Sovereignty

 

 

Sovereignty is the exclusive right to complete control over an area of governance, people, or oneself. A sovereign is the supreme lawmaking authority, subject to no other. Jean-Jacques Rousseau, in Book III, Chapter III of his 1763 treatise Of the Social Contract, argued that "the growth of the State giving the trustees of public authority more temptations 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" (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 source or justification of sovereignty ("by God" or "by people") must be distinguished from its exercise by branches of government. In democratic states, sovereignty is held by the citizenry. This is known as popular sovereignty; it may be exercised directly, as in a popular assembly, or, more commonly, indirectly through the election of representatives to government. This is known as a representative democracy, a system of government currently used in most western nations and former colonies. Popular sovereignty also exists in other forms, such as in constitutional monarchies, usually identical in political reality as in the Commonwealth realms. Systems of representative democracy can also be mixed with other methods of government, for instance the use of referenda in many countries .

 

In this model, national sovereignty is of an eternal origin, such as nature, or a 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 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.

 

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. Taken to its conclusion, this may translate into a system of absolute monarchy.

  • 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.

  • 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, 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.

  • 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.

 

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.

 

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

 

In international law, sovereignty is the legitimate exercise of power and the interpretation of international law 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 but not Taiwan, while the Republic of China exercises its effective administration 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 Taiwan by maintaining 'offices of representation', such as the American Institute in Taiwan, rather than embassies there.

 

The autonomous province of Kosovo in Serbia provides a somewhat similar example, where the government of Serbia remains the de jure sovereign power but the United Nations has exercised de facto control since 1999. The province is still recognized as part of Serbia, though the Serbian government has no practical authority on the ground.

 

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 recognized 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 and the Netherlands) 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-á-vis the Iraqi occupation of its country during 1990-1991.

 

This article is licensed under the der the GNU Free Documentation License. It uses material from the Wikipedia article "Sovereignty".

 

 

 

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