In
simple terms, a State is conformed by the following elements: population,
territory, government and law.
Sovereignty
could be seen in principle as one of the characteristics that each and every
State should have both at national and international level.
It
could be defined in principle as the exclusive right to exercise with
autonomy and autarchy, within a specific State, the ultimate authority in terms
of creation and application of law.
Following this notion we can highlight
and analyse these components:
a) exclusive right
b) with autonomy and autarchy
c) within a specific State.
d) ultimate authority.
e) creation and application of law.
We shall now proceed to review each term
of the definition:
a) what do we mean by exclusive right?
Whenever a new act or omission needs or
is supposed to be part of the law one (an only one) government is allowed to
decide what is legal and/or illegal in relation to such act or omission. This prerogative
is not divided or shared with other States and/or agents.
Taking an example in Criminal Law: if
the death penalty was to become valid again in a given country, only its
highest authorities would be able to create the norm that could put in place such
a penalty as a result of committing certain crime. These authorities (i.e.
Parliament) would be the only ones to decide what kind of actions and/or
omissions would constitute the criminal offence so as to result in such a
punishment.
At the same time if this norm was to be
derogated, only the same body of representatives would be allowed to do so
following a prescribed procedure.
It is a right as synonym of
prerogative. The authorities are not obliged to rule but it is a privilege they
have to represent their population and determine what is legal and/or illegal.
The scope and exercise of such power is always centre of dispute and it is out
of the scope of the present article.
b) what is the difference between autonomy and autarchy?
Directly linked to the previous
question, a State possesses autonomy when it is able to determine on its own
what is legal and/or illegal within its borders and for its population.
Autarchy is the economic side if the
autonomy. Due to the importance this concept has we prefer to keep it separate
for better clarity in the exposition. In nowadays world we can appreciate that
although some States may seem legally autonomous and independent (“sovereign”
at first glance) their internal and external affairs are decided by some other
States or agents due to the fact that their economy is heavily in debt with
them. We do not consider such a State autarchic (hence not completely
autonomous, at least factually) since its decisions in the law making process
will be affected by outer interests.
In an ideal scenario, for a State to be
sovereign it should have both, legal autonomy and autarchic economy.
c) what is considered as a specific State?
When we use the term State we refer to
its four elements: territory, population, government and law.
A certain rule or norm is only valid
within the limits of the territory in which a State takes place. Such limits
are established by history, international agreements, law in its broadest sense
(i.e. in principle, Italian rules are valid and obligatory within Italy’s
borders).
A given rule or norm is obligatory for
any citizen (national or not) who is part of the population of that certain
State. If someone who is not national of this State is physically within the
limits of its territory, he/she will be also subject for this law (exceptions
apply; i.e. diplomats of other countries).
Moreover, nationals of this State who
for any circumstance are physically in the territory of another State are still
obliged by the law of the State they are nationals (again, exceptions apply;
i.e. residency, bilateral agreements, etc.).
By government we mean any person or
group of people (body) representing the population of a certain State with the
capacity and in charge of the creation and application of law. The notion will
be shortly developed under ultimate
authority.
We use the term law in this definition
with an ample meaning. We refer to any branch (civil, criminal, commercial,
etc.) created in any way (legal, consuetudinary) that is part of the internal
legal net despite its internal or external origin. If the second, it is
necessary that this rule or norm had been accepted or had followed the internal
procedures to become part of the National Law (depending whether we follow
monist or dualist theorists).
d) what is ultimate authority?
By
ultimate authority we mean any given person or group of people (body) that,
representing a certain population, are the origin or creator of law for that
population. There should not be any other authority with such a prerogative
above them (legally speaking).
It is not important for this article the
way these authorities are elected, if they are uni-personal or pluri-personal,
indirect or direct representatives, part of a democracy or an autocracy.
e) “Making law”: creation and application of law.
As it is now clear, a State has
authorities (individual and/or bodies) who represent its population. These
authorities are the origin of law with regards that State.
Following pre-established procedures
they create and interpret norms within the limits or the territory in relation
to the people who constitute the population. We shall not discuss here the
internal procedures of creation and application of law.
The only divergence that has been noted
among scholars is that some of them require that both the creation and
application of law have to be centralized in order to name such a State as
National Law. We shall leave this
discussion for now as it does not implicate consequences at this point.
In brief, sovereignty is the exclusive right to exercise with autonomy and autarchy, within a specific State, the ultimate authority in terms of creation
and application of law.
