Sovereignty in International Law
When you ask those born in this age of the internet about the concept of royalty or monarchism, you should expect mixed answers. Anything from the latest Disney movie to the fairytales of the British royal family seem to be the accepted definition. The world has forgotten that just about a century ago, most of human civilization was governed by monarchies. From the moment of birth, a monarch was taught to be a leader for the rest of his or her life. Today, many members of these ancient families have been reduced to footnotes in history. We know of eminent persons such as Dom Duarte Pio, the “king” of Portugal; Constantine II, the “king” of Greece; and Simeon II, the “king” of Bulgaria who do not administer their countries but retain certain rights according to international law. Though they lost all the pomp and circumstance, have they also lost their sovereign right to rule?
The Definition of Sovereignty
Sovereignty is one of the most important concepts of political science and international law. Many believe that no other term has given rise to more discussion and confusion than the word “sovereignty.” It is used in a variety of ways which are not clearly distinguished from each other. The word “sovereignty” is derived from the Latin word “superanus” which means “supreme power”.
Definitions of sovereignty are numerous and varied. French jurist and political philosopher Jean Bodin was the first Western writer to develop a systematic doctrine of sovereignty. He defines it as “the supreme power over citizens and subjects, unrestrained by law.” Dutch humanist, diplomat, lawyer, theologian and jurist Hugo Grotius defines sovereignty as “the supreme political power vested in him whose acts are not subject to any other and whose will cannot be overridden.”
The ultimate authority to rule within a polity is known and commonly accepted at present times as a definition of sovereignty. Historically, the ultimate authority within a polity was vested in the person of the sovereign, a monarch whose rule was granted by divine right or local custom, and often by a good deal of force.
The Concepts of Sovereignty
Things were quite simple and defined up until the Middle Ages. God was sovereign, and that is all that mattered. In the Book of Psalms, Psalm 24:1 writes that “the earth is the Lord’s, and the fulness thereof; the world, and they that dwell therein” offered soothingly emphatic confirmation of this. Few temporal leaders would dare usurp God’s position at the top of the body politic. This gave the Church a central place and enormous influence in all affairs of the state. Eventually, God was good enough to delegate. He kept things simple by investing sovereignty in monarchs. Now they, and they alone, had absolute power within their territories. And they were at pains to stress that this monopoly of sovereignty was a “divine right.” Laws may now have emanated from human words and deeds, but for anyone thinking of causing trouble, such laws were still seen to be the expression of God’s will.
Similarly, the Quran affirms that the term “Sultan” meant moral or spiritual authority. It was used later by Muslim sovereigns to represent political and governmental power. This was written in the Surah ar-Rahman (55:33) which roughly states that “O assembly of the jinn and the human! If you have power to penetrate through the diametrical zones of the heavens and the earth, then penetrate (go through them)! You cannot penetrate through them except with a Sultan (authority)!”
As the “Age of Reason” or the Enlightenment took Europe by storm, the world of absolutes began to slip away. The concept of sovereignty started to mutate and increasingly became more complex. Ideas of popular will, individual rights and “parliamentary sovereignty” slowly gained a foothold across the region. Things were no longer simple.
What is de jure and de facto sovereignty?
Sovereignty being a query of fact, a contrast is sometimes made between de jure and de facto sovereignty. The de jure sovereign is the legal sovereign and the de facto sovereign, is obeyed by the people whether he has a legal status or not. A de facto sovereignty may rest purely on physical force, where de jure sovereignty has the legal right to command obedience.
The distinction between the two comes out abruptly in times of revolution or usurpation. Some developments mean a mere change in the personnel or organization of government, while others result in a complete destruction of the old legal sovereign and the establishment of a new one.
How long does a de jure sovereignty last?
Under the principles of public international law, a ruler who is deprived of the government of his territory by either invaders or revolutionaries remains the legitimate, de jure sovereign of that country while the de facto regime set up by the revolutionaries or invaders is considered a “usurper,” both constitutionally and internationally.
The question of how long a de jure sovereign may continue in this status is answered by the book “Synopsis of the Law of Nations” written by Johann Wolfgang Textor, which states that de jure sovereigns retain their status as long as they don’t surrender their sovereignty to the de facto government. A dispossessed royal family may keep their claims alive by filing diplomatic protests against the usurpers as required by International Law. That claim can only be abandoned when the protests are stopped. The failure of royal heirs to prosecute or assert their claims may disqualify them from any consideration to the inheritance. This corresponds to Emmerich de Vattel’s legal treatise “The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns,” which states that only when such protests cease does a prescription arise against the de jure rights of a legitimate claimant. When this occurs, the sovereignty passes back to God, who gave it or may be passed in some cases to the de facto government which at that point would be legitimized and will acquire the full de jure rights of the former sovereign.
Such legitimate claimants are de jure sovereigns and, as such, remain head of the government-in-exile of their usurped territory.
Public international law towards the legal validity of objections against the usurpation of sovereignty applies to both republic and monarchical states. Prof. Stephen P. Kerr in his academic paper entitled “Dynastic Law” states that “The United States of America refused to recognize the 1939 Soviet usurpation of the three Baltic Republics of Estonia, Latvia and Lithuania. This facilitated the maintenance of Governments-in-Exile of the Baltic Republics and the maintenance of embassies in Washington, DC, which persisted through the Cold War era until these countries managed to recover their independence. Accordingly, matters pertaining to de jure Governments-in-Exile are matters of public international law. The de jure sovereignty of a state which has been usurped by a foreign conqueror is not extinguished by such usurpation but survives as long as such sovereignty is kept alive by competent diplomatic protests.”
Non-reigning or dispossessed monarchs, who, as de jure sovereigns, may continue to exercise their sovereignty. This conforms with public international law fully taking into consideration that they do not surrender their sovereignty to the de facto government. This is legally supported for as long as such sovereignty is kept constantly affirmed with strong diplomatic campaigns.