Sovereignty

In jurisprudence, the term sovereignty (French souveraineté, from Middle Latin superanus 'above', 'superior') refers to the ability of a natural or legal person to have exclusive legal self-determination. This capacity for self-determination is characterised by the autonomy and independence of the legal subject and is thus distinguished from the state of external determination. In political science, this is understood as the property of an institution to be the sole point of origin of all state power within a framework of political order. The term was coined in the 16th century by the French philosopher of state Jean Bodin's theory of absolutism.

Term History

In his Six Books on the State, Jean Bodin (1529/1530-1596) defines the concept of sovereignty as the ultimate power of decision in the state. According to Bodin's conception of absolute sovereignty, this authority should always belong only to the person of the king, should in principle be indivisible, and should enable the sovereign to establish binding law even against the will of his subjects.

Bodin's demand for a supreme and ultimately responsible sovereign power was directly related to the confessional civil wars in France, through which Bodin saw the ability of the state to peacefully manage conflicts endangered. Only the unrestricted concentration of all legal and physical state power in the hands of the king could, according to Bodin, guarantee security and peace in the country. Bodin can thus be understood as a pioneer of the state monopoly on the use of force.

In this sense, the concept of sovereignty played a central role in the emergence of the European state system in the Renaissance era. It represented a postulate of constitutional law with the help of which princes and cities could ward off "foreign" claims to rule over their territory by actors from politics, business or religion by depriving them of the basis of their legitimacy. The legitimate ruler is the sovereign.

Who in the state may exercise sovereignty, who is involved in it? The constitutional law of the early modern German Empire is characterized by the dualism between the German emperor and the imperial estates. In scholarly circles, one spoke accordingly, in a variation of Bodin's theses, at times of a double or dual sovereignty. The secularization of the concept of sovereignty was followed by its centralization in absolutism. As the nobility, estates, and privileged cities lost their political, economic, and religious power and competence, the concept focused on the one who alone still had it, the monarch. In the phase of the bourgeois revolution, the territorial claim to rule - the associated right to the ruled territory that goes beyond territorial sovereignty: territorial sovereignty - was supplemented by the notion of the nation. Sovereignty has since been national, the national state the sovereign.

Sovereignty in international law

In international law, sovereignty is understood as the fundamental independence of a state from others (external sovereignty) and as its self-determination in matters of its own state organization (internal sovereignty). This external sovereignty of a state thus consists in its immediacy under international law, while its internal sovereignty (see also popular sovereignty) is conversely determined by its capacity for state self-organization; external sovereignty, by analogy, becomes state sovereignty. An important point of contention in jurisprudence here is the distinction between external and internal sovereignty of the state per se: while the latter is considered necessary by a large part of jurists, the representatives of the monistic doctrine of law assume the unity of state sovereignty in principle.

The external claim to sovereignty of a state competes with the sovereign will of other states, each of which is formally equal. International law, which is based on the principle of the equality of sovereign states, sets limits to the claim to sovereignty. These limits exist primarily in terms of power politics. In the modern nation-state understanding of sovereignty, states are actors whose external exercise of will is limited not only by power-political circumstances, but also by international law.

The counterpart to state sovereignty in the sense of international law is the early modern legal figure of suzerainty.

Critique of the concept of sovereignty

In the modern world of states, the idea of the complete independence of the state to determine its internal and external affairs, originally meant by Jean Bodin by sovereignty, has reached its limits. The external sovereignty of states in the classical sense has been increasingly weakened by the steadily growing influence of the international system of intergovernmental and supranational organizations and by the increased political and economic interdependence of states. In the same course, states were given the opportunity to shape international policy with peer states. In doing so, they delegated parts of their sovereign power to supranational organizations such as EFTA or EURATOM. In some cases, they have also committed themselves to a community method, according to which they develop their policies in certain fields only jointly. Their sovereignty has thus been limited, but by no means abolished. This limitation of sovereignty can also take place on a voluntary basis: To be sure, Switzerland always has the option of shaping its law independently of the European Union (EU). In practice, however, the legislator is often forced to align its legislation with that of the EU for economic and trade policy reasons. In this context, Switzerland speaks of "autonomous implementation".

The state sovereignty of the globally networked centres of the earth's northern hemisphere is also reduced by their mutual economic interdependence. In weaker states it exists legally and formally, but is in fact limited because of their dependence on regional powers.

The internal sovereignty of a state is also limited by the fundamental rights of the individual, albeit not with global binding force under international law. In the international discourse on a responsibility to protect, attempts have therefore been made for some time to redefine sovereignty as the obligation of every state to ensure the protection of the fundamental rights of its citizens. If it fails to meet this obligation, the responsibility is transferred to the international community of states. The concept of the responsibility to protect was accepted by 150 UN member states in the final document of the UN General Assembly in 2005 and is regarded as an evolving international law.