(1) Sovereignty and international law: independence and equality. In the general context of self-determination, the place of sovereignty in international law must be explained, since self-determination is generally (albeit erroneously) seen as the pursuit of sovereignty and independence. Sovereignty as a principle of international law must be clearly distinguished from sovereignty in its internal and constitutional aspects. It is in the nature of sovereignty as the supreme authority that such a concept of sovereignty is not applicable to the role of sovereign States at the international level and within the framework of international law. At the international level, no state has the highest legal power and authority over other states in general, and states are generally not subordinate to the legal power and authority of other states (although in the past, such claims have sometimes been made, especially in the traditional Chinese view of international relations, which has been affirmed for more than a millennium. that the legal relationship of all foreigners with the imperial court was a respectful subordination – a view that led to considerable divergence on the occasion of the visit of a British diplomatic and trade mission to the Chinese Qianlong Emperor in 1793). Moreover, the sovereignty of States at the international level would be incompatible with the conception of international law as a set of codes of conduct binding States independently of their domestic law, since it implied their submission to international law and called into question any claim by a State at the international level to the absolute sovereignty and legality of its conduct. Nor should sovereignty be confused with international personality. The first is based on the notions of supreme authority and independence.
International personality means the possession of rights, duties, powers and abilities under international law: Any person or entity that has rights, duties, powers and capacities under international law has international personality, even if that person or entity does not have sovereignty. Sovereign States generally possess the full range of international rights, duties, powers and capabilities and undoubtedly possess an international personality. But many States which are in one way or another under the authority of another State, and which may therefore not be fully sovereign, may nevertheless enjoy international personality (albeit on a less complete basis than sovereign States) by possessing at least some of the legal claims conferred by international law; The same applies to non-governmental institutions such as many international organizations. Sovereignty as the supreme authority necessarily implies independence. “Every nation which governs itself, in whatever form, without dependence on any foreigner, is a sovereign state” (Vattel, Le droit des gens (ed. 1773), Bk. 1, Ch. 1, p.4). A ruler or sovereign state is strictly independent of any other temporal legal power with respect to its legal powers within its borders, and also independent of its legal authority to act beyond its borders. The internal legal authority of a sovereign to act both internally and externally does not legally depend on any other earthly authority. In modern times, independence (despite the difficulties of application that may arise in practice) is regarded as the essential characteristic of “sovereign” States and, at the international level, as de facto sovereignty and as a defining characteristic of statehood. Independence was described in classical terms by Judge Anzilotti[1] in 1931 as a tension between a state`s fundamental right to territorial sovereignty and the exercise of a right to self-determination by part of that state.
This tension is aggravated by provisions such as “nothing in the preceding paragraphs shall be interpreted as authorizing or encouraging acts which would dismember or compromise, in whole or in part, the territorial integrity or political unity of sovereign and independent States. [2] However, recognizing tension is one thing: its solution is another. (3) Sovereign Rights. While sovereignty is considered to be a complete set of international rights, duties, powers and capabilities, in certain circumstances and in relation to certain geographical areas, this whole scope – and thus sovereignty as such – has been considered inappropriate, and only some of these elements of sovereignty are recognized as the property of the State concerned. This instrument of “sovereign rights” has been adopted, inter alia, with regard to State-owned areas of the continental shelf and the exclusive economic zone, in which the State does not have full sovereignty but only sovereign rights for certain specific purposes (1982 United Nations Convention on the Law of the Sea, Articles 56, 77). (4) Sovereignty and self-determination. In the context of these fundamental principles of sovereignty (as independence and equality in relation to a given territory) and sovereign rights, the operation of the principles of self-determination has developed a number of peculiarities that illustrate the flexibility of modern applications of the underlying concept of sovereignty. (a) colonies.
Normally, the territory of a State is a relatively homogeneous territory governed from a central seat of authority. Previously, this territory included the territories around the seat of the sovereign, which were directly or indirectly under the authority of the sovereign because of the network of personal loyalties that characterized feudal regimes. As the feudal system deteriorated and was increasingly replaced by the direct imposition of authority on peripheral regions by the organs of central authority, the territorial boundaries of this central authority were seen as the boundaries of the unified political entity formed by the state. However, the sovereignty of a State is not necessarily limited to the territory directly surrounding the central seat of the authority. In various ways, a state, or formerly its ruler, could personally acquire territories that could not be adjacent to the “heart” of the state. For example, additional territories may be acquired by conquest or purchase or by occupation or cession or (especially in ancient times) by marriage. Contemporary examples of states with geographically separated components are (with the exception of the somewhat special case of island group states, such as the Philippines and Indonesia), the United States (of which Alaska and Hawaii are constituent states) and Germany (of which East Prussia is a part). In many cases, the territory under State sovereignty may be some distance from the “central” or “original” territory of the State, sometimes thousands of kilometres away and on a completely different continent. Despite these distances, all these territories remained under the sovereignty of the State and were subject to the exclusive rights of the State to exercise its supreme authority. They were generally considered to have three main characteristics: they were geographically “overseas” of the mother state, the great sovereign state; its indigenous population was racially and ethnically different from that of the mother State; and their territories were colonized by people of the mother state. From the Latin word colonus, meaning a settlement, these areas became known as settlements.
Even such seemingly simple extensions of territorial sovereignty to overseas colonies were accompanied by complicated features. For example, some States, such as France, have determined that some of their Overseas Territories do not form separate colonies but departments (overseas departments), as well as other such political entities that are part of the internal constitutional structure of the State. (b) Shared and limited sovereignty. The concept of shared sovereignty (according to which two states hold “supreme authority” over the same territory) and the idea that sovereignty can only be partial or limited have led to serious theoretical objections. Nevertheless, sovereignty over some territories was in practice shared between two other States or was possessed only to a limited extent (as in the concept of “sovereign rights”). Perhaps the clearest example is in condominiums, where two states share sovereignty over another territory, as in the Anglo-Egyptian Sudan from 1898 to 1955 and the Channel Island of the New Hebrides from 1914 until independence (as Vanuatu) in 1980. Another example of shared sovereignty, although divided in time, is when a State leases part of its territory to a foreign State for a certain period of several years and the territory remains nominally part of the territory of the lessor State, although it is generally unable to exercise sovereignty rights and obligations during the term of the lease. Well-known examples of such leases are the 1898 leases made by China from the Kiaochow district to Germany, Wei-Hai-Wei and the lands opposite Hong Kong Island to the United Kingdom, Kuang-Chou Wan to the France and Port Arthur to Russia; Similarly, Finland granted the Soviet Union a 50-year lease in the Porkkala-Udd region under Article 4 of the 1947 Peace Treaty. Panama`s grant of a 10-mile-wide strip of land across Panama to the United States in 1903, excluding Panama`s exercise of any sovereign rights over which the Panama Canal can be built, operated, and defended, can be seen in a similar light: Although the initial concession was permanent, Panama`s sovereignty over all Panamanian territory was recognized in 1977.
