Last week, an academic concept jumped out of the dusty books of jurisprudence and political theory into the chirpy streets of social media when an arch-god of cricketing pantheon lectured the world about “sovereignty”.
Joining the chorus of orchestrated opposition to tweets by pop star Rihanna and climate change campaigner Greta Thunberg in support of the long-drawn farmers’ protests, Sachin Tendulkar tweeted that India’s sovereignty cannot be compromised. “External forces can be spectators but not participants,” he said. “Indians know India and should decide for India.”
The concept of sovereignty is a Schrödinger’s cat in modern political theory, a hypothesis that may be considered simultaneously both alive and dead.
Theoretically, sovereignty is the supreme authority within a territory. In a state, sovereignty is assigned to the person, body, or institution that has the ultimate authority over other people in order to establish a law or change an existing law. In political theory, sovereignty is a substantive term designating supreme legitimate authority over some polity.
Tendulkar’s tweet has all of a sudden triggered a debate about sovereignty. The crux of the debate is whether sovereignty means an absolute and unbridled power of state over its people and whether people beyond national borders are restricted from comment on atrocities committed within the borders by state in our time. Obliviously, the answer in modern jurisprudence and political theory is negative.
The origins of sovereignity
The concept of sovereignty goes back to the Peace of Westphalia, the collective name for two peace treaties signed in October 1648 in Germany. Scholars of International Relations and International Law have identified the Peace of Westphalia as the origin of principles crucial to modern international relations, including the inviolability of borders and non-interference in the domestic affairs of sovereign states. This system became known as Westphalian sovereignty.
Accordingly the European monarchs became embodiments of sovereignty. In Medieval Europe, monarchs were not sovereign because they were constrained by, and shared power with, their feudal aristocracy and remote-controlled by an inter-state authority, that is, the Papacy.
In his Six Books of the Republic in 1576, 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. He said that the sovereign must be able to legislate without his subjects’ consent, must not be bound by the laws of his predecessors, and could not, because it is illogical, be bound by his own laws.
Thomas Hobbes, in Leviathan (1651) put forward a conception of sovereignty similar to Bodin’s. John Austin (1790-1859) opined that laws are general commands issued by a sovereign to members of an independent political society, and backed up by credible threats of punishment or other adverse consequences (“sanctions”) in the event of non-compliance.
The “sovereign” was defined by Austin as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign. Sachin Tendulakar’s perception of sovereignty may be akin to those of Bodin, Hobbes and Austin – but modern thinkers seriously differ with them.
Modern thinkers prefer the concept of Popular Sovereignty. It is the principle that the authority of a state and its government are created and sustained by the consent of its people, through their elected representatives (rule by the people), who are the source of all political power. John Locke was exponent of this idea.
Benjamin Franklin expressed the concept when he wrote, “In free governments, the rulers are the servants and the people their superiors and sovereigns”. Americans revolutionaries applied the doctrine of popular sovereignty when they substituted the sovereignty in the person of King George III, with a collective sovereign – composed of the people.
After that, American revolutionaries generally were committed to the principle that governments were legitimate only if they rested on popular sovereignty – that is, the sovereignty of the people.
Harold Laski’s works promoted pluralist view on sovereignty especially in the essays collected in Studies in the Problem of Sovereignty (1917), Authority in the Modern State (1919), and The Foundations of Sovereignty (1921). He argued that the state should not be considered supreme since people could and should have loyalties to local organisations such as clubs, labour unions and societies. The state should respect those allegiances and promote pluralism and decentralisation.
In Nuremberg and Sovereignty (1996), Henry T King Jr. evaluated how the Nuremberg trials of Nazi war criminals after World War II dealt with the question of sovereignty and examined how this affects today’s world. The significance of Nuremberg was the multilateral recognition (by the United States, U.S.S.R., France and the United Kingdom) of international human rights extending beyond the borders of individual countries. The Inter-American Commission on Human Rights and the European Court of Human Rights reflect the recognition of international human rights.
“Nuremberg penetrated the veil of national sovereignty to recognise individuals as having rights independent of nation-state recognition,” King says. “Nuremberg held that these rights existed although the national sovereign, Germany, denied their existence”.
The Nuremberg Tribunal denied the act of state defence that would have justified human right violations on grounds that they were within Nazi Germany’s prerogative as a sovereign state.
The emergence of global human rights regime after the Universal Declaration of Human Rights in 1948 further diluted the state sovereignty. The Declaration, in its preamble, proclaimed that if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, human rights should be protected by the rule of law.
Article 19 of the declaration stipulates that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Under the Global Human Rights Regime, states have legal and moral obligations to keep auto-limitation in their exercise of sovereignty. The rise of global civil society and public opinion also limits the might of state sovereignty. No state is absolutely sovereign in today’s world particularly after emergence of international and regional organisations like the United Nations and the European Union.
“The Sabbath was made for man, not man for the Sabbath,” Jesus had said. This statement was in response to the accusation that his disciples were breaking the law regarding resting on the Sabbath when they walked by some fields and plucked heads of grain.
The Sabbath was not intended to burden people but to ease their burden as the Israelites were commanded to take a full day of rest each week under tMosaic Law after gruelling daily work as slaves in Egypt. The disciples had not broken God’s law; they had only violated the Pharisees’ strict interpretation of the law.
So is the case sovereignty. It is made for humans, not humans for the sovereignty. The pain of humans in India is pain of humans elsewhere. Lecturing the world about sovereignty, while the farmers fight for their bare survival is inopportune and Pharisaic.
Faisal CK is an independent researcher who specialises in constitutional law and political philosophy.