4.1 Sovereignty and Jurisdiction in International Law
Sovereignty and jurisdiction are two the most relevant concepts in international law,
upon which the theoretical edifice of the discipline is construed. To understand the
latter, one must first analyze the former. Thus, sovereignty consists of an abstract
element that transforms an agglomeration of people in a specific territory into an
independent entity to the eyes of the international community. In this sense, the
Charter of the United Nations states that the Organization is based on the principle of
sovereign equality of all its member states.
4 A reader of international legal works
will, thus, be faced with several qualifiers to sovereignty, such as the doctrines of
equality between states; self-determination; or independence from external
unconsented intervention or interference. In addition, sovereignty usually transmits
the idea of a collection of rights, competences, and powers,
5 although no specific
substantive ones.
Often regarded as a principle of international law, sovereignty may be taken as the
“basic constitutional doctrine of the law of nations”,
6 which govern states that have
uniform legal personality and, as such, can be said to be formally equal among
themselves. It is “constitutional” in a sense that without the element of sovereignty
attached to states there could hardly be any law of nations, since the relationship
between non-sovereign and unequal states could not possibly be governed by law—
the resulting scenery would be one of utter chaos, instability and unpredictability in
interactions. It is so that Hobbes, in a theological analogy, considered sovereignty to
be the substance of the Leviathan, that mystical and terrifying creature, but necessary
for the sake of order and stability as opposed to the chaos and anarchy of life in the
natural phase.
7 It is no wonder that the concept of sovereignty is closely connected to
the ideas of formal equality and non-intervention in the domestic affairs of other
states.
Jean Bodin, together with Nicollo Machiavelli,
8 initiated the age of political
modernity, after centuries of relative scarcity of attempts to systematize the field of
politics. In spite of the initial concern with politics, Antiquity lost the focus of the
theoretical construction and systematization of this field of knowledge, which had
the interactions of states and other independent political entities as one of its main
4 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 2 (1).
5 The term “powers” is not used with the same meaning as in the field of international relations, to
which power is the ability to influence the behavior of others in order to achieve a desired outcome.
In this regard, it is advisable to understand the work of Joseph Nye, creator of the concept of “soft
power” as the intangible influence of a country amongst other nations in fields such education,
media, financial institutions, sports or entertainment. See Nye (1990), p. 153. Power, here, is used in
the same sense as Hohfeld, to whom power represents the control of a specific legal relation by a
subject against another. Power is, thus, a legal entitlement to modify a particular legal relation in
face of other legal subjects. See Hohfeld (1913), p. 16.
6 Crawford (2012), p. 449.
7 Hobbes (1651) ch. XXXI.
8 Machiavelli (1515).
4.1 Sovereignty and Jurisdiction in International Law
87
Sovereignty and jurisdiction are two the most relevant concepts in international law,
upon which the theoretical edifice of the discipline is construed. To understand the
latter, one must first analyze the former. Thus, sovereignty consists of an abstract
element that transforms an agglomeration of people in a specific territory into an
independent entity to the eyes of the international community. In this sense, the
Charter of the United Nations states that the Organization is based on the principle of
sovereign equality of all its member states.
4 A reader of international legal works
will, thus, be faced with several qualifiers to sovereignty, such as the doctrines of
equality between states; self-determination; or independence from external
unconsented intervention or interference. In addition, sovereignty usually transmits
the idea of a collection of rights, competences, and powers,
5 although no specific
substantive ones.
Often regarded as a principle of international law, sovereignty may be taken as the
“basic constitutional doctrine of the law of nations”,
6 which govern states that have
uniform legal personality and, as such, can be said to be formally equal among
themselves. It is “constitutional” in a sense that without the element of sovereignty
attached to states there could hardly be any law of nations, since the relationship
between non-sovereign and unequal states could not possibly be governed by law—
the resulting scenery would be one of utter chaos, instability and unpredictability in
interactions. It is so that Hobbes, in a theological analogy, considered sovereignty to
be the substance of the Leviathan, that mystical and terrifying creature, but necessary
for the sake of order and stability as opposed to the chaos and anarchy of life in the
natural phase.
7 It is no wonder that the concept of sovereignty is closely connected to
the ideas of formal equality and non-intervention in the domestic affairs of other
states.
Jean Bodin, together with Nicollo Machiavelli,
8 initiated the age of political
modernity, after centuries of relative scarcity of attempts to systematize the field of
politics. In spite of the initial concern with politics, Antiquity lost the focus of the
theoretical construction and systematization of this field of knowledge, which had
the interactions of states and other independent political entities as one of its main
4 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 2 (1).
5 The term “powers” is not used with the same meaning as in the field of international relations, to
which power is the ability to influence the behavior of others in order to achieve a desired outcome.
In this regard, it is advisable to understand the work of Joseph Nye, creator of the concept of “soft
power” as the intangible influence of a country amongst other nations in fields such education,
media, financial institutions, sports or entertainment. See Nye (1990), p. 153. Power, here, is used in
the same sense as Hohfeld, to whom power represents the control of a specific legal relation by a
subject against another. Power is, thus, a legal entitlement to modify a particular legal relation in
face of other legal subjects. See Hohfeld (1913), p. 16.
6 Crawford (2012), p. 449.
7 Hobbes (1651) ch. XXXI.
8 Machiavelli (1515).
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