Abstract
This chapter considers sovereignty as a legal concept. It deals first with the question of how to determine what legal concepts mean. This is followed by an inferential analysis of sovereignty in international law and an inferential analysis of sovereignty in national law. I develop, here, a conception of constituted sovereignty as a legal status attributed to an entity by law and independent of the consequences that are attached to it. I end the chapter by considering the implications of understanding sovereignty in this way.
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Notes
- 1.
Besson (2011), p. 59.
- 2.
Troper (2012), p. 352.
- 3.
Besson (2011), p. 59.
- 4.
Steinberg (2004).
- 5.
Island of Palmas Case (Netherlands, USA) (1928).
- 6.
- 7.
- 8.
Hage (2011), pp. 25 f.
- 9.
Ibid.
- 10.
Ibid.
- 11.
Article 3 of the Russian Constitution states that “the bearer of sovereignty and the only source of power in the Russian Federation shall be its multinational people”, for example. References in constitutions that all state power emanates from the people are generally taken to imply popular sovereignty as well and can be found in various constitutional documents, such as in Article 1 of the Brazilian Constitution, Article 3 of the Portuguese Constitution, Article 3 of the Constitution of Thailand, Article 1(2) of the Greek Constitution, or Article 20(2) of the German Basic Law.
- 12.
For example Dicey (1915).
- 13.
- 14.
Sartor (2009), p. 35.
- 15.
Frändberg defines a system-dependent concepts as one “that is wholly dependent, with regard to its meaning, on the content of a given legal system at a given point of time”, giving the example of ownership, the meaning of which “is completely determined by the descriptions in legal rules of operative, or legal, facts and legal consequences which, in a given legal system at a given point of time, decide the generation and the extinction of ownership, as well as the legal effects of ownership.” Frändberg ibid.5 f.
- 16.
Ibid.
- 17.
Translations are taken from Kornet and Hardt (2013).
- 18.
This is, of course, a simplified representation, as other provisions will also play a role and a complete conceptual analysis of murder would need to take, for example, matters of self-defence into account as well. However, the aim here is not to provide such a complete analysis, but rather to use this example to demonstrate several points regarding internal legal concepts in general. For these reasons, it is hoped that the reader will excuse this simplification.
- 19.
Sartor (2009), pp. 36 ff.
- 20.
Ross (1957), Ross’ main point in this article is that concepts such as tû-tû or ownership are meaningless; it is possible to infer the same conclusions in the same factual situations by connecting all operative facts to all legal consequences, that is, by eliminating the intermediate concept of ownership. But contrast this to Hage (2009).
- 21.
Hage ibid.
- 22.
Ibid.
- 23.
Morse (1987).
- 24.
Hohfeld (1913), p. 32.
- 25.
Ibid.
- 26.
Ibid.
- 27.
Ibid.
- 28.
Ibid.
- 29.
Ibid.
- 30.
Ibid. One question arising from this example used by Hohfeld is whether a liability is dependent always on others, or whether a liability can arise also from one’s own (potential) conduct: can I be liable to change my own legal situation, i.e. can power and liability coincide? Hohfeld’s texts seem to suggest that this is not the case, yet the example used regarding the transfer of ownership of land suggests otherwise: such a transfer requires—at least dependent on jurisdiction—action not only on the side of the previous owner but also on the side of the potential future owner.
- 31.
Halpin (2007).
- 32.
Frändberg (2009), p. 6.
- 33.
For an overview of the terminology, see Fig. 2.2.
- 34.
Charter of the United Nations (1945), Article 2(1).
- 35.
Ibid.
- 36.
Besson (2011), p. 2.
- 37.
Crawford (2007), p. 33.
- 38.
Convention on the Rights and Duties of States (1933), Article 1.
- 39.
Charter of the United Nations (1945).
- 40.
Case of the S.S. “Wimbledon” (1923), II.
- 41.
Ibid.
- 42.
Ibid.
- 43.
S.S. “Lotus” (1927), p. 18.
- 44.
Ibid.
- 45.
Ibid.
- 46.
Island of Palmas Case (Netherlands, USA) (1928), p. 838.
- 47.
Ibid.
- 48.
Ibid.
- 49.
Huber’s precise phrasing on this point is that the continuous and peaceful display of state functions is “as good as a title” (ibid.). This indicates, especially in the context of the case, that this “as good as a title”-title may conflict with and need to be weighed against other titles to the territory.
- 50.
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua V. United States of America) (1986), p. 202.
- 51.
Ibid.
- 52.
Ibid.
- 53.
I am interpreting the PCIJ’s statement in such a way that a limitation of a state’s freedom to exercise sovereign rights in a certain way, the state’s sovereignty itself is in no way limited. As mentioned above, however, this is a matter of interpretation: the PCIJ does not explicitly state that sovereignty is not limited.
- 54.
Zimmermann (2006).
- 55.
Frändberg (2009), p. 6.
- 56.
Frändberg identifies these types of concepts, which he calls “system-independent L-concepts”, as ideal types. The difference in terminology does not indicate a diverging opinion from his on this point, but rather a difference in emphasis. As Frändberg also points out, these ideal types are also concepts of law: “[t]hey refer in a more indirect way to two or more, or even all, legal systems.” (ibid.)
- 57.
The lines between “the law itself” and “legal practice” and “legal scholarship” cannot always be clearly drawn, and the above paragraph is not meant to imply that they can in all cases. Legal practice impacts and changes the law, arguments by practicing lawyers are taken into account and reproduced by courts, and sometimes the same holds true for arguments by legal scholars.
- 58.
Philpott (2010), p. 1.
- 59.
Goldsworthy (1999), p. 12.
- 60.
Ibid.
- 61.
Dicey (1915), pp. 3 f.
- 62.
Goldsworthy (1999), p. 261.
- 63.
The term preemptive is taken from Joseph Raz, taken to mean that “the fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.” Raz (1986).
- 64.
Bodin (1955), pp. I, X.
- 65.
Ibid.
- 66.
Lloyd and Sreedhar (2013).
- 67.
Hobbes (2013), p. 85.
- 68.
Dicey (1915), pp. 3 f.
- 69.
“Sovereignty” is said to find its etymological origin in the Latin superanus, meaning the highest or the supreme. Kelsen (1959), p. 627.
- 70.
Dicey (1915), pp. 3 f.
- 71.
And presumably again after it leaves.
- 72.
Only a handful of states in the world do not have some form of constitutional review, cf. Mavčič (2010).
- 73.
Art. 79(2) German Basic Law.
- 74.
Art. 89 French Constitution.
- 75.
Cf. Dicey (1915).
- 76.
Hage (2011).
- 77.
It ignores, for example, the role of government and monarch and narrows down the process to just one event in the physical and social world, whereas it of course takes several. However, it should serve to illustrate the point.
- 78.
Krahmann (2013), p. 58.
- 79.
Hobbes (2013).
- 80.
Lloyd and Sreedhar (2013), p. 8.
- 81.
Imagine a world in which not states but religious orders were regarded sovereign (for more religious people than the present author, this may not be a stretch of the imagination). Instead of sovereignty over a territory, the sovereignty of each religious order would likely be over the people belonging to its religion. Of course, a territorial distribution is also possible.
- 82.
Beaud (2012), pp. 271–273.
- 83.
Raphael (1976), pp. 54 f.
- 84.
Beaud (2012), pp. 271–273.
- 85.
Dicey (1915), p. xlii.
- 86.
Ibid.
- 87.
As an aside: this argument could also be employed to argue for sovereignty of the European Union, if one assumes that the European Union is a composite entity consisting of all its Member States as sub-entities.
- 88.
de Montesquieu (1914).
- 89.
Examples can be found in the Portuguese Constitution (article 3), that of Thailand (section 3), of Russia (article 3), Greece (article 1(2)), Brazil (article 1) and of Germany (article 20(2)).
- 90.
“All state authority derives from the people. It is exercised by the people through elections and votes and through specific organs of the legislature, of executive power and the judiciary.”
- 91.
Grzeszick (2013).
- 92.
“Die Regelung der Volkssouveränität in Art. 20 Abs. 2 Satz 1 ist deshalb keine Zuständigkeitsregelung, sondern enthält ein Legitimations- und Verantwortungsprinzip.” ibid.
- 93.
Winterton (1998), pp. 7 f.
- 94.
Farand (2017).
- 95.
Raad van State (2014): Both the transfer of sovereignty and that of competences is mentioned in the motion. Even though both terms refer to a transfer of power, the difference is not just one of degree. In the context of international law, sovereignty means that states cannot be bound against their will (after all, an agreement requires the parties’ approval). In constitutional law, sovereignty refers to the competence of the state community to change the organisational setup of that state and its laws. In both fields, the sovereignty of the state is considered unitary and indivisible: a state either is or is not sovereign. This does not exclude that sovereign competences can be distributed: either within the state, as is the case in federal systems, or internationally, as in the European Union. However, such a distribution of competences does not imply a loss of sovereignty. Rather, it can often result in its confirmation or reinforcement.
Equating every limitation of the power to regulate and decide on domestic affairs autonomously to a loss of sovereignty would mean that no sovereign states exist (any more). (Translation provided by Dr Sascha Hardt with minor changes by the author; any remaining mistakes are entirely the author’s.)
- 96.
Ross (1957).
- 97.
It bears mentioning, here, that this does not mean that “sovereignty” cannot fulfil other functions (as well), nor does the conclusion that its ordering function is increasingly lost imply what, if anything, should be done about this.
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Waltermann, A.M. (2019). Sovereignty in the Law. In: Reconstructing Sovereignty. Law and Philosophy Library, vol 132. Springer, Cham. https://doi.org/10.1007/978-3-030-30004-3_2
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