‘ ere exists perhaps no conception the meaning of which is more controversial than that of sovereignty’, wrote the renowned German-British jurist Lassa Oppenheim.1 Indeed, in discussions on statehood the controversy frequently focuses on that particular word, sovereignty. Much debated and disputed, its usage has o en been thought to be ‘inherently problematic’,2 and sovereignty has been identi ed as ‘the most glittering and controversial notion in the history, doctrine and practice of public international law’.3 It is therefore not surprising that every now and then someone proposes to discard the word altogether. Louis Henkin writes, for instance:
Sovereignty is a bad word (…) it is o en a catchword, a substitute for thinking and precision. (…) For legal purposes at least, we might do well to relegate the term sovereignty to the shelf of history as a relic from an earlier era’.4
As of today, however, sovereignty remains a key concept in the relations between states, as well as in the understanding of modern statehood. In this chapter, we will have a closer look at it.
e word ‘sovereignty’ nds its origin in the Middle-Latin superanus, which means ‘above’ or ‘elevated above others’.5 One of the oldest recordings of it is in a French charter, dated around 1000 AD, but the development into Early French, as souverain, is found from the twel h century onwards – denoting geographical qualities of higher and lower,6 as in: mountain A is souverain over mountain B. e rst record where the word ‘souverain’ was used in a political sense, was
1 Lassa Oppenheim, International law. A treatise. 4th Edition by A.D. McNair (London: Longmans, 1928) 66.
2 Roger Scruton, e Palgrave Macmillan Dictionary of Political thought. 3rd edition (London: Palgrave Macmillan, 2007).
3 H. Steinberger, ‘Sovereignty’, in: R. Bernhardt (ed.), Encyclopedia of Public International Law. Volume Four (Amsterdam: Elsevier, 2000) 500.
4 L. Henkin, International Law: Politics and values (Dordrecht: Martinus Nijho Publishers, 1995) 9-10.
5 Gerard Kreijen, State Failure, Sovereignty, and E ectiveness. Legal Lessons from the Decolonization of Sub-Saharan Africa (Leiden: Martinus Nijho Publishers, 2004) 27.
6 Kreijen (2004) 27.
40 chapter two
allegedly in the principal work of the French jurist Philippe de Beaumanoir,7 entitled les Coutumes de Beauvaisis, in which he wrote that ‘chacuns barons est souverains en sa baronie …’8 – every baron is the highest in his own barony. From then on, ‘sovereignty’ is more o en recorded as meaning ‘there is no higher political power’ over a political unit.
But it is exactly this principle of ‘no higher power’ that causes confusion. For it may refer to external relations, establishing a rule of non-intervention; but it also implies that internally, the sovereign has e ectively established himself as the highest power. In order to have an e ective ‘community of sovereign states’ – in order for external sovereignty to make sense –, it is self-evidently necessary that those sovereign entities actually exercise e ective governmental control over their territory. One cannot do business with sovereigns if they cannot enforce agreements at home.
A discussion of sovereignty therefore inevitably leads to an analysis of the internal qualities of the modern state. Indeed, sovereignty and statehood are inextricably linked, doubling the complexity of the picture. ere can be no international system of sovereign entities, without those entities possessing the e ective governmental control associated with statehood.
e general consensus is that four criteria determine sovereign statehood. e rst and most important criterion was already mentioned, which is the exercise of ‘e ective and independent governmental control’ (1). is implies a ‘population’ (2), and a ‘territory’ (3), culminating in what is generally referred to as ‘internal sovereignty’.
But then, there is the international component to sovereignty. is is ‘the capacity to enter into relations with other states’ (4),9 and is encapsulated in the notion of external sovereignty. External sovereignty leads to questions over recognition and legitimacy that we will have a closer look at further down. But rst we will examine the meaning and scope of ‘internal sovereignty’.10
7 Philippe de Rémi, sire de Beaumanoir lived presumably from 1247 until 1296. He was a French administrative o cial and nobleman. His main work is Coutumes de Beauvaisis, written in 1283, and printed in 1690.
8 Kreijen (2004) 28.
9 Pierre-Marie Dupuy, Droit International Public (Paris: Editions Dalloz-Sirey, 1992) 23: ‘une
population (…) que l’état stabilise à l’intérieur de ses limites; c’est ainsi qu’a l’époque contemporaine, l’idée d’un Etat nomade est dé nitivement abolie’; Joe Verhoeven, Droit International Public (Louvain: Larcier 2000) 52 ; Malcolm D. Evans (ed.), International Law (Oxford: University Press, 2003) 217 .
10 For a classic de nition in international legal discourse, see the case of the Permanent Court of International Law, in the Lighthouses on Creta and Samos case, available online at http://www. worldcourts.com/pcij/eng/decisions/1937.10.08_lighthouses.htm; for a discussion of its terms, see Pablo Mendes de Leon, Cabotage in International Air Transport Regulation (PhD thesis, Leiden University Press, 1992) 162. See also the 1949 Corfu Channel Case of the ICJ, judgment of April 9th, 1949. Available online at http://www.icj-cij.org/docket/ les/1/1645.pdf. Cf. J.W. Rees, e
sovereignty 41
2.2. Internal Sovereignty
As said, internal sovereignty consists in the exercise of e ective and independent governmental control, over a population, on a generally marked-out territory. e most problematic aspect of this is the rst criterion: e ective and independent governmental control. Questions related to de ning a population and a territory, more importantly, are outside the remit of this chapter and will therefore not be taken into account.
We will thus focus on e ective and independent governmental control. e rst thing that may come to mind when discussing this is Albert Venn Dicey’s famous de nition of parliamentary sovereignty. Parliament, as the highest institution of a state, embodies sovereignty when any of its acts, ‘or any part of an Act of Parliament, which makes a new law, or repeals or modi es an existing law, will be obeyed by the courts.’11 Dicey continues:
e same principle, looked at from its negative side, may be thus stated: there is no person or body of persons who can, under the English constitution, make rules which override or derogate from an Act of Parliament, or which (to express the same thing in other words) will be enforced by the courts in contravention of an Act of Parliament.’12
In Dicey’s de nition, however, there is no mention being made of existing power realities on the ground; his understanding of sovereignty is institutional. What will actually happen with verdicts of the courts – whether their magistrates have any bearing on the population or not – is not part of his concern. is leaves Dicey’s de nition open to the obvious objection that while parliament and courts may o cially be fully sovereign, e ective governmental control may be entirely lacking.13
Now, governments are o en incapable of enforcing compliance with all their laws, and sometimes incapable of enforcing most of them. Courts may be unable to make sure that judgments are actually carried out. e most extreme examples of this are formed by a number of mostly post-colonial (predominantly African) states that have not succeeded in enforcing their laws and maintaining order within their territory. ese states have, in recent years, come to be called ‘failed states’, rendering the notion of sovereignty in Dicey’s institutional sense a dead letter.14
theory of sovereignty restated, in: Peter Laslett (ed.), Philosophy, Politics and Society. First series (Oxford: Oxford University Press, 1975).
11 Albert Venn Dicey, Introduction to the study of the law of the constitution (London: Macmillan, 1939) 40.
12 Dicey (1939) 40.
13 As Dicey himself acknowledges as well. Dicey (1939) 82 .
14 Cf. Kreijen (2004).