Sovereignty

The Evolution of an Idea

Robert Jackson

• Publisher: Polity
• Year: 2013
• Print ISBN: 9780745623375, 9780745623382
• eBook ISBN: 9780745654720
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

Sovereignty is at the very centre of the political and legal arrangements of the modern world. The idea originated in the controversies and wars, both religious and political, of 16th and 17th century Europe and since that time it has continued to spread and evolve. Today sovereignty is a global system of authority: it extends across all religions, civilizations, languages, cultures, ethnic and racial groupings, and other collectivities into which humanity is divided.

In this highly accessible book, Robert Jackson provides a concise and comprehensive introduction to the history and meaning of sovereignty. Drawing on a wide range of examples from the US Declaration of Independence to terrorist attacks of 9/11 he shows how sovereignty operates in our daily lives and analyses the issues raised by its universality and centrality in the organization of the world. The book covers core topics such as the discourse of sovereignty, the global expansion of sovereignty, the rise of popular sovereignty, and the relationship between sovereignty and human rights. It concludes by examining future challenges facing sovereignty in an era of globalization.

This interdisciplinary study will be of interest to a wide range of students, academics and general readers who seek to understand this fundamental concept of the modern world.

1

Sovereignty and Modernity

Manifestations of Sovereignty

Sovereignty is one of the constituent ideas of the post-medieval world: it conveys a distinctive configuration of politics and law that sets the modern era apart from previous eras. A. P. d’Entrèves (1970: 67) puts the point well: ‘The importance of the doctrine of sovereignty can hardly be overrated. It was a formidable tool in the hands of lawyers and politicians, and a decisive factor in the making of modern Europe.’ And not only Europe: sovereignty is a foundation idea of politics and law around the world. By ‘sovereignty’ I am of course referring to state sovereignty unless otherwise indicated.

This book is written in the genre of the history of ideas. The idea of sovereignty was expediently arranged in the sixteenth and seventeenth centuries by European rulers in the course of their rivalries and struggles, religious and secular. Political and legal thinkers captured the idea, its modus operandi and its underlying principles, in commentaries on the subject. Those commentaries are interdisciplinary: the idea is at the heart of political and legal theory, diplomatic as well as religious history, constitutional law and international law. Sovereignty has proved to be remarkably long-lasting. But it is not fixed and unchanging. On the contrary, it has evolved and taken on different personas over time: it has been reformulated periodically to fit the demands and exigencies of specific historical periods or episodes (Philpott 2001). It has never changed fundamentally, however, or out of all recognition. Sovereignty in the twentieth and twenty-first centuries is still recognizably the same basic idea that it was in the sixteenth and seventeenth centuries.

Sovereignty is an arrangement of authority that has important consequences for the millions and now billions of ordinary people, past and present, who have been subjected to it and affected by it. To open our minds to that evolving idea, and to begin to see how it operates, we should contemplate the encapsulated historical events listed below. They illustrate just some of the many and various ways in which sovereignty has been entangled with the modern world across a lengthy span of time, starting in the sixteenth century and continuing into the present century.

• In 1534 King Henry VIII of England demanded and obtained from parliament an Act of Supremacy which gave the king and his successors supreme headship of the Church of England, and immunity from ‘foreign law’ and ‘foreign authorities’, particularly the laws and authority of the head of Latin Christendom, the pope.
• In 1649 King Charles I of England was tried by parliament and executed for the crime of erecting ‘an unlimited and tyrannical power to rule according to his Will, and to overthrow the Rights and Liberties of the People’.
• In 1662 a quarrel between King Louis XIV of France and Pope Alexander VII, which involved a fracas between the papal guards and the French ambassador, was resolved in 1664 by the humiliating capitulation of the pope, who sent a legate to Paris to express his regret for offending the king’s dignity and honour.
• In 1763 at the Peace of Paris, following the end of the Seven Years War in which Great Britain defeated France, the conquered French colony of Quebec was recognized to be part of British North America.
• In 1776 the American Declaration of Independence claimed ‘That these United Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.’
• In 1860 and 1861 thirteen southern and slave-holding states of the United States asserted their individual sovereignty, declared their separate secessions from the United States of America, and formed the Confederate States of America (South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, North Carolina, Tennessee, Missouri, and Kentucky). Their secession ended with the defeat of the Confederate forces by the Union Army in 1865.
• In 1885 the Signatory Powers of the General Act of the Berlin Conference (Great Britain, Austria-Hungary, France, Germany, Russia, the USA, and several smaller powers) recognized ‘the obligation to insure the establishment of authority in the regions occupied by them on the coasts of the African Continent’. Colonization of almost the entire African continent by Britain, France, and other European powers proceeded to take place.
• In a 1918 speech delivered to a joint session of the United States Congress President Woodrow Wilson declared: ‘What we demand in this war … is that the world be made fit and safe to live in; and particularly that it be made safe for every peace-loving nation which, like our own, wishes to live its own life, determine its own institutions, be assured of justice and fair dealing by the other peoples of the world as against force and selfish aggression.’ He called for ‘a general association of nations … formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike.’ That was a major purpose of the League of Nations which Wilson was instrumental in creating.
• In 1941 US President Franklin Delano Roosevelt and British Prime Minister Winston Churchill met on board a British battleship anchored off the coast of Newfoundland and signed the Atlantic Charter, which declared the ‘common principles’ to which they subscribed, namely ‘the right of all peoples to choose the form of government under which they will live’, their ‘wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them’, and their ‘hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries’.
• In 1947 the territory of British India was partitioned into two separate and independent states, India and Pakistan. Among the major consequences was the creation of 15 million refugees who now found themselves living on the wrong side of the newly drawn international borders between the two countries, and the outbreak of recurrent wars between India and Pakistan to change those same borders in contested regions, particularly Kashmir.
• In 1960 British Prime Minister Harold Macmillan delivered a speech to the South African Parliament in which he declared that a ‘wind of change’ was sweeping over the African continent which would result in its complete decolonization: ‘Ever since the break up of the Roman empire one of the constant facts of political life in Europe has been the emergence of independent nations … In the twentieth century … the processes which gave birth to the nation states of Europe have been repeated all over the world … Today the same thing is happening in Africa.’
• In 1990 Iraq invaded, occupied, and annexed the neighbouring country of Kuwait, and a successful war against that act of aggression was subsequently fought by the United States, Britain, France, Saudi Arabia, and other countries, with United Nations authorization, to expel the illegally occupying Iraqi army and to restore the sovereign government of Kuwait.
• In 1991 the Soviet Union was dissolved into fifteen new or reconstituted independent states: Estonia, Latvia, Lithuania, Russia, Ukraine, Belarus, Moldova, Georgia, Azerbaijan, Armenia, Kazakhstan, Uzbekistan, Turkmenistan, Tajikistan, and Kyrgyzstan.
• In 1991–2 the Socialist Federal Republic of Yugoslavia disintegrated into wars which resulted in the independence of Serbia-Montenegro, Croatia, Slovenia, Bosnia-Herzegovina, and Macedonia. In 2006 Montenegro separated from Serbia to become yet another independent state of former Yugoslavia.
• In 1993 a ‘velvet divorce’ was arranged by Czech and Slovak national leaders which resulted in the division of Czechoslovakia into two independent states: the Czech Republic and Slovakia.
• In 1995 a referendum in the Canadian province of Quebec on the question ‘Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership … Yes or No?’ The ‘no’ votes were 51% and the ‘yes’ votes 49%.
• In 2005 a referendum in France and another in the Netherlands, on a proposed ‘Constitution-Treaty’ for the European Union, were each defeated.

These episodes, and many others that one could mention, differ in important respects but they all turn, in one way or another, on the idea of sovereignty. It would be difficult, if not impossible, to grasp their historical meaning and significance without that idea. Any discerning reader can see the issues at stake in these episodes without knowing a great deal about them. That is owing to the fact that sovereignty is part of our common-sense understanding of politics and law, although we may not always be fully aware of that. The aim of this study is to sharpen and deepen our knowledge of the idea, so that we can more precisely see how sovereignty operates and the ways it is involved in our lives. This chapter lays out the basic elements and modus operandi of the notion. Subsequent chapters narrate phases of its history, including some of the episodes noted above, which are particularly important for conveying the vitality of the idea and its resilience in the face of recurrent and often profound historical change.

Sovereignty and Modernity

Sovereignty is a distinctive configuration of state authority. By ‘state’ I refer to the conventional meaning: a defined and delimited territory, with a permanent population, under the authority of a government. A ‘state’ could be a colonial state in an empire or a ‘state’ of the United States. Neither of those states, however, are ‘sovereign’ states. Governmental supremacy and independence is that distinctive configuration of state authority that we refer to as ‘sovereignty’. It is vested in the highest offices and institutions of states as defined by constitutional law: kings, presidents, parliaments, supreme courts, etc. It is also vested in the independence of states: their political and legal insulation from foreign governments as acknowledged by international law. When the government of a state is said to be sovereign, it holds supreme authority domestically and independent authority internationally, at one and the same time.

Sovereignty is a historical innovation of certain European political and religious actors who were seeking to escape from their subjection to the papal and imperial authorities of medieval Europe and to establish their independence of all other authorities, including each other. It is a post-medieval and, indeed, anti-medieval arrangement of governing authority. It is one of the defining markers of the modern world.¹ Charles McIlwain (1932: 392) concluded his seminal work on ancient and medieval political ideas with the following observation:

The full development of the idea of sovereignty belongs to the historian of modern, not of medieval, political thought … conducive to a theory of sovereignty, is the idea of nationality, growing gradually into a sentiment of national unity. The complete expression of this sentiment is not to be found before the sixteenth century.

Whether the sentiment arose at that time, and whether sovereignty requires that sentiment or can subsist without it, are questions for later chapters. The novel and radical idea of sovereignty nevertheless was a repudiation of the European Middle Ages, which rested on the contrary idea of universal Christian theocracy in which the nations or states – regna – were not sovereign, as that political and legal condition came to be understood. Medieval regna were not independent authorities; nor were they superior authorities. They were subordinate to higher authorities – at least in principle if not always in practice. We cannot begin to understand the idea of state sovereignty without knowing something about the pre-existing medieval idea in reaction to which it was initially conceived. That topic is addressed in the next chapter.

Sovereignty is a constituent idea of the modern age. Other eras have had distinctive and different arrangements of authority. The medieval world of Latin Christendom operated without a notion of state sovereignty. The Roman Empire also carried on without it. Modern international law, the ‘law of nations’, is sometimes seen as a descendant of what Roman lawyers termed jus gentium, the human law which applies to peoples, as distinguished from jus civile, the civil law which applies to citizens or subjects of the Roman state (civitas). The gens (‘nations’) Rome dealt with inside the empire were subjects of its imperial authority and were in no way independent. The ‘barbarian’ tribes Rome encountered outside the empire and beyond its law and jurisdiction were political objects that were kept in their place by Roman military power. They were not under the authority of Rome. When those ‘foreign’ and ‘rude’ peoples could no longer be held in check, they penetrated the empire and eventually destroyed it.

The imperial dynasties of China, the Islamic Ottoman Empire (in the Middle East, south-east Europe, and North Africa) and the Mogul Empire (in South Asia) operated with notions of suzerainty and not sovereignty. They strove to hold sway over diverse territories and populations, usually with the aim of extracting tribute. Their Weltanschauungen, and also that of Rome, was hierarchical and not horizontal, and they were on top. Pre-colonial populations of North and South America, hinterlands of Asia, Sub-Saharan Africa, and the Pacific Islands knew little or nothing of sovereignty as understood in this study. They were subjected to it by European conquerors and colonists from whom they also got the idea to demand it for themselves: colonialism provoking anti-colonialism based on the doctrine of self-determination.

State sovereignty is the prevailing idea of political and legal authority of the modern era, defined as the span of time from the early sixteenth century to the present. Sovereignty expresses some core ideas of modernity including the fundamentally important notion of independence: rex est imperator in regno suo (the king is emperor in his own realm). That Latin expression could serve as the motto of sovereignty. Sovereignty was originally a way of escape from dictation and direction by outsiders and it remains to this day an institution that prohibits unwarranted foreign interference in the jurisdiction of states. A basic norm of the UN Charter (Article 2) consecrates the doctrine of equal sovereignty, territorial integrity, and non-intervention. Independence of their homelands from foreign authority is what anti-colonial nationalists demanded, and almost always obtained by securing a transfer of sovereignty from an imperial power. It is what secessionists and irredentists continue to call for and sometimes fight for in various countries around the world.

Sovereignty is a pluralistic arrangement of authority: there is not one sovereign state in the world; there are many sovereign states. Their independence is independence in relation to each other. Their supremacy is supremacy over their own subjects or citizens. Sovereignty was initially asserted by kings against medieval popes and emperors, and against rival monarchs and other independence-minded rulers. It was subsequently claimed by parliaments in political contests with monarchs for supreme authority in the state, by absolute rulers and dictators in asserting their will to power against embryonic parliaments, by anti-colonial nationalists in rebellions and wars against foreign imperialists, by constituent ‘states’ or provinces of federations in seeking to become independent, by federal authorities in asserting their primacy over ‘state’ or provincial authorities, and by the people in laying claim to state legitimacy and legality – or more precisely by those who claimed to speak in the name of the people.

States whose governments demonstrate sovereign authority, and only those states, have a place on the political map of the world. A world based on state sovereignty is a world of mutually exclusive territorial jurisdictions: a world without overlapping jurisdictions. Territorial sovereignty can be held jointly, as in the case of condominia, such as the Anglo-Egyptian Sudan (1899–1956), but that is uncommon historically. The inclination and direction is toward jurisdictional exclusivity. Sovereignty can be shared or ‘pooled’, which is how the political and legal authority of the European Union is often characterized. But that is a somewhat misleading notion because the European Union is not a supreme and independent entity, at least not yet. The territorial sovereignty of Germany, France, Britain, Italy, Spain, Poland, and other states that form the EU remains in their possession on most vital questions, such as those of peace and security.

The lines on the political map – international boundaries – mark that political and legal independence of sovereign states from one another. They are the ‘no trespassing’ or ‘keep out’ signs of international politics and law. They delineate and differentiate the most basic ‘we’ and ‘they’, ‘ours’ and ‘yours’ of global political life. On this side of the line is our place, on that side your place. We are neighbours, and neighbours leave each other alone. The doctrine of non-intervention long has been, and still continues to be, keyed to the idea of state independence and territorial integrity. Sovereignty is, so to speak, the international ‘real estate’ system of the modern world (Mayall 1990: 20). That world is still a world of fences and hedges even though it is also, increasingly, a cosmopolitan and transnational world, as discussed in chapters 5 and 6.

An international boundary between territorially contiguous, sovereign states is the marker of an authority differentiation, and not a power relation. A boundary is not a wall or dyke or other physical barrier, although it may follow or coincide with a lake or river or mountain range: for example, the Pyrenees Mountains between France and Spain. Boundaries may be and often they are backed by armed force, at least to some degree. Yet that, too, is a contingent feature and not an inherent characteristic. Some boundaries are heavily defended: the Maginot line of French fortifications to block invasion by neighbouring Germany is an extreme case. Some are largely undefended: the United States–Canada boundary. Some are relatively open: borders between European Union member states. How defended or undefended, open or closed, they happen to be is determined by the sovereign states involved. But all international boundaries have exactly the same political and legal significance: they mark the territorial limits of sovereign jurisdictions: inside the borders are our affairs, outside are foreign affairs.

Sovereignty has always been jealously possessed by states and persistently pursued by political actors who are not sovereign but desire to hold and exercise sovereignty: revolutionists, nationalists, populists, secessionists, irredentists, among others. Whether the twenty-first century is making way for a postmodern world that goes beyond or gets away from sovereignty, or not, is an issue addressed in the final chapter. There may of course come a time when the institution is abandoned or abolished and the idea forgotten. That is almost inevitably bound to happen if we take a very long view of the future. No human institution lasts forever. If modern history discloses anything about state sovereignty, however, it is its adaptability to new circumstances, and its continuing popularity around the world.

Independence and Supremacy

A sovereign state can be defined as an authority that is supreme in relation to all other authorities in the same territorial jurisdiction, and that is independent of all foreign authorities. ‘Supremacy’ means the highest and final authority from which no further appeal is available. A sovereign is not subordinate to anybody. ‘Independent’ means constitutionally separate (James 1986) and self-governing. A sovereign is not somebody else’s dependency. ‘Sovereignty is the authority of the last word’ (Barker 1956: 60). Political actors that are sovereign are not answerable to anybody else. Everybody who is subject to their authority is answerable to them. State authorities can have the last word only if they are both supreme and independent. That is what a sovereign state is. A sovereign is the exclusive and ultimate source of the laws of the state and of all other disclosures and acts of state authority. A sovereign government is usually said to be a ‘free’ government in the sense that it is free from all foreign authority and law except that to which it has consented or otherwise subjected itself: for example, by means of a treaty. If a state’s government were in a position of legal subordination to a foreign government, that authority would be the sovereign, and the state would be an American-style ‘state’, a colony or some other kind of integral u...

Table of contents

• Cover
• Other books in the Key Concepts Series
• Title page
• Copyright page
• Dedication
• Preface
• 1 Sovereignty and Modernity
• 2 ‘A Shocking Idea’
• 3 Sovereigns of Europe and the World
• 4 Popular Sovereignty
• 5 Sovereignty and Humanity
• 6 Sovereignty and Globalization
• References
• Index