Volume 42 | Number 1 Fall 2006
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I. Introduction: The Evolution of the Concept of Sovereignty from Political Theory to International Law
The controversial nature of the topic of indigenous sovereignty is inherent in its very theorization, in that it constitutes a powerful challenge to the basic foundations of international law. In order to properly understand whether and to what extent such sovereignty actually exists within the framework of contemporary international law, it is necessary to have a retrospective look at the evolution and development of the concept of sovereignty in the modern world. Such preliminary investigation serves the purpose of ascertaining whether the notion of sovereignty in international law must be conceived in an absolute sense or, on the contrary, whether its scope is subject to the influence of other competing values that could therefore represent the foundations for asserting the existence of a given degree of indigenous sovereignty parallel to the sovereign power held by the State.
At the time that the philosophy of sovereignty, in the modern sense of the term, first developed it was certainly conceived as an absolute prerogative of the sovereign entity. In Shakespeare’s Richard II, the former King of England, forced by Henry IV to hand over his crown, is killed in prison by Sir Pierce of Exton, who thought that it was Henry IV’s wish that Richard II be dead. When Sir Pierce of Exton brings Richard II’s body before Henry IV, the new King bitterly blames the murderer:
Exton, I thank thee not, for thou hast wrought
A deed of slander with thy fatal hand
Upon my head and this famous land.1
Then, he banishes him from the Kingdom:
With Cain go wander through shades of night,
And never show thy head by day nor light.2
The prophecy of disgrace incumbent upon Henry IV and England is a corollary of the idea of the impossibility of destroying, even by assassination, the enduring nature of the King, representing the mystical dignity and justice of sovereignty.3 The inherent dignity of the King was above the earthly idea of life and death, and also above the law. The conception of the sovereign power as the supreme entity, over the law and the life and death of the subjects, was shared by most theorists and philosophers from the early modern times, such as Nicolò Machiavelli, Jean Bodin, and Thomas Hobbes, although such an idea was often the result of considerations of realpolitik rather than of supernaturalism-based thoughts. In the words of Machiavelli:
Those who have been present at any deliberative assemblies of men will have observed how erroneous their opinions often are; and in fact, unless they are directed by superior men, they are apt to be contrary to all reason.4
. . . .
The only way to establish any kind of order there is to found a monarchical government; for where the body of the people is so thoroughly corrupt that the laws are powerless for restraint, it becomes necessary to establish some superior power which with a royal hand, and with full and absolute powers, may put a curb upon the excessive ambition and corruption of the powerful.5
In sum, it was just the public interest that required an absolute type of sovereignty, which justified the use, by the prince, of any kind of instrument, irrespective of its moral implications, including force (“the stick”), bribery, or deceit.
From these premises, the objective idea of sovereignty that emerged in early modern Europe was of a power concentrated in the hands of an authority bundled into a single entity, which governed a collectivity unified by the sharing of a single set of interests and confined within territorial borders. The sovereign authority held supremacy in the collective interest.6
When Europe came out of the Medieval darkness (politically speaking), the internal absoluteness of sovereignty was not yet reflected in its external dimension. In particular, the Holy Roman Empire retained a nearly exclusive power over religious matters, and this allowed the Pope to interfere in the internal affairs of independent “sovereign” States. The transition from the “vertical” structure—headed by the Pope and the Holy Roman Empire—to the “horizontal” structure of independent sovereign States—which in principle were equal in authority and legal legitimacy—was consolidated in 1648 with the Peace of Westphalia (ending the Thirty Years’ War in Europe), which introduced the so-called Westphalian sovereignty. A number of States acquired uncontested independence, no longer the subject of interferences from the Holy Roman Empire; the authority of princes and kings over religion, with regard to the territories subjected to their sovereignty, was definitely established.7 The principle of non-interference by any sovereign power in the territorial affairs of other States became the main uncontested rule that governed the system of international relations, and the authority of kings and princes over their respective territories became “supreme.”
This evolution resulted in a concept of sovereignty that may be defined as “supreme authority within a territory.”8 The first element of this definition is “authority,” which has been defined by the philosopher R. P. Wolff as “the right to command and correlatively the right to be obeyed”;9 the term “right” is central to the definition since it indicates the legitimacy of sovereignty—founded on some legitimate basis.10 The second component of the concept is that “authority” is “supreme,” in the sense that the sovereign power is superior to any other authority which, to whatever extent, exercises governing functions over the territory concerned;11 in a federal State, for example, the central government, identified in the constitution of the federation, is superior to the governments of any “sub-State,” which is part of the federation itself. Finally, a sovereign authority needs a territory, delineated by political borders, over which it has the right of exercising its supreme powers. Seen in these terms, sovereignty appears as having an absolute character, characterized by the fact that no external entity may, in principle, interfere with its exercise. The world is thus composed by a number of sovereign entities that have absolute dominion within their territorial borders, all of these sovereign entities being in a relationship of parallel equality with each other. In other words, they all possess an identical set of sovereign features, and the sovereign powers belonging to each of such entities stop exactly where the sovereign powers of another begin. This is the so-called chunk theory of sovereignty, according to which sovereignty may only be possessed “in full or not at all,” being represented as a monolithic chunk of identical stones, any one of which is possessed by a sovereign entity.12
From the standpoint of international law, the translation of this theory into practical terms shows the connection between the concept of sovereignty, at least in its strict and narrowest sense, with the notion of constitutional or legal independence. Etymologically speaking, one entity is independent when it is not dependent on any other authority. In this context, the element of the territory is of particular relevance since, according to international law, independence is linked to a territorial area. It thus exists when the sovereign entity is able, at least to a satisfactory extent, to freely dispose of its own territory without external interferences; a sovereign power must have a government of its own, one not subject to the control of another governmental body. In principle, in contemporary international law, the entity which meets the necessary conditions for sovereignty is the State. As a consequence, although the concept of sovereignty is to be distinguished from the related concept of statehood, it is in fact strictly related to the existence of a State. The other sovereign entities different from States (this latter term being conceived in a strict sense), existing in the framework of contemporary international law (like the European Union), derive from States and are the result of a voluntary and conscious delegation of powers by States themselves. The conception of sovereignty as a prerogative of States as independent entities enjoying political dominion over a territorial area is clearly expressed by article 2 paragraph 4 of the Charter of the United Nations, which bans the threat or use of force “against the territorial integrity or political independence of any state.”13
Having said this, the fact that the “sovereign equality” of States, which, in terms of legal theory, is a corollary of the principle of sovereignty itself,14 exists only in principle, since the degree of independence exercised by States varies greatly in reality. It is necessary to emphasize that even for the most powerful States in the world sovereignty is not absolute. For instance, a number of States have definitively delegated a wide range of powers to other entities, as has happened with the European Union. Thus, the so-called basket theory of sovereignty appears as much more coherent to the concrete reality existing in the real world than the chunk theory.15 According to the basket theory, sovereignty is to be seen “in variable terms, as a basket of attributes and corresponding rights and duties.”16 Any sovereign entity owns a basket, but the content of the different baskets varies considerably; certain sovereign entities have baskets with many more attributes of sovereignty than others, and as a result, entities possessing more of these attributes have a higher degree of independence.
In addition, the extent of State sovereignty has been progressively circumscribed by the evolution of international law, which, through freeing itself from its original character as a corpus juridicum composed exclusively of norms reflecting reciprocal concessions made by States vis-à-vis other governments with the purpose of satisfying shared individual interests, has increasingly permeated the area of State domestic jurisdiction for the safeguarding of values of universal relevance, corresponding to interests shared by the international community as a whole. This has resulted in a global context in which State sovereignty is constrained by a number of international principles, in particular those concerning the prohibition of the use of force, the delimitation of the special sphere of powers, the obligations concerning the treatment of aliens, the protection of human rights and, more recently, the protection of the environment and of cultural heritage, and is thus limited in its scope.17 Although the beginning of such evolution of international law is commonly traced back to the end of World War II, as a reaction to the awful crimes committed during that tragic conflict, it actually began in the early nineteenth century (with Emmerich de Vattel’s The Law of Nations) when some scholars felt that the concept of sovereignty could no longer be thought of in absolute terms, recognizing that a “sovereign” could be under the authority (de jure or de facto) of another greater sovereign without losing its own “sovereignty.”18 In addition, since the first half of the twentieth century, a number of scholars, conceiving the term “State” in a broad sense, theorized the distinction between “sovereign” (i.e., “independent”) and “semi-sovereign” (i.e., “dependent”) States, both possessing, although to a different extent, the attributes of sovereignty.19
As a result of the previous considerations, it appears that, from the perspective of international law, it is no longer appropriate to refer to sovereignty as supreme authority within a territory, but rather as territorial independence subject to no legal constraints except those imposed by international law. In this regard, it is evident that the actual extent of such independence depends on the degree and the scope of the constraints imposed on any sovereign entity by international law.