CONCEPT OF SOVEREIGNTY

INTRODUCTION
The term sovereignty derived from the
Latin word superanus meaning supreme.
In present context, sovereignty refers to
supremacy or supreme power of the
state. The idea of sovereignty is integrally
bound up with the most fundamental
concept of modern politics such as
freedom and democracy. The basic
principle of democracy is that the
ultimate authority resides in the mass and
this is what popular sovereignty too
stresses upon. Sovereignty is an essential
characteristic of a state. The state is made
of four basic components namely
‘population’, ‘territory’, ‘government’ and
‘sovereignty’. Sovereignty forms an
essential mark of statehood and it is an
indispensable component of the state.
J.W.Garner defines the state as
“ a community of persons more or less
numerous, permanently occupying a
definite portion of a territory,
independent or nearly so of external
control and possessing an organized
government to which the great body of
inhabitants render habitual obedience”.
Sovereignty, an important part of the
state, may exist in a single person or in a
group which prevents the state from
disintegration and helps to keep all parts
of the state together through obedience
or use of power.

HISTORICAL DEVELOPMENTS

The modern theory of the state was

perfected only when the concept of the
sovereignty was introduced into it. Jean
Bodin, a French writer of the sixteenth
century, was the first to formulate the
concept of sovereignty systematically.
Although in ancient days Aristotle had
talked of supreme power located in
different bodies according to the form of
the government, he had not given the
idea of sovereignty because, in his view,
the power of the ruler or ruling body was
restricted by law which existed above
them. Condition in the Middle Ages were
not favourable to the development of the
concept of sovereignty because the
emperor’s power was limited on the one
side of the rights of the feudal lords, and
on the other side by the claims of the
Pope to superior authority. The idea of
sovereignty made its appearance with the
dawn of the modern period. Towards the
end of the medieval period a number of
causes combined to create new political
ideas. The feudal nobles were weakened
by the crusades and by their own
quarrels. Commerce and the growth of
the towns destroyed their monopoly of
wealth; new methods of warfare
destroyed their military supremacy. Taking
advantage of their weakness, the king
increased his power and importance until
he became supreme in the state.

REFORMATION

Sovereignty re-emerged as a concept in

the late 16th century, a time when civil
wars had created a craving for stronger
central authority, when monarchs had
begun to gather power onto their own
hands at the expense of the nobility, and
the modern nation state was
emerging. Jean Bodin, partly in reaction to
the chaos of the French wars of religion,
presented theories of sovereignty calling
for strong central authority in the form
of absolute monarchy. Bodin rejected the
notion of transference of sovereignty from
people to the ruler (also known as the
sovereign); natural law and divine law
confer upon the sovereign the right to
rule. And the sovereign is not above divine
law or natural law. He is above (i.e. not
bound by) only positive law, that is, laws
made by humans. He emphasized that a
sovereign is bound to observe certain basic
rules derived from the divine law, the law
of nature or reason, and the law that is
common to all nations (jus gentium), as
well as the fundamental laws of the state
that determine who is the sovereign, who
succeeds to sovereignty, and what limits
the sovereign power. Thus, Bodin’s
sovereign was restricted by the
constitutional law of the state and by the
higher law that was considered as binding
upon every human being. The fact that the
sovereign must obey divine and natural
law imposes ethical constraints on him.
Bodin also held that the Lois royales, the
fundamental laws of the French monarchy
which regulated matters such as
succession, are natural laws and are
binding on the French sovereign.

POPULAR THEORY OF SOVEREIGNTY

The concept of popular sovereignty

means giving ultimate sovereignty to the
people. This doctrine holds that people
are the real sovereign and it is they who
assigned duties to different agents kings
who are subject to the sovereign people.
This sovereignty resides in the whole
community and not in an individual or a
group. The king in this way becomes an
agent and an executive head of the
people and works for their betterment.
One of the important exponent of popular
sovereignty is Cicero of ancient Rome,
who believed that, “The common wealth
… is the people’s affair”93 Thereby
stressing that authority to rule comes
from the people and therefore it should
work for the people and serve them to
best of its strength. During his times in
the Roman emperor remain absolute
monarchy and his thought could not make
sufficient influence on politics.
The idea of popular sovereignty in true
sense gained ground with the revolt
against absolute monarchy. A lot of civil
and international warfare started by the
second half of the sixteenth century after
mainly influenced by monarchomac who
upheld the sovereignty of the people
against the sovereignty of the kings.
These thoughts were expressed in the
writings of the monarchomac or anti
monarchial writers like Marsiglio of Padua
(1270- 1340), William of Ockam (c1287-
1347), George Buchanan (1506-1582) etc.
during sixteenth and seventeenth century.
They conceive that sovereignty originally
belonged to the people and it is they who
are the source of power.

CHARACTERISTICS OF SOVEREIGNTY

Sovereignty may be identified by the

following characteristics- permanence,
exclusiveness, all-comprehensiveness,
inalienability, indivisibility, and
absoluteness.

PERMANENCE
Sovereignty is permanent and it continues
uninterrupted as long as the State exists.
Changes in government do not mean
cessation of sovereignty. Bearers of the
authority of government may change, but
the State endures and so does
sovereignty.
It does not cease with the “death or
temporary dispossession of a particular
bearer or the reorganization of the State,
but shifts immediately to a new bearer as
the centre of gravity shifts from one part
of a physical body to another when it
undergoes external change”.
All-comprehensiveness

Sovereignty is universal in character and it

extends to all persons and associations
within its territorial limits. It is co-extensive
in its operation with the jurisdiction of the
State and comprehends within its scope all
persons and things in the territory of the
State.
INALIENABILITY

The sovereignty of the State cannot be

alienated. Liber has said that “sovereignty
can no more be alienated than a tree can
alienate its right to sprout or a man can
transfer his life and personality without
self-destruction.”
The State and sovereignty are essential to
each other. But when the State cedes a
part of its territory, it does not mean that
the State has lost its sovereignty. It is, on
the other hand, “an excellent example of
the working of the sovereignty of the
State. All that happens is that, whereas
formerly there was one State, now, with
such cession, there are two States.”
Closely connected with inalienability is the
attribute of the imprescriptibility of
sovereignty. This means that sovereign
power cannot be lost with the lapse of
time by the non-exercise of such power.
“Sovereignty cannot be lost,” says Garner,
“by mere I lapse of time, as property in
land may be lost by prescription at private
law.”

The modem State does not recognize the

existence of any rival within its jurisdiction.
There can be neither any person, nor any
organization, however universal, which can
affect the sovereignty of the State.
The only exception to the universality of
sovereignty is the extra-territorial
jurisdiction allowed to embassies. An
embassy is subject to the law of the State
of which it flies the flag and the
ambassador and his staff are amenable,
within the premises of the embassy, to the
law of their own country.

ABSOLUTENESS

The sovereignty of the State cannot be alienated.

Liber has said that “sovereignty can no more be
alienated than a tree can alienate its right to
sprout or a man can transfer his life and
personality without self-destruction.”
The State and sovereignty are essential to each
other. But when the State cedes a part of its
territory, it does not mean that the State has lost
its sovereignty. It is, on the other hand, “an
excellent example of the working of the
sovereignty of the State. All that happens is that,
whereas formerly there was one State, now, with
such cession, there are two States.”
Closely connected with inalienability is the
attribute of the imprescriptibility of sovereignty.
This means that sovereign power cannot be lost
with the lapse of time by the non-exercise of such
power. “Sovereignty cannot be lost,” says Garner,
“by mere I lapse of time, as property in land may
be lost by prescription at private law.”