sovereignty
In jurisprudence, the term sovereignty ( French souveraineté , from Middle Latin superanus , `` above '', `` superior '') is understood to mean the ability of a natural or legal person to have exclusive legal self-determination . This self-determination ability is characterized by the autonomy and independence of the legal subject and is thus differentiated from the state of external control . In political science , it is understood as the property of an institution to be the sole starting point for all state power within a political framework . The term was coined in the 16th century by the theory of absolutism of the French state philosopher Jean Bodin .
Concept history
In his work Six Books on the State , Jean Bodin (1529 / 1530–1596) defines the term sovereignty as the highest authority in the state to make final decisions . According to Bodin's conception of absolute rule , this authority should always only be granted to the person of the king , it should in principle be indivisible and enable the ruler to be able to make law binding even against the will of the subjects.
Bodin's demand for a supreme and ultimately responsible ruling power was directly related to the sectarian civil wars in France, through which Bodin saw the state's ability to resolve conflicts peacefully at risk. According to Bodin, only the unrestricted concentration of all legal and physical state authority in the hands of the king could guarantee security and peace in the country. Bodin can thus be understood as a pioneer of the state's monopoly on the use of force.
In this sense, the concept of sovereignty played a central role in the emergence of the European state system in the Renaissance era. It represented a constitutional postulate with the help of which princes and cities could fend off “foreign” claims to rule by actors from politics, business or religion on their territory by depriving them of their legitimacy. The legitimate ruler is the sovereign .
Who in the state is allowed to exercise sovereignty, who is involved in it? The constitutional law of the early modern German Empire is characterized by the dualism between the German emperor and the imperial estates . Correspondingly, in a modification of Bodin's theses, scholars spoke at times of a double or dual sovereignty . The secularization of the concept of sovereignty was followed by centralization in absolutism. When the nobility, estates, and privileged cities lost their political, economic, and religious power and competence, the term focused on whoever had it alone, the monarch . In the phase of bourgeois revolution of the territorial claim to power was - the associated, over the territorial sovereignty beyond right to the controlled area: the territorial sovereignty - the idea of the nation supplements. Since then, sovereignty has been national, the national state the sovereign.
Sovereignty in international law
In international law , sovereignty is understood as the fundamental independence of a state from others (external sovereignty) and as its self-determination in questions of its own state structure (internal sovereignty). This external sovereignty of a state thus consists in its direct international law, while its internal sovereignty (see also popular sovereignty ) is, conversely, determined by the ability of state self-organization; external sovereignty becomes analogous to state sovereignty . An important point of controversy in jurisprudence is the distinction between external and internal sovereignty of the state per se: While this is considered necessary by the majority of legal scholars, the advocates of monistic legal doctrine assume the principle of unity of state sovereignty.
A state's external claim to sovereignty competes with the sovereign will of other states, which is formally equivalent. International law, which is based on the principle of the equality of sovereign states, sets limits to the claim to sovereignty. These limits exist primarily in terms of power politics. In the modern nation-state understanding of sovereignty, states are actors whose exercise of will to the outside world is limited not only by power-political relationships but also by international law.
The counterpart to state sovereignty in the sense of international law is the early modern legal figure of suzerainty .
- Critique of the concept of sovereignty
In the modern world of states, the idea of sovereignty originally intended by Jean Bodin of the complete independence of the state to determine its internal and external concerns has reached its limits. The external sovereignty of states in the classical sense was weakened more and more by the steadily growing influence of the international system of intergovernmental and supranational organizations as well as by the increased political and economic interdependence of the states. At the same time, the states were given the opportunity to shape international policy with states of equal rank. In doing so, they have delegated parts of their power to rule to supranational organizations such as EFTA or EURATOM . In some cases, they have also committed themselves to a community method according to which they only develop their policies together in certain areas. Their sovereignty was limited, but in no way abolished. This limitation of sovereignty can also take place on a voluntary basis: Switzerland always has the option of shaping its law independently of the European Union (EU). In practice, however, for economic and trade policy reasons, legislators are often forced to align their legislation with that of the EU. In this context, one speaks of “ autonomous reconstruction” in Switzerland .
The state sovereignty of the globally networked centers of the northern hemisphere of the earth is also reduced by their mutual economic interdependence. In weaker states it exists legally and formally, but is in fact limited because of its dependence on regional powers.
The internal sovereignty of a state is also limited by the basic rights of the individual , albeit not with global international law binding force. In the international discourse on responsibility to protect, attempts have been made for some time to redefine sovereignty: as an obligation of every state to ensure the protection of the fundamental rights of its citizens. If he does not meet this obligation, the responsibility will pass to the international community. The concept of the responsibility to protect was accepted by 150 UN member states in the final document of the UN General Assembly in 2005 and is regarded as developing international law.
Sovereignty in Constitutional Law
The term sovereignty , in German also “sovereignty”, is used in domestic law and in political theory to denote the highest level of competence for exercising power within a state. State sovereignty therefore means "to hold state authority".
In states in which only one person has this competence, one speaks of a sovereign , while in democratic forms of state there is talk of popular sovereignty . This relates primarily to the quality of the people as a constituent power by means of which the people determine the form of government and other principles of the state. In addition, state power must be legitimized by the people in elections and referenda based on the principle of popular sovereignty; all state authority must emanate from the people (popular sovereignty, for example in Germany : Art. 20 (2) sentence 1 GG , in Austria : Art. 1 B-VG ).
The concept of sovereignty is unclear in the constitutional sense , especially when it comes to the definition of the state: In Georg Jellinek's “classic” three-element theory , sovereignty is understood only as a property of state authority that does not necessarily have to be present in a state. In international law in particular, such as the 1933 Montevideo Convention , the sovereignty of state authority can become a mandatory defining characteristic of statehood.
Sovereignty and federalism
Since only one polity can be sovereign in a certain area and over a certain people , the concept of sovereignty also serves to distinguish between federal states and confederations : In confederations, state sovereignty still rests with the individual states. During the establishment of a federal state as a whole, however, give later to become constituent states - such as Germany and Austria, the countries / states , in Switzerland, the cantons or the United States , the states (states) - their sovereignty partly to the federal government from.
However, the state does not necessarily have a competence competence . None of the levels can dispose of them without the consent of the other. In confederations of states, the individual states decide whether they want to leave competences to the federal government.
Nonetheless, the relationship between sovereignty and federalism is characterized by conceptual tensions: Jean Bodin conceived sovereignty as the ultimate decision-making power of state power exclusively for a completely centrally organized state and could conceptually contradict the dualism of decision-making centers that characterizes federalism.
The federalism anchored in the Basic Law in Germany ensures the federal states a high degree of statehood, the core of which is cultural sovereignty and which is why the establishment of the state administration is left to each state itself. Article 30 is a central norm of statehood . In addition to their own state competences, the Basic Law guarantees in Articles 70 to 74 (74a and 75 have since been deleted), 83 to 87, 23 and 50 the federal states participation in federal legislation and in matters of the European Union.
See also
literature
- Christian Hillgruber : The sovereignty of states. In: Der Staat , 2014, p. 475 ff.
- Helmut Quaritsch : Sovereignty. 1986.
- Reinhold Zippelius : General state theory. 16th edition, § 9.
- Dieter Grimm : Sovereignty. Origin and future of a key concept. Berlin University Press, Berlin 2009, ISBN 978-3-940432-60-5 .
- Friedrich Balke : Figures of Sovereignty. Wilhelm Fink Verlag, Munich 2009, ISBN 978-3-7705-4449-3 . (The studies span an arc that extends from the classical texts of ancient political philosophy to the early modern doctrine of sovereignty and Martin Heidegger's political ontology.)
- Thomas Fischer: The sovereignty of the weak. Latin America and the League of Nations, 1920–1936 (= Contributions to European Overseas History, Vol. 98). Steiner Verlag, Stuttgart 2012, ISBN 978-3-515-10077-9 .
- Stephan Hobe / Otto Kimminich: Introduction to international law. 8th edition, Tübingen / Basel 2004, p. 36 f.
- Quirin Weber: Parliament - Place of Political Decision? Legitimation problems of modern parliamentarism - illustrated using the example of the Federal Republic of Germany. Basel 2011, ISBN 978-3-7190-3123-7 .
- Samuel Salzborn , Rüdiger Voigt (Ed.): Sovereignty. Theoretical and history of ideas reflections (= State Discourses , Vol. 10). Steiner, Stuttgart 2010, ISBN 978-3-515-09735-2 .
Web links
- Thomas Maissen , Andreas Kley: Sovereignty. In: Historical Lexicon of Switzerland .
Individual evidence
- ↑ See Burkhard Schöbener (ed.), Völkerrecht. Lexicon of central terms and topics , CF Müller, Heidelberg 2014, p. 393 ; Kay Hailbronner, in: Wolfgang Graf Vitzthum (Ed.), Völkerrecht , 3rd edition 2004, Rn 122 .
- ↑ Reinhold Zippelius , Allgemeine Staatslehre , 16th edition, 2010, § 9 IV.
- ↑ Klaus Detterbeck, Wolfgang Renzsch, Stefan Schieren (eds.), Föderalismus in Deutschland , Oldenbourg, Munich 2010, p. 3.