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Doctrine of Sovereignty in International Law

Introduction

The term “Sovereignty” is derived from the Latin word “Superanus,” which meaning “Supreme Power.” Sovereignty is a political notion referring to domineering power or absolute authority. The “sovereign,” or king, wields absolute power in a monarchy. Sovereign power in modern democracies is held by the people and exerted via representative entities such as Congress or Parliament. The Sovereign is the one who has absolute authority. It has been defined differently by various thinkers like, Bodin who has rightly defined sovereignty as ‘supreme power of the state over citizens and subjects unrestrained by law.’ Wilson defines Sovereignty as ‘the supreme will of the State.’ According to Austin, Sovereignty is an essential element of the state. So before understanding what sovereignty is we need to understand the meaning of the state.

What is State?

The word ‘State’ has been derived from the Latin language word ‘status’ which means ‘of the highest level.’ Hence state possesses the highest status as compared to other organizations.

Salmond’s definition of State: An association of human beings established for the attainment of certain ends by certain means. Aristotle defines state as a union of families and villages having for its end a perfect and self-sufficing life by which we mean a happy and honorable life.’

Holland defines State as A State is a numerous assemblage of human beings, generally occupying a certain territory amongst whom the will of the majority or of an ascertainable class of person is, by the strength of such majority or class made to prevail against any of their member who possesses it.

Garner defines state ‘as a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent or nearly so, of external control and possessing an organized government to which greater body of inhabitants render habitual obedience.’

According to Brierly, A State is an institution, that is to say, it is a system of relations which men establish among themselves as a means of securing certain objects, of which the most fundamental is a system of order within which their activities can be carried on.

The development of states has long been a source of curiosity. The Greeks previously organised city-states that were thought to have divine origins. Later, speculators who were unconvinced by the notion of divine origin of state explained the resurgent political society by the premise of an original contract theory, which Hugo Grotius completely approved.[1]

However, this theory was later proved to be superfluous and untenable by other thinkers. And so, the conflicting thoughts led to the emergence of various theories regarding the emergence of the State, as follows:

Divine Theory

The state, according to the Divine Theory, is a creature of God. This view gained favour in Europe throughout the Middle Ages due to the impact of Christianity, which held that the King was God’s representative and had divine authority to govern.

The Natural Theory

The Natural Theory, often known as Aristotle’s theory of the Formation of the State, proposes that man is a social being whose urge for sociability gave birth to the origin of the State. According to this idea, the role of the state is to promote the general welfare of its citizens. However, it makes no mention of the impact of numerous causes that contributed to the development of a state.

The Social Contract Theory

According to this theory, the State is the result of an agreement reached by the people living in that region. The participants agree to abide by the agreement reached via mutual consent.

The Patriarchal Theory

According to this view, the history of humanity demonstrates that primordial communities were tightly bound together by the connection of family. The family, not individuality, was the societal unit. The notion is mostly influenced by Henry Maine, who stated that the eldest member of the family was the family’s head and had total power over the other members of the family.

To put things into perspective, the State is essentially a politically structured organization that coordinates the actions of its members and protects their interests via the upkeep of people and the administration of justice. The following can be said to be the essential elements of the State.[2]

  • The term population refers to a large number of people living in a community.
  • Territory is a specified region of the earth’s surface where people live permanently. According to Harold Laski, “a State’s territories are the places over which it may exercise sovereignty.”
  • Government is defined as an institution that has the authority and capacity to wield authority and power over its people through laws and other legislation. The government is essentially the State’s agent.
  • Sovereignty, which shall be glossed over and discussed in this particular project.

Aspects of Sovereignty

There are two aspects of sovereignty- internal and external.

Internal Sovereignty – It means that the state is supreme or sovereign over all its people, associations, groups, organizations etc. within the area of its jurisdiction. Everybody has to abide by the laws of the state failing which they are liable to be punished.

External Sovereignty – It implies that the state is free from the control of any other state. It conducts an independent foreign policy. Acceptance of any obligations or restrictions on its freedom of action in international relations is done out of its own will and not as a compulsion.

Characteristics Of Sovereignty

The following characteristics clearly bring forward the nature[3]

1. Originality- sovereignty is inherent in the state and not derived by any external source.

2. Permanence- Sovereignty continues as long as the state exists.

3. Absoluteness – It is legally unlimited and cannot be overridden by any other agency

4. Exclusiveness- There is only one sovereign power in a state. As the proverb in English goes ‘that there cannot be two swords in a single sheath’, in the same manner there cannot be two sovereign heads in one state.

5. Imprescriptibly- Unlike the common principle that if a man does not possess a piece of land for a long time, his ownership ceases to exist, Sovereignty is indestructible. It cannot end in case the state is not using it on some part of its territory for some time.

6. Universality- the sovereignty of a state runs in a uniform manner over all its individuals, associations, groups etc and none is excluded from its jurisdiction.

7. Inalienability- Sovereignty cannot be alienated from a state just like a human soul cannot be separated from the body. Having done so, it calls for the death of both.

8. Liber- ‘Sovereignty can no more be alienated from a state than a tree can alienate its right to sprout or a man can transfer his life and personality without self-destruction.’

9. Indivisibility- The absoluteness and exclusiveness of Sovereignty also make it indivisible.

10. Calhon- Sovereignty is an entire thing. It is the supreme power of the state. We might just as won’t speak of half a square or half a triangle, as half of sovereignty.

Types Of Sovereignty

1. Titular/Nominal Sovereignty- Titular / Nominal Soverignty possesses powers in theory but in practice, the same are exercised by someone else. E.g.- British Monarch, Indian President etc.

2. Real sovereignty- It means ‘sovereignty actually exercised’. The authority that actually exercises the powers vested in it is the real sovereign. E.g.- American President, British Prime Minister and his council of ministers, Indian Prime Minister and his council of ministers.

3. Legal Sovereignty- It is the supreme law-making power in the state. This power can be vested in a person or body of persons. For e.g.- in a monarchical system, it is the monarch who is the legal sovereign whereas in a democratic system it is the Legislature which is the Legal Sovereign. It is absolute and unlimited. It is fixed and organized. People have to abide by the laws made by the Legal Sovereign

4. Political Sovereignty- Garner said, “Behind the legal sovereign there is another power, legally unknown, unorganized and incapable of expressing the will of the State. This is Political sovereign.” Gilchrist said, “Political Sovereign is the sum total of influences in a State which lie behind the Law.” It is not fixed and is unorganized. The legal Sovereign bows in front of the Political Sovereign. For e.g.- interest Groups, political parties, press, media etc.

5. Popular Sovereignty- It is the ideological foundation of Democracy It is the people in entirety who are the popular sovereign The doctrine of popular sovereignty is a product of 16th and 17th centuries as a reaction to Absolute Monarchy. The doctrine received full recognition in the writings of Rousseau when he talked about General Will being Sovereign.

6. De-Jure Sovereignty- is the one who possesses legal claim to Sovereignty. The De-Jure sovereign has full authority to issue commands in the form of laws and make people obey the same. But a situation might arise where the people do not pay heed to the command of the De-Jure Sovereign and abide by some other authority

7. De-Facto Sovereignty- A situation might arise where the people do not pay heed to the command of the De-Jure Sovereign and abide by some other authority. This happens due to some internal revolution or external attack. Under such circumstances a person can establish his control over the people resulting in the ineffectiveness of the sovereignty of the de-jure sovereign. The basis of his rule is ‘power’ and not ‘law’. This is the de-facto sovereign i.e., the one who has no legal claim over sovereignty but is still able to command obedience from the people and make his will prevail.

8. Lord Bryce- The person or body of persons who can make his will or their will prevail whether with the law or against the law, he or they are the De-Facto ruler, the person to whom obedience is actually paid.

Relationship Between De-jure & De-facto Sovereign

Since exclusivity of sovereignty is an accepted fact, the existence of two sovereigns can lead to chaos and anarchy. Hence the de-facto sovereign tries to assume the de-jure status as soon as possible in order to secure his position. History bears a testimony to this fact. De-facto sovereigns like Hitler in Germany, Mussolini in Italy, Bolsheviks in USSR, Communist party in China etc were accepted as de-jure sovereigns with the passage of time whereas Oliver Cromwell, Lord protector of England (1653-58) was not able to assume the de jure status till is death. He was succeeded by his son Richard, a weak ruler ultimately paving way to rule of the royalists under King Charles II.

National Sovereignty- This principle was enunciated by the French Revolutionists in ‘The Declaration of the Rights of Man and of the Citizen’ who believed that sovereignty essentially rests in the nation as a whole and not in an individual or group. The nation possesses a personality of its own.

Theories Of State Sovereignty

Austin’s/ Legal/ Monistic theory of Sovereignty

John Austin, a famous 19th-century jurist, explained his concept of sovereignty in his classic work, ‘Lectures on Jurisprudence,’ published in 1832. According to Austin’s view, “if a determinate human superior who is not in the habit of obedience to another superior acquires habitual obedience from the mass of a given society, that determinate human superior is the sovereign in that society, and that society is political and autonomous.”

According to this theory, the state is the lone possessor of supremacy. It is all-pervasive, unlimited, and unbreakable. The Sovereignty Legal Theory is another name for it. Bodin, Hobbes, Rousseau, Hegel, and Austin were major Monists who embraced this philosophy.

The fact that Sovereignty is regarded as an important aspect of the state is a distinguishing component of Austin theory. Furthermore, he believes that a sovereign is a specific person or group of people who commands the majority of the people in a certain community. According to Austin, law is the sovereign’s order. Sovereignty, he claims, is absolute and indivisible.

Many writers, including Sidgwick and Sir Henry Maine, have analysed Monistic Theory severely. Sovereignty is not always determined, and the sovereign’s powers are not boundless, according to detractors. They also claim that sovereignty is not indivisible and that laws are not necessarily the sovereign’s mandate, and that people obey laws because they are useful. Austin is also alleged to disregard political sovereignty.

Pluralistic Theory of Sovereignty

It is a reaction to both state absolutism and the Monistic view of sovereignty. It began at the end of the nineteenth century and the beginning of the twentieth. The prominent proponents of this theory/Pluralists include MacIver, Maitland, Laski, Krabbe, Lindsay, Figgs, Cole, Barker, and Gettell.

When we examine the salient aspects of the Pluralistic Theory of Sovereignty, we discover that the state is a group like any other group. Other connotations, such as the fact that state sovereignty is not indivisible, are also essential. Man has a variety of requirements, and in order to meet these needs, he organizes or joins various associations. Similarly, the state is a political organisation that serves man’s political requirements. As a result, it isn’t a superior organisation. Man owes allegiance to the state and other organisations.

Sovereignty is constrained both internationally and domestically. Absolute sovereignty theory is harmful to world peace and cooperation. In today’s world, no state can exist in isolation. The state’s exterior sovereignty is constrained by international law and public opinion. As a result, sovereignty is constrained from the outside.

Internally, sovereignty is limited because the state does not make laws. It just serves to keep them safe. Laws are obeyed because they are useful.

Man will come under the rule of numerous associations, and some harmful associations may emerge, according to the pluralist conception of sovereignty. Furthermore, the state performs a broader range of functions, which may result in chaos and anarchy. Only the state has the authority to resolve disputes between associations. As a result, a sovereign state is required to protect it from external incursions.[4]

Despite the objections levied at the Pluralist theory of sovereignty, it is important to note that the pluralist idea was a democratic response to state absolutism. It emphasised the state’s limitations while also recognised the role and value of numerous clubs and organisations in society.

Conclusion

In India, the Constitution of India is the supreme law, providing constitutionalism, constitutional governance, and establishing norms, morality, and value, which are enshrined in the constitution’s articles and can also be inferred from it. This dynamism makes it natural, and as a result, the concept of constitutional sovereignty is untouchable. As previously stated, the Constitution gives all Indian authorities their authority. Constitutional Sovereignty is defined as the Supremacy of the Constitution.

As a result, it is apparent that India does not believe in total sovereignty or ultimate power. In India’s federal structure, Constitutional Principles reign supreme, delegating administrative and legislative powers to the President and the parliament and state legislatures, respectively. Although the judiciary serves as a watchdog on the Constitution, India lacks judicial sovereignty.

References

Books-

Political Theory, by JS Badyal

Online sites-

https://www.lawctopus.com/academike/doctrine-of-sovereignty/

https://www.legalserviceindia.com/legal/article-5690-concept-of-state-and-sovereignty.html

https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/sovereignty-theory

[1] https://www.lawctopus.com/academike/doctrine-of-sovereignty/

[2] https://www.lawctopus.com/academike/doctrine-of-sovereignty/

[3] Political Theory, by JS Badyal

[4] https://www.lawctopus.com/academike/doctrine-of-sovereignty/

This article has been written by Harmanpreet Kaur, 2nd year B.A. LL.B student of Army Institute of Law.

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