Law is fundamental for a state or for a country which imposed by the highest authority of a country for the good of that country’s people. Explain &illustrate
Introduction
Law has a sovereign authority and there cannot be any law without the sovereign authority. Law is fundamental for a state or for a country which imposed by the highest authority of a country for the good of that country’s people. To impose a law on the state people there must have to superior power. Superior or supreme powers of a state impose the law on his territory’s people. It is impossible to impose any law without the superior power means there cannot be any law if there is no sovereign authority. Bangladesh became independent in 1971 and established as sovereign nation.
Sovereignty
Sovereign authority is the supreme, absolute, and uncontrollable power by which any independent state is governed. it means its right to determine what goes on inside its borders. Its right to exist as a self-determining, self-governing geographic area. Sovereign citizens believe the government is operating outside of its jurisdiction and generally do not recognize federal, state, or local laws, policies, or governmental regulations. Sovereign authority is the supreme political authority. Sovereign authority means effectively enforce laws typically claim to be sovereign and are recognized by foreign countries as sovereign. It is a modern notion of political authority, paramount control of the constitution and frame of government and its administration self-sufficient power from which all specific political powers are derived. Sovereignty gives the recognition of international independence of a state. The power to do everything in a state without accountability, make laws execute and apply them.
1. See, sixth edition of Black law’s dictionary
2. See, The definition of sovereignty from wikipedia.com; www.wikipedia.com
History of Sovereign Authority
The first systematic discussion of the nature of sovereignty was made in France by Jean Bodin. In 16th-century France Jean Bodin used the new concept of sovereignty to bolster the power of the French king over the rebellious feudal lords, facilitating the transition from feudalism to nationalism. The thinker who did the most to provide the term with its modern meaning was the English philosopher Thomas Hobbes (1588–1679), who argued that in every true state some person or body of persons must have the ultimate and absolute authority to declare the law to divide this authority.
Sovereignty is commonly used in four ways which identified by Krasner.
1. Domestic sovereignty: Actual control over a state exercised by an authority organized within this state, which refers to the organization of political authority within a state and the level of control enjoyed by a state.
2. Interdependence sovereignty: Actual control of movement across state’s borders, assuming the borders exist which is concerned with the question of control, for example, the ability of a state to control movements across its own borders.
3. International legal sovereignty: Formal recognition by other sovereign states which is concerned with establishing the status of a political entity in the international system. The state is treated at the international level similarly to the individual at the national level.
4. Westphalian sovereignty: The Thirty Years War in Europe was ended in 1648 with the Peace of Westphalia. The new world society that was established after the Peace of Westphalia was
3. Note that, “Sovereignty: Organized hypocrisy” in Steiner & Alston International Human Rights in Context: Law, Politics, Morals (2000) 575-577.
4. See, Idem at 567-577. The rulings of the International Court of Justice, eg, have legitimacy in the judicial systems of the member states of the European Union. Human rights conventions can also cause unanticipated changes in the institutional arrangements of the signatory states.
5. See, Jennings “Sovereignty and international law” in Kreijen (ed) State, Sovereignty and International Governance (2002) 27. Makinda “Recasting global governance” in Thakur &Newman (eds) New Millennium, New Perspectives: The United Nations, Security, and Governance (2000) 168-172 distinguishes between three types of sovereignty. remised on the absolute sovereignty of its constituent member slack of other authority over state than the domestic which is understood as an institutional arrangement for organizing political life and is based on two principles namely territoriality and the exclusion of external factors from domestic structures of authority.
Examples of such other authorities could be a non-domestic church, a non-domestic political organization, or any other external agent. Westphalian sovereignty is violated when external factors influence or determine the domestic authority structures. This form of sovereignty can be compromised through intervention as well as through invitation, when a state voluntarily subjects internal authority structures to external constraints. Ideas and views about sovereignty may vary from time to time.
Sovereign rights and duties constitute state sovereignty. Sovereignty is thus the legal status of a state as defined, and not only protected, by international law. Therefore sovereignty is neither “natural” nor static. Because of a process that has increasingly placed constraints on the freedom of action of states; the substance of the notion of sovereignty has changed and will further change in future. Although it is not possible to formulate an all-inclusive definition of sovereignty two major points of view with regard to the concept of sovereignty can continuously be identified. The first view is that sovereignty means absolute power above the law and that absolute sovereignty constitutes one of the most powerful and inviolable principles in international law.10 The second view is that it is of utmost significance that states – as the most important subjects of international law do not claim that they are above the law or that international law does not bind them.
6. Fassbender “Sovereignty and constitutionalism in international law” in Walker (ed) Sovereignty in Transition (2003) 115.
7. According to Cassese International Law (2005) 49-52 sovereignty includes the following sweeping powers and rights: The power to exercise authority over all the people living in a particular territory.
8. See, Bodley (n 3) 429.
Type of Sovereignty
Sovereignty can be defined as the quality of having supreme, absolute and independent authority over a territory. It can be found in the power to rule and make law. By having sovereignty means
a state is independent from the other state. And the other state cannot interfere with its internal affair. Mainly there are two type of sovereignty:
a. Internal
b. External
a) Internal Sovereignty
Explain the supreme authority that is absolute over all individuals or association within the State. It
Is the supreme authority of a State over the activities taking place within its territory and to exclude others from doing any unauthorized interference, concerned the relationship between the supreme power and its subjects. Internal sovereignty thus comprises of the whole body of rights and attributes that a state possesses in its territory. There are two types of internal sovereign authority:
1. Legal sovereignty- It is the power to make law and to repeal or modify existing laws.
2. Political sovereignty- It implies that the will of ‘political sovereign’ is ultimately obeyed by the citizens of the State. It is the political sovereignty that comes into play in international law.
b) External Sovereignty
External sovereignty is traditionally understood as legal independence from all foreign powers. It is impartial and protecting the state’s territory against all outside interference. According to Perrez external sovereignty broadly includes international independence, the right to
9. See, Bodin Les Six Livres de République (1577) Book I Ch 8. For an
10. See, English translation sees Jean Bodin On Sovereignty: Four Chapters from the Six Books of the Commonwealth (tr by Julian Franklin (1992)) 1-45.
11. See, “The concept of political sovereignty” in Visser (ed) Essays in Honor of Ellison Kahn (1989) 290; Jennings (n 6) 28; Lauterpacht (ed) Oppenheim’s International Law Vol 1 (1947) 116.
International self-help and the authority are to participate in international society. The idea of external sovereignty eventually led to the development of modern international law. In the external relations of states, sovereignty was regarded as legal independence from all foreign powers, in particular that of the Pope and the Emperor of the Holy Roman Empire, and as impermeability which protect the particular territory against all outside interference. The principle of external sovereignty to a large extent determined the overall structure and the entire substance of the international law.
Understanding of sovereignty
Since the beginning of the twentieth century it has become increasingly apparent that the classical approach to sovereignty as absolute and unlimited authority constitutes a threat to international peace and to the existence of independent nation states. A sovereign state creates when entering into a legal relationship with another state, subjects itself to international law by an act of self-limitation, from which the state may disengage itself at any time without violating any law. The state is thus only subjected to its own will. However, as a result of the horrors of war, anti-sovereign doctrines emerged that tended to replace the dualist doctrine which placed emphasis on the will of states, with a monistic approach that sought to establish a common source for international and national law. Some of the most important authors of the monistic school of thought include Krabbe, Duguit and Kelsen.
12. See, Fassbender (n 14) 73.
13. See, Fassbender (n 7) 119; Fassbender (n 14) 73.
14. Fassbender (n 14) 72.
15. Tangney “The new internationalism: The cession of sovereign competences to supranational organizations and constitutional change in the United States and Germany” 1996 The Yale Journal of International Law 401.
16. Note, Fassbender (n 7) 119; Fassbender (n 14) 73.
Responsibility of a sovereign nation:
Sovereignty is evident in the emergence of the concept of responsible sovereignty. Government legitimacy that validates the exercise of sovereignty involves adherence to minimum humanitarian norms and a capacity to act effectively to protect citizens from acute threats to their security and well-being that derive from adverse conditions within a country. The Independent International Commission on Intervention and State Sovereignty was established in September 2000 by Canada. It was given the mandate to investigate the relation between intervention for human protection purposes and state sovereignty. The Commission suggests that sovereignty should be seen as the responsibility to protect. According to the Commission in their Report on the Responsibility to Protect 115 this implies, first, that the state authorities are responsible for the functions of protecting the safety and the lives of citizens and the promotion of their welfare. Secondly, it suggests that the national political authorities are responsible to the citizens internally and to the international community through the United Nations. Thirdly, it means that the agents of the state are responsible for their actions and are thus accountable for their acts of commission and omission. In view of its approach to sovereignty as the responsibility to protect, the
Commission supports intervention for human protection purposes when major harm to civilians is occurring or imminently apprehended, and the state in question is unable or unwilling to end the harm, or is itself the perpetrator
17. see, Bodley (n 3) 419-422. On 422-425 Bodley identifies the three reasons for the weakening of state sovereignty, namely the establishment of international tribunals, the marked growth of interest in concluding multilateral treaties and the establishment of two international organizations in the twentieth century, the League of Nations in 1919 and the United Nations in 1945.
18. see, Falk “Sovereignty and human dignity: The search for reconciliation” in Steiner & Alston International Human Rights in Context: Law, Politics, Morals (2000) 582.
19. State Sovereignty (December 2001) 13: http://www.iciss.ca/report2-en.asp (4 March 2005).
20. Idem 16.
21. Also see the discussion by Strydom “Peace and security under the African Union” 2003 South African Yearbook of International Law 74-7
Opinion and Conclusion
In both modern and classic theories of sovereignty, sovereignty is the ultimate power of the state which regulates law. Where there is no sovereign authority there imposing law is impossible. They fail to distinguish between sovereignty as a special source of ultimate power, which is neither necessary nor desirable.
Reference
1. http://www.blacknotedictionary.com
2. . http://www.wikipedia.org
3. Sovereignty: ”Organized hypocrisy” in Steiner & Alston International Human Rights in Context: Law, Politics, Morals (2000) 575-577.
4. Idem, “The rulings of the International Court of Justice”, European Union. 567-577.
5. Jennings, (2002) 27, “Sovereignty and international law” (ed) State, Sovereignty and International Governance.
6. The United Nations, Security, and Governance (2000), “Recasting global governance” (eds) New Millennium,
168-172.
7. Fassbender “Sovereignty and constitutionalism in international law” in Walker (ed) Sovereignty in Transition
(2003) p. 115.
8. Cassese International Law (2005) sovereignty includes the following sweeping powers and rights: “The power to
exercise authority over all the people living in a particular territory”. 49-52
.
9. Bodin J. , “On Sovereignty”: (4th chapter)Six Books of the Commonwealth (tr by Julian Franklin (1992)) 1-45.
10. Bodley, (1945), (n 3) 419-422″The establishment of international tribunals the League of Nations in 1919 and the United Nations in 1945. On 422-425
11. Falk “Sovereignty and human dignity: The search for reconciliation” in Steiner & Alston International Human Rights in Context: Law, Politics, Morals (2000) 582.
12. http://www.iciss.ca/report2-en.asp (4 March 2005).
13. Strydom. (2003) “Peace and security under the African Union” 2003 South African Yearbook of International Law 74-
14. Fischer, Joschka (May 12, 2000), From Confederacy to Federation – Thoughts on the Finality of European Integration, Auswärtiges Amt, archived from the original on 2002-05-02, retrieved 2008-07-06
15. Patrick J. Buchanan (January 1, 2002), Say Goodbye to the Mother Continent, retrieved 2008-05-21
16. Patrick J. Buchanan (May 23, 2006), The Death of the Nation State, retrieved 2008-05-