitutive elements of sovereignty are the following: all states are equal in legal terms; each State enjoys the inherent rights in full sovereignty; every state has the right to freely choose and develop its political, social, economic and cultural system; every state has an obligation to respect the personality of other states; territorial integrity and political independence of the State are inviolable; each is required to discharge in full and in good faith its international obligations and to live in peace with others.

The principle of sovereign equality is present as the basis for cooperation of UN member states, under article 2, paragraph 1 of the Charter.

According to the Declaration of Helsinki, all states have the same rights and international obligations.

We note that by virtue of its sovereignty, the state has not only rights but also duties under the international law, which limits the potential for abuse of power, both internally and in international relations.

Under the sovereignty, any state benefits from: the right to international personality (the quality of a subject of international law); the right of the State of being respected the territorial integrity and the right to self-defense; the state's right to freely determine its political and social system, and to use its natural riches, to establish its system of economic, cultural and legislation; the state's right to freely conduct its relations with other states; State's right to participate in international conferences, to international organizations and international treaties; the state’s active and passive right of legation.

Correspondingly, there are the following obligations: to respect the sovereignty of other states; to respect the international personality of other states; to fulfill in good faith its international obligations.

The Issue of Sovereignty

State sovereignty is the concept that states are in complete and exclusive control of all the people and property within their territory. State sovereignty also includes the idea that all states are equal as states. In other words, despite their different land masses, population sizes, or financial capabilities, all states, ranging from tiny islands of Micronesia to vast expanse of Russia, have an equal right to function as a state and make decisions about what occurs within their own borders. Since all states are equal in this sense, one state does not have the right to interfere with the internal affairs of another state.

Practically, sovereignty means that one state cannot demand that another state take any particular internal action. For example, if Canada did not approve of a Brazilian plan to turn a large section of Brazil’s rainforest into an amusement park, the Canadian reaction is limited by Brazil’s sovereignty. Canada may meet with the Brazilian government to try to convince them to halt the project. Canada may bring the issue before the UN to survey the world’s opinion of the project. Canada may even make politically embarrassing public complaints in the world media. However, Canada cannot simply tell Brazil to stop the rainforest project and expect Brazil to obey.

Under the concept of state sovereignty, no state has the authority to tell another state how to control its internal affairs. Sovereignty both grants and limits power: it gives states complete control over their own territory while restricting the influence that states have on one another. In this example, sovereignty gives the power to Brazil to ultimately decide what to do with its rainforest resources and limits the power of Canada to impact this decision.

Globalization is changing this view of sovereignty, however. In the case of the Brazilian rainforest, Brazil may consider a rainforest located wholly within its property an issue solely of internal concern. Canada may claim that the world community has a valid claim on all limited rainforest resources, regardless of where the rainforest is located, especially in consideration of issues like endangered species and air pollution.

Similarly, states no longer view the treatment of citizens of one state as only the exclusive concern of that state. International human rights law is based on the idea that the entire global community is responsible for the rights of every individual.

International treaties, therefore, bind states to give their own citizens rights that are agreed on at a global level. In some cases, other countries can even monitor and enforce human rights treaties against a state for the treatment of the offending state’s own citizens.

Conclusion

It is considered a fundamental element of the existence of the state or the legitimate source of the authority within a state and even a “modern myth which was often violated in the international practice”,[17] the sovereign equality of states remains the binder that coordinates the other rules and principles of contemporary international law and it “directs and organizes peace structures as a whole, in the sense of maintaining and developing peaceful relations in the world”.[18] The concept of sovereignty has developed with states and evolution of international relations and it had to adapt to frequent challenges arising from different levels: sub-national, transnational, supranational and global.

 

[1] H Steinberger, ‘Sovereignty’, in Max Planck Institute for Comparative Public Law and International Law, Encyclopedia for Public International Law, vol 10 (North Holland, 1987) 414.

[2] World Encyclopedia (Oxford University Press, 2008) sovereignty.

[3] (Alexe, 2009, p. 152)

[4] (Moca, 1983, p. 123)

[5] (Korowicz, 1961, p. 43)

[6] (Aurescu, 2003, pp. 15-17)

[7] (Negulescu 1927, p. 95)

[8] (Alexe, 2009, pp. 152-153)

[9] (Jacobsen, 2000, pp. 179 -181)

[10]  (Alexe, 2009, p. 153)

[11] (Na?stasie, 2012, p. 49)

[12] (Miga-Bes?teliu, 1998, p. 85)

[13] (Aurescu, 2003, p. 60)

[14] (Alexe, 2009, p. 154)

[15] (Alexe, 2009, p. 154)

[16] (Vrabie, 1995, p. 72)

[17] (Nastase & M?tie?, p. 8)

[18] (Mazilu, 2001, p. 185)

Kumar Deepraj, Legal Associate, ASAV Attorneys & Advisors LLP, New Delhi