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The Concept of Sovereignty and the Relations Between States Author(s): F. H. HINSLEY Source: Journal of International Affairs , 1967, Vol. 21, No. 2 (1967), pp. 242-252 Published by: Journal of International Affairs Editorial Board Stable URL: https://www.jstor.org/stable/24370063 JSTOR is a not-f...

The Concept of Sovereignty and the Relations Between States Author(s): F. H. HINSLEY Source: Journal of International Affairs , 1967, Vol. 21, No. 2 (1967), pp. 242-252 Published by: Journal of International Affairs Editorial Board Stable URL: https://www.jstor.org/stable/24370063 JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms is collaborating with JSTOR to digitize, preserve and extend access to Journal of International Affairs This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms F. H. HINSLEY The Concept of Sovereignty Relations Between Stat Men do not wield or submit to sovereignty. They wield o thority or power. Authority and power are facts as old an political society itself; but they have not always enjoyed suffered the restraints that the theory of sovereignty seeks t them. Although we speak of it as something concrete that acquired, eroded or increased, sovereignty is not a fact. It about authority—a concept men have applied in certain c the political power that they or other men were exercising. Applied to a body politic, this concept has involved the b is a final and absolute authority within the society. Appl lems that arise in the relations between political societies, been to express the antithesis of this belief—the princip tionally, over and above a collection of societies, no supre exists. Nor need we be surprised at this antithesis. It is a quence of the nature of this concept that in the international denied the existence of the kind of power which, within th nity, it has been its function to sustain. The idea that ther authority within the single community involves the coro authority is one among other authorities which are ruling ties in the same sovereign way. F. H. Hinsley is a fellow of St. John's College at the University of the author or Hitler's Strategy, Power and the Pursuit of Peace, an has also edited a volume in the New Cambridge Modern History. 242 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms  Sovereignty and the Relations Between States JOURNAL OF INTERNATIONAL AFFAIRS In practice, however, this logical consequence was not recognized for hundreds of years. Neither the Romans nor their Byzantine successors, both of whom had developed the notion of internal sovereignty, ever applied it in its international sense. It was not until the end of the sixteenth cen tury, when the theory of internal sovereignty was next formulated, that men first grappled with the problem of extending it to the relations be tween societies. And it was not until the eighteenth century that they finally solved it. Men had to overcome great obstacles before they could conceive of the world as being composed of separate political communities, a prerequisite for extending the sovereignty concept. Thus, the evolution of Roman legal categories and, in particular, the Roman failure to evolve a true interna tional law leave little doubt that the Roman and Byzantine failure to extend the concept to an international frame was due to the development of Rome from a tribal city directly into a successful conquest empire. The notion of the sovereignty of the emperor in Rome itself was extended to the provinces in harness with the imperial idea, which held that the provinces constituted a single world in which there was only one universal state and ruler, the state and the emperor of Rome. It was for this same basic reason that the concept of sovereignty within the separate community was not recovered until the sixteenth century, a thousand years after this Roman advance had been lost and forgotten except in Byzantium, and that, even after they had developed it in connection with the separate community, men still experienced so much difficulty in applying it to the relations be tween communities and states. The drift of much recent writing on sovereignty has been to ignore or deny these early modern delays in an attempt to place the origin of the concept at an ever earlier stage of the Middle Ages. But the argument that even in its internal application this concept was advanced by any medieval mind is misconceived. It overlooks the fact that the sovereignty of author ity is but one of several theories that may be proposed to justify or explain authority. More particularly, it overlooks the central feature that distin guishes the concept of sovereign authority from other such theories. The other theories have been either absolutist justifications of supreme political power or denials that political power can be absolute. Sovereignty has been the "constitutional" justification of absolute political power. His torically, it has been formulated only when the locus of supreme power was in dispute, and applied only as an enforced compromise between those who claimed that it lay with the ruler and those who claimed that it lay with the ruled. It is the justification of absolute authority that can arise and exist 243 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms  only when a final power is considered necessary in a body politic, and only when the body politic and its government are considered necessary to each other.1 If we bear this in mind, we will recognize that a sovereign theo cratic authority—a sovereign pope, for example—is a contradiction in terms. We will also see why the notion of a sovereign king or emperor who is also king or emperor by Divine Right has been a confused compromise, never tenable for long. Finally, we will understand why sovereignty, even in its internal form, was unknown to medieval Europe, not to mention medi eval Islam or India. There was, of course, continuous argument in medieval Europe about authority, but the political and social conditions in which it is possible— indeed, in which it is unavoidable—to conceive of authority in terms of sovereignty did not exist. Neither of the universal authorities—the medi eval Empire or the Papacy—could be conceived of in such terms because their power, at no time more than a shadow of that which Rome had pos sessed, was inadequate for the task of making Christendom into a body politic. Indeed, we may say that it was settled as early as the ninth cen tury that, should the idea of sovereignty ever reappear, it would not do so in relation to the universal but nonterritorial community of Christendom, but within the separate political societies of which Europe was already composed. Until the sixteenth century, on the other hand, the idea that Europe nevertheless formed a single community—an idea that was greatly strengthened when, under the pervasive influence of a revealed religion, a pope took his place alongside an emperor and the concepts of Europe and Empire were absorbed by the concept of Christendom—remained sufficient ly viable to give great ritual power to the universal authorities and to pre vent the development of the notion of sovereignty around these separate territorial rulerships. Moreover, until about the same date—and this further helps to explain why the notion of Christendom, so weak territorially, could become so powerful ritually—the separate territorial communities were under theocratic rule because they were each as unintegrated as the community of Christendom, or the Empire of Europe, as a whole. Since the idea of sovereignty could evolve only from the association of a cohesive community with a single rulership, these circumstances consti tuted an insuperable barrier to its emergence. We cannot be too careful about making certain distinctions when we contemplate the centuries dur ing which they prevailed. It was one thing for men to claim, as claim they 1 For a fuller statement of this argument see F. H. Hinsley, Sovereignty (New York: Basic Books, 1966). 244 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms  Sovereignty and the Relations Between States JOURNAL OF INTERNATIONAL AFFAIRS did in their quarrels about authority from the twelfth century on, that the separate component state in Christendom was independent even de jure of the emperor and the pope. It was quite another thing for them to argue that the independent state had or must have a sovereign power within its own community. Indeed, if only because of the segmentary character of that community, no government governed as if it pretended to this latter claim before the government of Tudor England; and no theorist, even in Tudor England, produced a clear formulation of the doctrine of sovereign ty until after Bodin had published his De la République in 1576. Until then, men could claim that the separate state was de jure independent of the em peror and the pope within its own community without implying that it was independent of these universal authorities in its relations with Christendom or with Christendom's other states. Despite the fact that Christendom was a segmentary, largely ritual community, men still regarded it as a single com munity of some kind. If only for this reason, this implication was not seen. On the contrary, if anything is clear about early modern Europe it is this: far from advancing to a statement of the sovereignty of the state in relation to other states before they had formulated the doctrine of sovereignty with in the territorial community, men were unable to propound an international version of the doctrine for at least a century after Bodin had made them familiar with it. Even after the end of the sixteenth century, when the growing integration of Europe's separate communities and their states had made the concept of internal sovereignty a viable and even a necessary doctrine, there was a profound intellectual problem to be solved before it could be extended to interstate relations. The idea that Christendom was a single political society had to be aban doned; but it had to be abandoned in such a way that it was not totally dis carded in favor of the claims of the separate state, which was coming to be regarded as possessing internal sovereign power. It was a condition of the discovery of the international version of sovereignty that the notion of Christendom be replaced by a different understanding of international so ciety—by one that was compatible, as the medieval understanding was not, with belief in the sovereignty of the state. For just as the evolution of the theory of sovereignty within the political community demanded some com promise between the ruler's superiority over the law and his continued subjection to ethical premises and political limits imposed by the ruled, so there could be no successful international application of the theory until the notion of the sovereign power of the individual state had been reconciled with the ethical premises and the political needs of an international com munity consisting of independent states. 245 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms  We know that this was the problem because on no other supposition can we make sense of the views of those who concerned themselves with the question from the time of Bodin until the eighteenth century. For if it is clear that the problem was a live one from the moment Bodin's work was finished, it is equally clear that until the end of the seventeenth century the bulk of men's writings about it fell into two schools, both of which failed to solve it because they failed to see the need for this reconciliation. The majority of men, unwilling or unable to discard the medieval no tion of Christendom, continued to elaborate medieval ideas. They clung to the medieval understanding of international society as a single society in which the natural divine law imposed a network of common legal rights and duties on the component states. Some of these writers, especially those in clerical circles or in the German imperial area, took this course because of their conservatism. They still argued, as men had long argued, that the separate regional government had come into existence through the corrup tion of human nature. In their view, either the pope must have direct power over the emperor and the kings or the emperor must retain the Imperium mundi. Others of this school—men like Leibniz and Fénelon at the end of the seventeenth century, and the peace-planner Saint-Pierre at the begin ning of the eighteenth—remained in it for different motives: fear of the increasing anarchism of interstate relations and distrust of the growing Machiavellism and raison d'état theories that seemed to be encouraging that anarchism. These motives are understandable, for the second promi nent school of thought, a school that included most of the advanced think ers of the age, took up a position that did nothing to discourage anarchism. This second school consisted of what have come to be known as the Nat uralist and the Positivist positions in international thinking. The Nat uralists, led by Pufendorf, held that there could be neither a political socie tas gentium nor any international law—at least any positive international law—between sovereign states in the state of nature, but at most the re straints of a natural, ethical bond. And some of them, like Hobbes, believed that the state of nature was a state of war in which no ethical bond or inter national law of any kind could exist. At the end of the seventeenth century, the Positivists reversed this attitude toward international law without abandoning the new emphasis on the autonomy of the individual state from which the Naturalists had derived it. They accepted the existence of international law but insisted that the only valid international law was positive law: for them the sole sources of international law were the prac tices and treaties of sovereign independent states. We can see now that the main drift of this second and more advanced 246 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms  Sovereignty and the Relations Between States JOURNAL OF INTERNATIONAL AFFAIRS trend was taking its writers away from a solution of the problem as surely as was the conservatism of the majority of writers. The Naturalist and the Positivist schools of international theory, in their absorption with the new concept of sovereignty within the individual community, discarded almost all belief in the existence of an international community. Indeed, in their insistence that absolute legal authority within the political society must involve the absolute legal liberty of the state within the international so ciety (and thus that what states agreed upon among themselves either could not properly be law or else could alone be law) their views were the equiva lent in the international field of those notions of Divine Right absolutism that were currently distorting the internal theory of sovereignty to mean that a ruler who was above the law must also be above moral and political restraint. We can see this all the more clearly if we now view a third stream of thought in this context. This third school had been initiated by Bodin, who had glimpsed the international consequences of his doctrine of internal sovereignty. Although rejecting the established belief in the inextinguish able unity of Christendom, he held that interstate dealings still required a legal and moral basis. His emphasis on this need was continued by Grotius, who in his De Jure Belli ac Pacis (1625) tried to combine the new notion of internal sovereignty with some residue of the medieval accept ance of the existence of an international community. It was along this route and by this reconciliation of old and new ideas that the problem we are dis cussing would one day be solved. But it was not solved yet. Just as nobody but Grotius understood the international significance of Bodin's thought until the middle of the seventeenth century, so Grotius's own significance was not fully appreciated, even by scholarly and legal writers, until the end of the century. This third stream of thought remained a subordinate stream until then. One reason for this was the sheer intellectual difficulty of the problem, even for scholars. And the intellectual difficulty was compounded by the primitive international practice of the age. When we turn from the theorists to the practitioners of seventeenth-century statecraft, we cannot fail to no tice that they faithfully reflected the two dominant trends in the world of thought. On the one hand, they clung to the medieval framework of Chris tendom, while on the other they emphasized the independence and sover eign power of the state to an extent that was inimical to the rise of a new international framework in place of decaying Christendom. After the beginning of the sixteenth century, the spectacle presented to us is a con tradictory one. The growing integration of the kingdom and its growing 247 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms  resources, including the notion of its internal sovereignty, were being used by an increasing number of states to shatter the medieval basis of empire. But at the same time the revival of empire was ultimately, and perhaps also inexorably, the ambition of every state whose relative power rose above the average. I say "perhaps also inexorably" because it is more and more apparent to me that it was not until after the end of the seventeenth century, even in Western Europe, that states developed beyond the primitive pattern of in ternational conduct. This pattern prevails whenever the communities in an international system are basically segmentary. Its central feature is the search by each state for physical conflict with others. If a state is success ful, the aim of this search does not stop short of consolidating all the communities within range into a single political structure. Although the European states had begun to become individually consolidated and sophis ticated before that date in some ways, they did not escape this primitive international structure to any decisive extent before the eighteenth cen tury. There are many indications in the historical record to support this contention. Of all these indications perhaps the most significant—and cer tainly the only one I can elaborate here—is the fact that it was not until then that even legal theorists succeeded in fitting the doctrine of sovereign ty into an international framework. Indeed, they did not arrive at an inter pretation of the international system that was fully compatible with that doctrine until the appearance in 1758 of Vattel's book, the Droit des Gens. This was indisputably the first recognizably modern book on interna tional law because it was the first to achieve this feat. Let us by all means emphasize that, like all products of the human mind, it had its antecedents and predecessors. Vattel borrowed from Grotius, whom he greatly admired, a central ingredient of his solution to the problem: the argument that it was necessary to attribute a legal character not only to the positive rules flowing from the will and practice of individual states, but also to the limits and injunctions stemming from the proposition that there existed a natural, if now wholly secularized, international community to which the individ ual states belonged. He borrowed from more contemporary non-legal writers—men like Montesquieu, Voltaire, and Rousseau—an understand ing of this community of states that no longer emphasized either that the states were ritually or even politically a single societas, as some had gone on insisting since medieval days, or that they were utterly independent, as the Naturalist and Positivist attack on the medieval view had insisted. What these men were emphasizing after the 1730's was that Europe's states were politically sovereign organizations that had, however, been drawn 248 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms  Sovereignty and the Relations Between States JOURNAL OF INTERNATIONAL AFFAIRS together by contiguity and historical development into an international system that was a unity sui generis. It may be admitted that at least among writers this new conception of Europe had become commonplace by the time Vattel used it as the basis of his international law. Even so, it was Vattel who first compounded the existing elements into a modern statement of international law—a statement that founded the international system, as a system, on the sovereignty of the separate member state. If one indication of the book's significance is that it is the first such state ment that is readily intelligible to a modern reader, another is that it was the first to assume the need for an international law of peace as well as of war. Legal writers before Vattel, not only before the seventeenth century but also after Grotius, had merely sought to civilize conflict—to systematize rules for the conduct of war and the orderly transfer of its spoils. Vattel was equally interested in systematizing the rules that should govern the peace time relations between states. And this suggests that he was influenced by changing conditions as well as by changing ideas. If it is right to concede that Vattel was able to stand on the shoulders of earlier writers, it also seems likely that he was reflecting the culmination of a major shift in the needs, and thus in the outlooks, of governments. In this connection, it is note worthy that the Droit des Gens was the first book on international law to be used as a handbook by foreign offices. The French government was referring to it in the 1760's. It was venerated by the American government almost from the time of the Revolution as being the guide to "all those principles, laws, and usages which have obtained currency among civilized states." Soon after that, as is clear from their speeches, it had become the reference book for Fox and the younger Pitt. And by the outbreak of the French Revolution it was entering upon its long service in this capacity in most of the foreign offices of Europe, where it was now generally assumed that there was a well-known international law that Vattel had collected and written down. It may be objected that no earlier compilation could have been used in any case, since organized foreign offices had themselves hardly existed be fore Vattel's time. The modern foreign office in England, for example, dates back only to the 1780's. But this very fact only goes to show that, if indeed a decisive shift had at last occurred in the behavior of states, it was largely due to the achievement of greater integration and more organized govern ment within Europe's separate communities. It may next be objected that what might be called the victory of Vattel was followed before long by the Napoleonic attempt to return Europe to its older imperial frame. But this does not disprove the proposition that a shift had begun to take place. As with the resettlement of Europe in 1815, when the views of the Russian 249 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms  Tsar harked back to the federal projects of the sixteenth and seventeenth centuries because he was the ruler of the least developed of the great powers, this merely reminds us, if we need a reminder, that shifts of this order are finally consolidated with even more difficulty in practice than they are achieved in theory. Certainly if we ask which governments first based their policies squarely on an acceptance of the sovereign independence and equal ity of all states, we must give this reply: the governments of Western Eu rope, under the leadership of Great Britain, in the struggle against, and in the aftermath of, Napoleon. And if we persist, if we ask when the concept of sovereignty, with all its implications for international relations, became the central concept underlying the international conduct of all the states in the European system, the answer must be: only when Castlereagh's ideas had won out over Tsar Alexander's, only when the Congress system had given way to the Concert of Europe in the 1820's. From that time on, however, so complete was the new concept's triumph that practitioners and theorists alike made the solution of all problems con form to it, as is customary when men have finally adopted a new fun damental idea. In Europe itself governments never again—until Hitler— so misused the concept of sovereignty as to abandon the conviction that they were members of an international community. At the same time, so great was their insistence that every political structure must be a sovereign independent state that they could not settle the international status of the Holy See without resorting to the device of establishing a sovereign Vatican city-state. And when this principle was utterly inapplicable to European circumstances and problems, they could conceive of no solution but the op posite of sovereignty, indeed its conscious negation: the negotiated neutral ization of minor communities and of disputed or buffer areas. Beyond Europe they likewise thought and acted solely within the cate gories of statehood and sovereignty except when they were overborne by the very extent of the inapplicability of these ideas to the conditions that prevailed there. We cannot fail to be struck by the rigidity of this approach when we see the representative of King William IV advising the natives of New Zealand in the 1830's to form themselves into a state to be called "The United Tribes of New Zealand"; or when we read in a British report on the army of one of the Yoruba tribal states in 1861 that it was necessary to give an account of the "Constitution" of "this Power" before describing its military forces; or when we study the difficulties that followed when European governments, on the assumption that all recognizable political authorities must be sovereign rulers in modern communities, confused the powers of the Tycoon with those of the Mikado, insisted that the admission 250 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms  Sovereignty and the Relations Between States JOURNAL OF INTERNATIONAL AFFAIRS of the Sultan to the rights and duties of the circle of European great powers would solve the Eastern Question, and made solemn treaties with North American Indian tribes, Eastern potentates, and African tribal leaders. Not a little light is thrown upon the changing character of imperialism after the middle of the nineteenth century by the consideration that it was when the European governments realized that the extra-European areas were not ruled by sovereign states that they felt forced to rectify the omission by the establishment of their own political control there—by the expansion of formal empire. Even the League of Nations could only be established on the basis of the sovereign equality of member states. We may be tempted to dismiss these attitudes as naïve. But before we do, we should pause to recall that some of them are still with us. Beyond Eu rope, and beyond the societies that are its overseas offshoots, there are still vast areas that have not developed to the point at which the concept of sovereignty, either nationally or internationally, is relevant to them, but which we persist in regarding as being under the rule of sovereign states. In our views on the relations between advanced communities, on the other hand, we are now naïve in a different way. Having learned that sovereignty is not the sole concept that states need in their relations with each other— a sign of sophistication and progress—we long for the sovereign state to be superseded altogether. And forgetting that sovereignty is only a concept, we seek to supersede the sovereignty of the individual state by superseding the individual state itself. This is as sure a sign of confusion as was the nineteenth-century insistence on applying the concept of sovereignty to areas that were not ready for it. For what would this program accomplish, assuming it could succeed, but the subjection of the most powerful struc tures the world has ever known to a single authority that would be incap able of controlling them, despite the fact that it would still have to be con ceived of as sovereign? Some may feel that this is a purblind judgment, that these latent disposi tions of our day reflect not confusion, but rather a proper determination to replace the concept of sovereignty by a newer one that better fits the facts. To this I can only reply: distinguish between facts and aspirations. In due course, under the continuous impact of economic and technologi cal change and with the advance of communications, some of the territorial political societies that have made up the international system in modem times may be merged into greater political societies, as earlier the many regional segments of Europe were consolidated into fewer modern states. But we must not delude ourselves by thinking either that this process of reconstitution will obliterate any existing territorial community before the 251 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms  passage of many years, or that it will ever absorb all existing territorial communities under a single state. The facts are otherwise, and our aspira tions should be guided accordingly. So long as there remains more than one territorial community, the quality of sovereignty in the individual state will continue to be an essential qualification, in law as in practice, for mem bership in the international community. This will continue to be so, if history is any guide, for these reasons: the state is the territorial community's indispensable political mechanism once the community has attained a certain level of integration; the concept of sovereignty is the inescapable justification of the authority of the state in an integrated community; and so long as there is an international system it will be made up of territorial communities. Aside from the unlikely ab sorption of all the world's communities under one state, there is only one way this chain of consequences could be broken. It would not withstand a universal loosening of the bonds between communities and their states of the kind that set in when the territory of the Roman Empire dissolved into its tribal regions. Under modern conditions, however, we need no more expect the universal onset of this process—as opposed to its appearance in some undeveloped regions where it is only too likely to occur—than the achievement of the universal state. Moreover, its universal onset would be universally deplored. It is perhaps important to end with a further thought. As I have already implied, to demonstrate that the concept of sovereignty will thus continue to be an essential concept in international relations is not to argue that it must remain the only concept. On the contrary, the question for the future is whether the sovereign community and state will learn to control them selves. To do so they will need the assistance of concepts other than sover eignty. Equally clearly, we can believe that sovereignty will continue to be a viable concept without denying that it will continue to fail to fit all the facts. In an international community increasingly composed of developed and undeveloped individual communities, it will indeed be surprising if it is not subjected to frequent distortion, as it has been in the past. We ought to remember, however, that in politics a working hypothesis is not neces sarily outmoded because it fails to fit all the facts, since in politics no work ing hypothesis can ever do this. And we might even add that the concept of sovereignty will be less strained than any conceivable substitute. If the problem that confronts us is how to make the individual community and state control themselves, it is just as true that, the more they become ad vanced enough to do this, the more they are likely to think of themselves as sovereign. 252 This content downloaded from 117.213.29.50 on Sat, 17 Aug 2024 17:52:26 UTC All use subject to https://about.jstor.org/terms