convergent points. In the context of the rebirth of political science, Jean Bodin
analyzed the political phenomena in his work “The Six Books of the Commonwealth” in another recognized attempt to systematize the domestic and international
politics.
9 It diffused the sovereignty of the state, as supreme potestas, having, from
that study, arrived at a concept of sovereignty mainly linked to the ruler, which
makes Bodin one of the philosophers of the Absolutist period. For the French
philosopher, political power has no competitors, being superior to the other social
powers, both in the internal order and in the international order.
10
Sovereignty has been for more than five centuries intimately linked to the ideas of
power, a trend that initiated with Jean Bodin. Currently, another element has been
added to the notion of sovereignty, particularly regarding the interaction of states in
the international stage: consent.
11 Whenever states opt to exercise some sort of
power, that action will be conditioned by international law. In this sense, international law embodies also the role of limiting state’s arbitrary and abusive exercise of
power on the international stage. For that reason, sovereignty may be also seen as
“discretionary power within areas delimited by the law”.
12 On the other hand, states
owe compliance exclusively to the limitations to which they have consented. By the
wonders of sovereignty, states are both limited in their discretion to act and entitled
to influence the development of the international legal system at any given time,
albeit not all states with the same intensity.
Of the main characteristics of the principle, one could remark that sovereignty is
indivisible, inalienable and imprescriptible. In other words, it cannot be broken into
different concepts or separated without losing its meaning,
13 cannot be sold or given
away by the State and is not subject to being taken away by lapse of time. Since the
Roman period, one of the few things the sovereign could not do was to destroy its
own sovereignty, and act that could bring about impoverishment of centralized
power and consequently political instability.
The principle of sovereignty as we understand it today is corollary of the PostWestphalian world, as before that agreement there were no clear bases for national
9 Bodin (1955).
10 For Bodin, the state is described first of all in term of power, puissance souveraine, which was
necessarily perpetual and absolute. The Commonwealth, or Republic, can be defined as “the rightly
ordered government of a number of families and of those things which are their common concern,
by a sovereign power”.
11 It is beyond the purpose of this work to deepen the study usually conducted by legal sociologists
and international political scientists on the intricate relationship between international legal norms
and power. Major references in the connection of critical sociology and international law analyses
are Pierre Bourdieu and Michel Foucault. Yet, it is inevitable to resort to the category of power
when developing ideas and systems of thought in the international law realm. See D’Aspremont
(2015), p. 4.
12 Crawford (2012), pp. 447–448.
13 Not even in the cases of supranational blocks, such as the European Union, does a “division” of
sovereignty occur. In those cases, there is a voluntary cession of specific rights and powers to
determine a member-state’s own domestic policies and laws. Sovereignty is, therefore, not divided
but made flexible and limited to the new political and economic reality.
88
4 Sovereignty and Jurisdiction in the Law of the Sea
analyzed the political phenomena in his work “The Six Books of the Commonwealth” in another recognized attempt to systematize the domestic and international
politics.
9 It diffused the sovereignty of the state, as supreme potestas, having, from
that study, arrived at a concept of sovereignty mainly linked to the ruler, which
makes Bodin one of the philosophers of the Absolutist period. For the French
philosopher, political power has no competitors, being superior to the other social
powers, both in the internal order and in the international order.
10
Sovereignty has been for more than five centuries intimately linked to the ideas of
power, a trend that initiated with Jean Bodin. Currently, another element has been
added to the notion of sovereignty, particularly regarding the interaction of states in
the international stage: consent.
11 Whenever states opt to exercise some sort of
power, that action will be conditioned by international law. In this sense, international law embodies also the role of limiting state’s arbitrary and abusive exercise of
power on the international stage. For that reason, sovereignty may be also seen as
“discretionary power within areas delimited by the law”.
12 On the other hand, states
owe compliance exclusively to the limitations to which they have consented. By the
wonders of sovereignty, states are both limited in their discretion to act and entitled
to influence the development of the international legal system at any given time,
albeit not all states with the same intensity.
Of the main characteristics of the principle, one could remark that sovereignty is
indivisible, inalienable and imprescriptible. In other words, it cannot be broken into
different concepts or separated without losing its meaning,
13 cannot be sold or given
away by the State and is not subject to being taken away by lapse of time. Since the
Roman period, one of the few things the sovereign could not do was to destroy its
own sovereignty, and act that could bring about impoverishment of centralized
power and consequently political instability.
The principle of sovereignty as we understand it today is corollary of the PostWestphalian world, as before that agreement there were no clear bases for national
9 Bodin (1955).
10 For Bodin, the state is described first of all in term of power, puissance souveraine, which was
necessarily perpetual and absolute. The Commonwealth, or Republic, can be defined as “the rightly
ordered government of a number of families and of those things which are their common concern,
by a sovereign power”.
11 It is beyond the purpose of this work to deepen the study usually conducted by legal sociologists
and international political scientists on the intricate relationship between international legal norms
and power. Major references in the connection of critical sociology and international law analyses
are Pierre Bourdieu and Michel Foucault. Yet, it is inevitable to resort to the category of power
when developing ideas and systems of thought in the international law realm. See D’Aspremont
(2015), p. 4.
12 Crawford (2012), pp. 447–448.
13 Not even in the cases of supranational blocks, such as the European Union, does a “division” of
sovereignty occur. In those cases, there is a voluntary cession of specific rights and powers to
determine a member-state’s own domestic policies and laws. Sovereignty is, therefore, not divided
but made flexible and limited to the new political and economic reality.
88
4 Sovereignty and Jurisdiction in the Law of the Sea