Sovereignty

In virtually all communities political rule is exercised through the institutions of government or the state. However, it is less clear what the proper or appropriate unit of political rule might be. In other words, over what population group and within what territorial boundaries should state power operate? For the last two hundred years the dominant answer to that question has been ‘the nation’. It has almost been taken for granted that the nation is the only legitimate political community, and therefore that the nation-state is the highest form of political organization. Indeed, national sovereignty is usually understood to be the cor-nerstone of international law, giving each nation the right of self-defence and to determine its own destiny. Nevertheless, the post-1945 period has been charac-terized by a marked trend towards globalization, reflected in the growth of eco-nomic independence as national economies have been incorporated into a global one, and in the emergence of supranational bodies such as the United Nations, the World Trade Organization and the European Union.

While some have applauded this development, arguing that international federations and even world government now constitute the only viable units of political rule, others have protested vehemently about the loss of national independence and self-determination. This debate has usually focused upon the question of sovereignty and, in particular, the merits or otherwise of national sovereignty. Is the exercise of sovereign power essential for the existence of a stable political community, and where should that sovereignty be located? More-over, considerable controversy surrounds the idea of the nation: what factors define a nation, and what makes the nation a viable, perhaps the only viable, unit of political rule? Finally, in an increasingly global society, forms of internationalism and supranationalism have proliferated. What forms has supranational govern-ment taken, and do supranational bodies have the potential eventually to replace the nation-state?

Sovereignty

The concept of sovereignty was born in the seventeenth century, as a result of the emergence in Europe of the modern state. In the medieval period, princes, kings and emperors had acknowledged a higher authority than themselves in the form of God – the ‘King of Kings’ – and the Papacy. Moreover, authority was divided, in particular between spiritual and temporal sources of authority. However, as feudalism faded in the fifteenth and sixteenth centuries, the authority of transnational institutions, such as the Catholic Church and the Holy Roman Empire, was replaced by that of centralizing monarchies. In England this was achieved under the Tudor dynasty, in France under the Bourbons, in Spain under the Habsburgs and so on. For the first time, secular rulers were able to claim to exercise supreme power, and this they did in a new language of sovereignty.

Sovereignty means absolute and unlimited power. However, this apparently simple principle conceals a wealth of confusion, misunder-standing and disagreement. In the first place, it is unclear what this absolute power consists of. Sovereignty can either refer to supreme legal authority or to unchallengeable political power. This controversy relates to the distinction between two kinds of sovereignty, termed by the nineteenth-century constitutional theorist A.V. Dicey ([1885] 1939) ‘legal sovereignty’ and ‘political sovereignty’. The concept of sovereignty has also been used in two contrasting ways. In the form of internal sovereignty it refers to the distribution of power within the state, and leads to questions about the need for supreme power and its location within the political system. In the form of external sovereignty it is related to the state’s role within the international order and to whether or not it is able to operate as an independent and autonomous actor.

Legal and Political Sovereignty

The distinction between legal sovereignty and political sovereignty is often traced back to a difference of emphasis found in the writings of the classical exponents of the principle, Jean Bodin and Thomas Hobbes. In The Six Books of the Commonweal ([1576] 1962), Bodin argued for a sovereign who made laws but was not himself bound by those laws. Law, according to this view, amounted to little more than the command of the sovereign, and subjects were required simply to obey. Bodin did not, however, advocate or justify despotic rule, but claimed, rather, that the sovereign monarch was constrained by the existence of a higher law, in the form of the will of God or natural law. The sovereignty of temporal rulers was therefore underpinned by divine authority. Hobbes, on the other hand, described sovereignty in terms of power rather than authority. He built upon a tradition dating back to Augustine which explained the need for a sovereign in terms of the moral evil that resides within humankind. In Leviathan ([1651] 1968), Hobbes defined sovereignty as a monopoly of coercive power and advocated that it be vested in the hands of a single ruler. Although Hobbes’s preferred form of government was a monarchy, he was prepared to accept that, so long as it was unchallengeable, the sovereign could be an oligarchic group or even democratic assembly.

This distinction therefore reflects the one between authority and power. Legal sovereignty is based upon the belief that ultimate and final authority resides in the laws of the state. This is de jure sovereignty, supreme power defined in terms of legal authority. In other words, it is based upon the right to require somebody to comply, as defined by law. By contrast, political sovereignty is not in any way based upon a claim to legal authority but is concerned simply about the actual distribution of power, that is, de facto sovereignty. Political sovereignty therefore refers to the existence of a supreme political power, possessed of the ability to command obedience because it monopolizes coercive force. However, although these two concepts can be distinguished analytically, they are closely related in practice. There are reasons to believe that on their own neither constitutes a viable form of sovereignty.

In a sense, sovereignty always involves a claim to exercise legal authority, a claim to exercise power by right and not merely by virtue of force. All substantial claims to sovereignty therefore have a crucial legal dimension. The sovereignty of modern states, for example, is reflected in the supremacy of law: families, clubs, trade unions, businesses and so on, can establish rules which command authority, but only within limits defined by law. Nevertheless, law on its own does not secure compliance. No society has yet been constructed in which law is universally obeyed and crime entirely unheard of. This is evident in the simple fact that systems of law are everywhere backed up by a machinery of punishment, involving the police, courts and prison system. Legal authority, in other words, is underpinned by the exercise of power. Lacking the ability to enforce a command, a claim to legal sovereignty will carry only moral weight, as, for example, the peoples of the Baltic States – Latvia, Estonia and Lithuania – recognized between their invasion by the Soviet Union in 1940 and their eventual achievement of independence in 1991.

A very similar lesson applies to the political conception of sovereignty. Although all states seek a monopoly of coercive power and prevent, or at least limit, their citizens’ access to it, very few rule through the use of force alone. Constitutional and democratic government has, in part, come into existence in an attempt to persuade citizens that the state has the right to rule, to exercise authority and not merely power. Perhaps the most obvious exceptions to this have been brutally repressive states, such as those in Nazi Germany, Stalinist Russia or Pol Pot’s Cambodia, which came close to establishing an exclusively political form of sovereignty because they ruled largely through their ability to repress, manipulate and coerce. However, even in these cases it is doubtful that such states were ever sovereign in the sense of being supreme and unchallengeable; none of them, for instance, was enduringly successful, and their very use of open terror bears witness to the survival of opposition and resistance. Moreover, in building up vast ideological apparatuses, totalitarian leaders such as Hitler, Stalin and Pol Pot clearly recognized the need to give their regimes at least the mantle of legal authority.

Internal Sovereignty

Internal sovereignty refers to the internal affairs of the state and the location of supreme power within it. An internal sovereign is therefore a political body that possesses ultimate, final and independent authority; one whose decisions are binding upon all citizens, groups and institutions in society. Much of political theory has been an attempt to decide precisely where such sovereignty should be located. Early thinkers, as already noted, were inclined to the belief that sovereignty should be vested in the hands of a single person, a monarch. Absolute monarchs described themselves as ‘sovereigns’, and could declare, as did Louis XIV of France in the seventeenth century, that they were the state. The overriding merit of vesting sovereignty in a single individual was that sovereignty would then be indivisible; it would be expressed in a single voice that could claim final authority. The most radical departure from this absolutist notion of sovereignty came in the eighteenth century with Jean-Jacques Rousseau. Rousseau rejected monarchical rule in favour of the notion of popular sovereignty, the belief that ultimate authority is vested in the people themselves, expressed in the idea of the ‘general will’. The doctrine of popular sovereignty has often been seen as the basis of modern democratic theory. However, sovereignty has also been located in legislative bodies. For example, the British legal philosopher John Austin (1790–1859) argued that sovereignty in the UK was vested neither in the Crown nor in the people but in the ‘Monarch in Parliament’. This was the origin of the doctrine of parliamentary sovereignty, usually seen as the fundamental principle of the British constitution.

What all such thinkers, however, had in common is that they believed that sovereignty could be, and should be, located in a determinant body. They believed that political rule requires the existence of an ultimate authority, and only disagreed about who or what this ultimate authority should be. This has come to be known as the ‘traditional’ doctrine of sovereignty. In an age of pluralistic and democratic government, however, the traditional doctrine has come in for growing criticism. Its opponents argue either that it is intrinsically linked to its absolutist past and so is frankly undesirable, or that it is no longer applicable to modern systems of government which operate according to a network of checks and balances. It has been suggested, for instance, that liberal-democratic principles are the very antithesis of sovereignty in that they argue for a distribution of power amongst a number of institutions, none of which can meaningfully claim to be sovereign. This applies even in the case of popular sovereignty. Although Rousseau never wavered from the belief that sovereignty resides with the people, he acknowledged that the ‘general will’ was an indivisible whole which could only be articulated by a single individual, who he called ‘the legislator’. This has encouraged commentators such as J. L. Talmon (1952) to suggest that Rousseau is the principal intellectual forebear of twentieth-century totalitarianism. Similar claims have been made regard-ing the UK principle of parliamentary sovereignty. Governments that achieve majority control of the House of Commons gain access to unlimited constitutional authority, creating what has been called an ‘elective dictatorship’ or ‘modern autocracy’.

The task of locating an internal sovereign in modern government is particularly difficult. This is clearest in the case of federal states, such as the USA, Canada, Australia and India, where government is divided into two levels, each of which exercises a range of autonomous powers. Federalism is often said to involve a sharing of sovereignty between these two levels, between the centre and the periphery. However, in developing the notion of a shared or divided sovereignty, federalism moves the concept away from the classical belief in a single and indivisible sovereign power. It may, furthermore, suggest that neither level of government can finally be described as sovereign because sovereignty rests with the document which apportions power to each level: the constitution. The government of the USA offers a particularly good example of such complexities.

It can certainly be argued that in the USA legal sovereignty resides in the Constitution because it defines the powers of federal government by allocating duties, powers and functions to Congress, the Presidency and the Supreme Court, and so defines the nature of the federal system. Nevertheless, by possessing the power to interpret the Constitution it can be suggested that sovereignty resides with the Supreme Court. In effect, the Constitution means what a majority of the nine Supreme Court Justices say it means. The Supreme Court, however, cannot properly be portrayed as the supreme constitutional arbiter since its interpretation of the Constitution can be overturned by amendments to the original document. In this sense, sovereignty can be said to reside with the mechanism empowered to amend the Constitution: two-thirds majorities in both Houses of Congress and three-quarters of the USA’s state legislatures, or in a convention specifically called for the purpose. On the other hand, one clause of the Constitution – the state’s representation in the Senate – specifically forbids amendment. To complicate matters further, it can be argued that sovereignty in the USA is ultimately vested in the American people themselves. This is expressed in the US Constitution, 1787, which opens with the words ‘We the people . . .’ and in its Tenth Amendment which stipulates that powers not otherwise allocated belong ‘to the states respectively, or to the people’. In view of these complexities, a polycentric concept of sovereignty has taken root in the USA that is clearly distinct from its European counterpart.

By contrast, it has long been argued that in the UK a single, unchallenge-able legal authority exists in the form of the Westminster Parliament. In the words of John Stuart Mill, ‘Parliament can do anything except turn a man into a woman.’ The UK Parliament appears to enjoy unlimited legal power; it can make, amend and repeal any law it wishes. It possesses this power because the UK, unlike the vast majority of states, does not possess a ‘written’ or codified constitution that defines the powers of government institutions, Parliament included. Moreover, since the UK possesses a unitary rather than federal system of government, no rival legislatures exist to challenge the authority of Parliament; all legislation derives from a single source. Parliament-made law (that is, statute law) is also the highest law of the land, and will therefore prevail over other kinds of law, common law, case law, judge-made law and so forth. Finally, no Parliament is able to bind its successors, since to do so would restrict the laws which any future Parliament could introduce and curtail its sovereign power.

It can be argued, however, that in reality the UK Parliament enjoys neither legal nor political sovereignty. Its legal sovereignty has been compromised by membership of the European Union. As an EU member, the UK is obliged to conform to European law and is thus subject to the jurisdiction of the European Court of Justice in Luxembourg. This was underlined in the Factortame case of 1991 when for the first time the European Court of Justice declared UK legislation to be unlawful, in this case the Merchant Shipping Act 1988, because it contravened European laws guaranteeing a free movement of goods and persons within the European Community (as it then was). If Parliament can any longer be described as legally sovereign it is only by virtue of the fact that it retains the legal right to withdraw from the EU. In political terms, it is unlikely that Parliament has ever enjoyed sovereignty; it cannot simply act as it pleases. In practice, a wide range of institutions constrain its behaviour, including the electorate, devolved bodies, organized interests, particularly those which possess financial or economic muscle, major trading partners, supranational organizations, international treaties and so forth. Parlia-ment’s right to withdraw the UK from the EU is, for instance, only notional. As most UK trade is now with other EU states, revoking the UK’s membership would involve such heavy economic costs as to be, for all practical purposes, unthinkable.

External Sovereignty

External sovereignty refers to the state’s place in the international order and therefore to its sovereign independence in relation to other states. A state can be considered sovereign over its people and territory despite the fact that no sovereign figures in its internal structure of government. External sovereignty can thus be respected even though internal sovereignty may be a matter of dispute or confusion. Moreover, while questions about internal sovereignty have in a democratic age appeared increasingly outdated, the issue of external sovereignty has become absolutely vital. Indeed, some of the deepest divisions in modern politics involve disputed claims to such sovereignty. The Arab–Israeli conflict, for example, turns on the question of sovereignty. The Palestinians have long sought to establish a homeland and ultimately a sovereign state in territory still claimed by Israel; in turn, Israel has traditionally seen such demands as a challenge to its own sovereignty. The continuing importance of external sovereignty was also underlined by the disintegration of multinational states such as the Soviet Union and Yugoslavia. The Soviet Union effectively ceased to exist when, in August 1991, each of its fifteen republics asserted its independence by proclaiming itself to be a sovereign state. Similarly, in 1992 the Yugoslav republics, led by Croatia, Slovenia and Bosnia, broke away from the federation by declaring their sovereignty. This was, however, fiercely resisted by the most powerful republic, Serbia, which, initially at least, presented itself as the defender of Yugoslav sovereignty.

Historically, this notion of sovereignty has been closely linked to the struggle for popular government, the two ideas fusing to create the modern notion of ‘national sovereignty’. External sovereignty has thus come to embody the principles of national independence and self-government. Only if a nation is sovereign are its people capable of fashioning their own destiny in accordance with their particular needs and interests. To ask a nation to surrender its sovereignty is tantamount to asking its people to give up their freedom. This is why external or national sovereignty is so keenly felt and, when it is threatened, so fiercely defended. The potent appeal of political nationalism is the best evidence of this.

Although the principle of external sovereignty is widely recognized, and indeed enshrined as a basic principle of international law, it is not without its critics. Some have pointed out, for instance, the sinister implications of granting each state exclusive jurisdiction over its own territory and the capacity to treat its citizens in whatever way it may choose. There is, unfortunately, abundant evidence of the capacity of states to abuse, terrorize and even exterminate their own citizens. As a result, it is now widely accepted that states should conform to a higher set of moral principles, usually expressed in the doctrine of human rights. The phenomenon of ‘humanitarian intervention’, as evident in the removal of Serbian forces from Kosovo in 1999 and the overthrow of the Taliban regime in Afghanistan in 2001, is sometimes seen as a reflection of the fact that a commitment to human rights now supersedes a concern for national sovereignty. Moreover, it is sometimes suggested that the classical argu-ment for sovereignty points beyond national sovereignty. Thinkers such as Bodin and Hobbes emphasized that sovereignty was the only alternative to disorder, chaos and anarchy. Yet this is precisely what a rigorous application of the principle of national sovereignty would turn interna-tional politics into. In the absence of some supreme international author-ity, disputes between rival states will surely lead to armed conflict and war, just as without an internal sovereign conflict among individuals leads to brutality and injustice. In this way, the classical doctrine of sovereignty can be turned into an argument for world government.

Finally, many have questioned whether the notion of an independent or sovereign state is any longer meaningful in an increasingly interdependent or globalized world. Modern economic life, for example, is so dominated by multinational companies and international trade that for any nation-state to regard itself as economically sovereign is a wilful delusion. In addition, if sovereignty is understood in political terms, it is difficult to see how many, or perhaps any, states can be said to be externally sovereign. Coercive power is clearly distributed unequally among the states of the world. For much of the post-1945 period the world was dominated by two mighty ‘superpowers’, the USA and the Soviet Union, which not only possessed the bulk of the world’s nuclear weaponry but also developed a network of alliances to bolster their power. It could therefore be argued that only these two states were sovereign, in that only they possessed the economic and military might to enjoy genuine independence. On the other hand, the mere existence of the other superpower served to deny either of them sovereignty, forcing both the USA and the Soviet Union to, for example, press ahead with more costly military programmes than would otherwise have been the case. Nor is it possible to argue that the collapse of the Soviet Union finally made a reality of political sovereignty by creating a world dominated by a single all-powerful state, the USA. Despite a clear trend, strengthened since the terrorist attacks of September 2001, towards unilateralism and interventionism, US global power re-mains, in important senses, limited and constrained. This is illustrated by the USA’s difficulty in countering the threat of global terrorism, control-ling ‘rogue states’ that possess nuclear weapons, and in bringing peace and stability to post-Saddam Iraq.