Duhaime's Law Dictionary


Sovereignty Definition:

A state's ability to legislate without legal limitation save as set by themselves and the reach of international law.

Related Terms: Sovereign, State, State Immunity

In Plebiscites and Sovereignty, Lawrence Farley wrote:

"Only states, that is possessors of sovereignty, may become members of the state system.

"In order to possess sovereignty, a regime must possess territory, population and it must be able to maintain a modicum of order within its territory and among its people. Finally, the regime must be recognized as sovereign by (other) states (already) possessing sovereignty."

Woodrow Wilson suggests that sovereignty and land go hand in hand:

"Modern definitions of a state always limit sovereignty to some
definite land. A state ... is a People organized for law within a definite territory."

In The Arantzazu Mendi, Justice Atkin wrote:

"By exercising de facto administrative control or exercising effective administrative control, I understand exercising all the functions of a sovereign government, in maintaining law and order, instituting and maintaining courts of justice, adopting or imposing laws regulating the relations of the inhabitants of the territory to one another and to the government.

"It necessarily implies the ownership and control of property whether for military or civil purposes, including vessels whether warships or merchant ships.

"In those circumstances it seems to me that the recognition of a government as possessing all those attributes in a territory while not subordinate to any other government in that territory is to recognise it as sovereign, and for the purposes of international law as a foreign sovereign state."

In Joosse, Justice Haynes adopted these words:

"Sovereignty is a concept that legal scholars have spent much time examining. It is a word that is sometimes used to refer to very different legal concepts and for that reason alone, care must be taken to identify how it is being used.

"It is worth observing that an uncritical use of the idea of sovereignty has spread similar confusion in the theory both of municipal and international law, and demands in both a similar corrective. Under its influence, we are led to believe that there must in every municipal legal system be a sovereign legislator subject to no legal limitations; just as we are led to believe that international law must be of a certain character because states are sovereign and incapable of legal limitation save by themselves."

 REFERENCES:

  • Duhaime, Lloyd, Legal Definition of Sovereign
  • Farley, L., Plebiscites and Sovereignty (London: Mansell Publishing Limited, 1986), page 7.
  • Joosse v Australian Securities and Investment Commission, 1998 HCA 77 (High Court of Australia, 1998)
  • The Arantzazu Mendi, [1939] AC 256
  • Wilson, Woodrow, The State: Elements of Historical and Practical Politics (Boston: DC Health Publishers, 1918)

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