Definition, Types, Criticisms and Limitations of Sovereignty

 

Definition, Types, Criticisms and Limitations of Sovereignty

 

Definition of  Sovereignty

Sovereignty may be described as the power of a state to make laws and enforce the laws with all the coercive power it can employ without any external interference. It is that characteristic of the state by virtue of which it cannot be legally bound except by its own will or limited by any power than itself.

The modern states claim to be sovereign, and to be subject to no higher human authority. It issues orders to all and receives order from none, and its will is not subject to any legal limitation of any kind.

The French writer, Jean Bodin (1530), introduced the theory of sovereignty into the study of political science. He, it was who postulates that, “If the state is to live there must be in every organized community some definite authority not only itself obeyed, but also itself beyond the reach of authority.” Harold Laski corroborates Bodin’s definition when he concludes that when we discover the authority, which gives commands habitually obeyed but itself not receiving them, we have the sovereign power in the state. By these characterizations, in an independent political community sovereignty is determinate, absolute and illimitable.

Sovereignty is a supreme power of the state over her citizens and subjects, itself not bound by the laws.

Academics who have helped to develop the theory of sovereignty include Thomas Hobbes, John Locke, J. J. Rousseau, and Jeremy Bentham.

According to Hobbes, sovereignty is absolute and located in the ruler, his premise being the social contract. Locke did not use the term sovereignty at all; in so far there was a supreme power in his state, it lay with the people; but normally it was latent. Rousseau maintained that sovereignty belonged to the people; it could be exercised only in an assembly of the whole people. Government was but the executive agent of the general will: it had no manner of sovereignty. The sovereignty of the people of Rousseau was as unlimited just as morally is unlimited. It is limited by the possibility of resistance, and there are conditions under which resistance is morally justifiable. Bentham urged the necessity for the sovereign to justify his power by useful legislation to promoting “the greatest happiness of the greatest number.”

Within the domestic environment, the sovereignty of the state is located in, or exercised by persons or institutions. In a monarchical system, sovereignty is located in the king except where that king is a constitutional monarch like in Britain, where the law obliges or compels a division of sovereignty among several institutions of the state, with the parliament in obvious supremacy.

In a republican democracy like the United States, a number of institutions also shares sovereignty, where the President occupies a primacy. In most modern democracies, one of the principal institutions involved in the exercise of the sovereign power of the state is the Legislature or Parliament, which has powers to make laws that are binding on all including the lawmakers.

Others are the Executive, which has constitutional responsibility for enforcing or executing the laws while the Judiciary, which has the power to interpret and adjudicate disputes arising from the constitution and the law. There has been a great deal of academic debate on whether sovereignty is determinate or illimitable. It is not worthwhile to reopen such a debate here but the important thing is to know what sovereignty denotes and connotes.

First, in every state there must be a sovereign, the sovereignty must be clearly located, his commands are laws and within the sphere of law, as Hobbes said there is no such thing as an unjust command.

Second, such laws or commands may oblige the subjects to do, or to refrain from doing, certain things and failure to comply attract penalty.

Therefore, sovereignty is located in that individual, group or association which is obeyed without question by the rest of the people in a state. Sovereignty is a very important concept in political science and it is the foundation for the survival and existence of the state in both its domestic and external affairs.

 

Types of Sovereignty

There are three main types of sovereignty namely:

1.        Political/Popular Sovereignty

2.        External Sovereignty

3.        Legal Sovereignty

Political/Popular Sovereignty

Political or popular sovereignty refers to the ultimate power of the people. It is often argued that the people make up the polity and all constitutions are, or ought to be reflections of their preference, culture and institutions. 

By popular/majority will, they also enthrone and can also displace or remove governments. 

Consequently, in discussions of sovereignty it is tempting to suggest or conclude that the people are sovereign. 

Nevertheless, in practice the impact of the people in the process of law making or drafting of constitutions is minimal, if not nil. Most legislators hardly consult their constituents before vital decisions are made, recall procedure is cumbersome to be applied as a check on recalcitrant legislators, while the electoral process, particularly in Third World nations hardly reflect popular will. For these reasons, we must be cautious in placing too much hope on the strings that the political sovereign can pull. 

This is why Laski dismisses as an abstraction, attempts to equate popular sovereignty with public opinion, especially when we do not “know when public opinion is public and when it is opinion.”

In the modern state, it is therefore an illusion to suggest that the people are sovereign. Only the very active, powerful, aggressive or interested, actually get to exert any influence on the constitutions, institutions of state or the workings of government. The mass of the people cannot only govern in the sense of acting continually as a unit, more importantly; the business of the modern state is far too complex to be conducted by perpetual referenda. John Chipman Gray confirmed elitist rule when he declared that the real rulers of society are undiscoverable. 

For the most part, constitutions and regulative rules emerge from the manipulation, compromises and conflicts of powerful minorities. The majority often concedes through apathy, indifference or ignorance their right to influence public policy. 

Thus, while in theory; the people are sovereign, in practice; it is the constitution that is sovereign and the operators who exercise this sovereignty.

However, it is possible for the people to be mobilized to assert themselves and influence the legal sovereign (constitution and parliament) in such a way as to suit their interest or desires. Such occasions however are rare. They occur only in moments of crisis when there is need for radical changes. In short, sovereignty is meaningless in the absence of power; that is power to enforce laws. But as others have argued power is neither necessary nor sufficient for the exercise of sovereignty. What is central and necessary is to earn the obedience of the people, which ultimately enhances the possession, and exercise of authority.

External Sovereignty

Sovereignty is the central organizing principle of the international system. It means essentially supremacy and separateness of states as legal or political entities with power to control others and regulate not only their internal affairs, but also their external or foreign relations.

The state is sovereign within a defined territory and enjoys equal status with others, which have the same attribute. The importance of Hugo Grotius in the development of the theory of sovereignty is that he emphasized external sovereignty, i.e. the independence of the states from foreign control. 

Sovereignty is therefore used in reference to states, which are autonomous of any other entity. Although, membership of international organizations is voluntary, States willingly join because they consider such participation to be in their enlightened national interests. States can also decline the jurisdiction, or refuse to abide by the judgment of the International Court of Justice (ICJ) as the United States has severally done with its optional clause or that of the International Criminal Court (ICC) by refusing to ratify its Statute.

This is still within the exercise of a state external sovereignty.

The idea of sovereign state in diplomatic history had its roots with the signing of the Treaty of Westphalia in 1648. After the Thirty Years War the sovereign state emerged from the bloody clash to vindicate the supremacy of the secular order against religious claims. And since then states have been guarding jealously their sovereignty, equality and territorial integrity.

From the 1815 Congress of Vienna, through the 1919 Versailles Peace Treaty, the San Francisco Conference of 1945, which gave birth to the Charter of the United Nations, the 1961 Vienna Conference on Diplomatic Immunity to the 2000 Rome Treaty of the International Criminal Court, the notion of sovereignty of states, has been preserved.

Legal sovereignty

State is a legal order in which the sovereign is determinate and exercises ultimate power. John Austin is the foremost exponent of legal sovereignty. He admits that a sovereign may act unwisely or dishonestly, but for the purpose of legal theory, the character of its actions is not important. This view is similar to the popular saying in Britain that “the King or Queen can do no wrong.” But since a constitutional Monarch like it obtains in Britain operates within a legal or unwritten conventional milieu, legal sovereignty connotes also the power of the legislature to make laws, or that of constitutive and regulative laws of the state as symbolized or permitted by the constitution, which is the supreme law.

It is also plausible to ague essentially that legal sovereignty resides in the constitution. Although the legislature can review, amend or even mutilate the constitution, it can only do so in accordance with the same constitution.

This makes the idea of legislative sovereignty to be limited or suspect. In any case, the legality or otherwise of a legislation can be challenged in the court of law whereas the constitution cannot. All that can be done to the constitution in the court of law is to interpret it in a way to make its provisions less ambiguous and more precise.

In this sense, we can only talk of legal sovereignty, which means the supremacy of the constitution.

 

Criticisms and Limitations of Sovereignty

There are several criticisms of the theory of sovereignty.

1. In the view of Sir Henry Maine sovereignty it is not applicable to undeveloped communities, among whom custom is the king of men.

2. Sovereignty assumes that the state is the only association. This is not true according to the pluralists who recognize the existence of other non-political associations like trade unions that grow naturally, have a will of their own and possess personality distinct from that of the state.

They also have members who find fulfillment within such bodies.

3. In a federal state it may not be easy to determine or locate sovereignty in one source giving the origin, cooperative and dual character of most federations, which often compel distribution of powers among levels of government.

But a caveat to this criticism is that even in federations efforts are being made to build overarching national consensus. As Laski puts it, “The will of the state must be all or nothing. If it can be challenged, the prospect of anarchy is obvious.” It was this realization, which made Abraham Lincoln in the United States between 1861 and 1865, and Yakubu Gowon of Nigeria from 1967 to 1970 used federal might to suppress rebellion by the secessionist states to keep the federation intact.

4. The sovereign must habitually observe certain principles or maxim. For example, it is unthinkable that the Queen in Parliament will ignore established age hold conventions that hold the British society together. 

5.  In a democracy, it is almost a truism that the legal sovereign should bow to the political sovereign. The question then is: if, sovereignty is determinate, how can the people or the electorate where popular sovereignty rest, satisfies this requirement.

6.  While it is conceded that the law of the sovereign is a command, yet the state cannot make laws that offend the historical and sociological milieu of a society, otherwise the sovereign may risk resistance, or even rebellion. 

7. To say that there is no law beyond the reach of the sovereign is to strain the definition to its limit, as the sovereign cannot tax private property without the consent of the owner.

As Laski warned, “Men will sooner part with their souls than with their possessions.” The concept of absolute, unlimited sovereignty did not last long after its adoption, either domestically or internationally.

The growth of democracy imposed important limitations upon the power of the sovereign and of the ruling classes. The increase in the interdependence of states restricted the principle that might is right in international affairs.

Citizens and policymakers generally have recognized that there can be no peace without law and that there can be no law without some limitations on sovereignty.

They started, therefore, to pool their sovereignties to the extent needed to maintain peace and prosperity. 

For example, the North Atlantic Treaty Organization, United Nations, European Union, African Union and ECOWAS Charters, which modern states are signatories and respected, serve as limitations on their sovereignty.

In spite of these criticisms, sovereignty remains a valid legal and political theory. In those levels of society in which obedience is habitually rendered by the bulk of society to an authority or superior who is independent of any other superior, the obedience is so rendered because this authority or superior is regarded as expressing or embodying what may properly be called the general will.

This sovereign does not exercise an unlimited power of compulsion since his power is dependent upon his conforming to certain convictions that the subjects consider to be in line with the general interests. The sovereign is able to exercise the ultimate power of getting habitual obedience from the people because of what the people stand to gain for so doing. The consent is not reducible to the fear of the sovereign; rather it is a common desire to achieve certain purpose towards which obedience to law contributes.

The Austinian conception of sovereignty which emphasizes a determinate person or body of persons with sovereign power is therefore not without qualifications.

It only suggests common interest, a common sympathy, and a desire for common object, which we call the general, will, and which the people believe is embodied in the sovereign. The foregoing is what Harold Laski (1982) had in mind when he wrote of a modified view of sovereignty. In his characteristic inimitable way, he wrote: “If the state is to be a moral entity, it must be built upon the organized acquiescence of its members. But this demands from them the scrutiny of government orders; and that, in its turn, implies a right to disobedience.” Therefore, will, not force, is the basis of the state.

On the limitations of the concept of sovereignty, there has been a great of debate on its relevance when it comes to the arena of international relations. Scholars like John Herz, J. Rosenau, R. Cooper and Karl Deutsch have argued at one time or the other that sovereignty has become obsolete. Herz’s position is that nuclear weapons have undermined the isolation and separateness of states making them vulnerable to decisions outside their control. Rosenau’s concept of cascade interdependence argues from the point of view that other states, forces or agencies that intrude into the decision-making process of another, thereby undermining its supremacy and separateness.

Karl Deutsch premised his argument on the rise of hegemonic powers, which have the capacity to impose their will on others and exercise such power without authorization and often with impunity. This was the case when the United States in 2003 invaded Iraq, topped Saddam Hussein’s government and forcefully imposed its coercive will on the country, an action that amounted to virtual extinguishing of Iraq’s sovereignty.

This reality has reduced the sovereignty of smaller states, making them live at the mercy of powerful ones as it happened when Kuwait was overrun by neighboring Iraq in August 1990, until her sovereignty was restored in January 1991 after the intervention of the United Nations backed, US led Allied Forces.

For similar hegemonic, imperialist or economic reasons countries such as Vietnam, Grenada, Panama, Afghanistan, Georgia, at one time or the other, were at the receiving end of the ambitions and manipulations of super powers like USA and the former Soviet Union, now Russia. Joseph Nye Jnr. (2000) also wrote extensively on the subject of economic interdependence of states, how it seriously undermines or reduces the capacity for independent action on the parts of sovereign states.

 

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