)AIPUR NATIUNAL UNIVERSITY

SEEDLINC SCHUUL UF LAW AND CUVERNANCE

Pro|ect on
SUVEREICNTY

Submitted to: Prof. V.S. Mani Submitted By: Aksbar Haritwal

B.A. LL.B
V Semester

Index

1. Introduction
2. History
a. Classical
b. Medieval
c. ReIormation
d. Age oI Enlightenment
3. DeIinition and Types
4. Meaning oI Sovereignty
5. The rise oI the sovereign state: Theory and Practice

S0vEREIuNTY

Introduction

The modern State is a sovereign State. It is, thereIore, independent in the Iace oI
other communities. It may inIuse its will towards them with a substance which
need not be aIIected by the will oI any external power. It is, moreover, internally
supreme over the territory that it controls within that area; it receives orders Irom
none oI them. (It will is subject to no legal limitation oI any kind) What it purposes
is right by the mere announcement oI intention.
But such a theory oI sovereignty has at least three aspects Irom which it demands a
careIul scrutiny. It needs, in the Iirst place, historical analysis. The State as it now
is has not escaped the categories oI time. It has become what it is by virtue oI an
historical evolution. That development both explains the character oI its present
power and, at the last, oIIers hints as to its possible Iuture. It is, secondly, a theory
oI law. It makes oI right merely the expression oI a particular will, without
reIerence to what that will contains. Such a deIinition, as will be seen, has about it
an unquestionable logic; but the assumptions upon which it is compelled to build
make it valueless Ior political philosophy.
The modern theory oI sovereignty is, thirdly, a theory oI political organization. It
insists that there must be in every social order some single center oI ultimate
reIerence, some power that is able to resolve disputes by saying a last word that
will be obeyed. From the political angle, such a view, as will be argued, is oI
dubious correctness in Iact; and it is at least probable that it has dangerous moral
consequences. It will be here argued that it would be oI lasting beneIit to political
science iI the whole concept oI sovereignty were surrendered. That, in Iact, with
which we are dealing, is power; and what is important in the nature oI power is the
end it seeks to serve and the way in which it serves that end. These are both
questions oI evidence which are related to, but independent oI, the rights that are
born oI legal structure. For there is, historically, no limit to the variety oI ways in
which the use oI power may be organized. The sovereign State, historically, is
merely one oI those ways, an incident in its evolution the utility oI which has now
reached its apogee. The problem beIore us has become, because oI the uniIied
interests oI humanity. The dogmas we use to that end are relatively oI little import,
so long as we are assured that the end is truly served.
The territorial and omnipotent State is the oIIspring oI the religious struggles oI the
sixteenth century. BeIore that time Western civilization was regarded as a single
Common-wealth in which sovereignty, in the modern sense, had no existence.
Ultimate power was, at least in theory, the possession oI a view oI right which
Iound embodiment in Pope and Emperor. The two powers clashed; and the
imminent victory oI Rome was Irustrated by a moral degeneration coincident with
the growth oI nationality. The appeal against a Church which remained obstinately
deaI to demands Ior reIorm involved the creation oI the national State. For when
Luther appealed against the divine Church, he was driven to assert the divinity oI
States, that the right oI a secular body to interIere might be made maniIest. There
were European princes ready to accept his views; and when they met the challenge
oI a reviving Church, insistence upon their sovereignty and the uniIied allegiance it
implied was the simplest theoretic justiIication they could discover. The State
became incarnate in the prince. What he willed was right because it was his will.
Right ceases to mean, as in the Middle Ages, a particular aspect oI universal
justice; it comes to mean that which emanates Irom a single centre in the body
politic and by its predominating unity gives strength and decisiveness to the
striking power oI the community. The Republic oI Bodin in which the theory oI
sovereignty is which does not possess it is not a State at all. But a political
philosophy which rejects the title oI the United States to Statehood is unlikely to
apply to a world oI realities.


History
DiIIerent cultures and governments have, understandably, had diIIerent ideas about
sovereignty.
Classical
The Roman jurist Ulpian observed that:
O The imperium oI the people is transIerred to the Emperor,
O The Emperor is not bound by the law,
O The Emperor's word is law. Emperor is the law making and abiding Iorce.
Ulpian was expressing the idea that the Emperor exercised a rather absolute Iorm
oI sovereignty, although he did not use the term expressly. Ulpian's statements
were known in medieval Europe, but sovereignty was not an important concept in
medieval times. Medieval monarchs were 349 sovereign, at least not strongly so,
because they were constrained by, and shared power with, their Ieudal aristocracy.
Furthermore, both were strongly constrained by custom "Sovereignty."
Medieval
Sovereignty existed during the Medieval Period as the de jure rights oI nobility and
royalty, and in the de Iacto capability oI individuals to make their own choices in
liIe.
Around c. 1380-1400, the issue oI Ieminine sovereignty was addressed in GeoIIrey
Chaucer's Middle English collection oI ,39erbury T,es, speciIically in The Wife
4f B,9hs T,e.
A later English Arthurian romance, The Weddi3 4f Sir G,,i3 ,3d D,me R,3e
(c. 1450), uses much oI the same elements oI the WiIe oI Bath's tale, yet changes
the setting to the court oI King Arthur and the Knights oI the Round Table. The
story revolves around the knight Sir Gawain granting to Dame Ragnell, his new
bride, what is purported to be wanted most by women: sovereignty.
We desire most Irom men,
From men both rich and poor,
To have sovereignty without lies.
For where we have sovereignty, all is ours,
Though a knight be ever so Iierce,
And ever win mastery.
It is our desire to have master
Over such a sir.
Such is our purpose.
The Weddi3 4f Sir G,,i3 ,3d D,me R,3e (c. 1450),
|4|

Reformation
Sovereignty reemerged as a concept in the late 16th century, a time when civil
wars had created a craving Ior stronger central authority, when monarchs had
begun to gather power into their own hands at the expense oI the nobility, and the
modern nation state was emerging. Jean Bodin, partly in reaction to the chaos oI
the French wars oI religion; and Thomas Hobbes, partly in reaction to the English
Civil War, both presented theories oI sovereignty calling Ior strong central
authority in the Iorm oI absolute monarchy. In his 1576 treatise es Six ivres de
, Repubique ("Six Books oI the Republic") Bodin argued that it is inherent in the
nature oI the state that sovereignty must be: "sovereignty."
O Absolute: On this point he said that the sovereign must not be hedged in
with obligations and conditions, must be able to legislate without his (or its)
subjects' consent, must not be bound by the laws oI his predecessors, and
could not, because it is illogical, be bound by his own laws.
O Perpetual: Not temporarily delegated as to a strong leader in an emergency
or to a state employee such as a magistrate. He held that sovereignty must be
perpetual because anyone with the power to enIorce a time limit on the
governing power must be above the governing power, which would be
impossible iI the governing power is absolute.
Bodin rejected the notion oI transIerence oI sovereignty Irom people to sovereign;
natural law and divine law conIer upon the sovereign the right to rule. And the
sovereign is not above divine law or natural law. He is above (ie. not bound by)
only positive law, that is, laws made by humans. The Iact that the sovereign must
obey divine and natural law imposes ethical constraints on him. Bodin also held
that the 4is r4y,es, the Iundamental laws oI the French monarchy which regulated
matters such as succession, are natural laws and are binding on the French
sovereign. How divine and natural law could in practice be enIorced on the
sovereign is a problematic Ieature oI Bodin's philosophy: any person capable oI
enIorcing them on him would be above him.
Despite his commitment to absolutism, Bodin held some moderate opinions on
how government should in practice be carried out. He held that although the
sovereign is not obliged to, it is advisable Ior him, as a practical expedient, to
convene a senate Irom whom he can obtain advice, to delegate some power to
magistrates Ior the practical administration oI the law, and to use the Estates as a
means oI communicating with the people.
With his doctrine that sovereignty is conIerred by divine law, Bodin predeIined the
scope oI the divine right oI kings.
Age of Enligbtenment
Hobbes, in evi,9h,3 (1651) introduced an early version oI the social contract (or
contractarian) theory, arguing that to overcome the "nasty, brutish and short"
quality oI liIe without the cooperation oI other human beings, people must join in a
"commonwealth" and submit to a "Soveraigne Power" that is able to compel them
to act in the common good. This expediency argument attracted many oI the early
proponents oI sovereignty. Hobbes deduced Irom the deIinition oI sovereignty that
it must be:
O Absolute: because conditions could only be imposed on a sovereign iI there
were some outside arbitrator to determine when he had violated them, in
which case the sovereign would not be the Iinal authority.
O Indivisible: The sovereign is the only Iinal authority in his territory; he does
not share Iinal authority with any other entity. Hobbes held this to be true
because otherwise there would be no way oI resolving a disagreement
between the multiple authorities.
Hobbes' hypothesis that the ruler's sovereignty is contracted to him by the people
in return Ior his maintaining their saIety, led him to conclude that iI the ruler Iails
to do this, the people are released Irom their obligation to obey him.
Bodin's and Hobbes's theories would decisively shape the concept oI sovereignty,
which we can Iind again in the social contract theories, Ior example, in Rousseau's
(17121778) deIinition oI popular sovereignty (with early antecedents in Francisco
Suarez's theory oI the origin oI power), which only diIIers in that he considers the
people to be the legitimate sovereign. Likewise, it is inalienable Rousseau
condemned the distinction between the origin and the exercise oI sovereignty, a
distinction upon which constitutional monarchy or representative democracy are
Iounded. Niccolo Machiavelli, Thomas Hobbes, John Locke, and Montesquieu are
also key Iigures in the unIolding oI the concept oI sovereignty.
The second book oI Jean-Jacques Rousseau's Du 439r,9 S4ci,, 4u Pri3cipes du
dr4i9 p4i9ique (1762) deals with sovereignty and its rights. Sovereignty, or the
general will, is inalienable, Ior the will cannot be transmitted; it is indivisible, since
it is essentially general; it is inIallible and always right, determined and limited in
its power by the common interest; it acts through laws. Law is the decision oI the
general will in regard to some object oI 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 oI the legislator. But the legislator has, oI himselI, no authority; he is
only a guide who draIts and proposes laws, but the people alone (that is, the
sovereign or general will) has authority to make and impose them.
Rousseau, in his 1763 treatise f 9he S4ci, 439r,c9 argued, "the growth oI the
State giving the trustees oI public authority more and means to abuse their power,
the more the Government has to have Iorce to contain the people, the more Iorce
the Sovereign should have in turn in order to contain the Government," with the
understanding that the Sovereign is "a collective being oI wonder" (Book II,
Chapter I) resulting Irom "the general will" oI the people, and that "what any man,
whoever he may be, orders on his own, is not a law" (Book II, Chapter VI) and
Iurthermore 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 1789 French Revolution shiIted the possession oI sovereignty Irom the
sovereign ruler to the nation and its people.
Carl Schmitt (18881985) deIined sovereignty as "the power to decide the state oI
exception", in an attempt, argues Giorgio Agamben, to counter Walter Benjamin's
theory oI violence as radically disjoint Irom law. Georges Bataille's heterodox
conception oI sovereignty, which may be said to be an "anti-sovereignty", also
inspired many thinkers, such as Jacques Derrida, Agamben or Jean-Luc Nancy.
DEFINITIUN AND TYPES
~ There exists perhaps no conception the meaning oI which is more
controversial than that oI sovereignty. It is an indisputable Iact that this
conception, Irom the moment when it was introduced into political
#
science until the present day, has never had a meaning which was
universally agreed upon.
losso Oppeobelm oo ootbotlty oo lotetootloool low

Absoluteness
An important Iactor oI sovereignty is its degree oI absoluteness. A sovereign
power has absolute sovereignty when it is not restricted by a constitution, by the
laws oI its predecessors, or by custom, and no areas oI law or policy are reserved
as being outside its control. International law; policies and actions oI neighboring
states; cooperation and respect oI the populace; means oI enIorcement; and
resources to enact policy are Iactors that might limit sovereignty. For example,
parents are not guaranteed the right to decide some matters in the upbringing oI
their children independent oI societal regulation, and municipalities do not have
unlimited jurisdiction in local matters, thus neither parents nor municipalities have
absolute sovereignty. Theorists have diverged over the desirability oI increased
absoluteness.
Exclusivity
A key element oI sovereignty in a legalistic sense is that oI exclusivity oI
jurisdiction. SpeciIically, the degree to which decisions made by a sovereign entity
might be contradicted by another authority. International law, competing branches
oI government, and authorities reserved Ior subordinate entities (such as Iederated
states or republics) represent legal inIringements on exclusivity. Social institutions
such as religious bodies, corporations, and competing political parties might
represent de f,c94 inIringements on exclusivity.
De |ure and de facto
De fure, or legal, sovereignty concerns the expressed and institutionally recognized
right to exercise control over a territory.
De f,c94, or actual, sovereignty is concerned with whether control in Iact exists.
Cooperation and respect oI the populace; control oI resources in, or moved into, an
area; means oI enIorcement and security; and ability to carry out various Iunctions
oI state all represent measures oI de f,c94 sovereignty. When control is practiced
predominately by military or police Iorce it is considered c4ercive s4verei39y.
It is generally held that sovereignty requires not only the legal right to exercise
power, but the actual exercise oI such power. Thus, de fure sovereignty without de
f,c94 sovereignty has limited recognition.
Internal
Internal sovereignty is the relationship between a sovereign power and its own
subjects. A central concern is legitimacy: by what right does a government exercise
authority? Claims oI legitimacy might reIer to the divine right oI kings or to a
social contract (i.e. popular sovereignty).
With Sovereignty meaning holding supreme, independent authority over a region
or state, Internal Sovereignty reIers to the internal aIIairs oI the state and the
location oI supreme power within it. A state that has internal sovereignty is one
with a government that has been elected by the people and has the popular
legitimacy. Internal sovereignty examines the internal aIIairs oI a state and how it
operates. It is important to have strong internal sovereignty in relation to keeping
order and peace. When you have weak internal sovereignty organization such as
rebel groups will undermined the authority and disrupt the peace. The presence oI
a strong authority allows you to keep agreement and enIorce sanctions Ior the
violation oI laws. The ability Ior leadership to prevent these violations is a key
variable in determining internal sovereignty. The lack oI internal sovereignty can
cause war in one oI two ways, Iirst, undermining the value oI agreement by
allowing costly violations and second requiring such large subsidies Ior
implementation that they render war cheaper than peace. Leadership needs to be
able to promise members, especially those like armies, police Iorces, or
paramilitaries will abide by agreements. The presence oI strong internal
sovereignty allows a state to deter opposition groups in exchange Ior bargaining. It
has been said that a more decentralized authority would be more eIIicient in
keeping peace because the deal must please not only the leadership but also the
opposition group. While the operations and aIIairs within a state are relative to the
level oI sovereignty within that state, there is still an argument between who
should hold the authority in a sovereign state.
This argument between who should hold the authority within a sovereign state is
called the traditional doctrine oI public sovereignty. This discussion is between an
internal sovereign or an authority oI public sovereignty. An internal sovereign is a
political body that possesses ultimate, Iinal and independent authority; one whose
decisions are binding upon all citizens, groups and institutions in society. Early
thinkers believe sovereignty should be vested in the hands oI a single person, a
monarch. They believed the overriding merit oI vesting sovereignty in a single
individual was that sovereignty would thereIore be indivisible; it would be
expressed in a single voice that could claim Iinal authority. An example oI an
internal sovereign or monarch is Louis XIV oI France during the seventeenth
century; Louis XIV claimed that he was the state. Jean-Jacques Rousseau rejected
monarchial rule in Iavor oI the other type oI authority within a sovereign state,
public sovereignty. Public Sovereignty is the belieI that ultimate authority is vested
in the people themselves, expressed in the idea oI the general will. This means that
the power is elected and supported by its members, the authority has a central goal
oI the good oI the people in mind. The idea oI public sovereignty has oIten been
the basis Ior modern democratic theory.
Modern Internal Sovereignty: Within the modern governmental system you usually
Iind internal sovereignty in states that have public sovereignty and rarely Iind it
within a state controlled by an internal sovereign. A Iorm oI government that is a
little diIIerent Irom both is the UK parliament system. From 1790-1859 it was
argued that sovereignty in the UK was vested neither in the Crown nor in the
people but in the "Monarch in Parliament". This is the origin oI the doctrine oI
parliamentary sovereignty and is usually seen as the Iundamental principle oI the
British constitution. With these principles oI parliamentary sovereignty majority
control can gain access to unlimited constitutional authority, creating what has
been called "elective dictatorship" or "modern autocracy". Public sovereignty in
modern governments is a lot more common with examples like the USA, Canada,
Australia and India where government is divided into diIIerent levels.
External
External sovereignty concerns the relationship between a sovereign power and
other states. For example, the United Kingdom uses the Iollowing criterion when
deciding under what conditions other states recognizes a political entity as having
sovereignty over some territory;
~ "Sovereignty." A government which exercises de f,c94 administrative
control over a country and is not subordinate to any other government in

that country is a Ioreign sovereign state.
(The Ar,39,u Me3di, [1939] A.. 256), S9r4uds Judici, Dic9i43,ry

External sovereignty is connected with questions oI international law, such as:
when, iI ever, is intervention by one country onto another's territory permissible?
Following the Thirty Years' War, a European religious conIlict that embroiled
much oI the continent, the Peace oI Westphalia in 1648 established the notion oI
territorial sovereignty as a norm oI noninterIerence in the aIIairs oI other nations,
so-called Westphalian sovereignty, even though the actual treaty itselI reaIIirmed
the multiple levels oI sovereignty oI the Holy Roman Empire. This resulted as a
natural extension oI the older principle oI cuius rei4, eius reii4 (Whose realm,
his religion), leaving the Roman Catholic Church with little ability to interIere with
the internal aIIairs oI many European states. It is a myth, however, that the Treaties
oI Westphalia created a new European order oI equal sovereign states.
In international law, sovereignty means that a government possesses Iull control
over aIIairs within a territorial or geographical area or limit. Determining whether
a speciIic entity is sovereign is not an exact science, but oIten a matter oI
diplomatic dispute. There is usually an expectation that both de fure and de f,c94
sovereignty rest in the same organization at the place and time oI concern. Foreign
governments use varied criteria and political considerations when deciding whether
or not to recognize the sovereignty oI a state over a territory. Membership in the
United Nations requires that "the admission oI any such state to membership in the
United Nations will be eIIected by a decision oI the General Assembly upon the
recommendation oI the Security Council."
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 oI the Papal States
by Italy and the signing oI 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. Another case, sui e3eris, though oIten contested, is the
Sovereign Military Order oI Malta, the third sovereign entity inside Italian territory
(aIter San Marino and the Vatican City State) and the second inside 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 oI the modern Order), which is the last existing heir to one oI several
once militarily signiIicant, crusader states oI sovereign military orders. In 1607 its
Grand masters were also made ReichsIrst (princes oI the Holy Roman Empire) by
the Holy Roman Emperor, granting them seats in the Reichstag, at the time the
closest permanent equivalent to a UN-type general assembly; conIirmed 1620).
These sovereign rights never deposed, only the territories were lost. 100 modern
states still maintain Iull diplomatic relations with the order (now de f,c94 "the most
prestigious service club"), and the UN awarded it observer status.
The governments-in-exile oI many European states (Ior instance, Norway,
Netherlands or Czechoslovakia) during the Second World War were regarded as
sovereign despite their territories being under Ioreign occupation; their governance
resumed as soon as the occupation had ended. The government oI Kuwait was in a
similar situation vis-a-vis the Iraqi occupation oI its country during 1990-1991.
Commonly mistaken to be sovereign, the International Committee oI the Red
Cross, having been granted various degrees oI special privileges and legal
immunities in many countries, that in cases like Switzerland are considerable,
which are described

as amounting to de f,c94 s4verei39y, is a private organization
governed by Swiss law.
Sbared
Just as the oIIice oI head oI state can be vested jointly in several persons within a
state, the sovereign jurisdiction over a single political territory can be shared
jointly by two or more consenting powers, notably in the Iorms oI a condominium
or a co-principality (e.g. Andorra).
Nation-states
A community oI people who claim the right oI selI-determination based on a
common ethnicity, history and culture might seek to establish sovereignty over a
region, thus creating a nation-state. Such nations are sometimes recognized as
autonomous areas rather than as Iully sovereign, independent states.
Federations
In a Iederal system oI government, s4verei39y also reIers to powers which a
constituent state or republic possesses independently oI the national government.
In a conIederation constituent entities retain the right to withdraw Irom the national
body, but in a Iederation member states or republics do not hold that right.
Controversy over states' rights contributed to the outbreak oI the American Civil
War. Eleven southern states in which slavery was legal declared their
independence Irom the United States and Iormed the ConIederate States oI
America. The position oI the United States government was that this act was
unconstitutional and that secession was not a right that the states possessed, and
thus that the states were not sovereign entities.

MEANING OF SOVEREIGNTY
In his classic, The Ki3s T4 B4dies (1957), medievalist Ernst Kantorowicz
describes a proIound transIormation in the concept oI political authority over the
course oI the middle Ages. The change began when the concept oI the body oI
Christ evolved into a notion oI two bodies one, the c4rpus 3,9ur,e, the
consecrated host on the altar, the other, the c4rpus mys9icum, the social body oI the
church with its attendant administrative structure. This latter notion oI a
collective social organization having an enduring, mystical essence would come
to be transIerred to political entities, the body politic. Kantorowicz then describes
the emergence, in the late Middle Ages, oI the concept oI the king's two bodies,
viviIied in Shakespeare's Richard II and applicable to the early modern body
politic. Whereas the king's natural, mortal body would pass away with his death, he
was also thought to have an enduring, supernatural one that could not be destroyed,
even by assassination, Ior it represented the mystical dignity and justice oI the
body politic. The modern polity that emerged dominant in early modern Europe
maniIested the qualities oI the collectivity that Kantorowicz described a single,
uniIied one, conIined within territorial borders, possessing a single set oI interests,
ruled by an authority that was bundled into a single entity and held supremacy in
advancing the interests oI the polity. Though in early modern times, kings would
hold this authority, later practitioners oI it would include the people ruling through
a constitution, nations, the Communist Party, dictators, juntas, and theocracies. The
modern polity is known as the state, and the Iundamental characteristic oI authority
within it, sovereignty.
The evolution that Kantorowicz described is Iormative, Ior sovereignty is a
signature Ieature oI modern politics. Some scholars have doubted whether a stable,
essential notion oI sovereignty exists. But there is in Iact a deIinition that captures
what sovereignty came to mean in early modern Europe and oI which most
subsequent deIinitions are a variant: supreme ,u9h4ri9y i9hi3 , 9erri94ry. This is
the quality that early modern states possessed, but which popes, emperors, kings,
bishops, and most nobles and vassals during the Middle Ages lacked.
Each component oI this deIinition highlights an important aspect oI the concept.
First, a holder oI sovereignty possesses authority. That is to say, the person or
entity does not merely wield coercive power, deIined as A's ability to cause B to do
what he would otherwise not do. Authority is rather what philosopher R.P. WolII
proposed: 'the right to command and correlatively the right to be obeyed (WolII,
1990, 20). What is most important here is the term 'right, connoting legitimacy. A
holder oI sovereignty derives authority Irom some mutually acknowledged source
oI legitimacy natural law, a divine mandate, hereditary law, a constitution, even
international law. In the contemporary era, some body oI law is ubiquitously the
source oI sovereignty.
But iI sovereignty is a matter oI authority, it is not a matter oI mere authority, but
oI supreme authority. Supremacy is what makes the constitution oI the United
States superior to the government oI Pennsylvania or any holder oI sovereignty
diIIerent Irom a police chieI or corporate executive. The holder oI sovereignty is
superior to all authorities under its purview. Supremacy, too, is endemic to
modernity. During the Middle Ages, maniIold authorities held some sort oI legal
warrant Ior their authority, whether Ieudal, canonical, or otherwise, but very rarely
did such warrant conIer supremacy.
A Iinal ingredient oI sovereignty is territoriality, also a Ieature oI political authority
in modernity. Territoriality is a principle by which members oI a community are to
be deIined. It speciIies that their membership derives Irom their residence within
borders. It is a powerIul principle, Ior it deIines membership in a way that may not
correspond with identity. The borders oI a sovereign state may not at all
circumscribe a 'people or a 'nation, and may in Iact encompass several oI these
identities, as national selI-determination and irredentist movements make evident.
It is rather by simple virtue oI their location within geographic borders that people
belong to a state and Iall under the authority oI its ruler. It is within a geographic
territory that modern sovereigns are supremely authoritative.
Territoriality is now deeply taken Ior granted. It is a Ieature oI authority all across
the globe. Even supranational and international institutions like the European
Union and the United Nations are composed oI states whose membership is in turn
deIined territorially. This universality oI Iorm is distinctive oI modernity and
underlines sovereignty's connection with modernity. Though territoriality has
existed in diIIerent eras and locales, other principles oI membership like Iamily
kinship, religion, tribe, and Ieudal ties have also held great prestige. Most vividly
contrasting with territoriality is a wandering tribe, whose authority structure is
completely disassociated with a particular piece oI land. Territoriality speciIies by
what quality citizens are subject to authority their geographic location within a
set oI boundaries. International relations theorists have indeed pointed out the
similarity between sovereignty and another institution in which lines demarcate
land private property. Indeed, the two prominently rose together in the thought
oI Thomas Hobbes.
Supreme authority within a territory this is the general deIinition oI sovereignty.
Historical maniIestations oI sovereignty are almost always speciIic instances oI
this general deIinition. It is in Iact the instances oI which philosophers and the
politically motivated have spoken most oIten, making their claim Ior the
sovereignty oI this person or that body oI law. Understanding sovereignty, then,
involves understanding claims to it, or at least some oI the most important oI these
claims.
Over the past halI millennium, these claims have taken extraordinarily diverse
Iorms nations asserting independence Irom mother states, communists seeking
Ireedom Irom colonialists, the v4x p4pui contending with ,3cie3 reimes,
theocracies who reject the authority oI secular states, and sundry others. It is
indeed a mark oI the resilience and Ilexibility oI the sovereign state that it has
accommodated such diverse sorts oI authority. Though a catalog oI these
authorities is not possible here, three dimensions along which they may be
understood will help to categorize them: the holders oI sovereignty, the absolute or
non-absolute nature oI sovereignty, and the relationship between the internal and
external dimensions oI sovereignty.
As suggested, diverse authorities have held sovereignty kings, dictators, peoples
ruling through constitutions, and the like. The character oI the holder oI supreme
authority within a territory is probably the most important dimension oI
sovereignty. In early modern times, French theorist Jean Bodin thought that
sovereignty must reside in a single individual. Both he and English philosopher
Thomas Hobbes conceived the sovereign as being above the law. Later thinkers
diIIered, coming to envision new loci Ior sovereignty, but remaining committed to
the principle.
Sovereignty can also be absolute or non-absolute. How is it possible that
sovereignty might be non-absolute iI it is also supreme? AIter all, scholars like
Alan James argue that sovereignty can only be either present or absent, and cannot
exist partially (James 1999, 4624). But here, absoluteness reIers not to the extent
or character oI sovereignty, which must always be supreme, but rather to the scope
oI matters over which a holder oI authority is sovereign. Bodin and Hobbes
envisioned sovereignty as absolute, extending to all matters within the territory,
unconditionally. It is possible Ior an authority to be sovereign over some matters
within a territory, but not all. Today, many European Union (EU) member states
exhibit non-absoluteness. They are sovereign in governing deIense, but not in
governing their currencies, trade policies, and many social welIare policies, which
they administer in cooperation with EU authorities as set Iorth in EU law. Absolute
sovereignty is quintessential modern sovereignty. But in recent decades, it has
begun to be circumscribed by institutions like the EU, the UN's practices oI
sanctioning intervention, and the international criminal court.
A Iinal pair oI adjectives that deIine sovereignty is 'internal and 'external. In
this case, the words do not describe exclusive sorts oI sovereignty, but diIIerent
aspects oI sovereignty that are coexistent and omnipresent. Sovereign authority is
exercised within borders, but also, by deIinition, with respect to outsiders, who
may not interIere with the sovereign's governance. The state has been the chieI
holder oI external sovereignty since the Peace oI Westphalia in 1648, aIter which
interIerence in other states` governing prerogatives became illegitimate. The
concept oI sovereignty in international law most oIten connotes external
sovereignty. Alan James similarly conceives oI external sovereignty as
constitutional independence a state's Ireedom Irom outside inIluence upon its
basic prerogatives (James 1999, 460462). SigniIicantly, external sovereignty
depends on recognition by outsiders. To states, this recognition is what a no-
trespassing law is to private property a set oI mutual understandings that give
property, or the state, immunity Irom outside interIerence. It is also external
sovereignty that establishes the basic condition oI international relations
anarchy, meaning the lack oI a higher authority that makes claims on lower
authorities. An assemblage oI states, both internally and externally sovereign,
makes up an international system, where sovereign entities ally, trade, make war,
and make peace.

Acquisition
A number oI methods oI acquisition oI sovereignty are presently or have
historically been recognized by international law as lawIul methods by which a
state may acquire sovereignty over territory.
)ustifications
There exist vastly diIIering views on the moral basis oI sovereignty. A
Iundamental polarity is between theories that assert that sovereignty is vested
directly in the sovereign by divine or natural right, and theories that assert it
originates Irom the people. In the latter case there is a Iurther division into those
that assert that the people transIer their sovereignty to the sovereign (Hobbes), and
those that assert that the people retain their sovereignty (Rousseau).
Absolute monarchies are typically based on concepts such as the divine right oI
kings in Europe or the mandate oI Heaven in China.
A republic is a Iorm oI government in which the people, or some signiIicant
portion oI them, retain sovereignty over the government and where oIIices oI state
are not granted through heritage. A common modern deIinition oI a republic is a
government having a head oI state who is not a monarch.
Democracy is based on the concept oI p4pu,r s4verei39y. In a direct democracy
the public plays an active role in shaping and deciding policy. Representative
democracy permits a transIer oI the exercise oI sovereignty Irom the people to a
legislative body or an executive (or to some combination oI legislature, executive
and Judiciary). Many representative democracies provide limited direct democracy
through reIerendum, initiative, and recall.
Parliamentary sovereignty reIers to a representative democracy where the
parliament is ultimately sovereign and not the executive power nor the judiciary.
Views on
O Realists view sovereignty as being untouchable and as guaranteed to
legitimate nation-states.
O Rationalists see sovereignty similarly to Realists. However, Rationalism
states that the sovereignty oI a nation-state may be violated in extreme
circumstances, such as human rights abuses.
O Internationalists believe that sovereignty is outdated and an unnecessary
obstacle to achieving peace, in line with their belieI oI a 'global community'.
In the light oI the abuse oI power by sovereign states such as Hitler's
Germany or Stalin's Soviet Union, they argue that human beings are not
necessarily protected by the state whose citizens they are, and that the
respect Ior state sovereignty on which the UN Charter is Iounded is an
obstacle to humanitarian intervention.
O Anarchists and some libertarians deny the sovereignty oI states and
governments. Anarchists oIten argue Ior a speciIic individual kind oI
sovereignty, such as the Anarch as a sovereign individual. Salvador Dali, Ior
instance, talked oI "anarcho-monarchist" (as usual Ior him, tongue in cheek);
Antonin Artaud oI ei4,b,us. r, The r43ed A3,rchis9; Max Stirner
oI The E4 ,3d I9s 3; Georges Bataille and Jacques Derrida oI a kind oI
"antisovereignty". ThereIore, anarchists join a classical conception oI the
individual as sovereign oI himselI, which Iorms the basis oI political
consciousness. The uniIied consciousness is sovereignty over one's own
body, as Nietzsche demonstrated (see also Pierre Klossowski's book on
ie9sche ,3d 9he Jici4us irce). See ,s4 sef-43ership.
O Imperialists hold a view oI sovereignty where power rightIully exists with
those states that hold the greatest ability to impose the will oI said state, by
Iorce or threat oI Iorce, over the populace or other states with weaker
military or political will. They eIIectively deny the sovereignty oI the
individual in deIerence to either the 'good' oI the whole, or to divine right.
Relation to rule of law
Another topic is whether the law is held to be sovereign, that is, whether it is above
political or other interIerence. Sovereign law constitutes a true state oI law,
meaning the letter oI the law (iI constitutionally correct) is applicable and
enIorceable, even when against the political will oI the nation, as long as not
Iormally changed Iollowing the constitutional procedure. Strictly speaking, any
deviation Irom this principle constitutes a revolution or a coup d'etat, regardless oI
the intentions.
Sovereign as a title
In some cases, the title sovereign is not just a generic term, but an actual (part oI
the) Iormal style oI a Head oI state.
Thus Irom 22 June 1934, to 29 May 1953, (the title "Emperor oI India" was
dropped as oI 15 August 1947, by retroactive proclamation dated 22 June 1948),
the King oI South AIrica was styled in the Dominion oI South AIrica: "By the
Grace oI God, oI Great Britain, Ireland and oI the British Dominions beyond the
Seas King, DeIender oI the Faith, Emperor oI India and S4verei3 in and over the
Union oI South AIrica." Upon the accession oI Elizabeth II to the Throne oI South
AIrica in 1952, the title was changed to Queen oI South AIrica and Her other
Realms and Territories, Head oI the Commonwealth, parallel to the style used in
almost all the other Commonwealth realms. The pope holds ex oIIicio the title
"Sovereign oI the Vatican City State" in respect to Vatican City.

ean Bodin
The writings oI Jean Bodin (1530-1596) provide us with an early theorization oI
the idea oI sovereignty even though the examples he uses are quite electic.
Essential to Bodin's notion oI sovereignty is that the power the sovereign holds
must be absolute and permanent. II a ruler holds absolute power Ior the duration oI
his liIe he can be said to be sovereign. In contrast, an elected oIIicial or some other
person that holds limited powers cannot be described to be sovereign. Although at
times Bodin suggests that the people are sovereign, his deIinition oI sovereignty as
absolute, unlimited and enduring power points purposively towards a positive
association oI sovereignty and a singular monarchical, or even tyrannical, power.
See Bodin, 3 S4verei39y (Cambridge Texts in social and Political Thought;
1992)
Another qualiIication that Bodin introduces into the deIinition oI sovereignty as
absolute and perpetual is one that will become increasingly important in
subsequent theorizations, culminating in the work oI Carl Schmitt. For Bodin, a
sovereign prince is one who is exempt Irom obedience to the laws oI his
predecessors and more importantly, those issued by him. Sovereignty rests in being
above, beyond or accepted Irom the law. Although it occupies a subordinate place
in Bodin's theorization, it could be said that this exception Irom being subject to
the law is the quintessential condition oI sovereignty in so Iar as it is understood
politically.
Although Ior Bodin sovereignty is characterized by absolute and perpetual power
he goes on to make a series oI important qualiIications to this concept. These come
Irom two principle concerns. The Iirst is real politics - Bodin seems to be aware
that absolute power could license behavior injurious to sovereign authority. Hence
Ior example a sovereign cannot and should not conIiscate property nor break
contractual agreements made with other sovereigns, estates nor private persons.
The second reason is Bodin's underlying theological notion oI divine authority and
natural law. A sovereign may put aside civil law, but he must not question natural
law (in which it appears right oI property is sanctioned). Saying this, it is
ultimately Irom this divine authority that the earthly right oI sovereign power is
legitimated. The prince literary does god's bidding, and yet by virtue oI this can do
wrong.
l] the prnce, then, does not hcve power to overstep the bounds o] ncturcl lcw, whch hcs been
estcblshed by 6od, o] whom he s the mcye, he wll clso not be cble to tcke cnothers property
wthout ]ust cnd recsoncble ccuse.
THE RISE OF THE SOVEREIGN STATE: THEORY AND
PRACTICE
Supreme authority with a territory within this deIinition, sovereignty can then
be understood more precisely only through its history. This history can be told as
one oI two broad movements the Iirst, a centuries long evolution towards a
European continent, then a globe, oI sovereign states, the second, a circumscription
oI absolute sovereign prerogatives in the second halI oI the twentieth century.
It was at the Peace oI Westphalia in 1648 that Europe consolidated its long
transition Irom the Middle Ages to a world oI sovereign states. According to
historian J.R. Strayer, Britain and France looked a lot like sovereign states by
around 1300, their kings possessing supremacy within bounded territories. But as
late as the beginning oI the ReIormation in 1517, Europe remained distant Irom
Westphalia. It was just around then that a great reversal in historical momentum
occurred when Charles V oI Spain ascended to the throne, uniting Castile, Aragon
and the Netherlands, at the same time becoming Holy Roman Emperor, gaining
prerogatives over lands in Central Europe, while taking on the role oI enIorcer oI
the Catholic Church's still signiIicant temporal prerogatives inside the Empire,
especially its enIorcement oI ecclesiastical orthodoxy. But within the Empire,
Charles V was not sovereign, either, Ior princes and nobles there retained
prerogatives over which he exercised no control. In 1555, a system oI sovereign
states gained important ground in the Peace oI Augsburg, whose Iormula cuius
rei4, eius reii4, allowed German princes to enIorce their own Iaith within their
territory. But Augsburg was unstable. ManiIold contests over the settlement's
provisions resulted in constant wars, culminating Iinally in the Thirty Years War,
which did not end until 1648, at the Peace oI Westphalia.
What Ieatures oI Westphalia make it the origin oI the sovereign states system? In
Iact, not all scholars agree that it deserves this status (see Krasner 1999). Nowhere
in the settlement's treaties is a sovereign states system or even the state as the
reigning legitimate unit, prescribed. Certainly, Westphalia did not create a
sovereign states system ex 3ihi4, Ior components oI the system had been
accumulating Ior centuries up to the settlement; aIterwards, some medieval
anomalies persisted. In two broad respects, though, in both legal prerogatives and
practical powers, the system oI sovereign states triumphed. First, states emerged as
virtually the sole Iorm oI substantive constitutional authority in Europe, their
authority no longer seriously challenged by the Holy Roman Empire. The
Netherlands and Switzerland gained uncontested sovereignty, the German states oI
the Holy Roman Empire accrued the right to ally outside the empire, while both the
diplomatic communications and Ioreign policy designs oI contemporary great
powers revealed a common understanding oI a system oI sovereign states. The
temporal powers oI the Church were also curtailed to the point that they no longer
challenged any state's sovereignty. In reaction, Pope Innocent X condemned the
treaties oI the peace as 'null, void, invalid, iniquitous, unjust, damnable, reprobate,
inane, empty oI meaning and eIIect Ior all time (quoted in Maland 1966, 16).
Second, Westphalia brought an end to intervention in matters oI religion, up to
then the most commonly practiced abridgement oI sovereign prerogatives. AIter
decades oI armed contestation, the design oI the Peace oI Augsburg was Iinally
consolidated, not in the exact Iorm oI 1555, but eIIectively establishing the
authority oI princes and kings over religion. In ensuing decades, no European state
would Iight to aIIect the religious governance oI another state, this in stark contrast
to the previous 130 years, when wars oI religion sundered Europe. As the
sovereign states system became more generalized in ensuing decades, this
proscription oI intervention would become more generalized, too, evolving into a
Ioundational norm oI the international system.
The sovereign states system that came to dominate Europe at Westphalia spread
worldwide over the next three centuries, culminating in the decline oI the European
colonial empires in the mid-20
th
century, when the state became the only Iorm oI
polity ever to cover the entire land surIace oI the globe. Today, norms oI
sovereignty are enshrined in the Charter oI the United Nations, whose article 2(4)
prohibits attacks on 'political independence and territorial integrity, and whose
Article 2(7) sharply restricts intervention.
As the sovereign state was occupying the European continent, piece by piece, in
early modern times, eventually Iorming the system that came to occupy the globe,
contemporary political philosophers embraced this Iorm oI polity and described
what made it legitimate. They were not originators oI the concept, Ior even during
medieval times, philosophers like Dante and Marsilius oI Padua advocated a
separation oI temporal and religious powers that would be achieved through a
transIer oI prerogatives into temporal ruler's hands. Then, in early modern times,
there were two roughly contemporary philosophers who did not write explicitly or
consciously oI sovereignty, yet whose ideas amounted in substance to important
developments oI the concept. Machiavelli observed the politics oI city states in his
Renaissance Italy and described what a prince had to do to promote a Ilourishing
republic in terms that conIerred on him supreme authority within his territory.
ManiIestly, he was not to be bound by natural law, canon law, Gospel precepts, or
any oI the norms or authorities that obligated members oI Christendom. Rather, he
would have to be prepared 'not to be good, and to be ready to perIorm evil, not
because evil was no longer evil, but because it was sometimes necessary to Iurther
an end that was central Ior Machiavelli, an end that amounts to the uniIying idea oI
his thought: the strength and well-ordering oI the state. The obligation oI the prince
was r,is43 de9,9. He was supreme within the state's territory and responsible Ior
the well-being oI this singular, unitary body.
Purveying sovereignty Irom quite a diIIerent perspective was Martin Luther. His
theology oI the ReIormation advocated stripping the Catholic Church oI its many
powers, not only its ecclesiastical powers, but powers that are, by any modern
deIinition, temporal. Luther held that the Church should no longer be thought oI as
a visible, hierarchical institution, but was rather the invisibly united aggregate oI
local churches that adhered to right doctrine. Thus, the Catholic Church no longer
legitimately held vast tracts oI land that it taxed and deIended, and whose justice it
administered; it was no longer legitimate Ior its bishops to hold temporal oIIices
under princes and kings; nor would the Pope be able to depose secular rulers
through his power oI excommunication; most importantly, the Holy Roman
Emperor would no longer legitimately enIorce Catholic uniIormity. No longer
would the Church and those who acted in its name exercise political or economic
authority. Who, then, would take up such relinquished powers? Territorial princes.
'By the destruction oI the independence oI the Church and its hold on an extra-
territorial public opinion, the last obstacle to unity within the State was removed,
writes political philosopher J.N. Figgis (72). It was this vision that triumphed at
Westphalia.
Luther's political theology explained all oI this. He taught that under God's
authority, two orders with two Iorms oI government existed. 'The realm oI the
spirit was the order in which Christ was related to the soul oI the believer. The
realm oI the world was the order oI secular society, where civil authorities ran
governmental institutions through law and coercion. Both realms Iurthered the
good oI believers, but in diIIerent senses; they were to be separately organized.
Leaders oI the church would perIorm spiritual duties; princes, kings and
magistrates would perIorm temporal ones. Freed Irom the power oI the pope and
the Catholic Church, having appropriated temporal powers within their realm,
princes were now eIIectively sovereign. In that era, princes even exercised
considerable control over Protestant churches, oIten appointing their regional
leaders, as described by the doctrine oI 'Erastianism. Though neither Luther nor
other Protestant reIormers discussed the doctrine oI sovereignty in any detail, they
prescribed Ior princes all oI its substance. Again, Figgis:
The unity and universality and essential rightness oI the sovereign territorial State,
and the denial oI every extra-territorial or independent communal Iorm oI liIe, are
Luther's lasting contribution to politics. (91)
Other early modern philosophers, oI course, espoused the doctrine oI sovereignty
explicitly, and are thus more Iamiliarly associated with it. French philosopher Jean
Bodin was the Iirst European philosopher to treat the concept extensively. His
concept oI s4uver,i3e9e Ieatured as a central concept in his work, De ,
repubique, which he wrote in 1576, during a time when France was sundered by
civil war between Calvinist Huguenots and the Catholic monarchy. He viewed the
problem oI order as central and did not think that it could be solved through
outdated medieval notions oI a segmented society, but only through a concept in
which rulers and ruled were integrated into a single, unitary body politic that was
above any other human law, and was in Iact the source oI human law. This concept
was sovereignty. Only a supreme authority within a territory could strengthen a
Iractured community.
To be sure, Bodin thought that the body that exercised sovereignty was bound by
natural and divine law, though no human law could judge or appeal to it. More
curiously, he also thought that sovereignty rightly exercised would respect
customary and property rights. It is not clear how such a restraint was to be
reconciled with the supreme status oI sovereign authority. Possibly, Bodin thought
that such rights were to be Ieatures oI a legal regime which was itselI sovereign
with respect to other authorities. Indeed, he also thought the Iorm oI government
that exercised sovereign powers could legitimately vary among monarchy,
aristocracy and democracy, though he preIerred monarchy. Whatever the sovereign
body looked like, though, it was not subject to any external human law or authority
within its territory. F.H. Hinsley writes:
At a time when it had become imperative that the conIlict between rulers and ruled
should be terminated, |Bodin| realized and it was an impressive intellectual Ieat
that the conIlict would be solved only iI it was possible both to establish the
existence oI a necessarily unrestricted ruling power and to distinguish this power
Irom an absolutism that was Iree to disregard all laws and regulations. He did this
by Iounding both the legality oI this power and the wisdom oI observing the
limitations which hedged its proper use upon the nature oI the body politic as a
political society comprising both ruler and ruled and his statement oI
sovereignty was the necessary, only possible, result 124125).
Bodin's 'statement oI sovereignty is the Iirst systematic one in modern European
philosophy, and thus deserves a landmark status.
The English philosopher Thomas Hobbes also wrote during a time oI civil war and
also arrived at the notion oI sovereignty as a solution. For Hobbes, the people
established sovereign authority through a contract in which they transIerred all oI
their rights to the Leviathan, which represented the abstract notion oI the state. The
will oI the Leviathan reigned supreme and represented the will oI all those who
had alienated their rights to it. Like Bodin's sovereign, Hobbes` Leviathan was
above the law, a mortal god unbound by any constitution or contractual obligations
with any external party. Like Bodin, Hobbes also thought the sovereign to be
accountable to God and most likely to the natural law in some Iorm. Otherwise,
though, law was the command oI the sovereign ruler, emanating Irom his will, and
the obligation to obey it absolute.
Both Bodin and Hobbes argued Ior sovereignty as supreme authority. The concept
continues to prevail as the presumption oI political rule in states throughout the
globe today, including ones where the sovereign body oI law institutes limited
government and civil rights Ior individuals. Over the centuries, new notions oI the
holders oI sovereignty have evolved. Rousseau, Iar diIIerent Irom Bodin or
Hobbes, saw the collective people within a state as the sovereign, ruling through
their general will. In constitutional government, it is the people ruling through a
body oI law that is sovereign. That is the version that commands legitimacy most
commonly in the world today.
Yet versions oI sovereignty evocative oI Hobbes' and Bodin's have carried Iorth
into the twentieth century. Explicitly invoking both oI these philosophers was the
early twentieth century German philosopher and jurist Carl Schmitt, Ior instance.
His Political Theology, originally published in 1922, opens with the line,
'sovereign is he who decides on the exceptions. Schmitt thought that the
sovereign was above any constitutional law and ought to be able to 'make a
decision on behalI oI the good oI the state during a time oI emergency. He had
little respect Ior liberal constitutionalism, which he thought wholly inadequate to
contain the power struggle that politics involves. By and large, there is little
indicating that, at least in this work, Schmitt thought the sovereign to be bound by
divine law or natural law. The liberal constitutionalism oI Weimar Germany was
his chieI piece oI evidence Ior this conviction; during the 1930s he Iervently
supported the National Socialist regime, one whose emergency powers were just
those that he thought necessary.
THE CIRCUMSCRIPTION OF THE SOVEREIGN STATE:
THEORY AND PRACTICE
The rise and global expansion oI sovereignty, described and even lauded by
political philosophers, amounts to one oI the most Iormidable and successIul
political trends in modern times. But Irom its earliest days, sovereignty has also
met with both doubters and qualiIied supporters, many oI whom have regarded
anybody oI law's claim to sovereign status as a Iorm oI idolatry, sometimes as a
carapace behind which rulers carry out cruelties and injustices Iree Irom legitimate
outside scrutiny. It was indeed aIter the Holocaust that meaningIul legal and
institutional circumscriptions oI sovereignty in Iact arose, many oI which have
come to abridge the rights oI sovereign states quite signiIicantly. The two most
prominent curtailments are conventions on human rights and European integration.
It was in 1948 that the vast majority oI states signed the Universal Declaration oI
Human Rights, committing themselves to respect over 30 separate rights Ior
individuals. As it was not a legally binding declaration and contained no
enIorcement provisions, the declaration leIt states` sovereignty intact, but it was a
Iirst step towards tethering them to international, universal obligations regarding
their internal aIIairs. Over decades, these human rights would come to enjoy ever
stronger legal status. One oI the most robust human rights conventions, one that
indeed curtails sovereignty, even iI mildly, through its arbitration mechanisms, is
the European Convention Ior the Protection oI Human Rights and Fundamental
Freedoms, Iormed in 1950. Roughly contemporaneous, signed on December 9,
1948, was the Genocide Convention, committing signing states to reIrain Irom and
punish genocide. Then, in the mid-1960's, two covenants the Covenant on Civil
and Political Rights and the Covenant on Economic, Social and Cultural Rights
legally bound most oI the world's states to respecting the human rights oI their
people. Again, the signatories` constitutional authority remained largely intact,
since they would not allow any oI these commitments to inIringe upon their
sovereignty. Subsequent human rights covenants, also signed by the vast majority
oI the world's states, contained similar reservations.
Only a practice oI human rights backed up by military enIorcement or robust
judicial procedures would circumscribe sovereignty in a serious way. Progress in
this direction began to occur aIter the Cold War through a historic revision oI the
Peace oI Westphalia, one that curtails a norm strongly advanced by its treaties
non-intervention. In a series oI several episodes beginning in 1990, the United
Nations or another international organization has endorsed a political action,
usually involving military Iorce that the broad consensus oI states would have
previously regarded as illegitimate interIerence in internal aIIairs. The episodes
have involved the approval oI military operations to remedy an injustice within the
boundaries oI a state or the outside administration oI domestic matters like police
operations. Unlike peacekeeping operations during the Cold War, the operations
have usually lacked the consent oI the government oI the target state. They have
occurred in Iraq, the Iormer Yugoslavia, Bosnia, Kosovo, Somalia, Rwanda, Haiti,
Cambodia, Liberia, and elsewhere. Although the legitimacy and wisdom oI
individual interventions is oIten contested among states the U.S. bombing oI
Iraq in December 1999 and NATO's intervention in Kosovo, Ior instance, Iailed to
elicit U.N. Security Council endorsement, as did the U.S. invasion oI Iraq in 2003
the broad practice oI intervention is likely to continue to enjoy broad
endorsement within the U.N. Security Council and other international
organizations.
An explicit call to revise the concept oI sovereignty so as to allow Ior
internationally sanctioned intervention arose with The Responsibility to Protect, a
document written and produced in 2001 by the International Commission on
Intervention and State Sovereignty, a commission that the Government oI Canada
convened at the behest oI U.N. Secretary General KoIi Annan. The document
proposes a strong revision oI the classical conception by which sovereignty
involves a 'responsibility to protect on the part oI a state towards its own citizens,
a responsibility that outsiders may assume when a state perpetrates massive
injustice or cannot protect its own citizens. Responsibility to Protect has garnered
wide international attention and serves as a maniIesto Ior a concept oI sovereignty
that is non-absolute and conditional upon outside obligations.
The other way in which sovereignty is being circumscribed is through European
integration. This idea also arose in reaction to the Holocaust, a calamity that many
European leaders attributed at least in part to the sovereign state's lack oI
accountability. Historically, the most enthusiastic supporters oI European
integration have indeed come Irom Catholic Christian Democratic parties, whose
ideals are rooted in medieval Christendom, where at least in theory, no leader was
sovereign and all leaders were accountable to a universal set oI values. In the
modern language oI human rights and democracy, they echo Pope Innocent X's
excoriation oI the Peace oI Westphalia.
European integration began in 1950, when six states Iormed the European Coal and
Steel Community in the Treaty oI Paris. The community established joint
international authority over the coal and steel industries oI these six countries,
entailing executive control through a permanent bureaucracy and a decision-
making Council oI Ministers composed oI Ioreign ministers oI each state. This
same model was expanded to a general economic zone in the Treaty oI Rome in
1957. It was enhanced by a judicial body, the European Court oI Justice, and a
legislature, the European Parliament, a directly elected Europe-wide body. Over
time, European integration has widened, as the institution now consists oI twenty-
seven members, and deepened, as it did in the 1991 Maastricht Treaty, which
expanded the institution's powers and reconIigured it as the European Union. Far
Irom a replacement Ior states, the European Union rather 'pools important aspects
oI their sovereignty into a 'supranational institution in which their Ireedom oI
action is constrained (Keohane & HoIIman 1991). They are no longer absolutely
sovereign. Today, European integration proceeds apace. On December 1, 2009, the
Treaty oI Lisbon came into Iull Iorce, pooling sovereignty Iurther by strengthening
the Council oI Ministers and the European Parliament, creating a High
Representative oI the Union Ior Foreign AIIairs and Security Policy to represent a
uniIied European Union position, and making the European Union's Charter oI
Fundamental Human Rights legally binding.
This circumscription oI the sovereign state, through international norms and
supranational institutions, Iinds a parallel in contemporary philosophers who attack
the notion oI absolute sovereignty. Their thought is not entirely new, Ior even in
early modern times, philosophers like Hugo Grotius, Alberico Gentili, and
Francisco Suarez, though they accepted the state as a legitimate institution, thought
that its authority ought to be limited, not absolute. The cruel prince, Ior instance,
could be subject to a disciplining action Irom neighboring princes that is much like
contemporary notions oI humanitarian intervention.
Perhaps the two most prominent attacks on sovereignty Irom political philosophers
since World War II come Irom Bertrand de Jouvenel and Jacques Maritain. In his
prominent work oI 1957, S4verei39y. A3 I3quiry I394 9he P4i9ic, G44d, Jouvenel
acknowledges that sovereignty is an important attribute oI modern political
authority, needed to quell disputes within the state and to muster cooperation in
deIense against outsiders. But he roundly decries the modern concept oI
sovereignty, which creates a power who is above the rules, a power whose decrees
are to be considered legitimate simply because they emanate Irom his will. To
Jouvenel, sovereignty reached its peak in Hobbes, in whose 'horriIic conception
everything comes back to means oI constraint, which enable the sovereign to issue
rights and dictate laws in any way he pleases. But these means oI constraint are
themselves but a Iraction oI the social Iorces concentrated in the hand oI the
sovereign (197). Despite their diIIerences over the locus and Iorm oI sovereignty,
subsequent thinkers like Locke, PuIendorI, and Rousseau 'were to Ieel the lure oI
this mechanically perIect construction (198). This was 'the hour oI s4verei39y i3
i9sef, writes Jouvenel, the existence oI which 'hardly anyone would
thenceIorward have the hardihood to deny (198).
As his description oI Hobbes intimates, Jouvenel views early modern absolute
sovereignty with great alarm. '|I|t is the idea itselI which is dangerous, he writes
(198). But rather than calling Ior the concept to be abrogated, he holds that
sovereignty must be channeled so that sovereign authority wills nothing but what is
legitimate. Far Irom being deIined by the sovereign, morality has an independent
validity. Appealing to the perspective oI 'Christian thinkers, he argues that 'there
are . . . wills which are just and wills which are unjust (201). 'Authority, then,
'carries with it the obligation to command the thing that should be commanded
(201). This was the understanding oI authority held by the ancien regime, where
eIIective advisers to the monarch could channel his eIIorts towards the common
good. What can channel the sovereign will today? Jouvenel seems to doubt that
judicial or constitutional design is alone enough. Rather, he places his hope in the
shared moral concepts oI the citizenry, which act as a constraint upon the choices
oI the sovereign.
In Chapter Two oI his enduring work oI 1951, M,3 ,3d 9he S9,9e, Jacques Maritain
shows little sympathy Ior sovereignty at all, not even the qualiIied sympathy oI
Jouvenel:
It is my contention that political philosophy must get rid oI the word, as well as the
concept, oI Sovereignty:-not because it is an antiquated concept, or by virtue oI a
sociological-juridical theory oI 'objective law; and not only because the concept
oI Sovereignty creates insuperable diIIiculties and theoretical entanglements in the
Iield oI international law; but because, considered in its genuine meaning, and in
the perspective oI the proper scientiIic realm to which it belongs political
philosophy this concept is intrinsically wrong and bound to mislead us iI we
keep on using it assuming that it has been too long and too largely accepted to
be permissibly rejected, and unaware oI the Ialse connotations that are inherent in
it (2930).
Bodin's and Hobbes` mistake was in conceiving oI sovereignty as authority that the
people permanently transIerred and alienated to an external entity, here the
monarch. Rather than representing the people and being accountable to it, the
sovereign became a transcendent entity, holding the supreme and inalienable right
to rule over the people, independently oI them, rather than representing the people,
accountable to them. Like Jouvenel, Maritain rues the exaltation oI the sovereign's
will such that what is just is what serves his interest. This is idolatry. Any transIer
oI the authority oI the body politic either to some part oI itselI or to some outside
entity the apparatus oI the state, a monarch, or even the people is
illegitimate, Ior the validity oI a government is rooted in its relationship to natural
law. Sovereignty gives rise to three dysIunctionalities. First, its external dimension
renders inconceivable international law and a world state, to both oI which
Maritain is highly sympathetic. Second, the internal dimension oI sovereignty, the
absolute power oI the state over the body politic, results in centralism, not
pluralism. Third, the supreme power oI the sovereign state is contrary to the
democratic notion oI accountability.
As a Catholic philosopher, Maritain's arguments run similar to Christian
philosophers oI early modern Europe who criticized absolute sovereignty.
Witnessing the rise oI the Iormidable entity oI the state, they sought to place limits
on its power and authority. They are the ancestors oI those who now demand limits
on the state's authority in the name oI human rights, oI the right to quell genocide
and disaster and deliver relieI Irom the outside, oI an international criminal court,
and oI a supranational entity that assumes power oI governance over economic,
and now, maybe, military aIIairs.