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State Sovereignty: Internal and External Limitations.

The concept of sovereignty has developed throughout the centuries to encompass a variety of meanings and to cover a wider scope. The term sovereignty in fact does not have a precise single definition; it has rather different implications which depend on the time, the purpose and the way it is meant to be conceived. Actually, the doctrine of sovereignty did not emerge with the Charter of the United Nations, but it was rather known since the seventeenth century which witnessed the Treaty of Westphalia in 1648. Under the Westphalian system, the sovereign possesses supreme power under his territory and his subjects and no state or group of states has the right to intervene in the domestic affairs of another state.1 Thus, this principle of non-intervention has been the basis of state sovereignty from the peace of Westphalia until nowadays. However, banning the use of force and selecting the way of peaceful settlement of disputes was introduced by the Charter to compel the states parties to respect the territorial integrity of other states and to coexist and interact on a foundation of formal equality. Moreover, the doctrine of sovereignty imposes some limitations on states to controls any attempt of abusing power. So, what is Sovereignty? And what kind of limitations does it impose on States? As stated by Bardo Fassbender, the idea of sovereignty is amongst the oldest concepts of modern international law; it accompanied and fostered the rise of the modern state. 2 Sovereignty is the supreme authority within a territory.3 It is a constitutional arrangement of political life. A sovereign state is a territorial jurisdiction: i.e., the territorial limits within which state authority may be exercised on an exclusive basis. Sovereignty, strictly speaking, is a legal institution that authenticates a political order based on independent states whose governments are the principal authorities both domestically and internationally.4 The principle of territoriality is a crucial element for the states sovereignty. Indeed, territoriality is a feature of modern political authority. It is a principle which defines the membership of a certain community and which specifies that this membership derives from the citizens residence within borders: it is rather by simple virtue of their location within geographic borders that people belong to a state and fall under the authority of its ruler. Therefore, the borders of a sovereign state define the national self-determination of that state and grant the head of the state a supreme authority. Moreover, it is generally empathized that a holder
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quoted in The Rules, and how they were broken: the changing face of state sovereignty, by Trevor Redmond. 2002. Fassbender, Bardo. Sovereignty and Constitutionalism in International Law. Sovereignty in Transition. by Neil Walker, editor. USA: Hart Publishing, 2003. p113. 3 Stanford Encyclopaedia of Philosophy. 4 Political Studies Association 1999. Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

of sovereignty should derive authority from some mutually acknowledged source of legitimacy that is natural law, a divine mandate, hereditary law, a constitution, or international law. 5 Yet, the fact that the sovereign possesses absolute authority over the people and territory of a given realm suggests that absolute authority does not mean total or complete authority a phenomenon that is impossible but rather final or ultimate authority. Furthermore, sovereignty is believed to be indivisible: it is of a single piece, a whole that cannot be disaggregated, shared, or divided between different authorities. Wherever ultimate authority is vested be it in a king or the people there can be only a single sovereign or ultimate authority within any political community. The indivisibility of sovereignty implies a hierarchy of authority that ends in a single apex at the level of the state therefore, it is this apex that defines the state.6 Yet, the most important limitation to state sovereignty is the obligation of each state to protect the fundamental rights of all individuals subject to its jurisdiction and to respect the provisions of international law. The internationally recognized principle of state sovereignty embraces the ideals of political autonomy and territorial integrity. Since the concept of sovereignty is founded upon the fact of territory, and that without territory a legal person cannot be a state, the interconnectedness between the notion of sovereignty and the concept of statehood is very evident. However, Malcolm N. Shaw recognizes a positive and a negative aspect for territorial sovereignty. According to him, the positive aspect relates to the exclusivity of the competence of the state regarding its own territory, while the negative one refers to the obligation to protect the right of other states.
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We can distinguish two complementary and mutually dependent dimensions for sovereignty: internal and external. Internally, the sovereign power makes the law which must be supreme and ultimate; there is in fact a fundamental authority relation within states between rulers and ruled which is usually defined by a states constitution. Externally, sovereignty provides the state with a legal independence from all foreign powers and inhibits any outside interference. The relation between states is based on a fundamental authority defined by international law. In effect, the principle of external sovereignty determined the overall structure and virtually the entire substance of the international law of coexistence.8 Thus, we can perceive that, as seen from inside a state, sovereignty is paramount authority, and as seen from outside it is self-governing authority.9 As stated by Antonio Cassese, sovereignty includes sweeping powers and rights:
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Stanford Encyclopaedia of Philosophy. Lake, David A. Hierarchy in International Relations: Authority, Sovereignty, and the New Structure of World Politics. web-site: http://www.C3.Sovereignty%209.12.05.pdf 7 Shaw, Malcolm N. International Law. Fourth edition. UK: Cambridge University Press, 1997. p333. 8 Fassbender, Bardo. Sovereignty and Constitutionalism in International Law. Sovereignty in Transition. by Neil Walker, editor. USA: Hart Publishing, 2003. p116-117. 9 Political Studies Association 1999. Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

(1) The power to wield authority over all the individuals living in the territory. (2) The power to freely use and dispose of the territory under the States jurisdiction and perform all activities deemed necessary or beneficial to the population living there. (3) The right that no other State intrude in the States territory (the so-called the jus excludendi alios, or the right to exclude others). (4) The right to immunity from the jurisdiction of foreign courts for acts or actions performed by the State in its sovereign capacity, and for execution measures taken against the use or planned use of public property or assets for discharge of public functions.

(5) The right to immunity for State representatives acting in their official capacity (the socalled functional immunity).

(6) The right to respect for life and property of the States nationals and State officials
abroad.10 State sovereignty is restricted by many international rules. In addition to treaty rules, which of course vary from state to state, limitations are imposed upon State sovereignty by customary rules. They are the natural legal consequence of the obligation to respect the sovereignty of other states.
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For this reason, the Charter of the United Nations emphasises,

in its second article, its respect for the principle of sovereign equality of all its members (art.2 (1)). This principle is considered as the cornerstone of the organization without which it is impossible to ensure stability and harmonious coexistence between the countries. Definitely, to borrow Casseses words, sovereign equality constitutes the linchpin of the whole body of

international legal standards, the fundamental premise on which all international relations rest.12
The same article of the UN Charter highlights the need to peaceful settlement of disputes so that international peace and security, and justice, are not endangered (art.2 (3)). Besides, the threat to using force against another state or the concrete use of force is completely banned. Under the rule of the UN Charter, the most important limitation of the rights formerly collectively addressed as sovereignty is the abolition of the jus ad bellum, or the right to wage war against another state. The Charter has put the international use force under the exclusive control of the Security Council, the only exception being a states temporary right to self-defence according to Art.51 of the Charter.13 The most important element without which we can not speak of state sovereignty is the right to self-determination. This right is guaranteed by all international and regional instruments due to its importance for enjoying full independence. Undoubtedly, the right to self-determination denotes the idea of non-intervention which is stressed in the seventh
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Cassese, Antonio. International Law. Second Edition. New York: Oxford University Press, 2005. p98. ibid 12 ibid. 13 Fassbender, Bardo. Sovereignty and Constitutionalism in International Law. Sovereignty in Transition. by Neil Walker, editor. USA: Hart Publishing, 2003. p129.

paragraph of the UN Charters second article. In other words, within the limits of international law, a state is entitled freely to determine its constitution and its political, social, economic and cultural order, which the other members of the international community must respect. If a state has a democratic constitution, its sovereignty protects a space of democratic selfdetermination.14 The state has full authority over the citizens living within its territorial jurisdiction, over its decisions on matters that concern the states internal and external affairs, and even over foreign entities within its territory. Then, the concept of sovereignty grants every state without any kind of discrimination between sates with the reciprocal right of non-intervention. Basically, states are obliged to comply, in their relations to each other, with a number of specific rules of abstention which as in mirror image arise from the rights protecting the constitutional autonomy of states. 15 However, it is noteworthy to mention that the sovereignty of a state is controlled by certain universally accepted rules that must be respected. A state, for instance, may not exercise its sovereign powers over, or otherwise interfere with,

actions legally performed by foreign States on its territory. This legal inability stems from the general principle imposing respect for the independence and dignity of foreign States (par in parem non habet imperium, that is, equals have no jurisdiction over one another). More generally, a State may not carry out any of the following acts: 1. Impose its will on, or interfere with, or coerce a foreign State official. 2. Interfere with foreign armed forces lawfully stationed on its territory (unless authorized by treaty rules or ad hoc consent). 3. Perform coercive acts on board a foreign military or public ship or aircraft (for instance it may not enforce the law there). 4. Submit to the jurisdiction of its courts foreign States for acts performed in their sovereign capacity (doctrine of the sovereign immunity of States). 5. Submit to the jurisdiction of its courts foreign State agents for acts for acts performed in their official capacity.16 While the UN Charter addressed just its member states with the right to state sovereignty and the duty to respect its conditions, the UN Declaration on Friendly Relations (adopted by consensus but not legally binding per se) came to enhance what was set forth in the Charter and to extend the application of its provisions to all States. Even so, the implementation of these provisions is not adequately enforced and guaranteed to all states since third world countries are economically dependent to the developed ones and are not able the enjoy being sovereign in the real meaning of the term. In this respect, Nihel Jayawickrama
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ibid. p132. Fassbender, Bardo. Sovereignty and Constitutionalism in International Law. Sovereignty in Transition. by Neil Walker, editor. USA: Hart Publishing, 2003.. p137.. 16 Cassese, Antonio. International Law. Second Edition. New York: Oxford University Press, 2005. p98.

sees that the rule of customary international law which recognizes the doctrine of state sovereignty is in fact the principle obstacle to the development of the international law.17

Bibliography
Books: Cassese, Antonio. International Law. Second Edition. New York: Oxford University Press, 2005. Fassbender, Bardo. Sovereignty and Constitutionalism in International Law. Sovereignty in Transition. by Neil Walker, editor. USA: Hart Publishing, 2003. p113. Jayawickrama, Nihel. The Juridical Application of Human Rights Law: National, Regional and International Jurisprudence. UK: Cambridge University Press, 2002. p17 Shaw, Malcolm N. International Law. Fourth edition. UK: Cambridge University Press, 1997. p333. Internet Sources: Lake, David A. Hierarchy in International Relations: Authority, Sovereignty, and the New Structure of World Politics. web-site: http://www.C3.Sovereignty%209.12.05.pdf Redmond, Trevor. The Rules, and how they were broken: the changing face of state sovereignty. 2002 Political Studies Association 1999. Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA. Stanford Encyclopaedia of Philosophy.

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Jayawickrama, Nihel. The Juridical Application of Human Rights Law: National, Regional and International Jurisprudence. UK: Cambridge University Press, 2002. p17.