The Soviet Concept of ‘Limited Sovereignty‘ The Theory of Limited Sovereignty from Lenin to Gorbachev. The Brezhnev Doctrine.
The traditional and still generally accepted theory of sovereignty is that it is legally unlimited and unimitable. Being the supreme power in the state, they cannot, legally speaking, be any authority above it, and to speak of it as being limited by some higher power is a contradiction of terms.
While from the very nature of the case sovereignty cannot be subject to legal restrictions and remain sovereignty, many writers recognize the existence of certain moral limitations on the power of the sovereign, arising from the natural and inherent rights of man-rights which, according to the: views of some authorities, exist independently of the state and cannot, therefore, be restricted or limited by it.
Although, said Lord Bryce, some of those who have written on sovereignty described the sovereign as being subject to no restraint whatever, his sole will being absolutely dominant over all his subjects, there has never really existed in the world any person or even anybody of persons enjoying this utterly uncontrolled power, with no external force fear and nothing to regard except the gratification of mere volition.
Bluntschli declared that there is no such thing on earth as absolute independence. Even the state as a whole is
For it, almighty is limited eXternally by the rights of other states and internally by its own nature and by the rights of its individual members.
Some writers maintain that the state’s sovereignty is limited by the prescriptions of the divine law or by the Power of some superhuman authority. The Russian publicist Martens, for example, in his definition of sovereignty recognized in God legal superior over a state otherwise entirely sovereign.
So Bluntschli asserted that nations are responsible for the eternal judgments of God and the facts of history. Above the sovereign, said the German writer, Schulze, a higher moral and natural order, the eternal principle of the moral law.
The doctrine that the state is absolutely supreme and incapable of doing wrong is, he said, fallacious and dangerous. Other alleged limitations on sovereignty are those arising from the law of nature, the principles of morality, the teachings of religion, abstract justice principles, immemorial custom, long-established traditions, etc.
To these may be added the limitations imposed by the rules of international law, the particular restrictions imposed by conventions between states, and limitations imposed by states themselves by their fundamental law, such, for example, as the method of procedure for altering their constitutions and provisions declared to be unamendable.
The sense in which sovereignty is Limited:-
Of course, it must be admitted that, in a certain sense, the exercise of sovereignty is subject to restrictions. The most despotic monarch respects his subjects’ opinions on certain questions and often bows to their wishes. Probably no sovereign, whether monarch or assembly, even existed Who assumed and exercised the right to change any law, custom, or institution at his pleasure without regard to the Opinions of the population’s mass.
All sovereignty, in short, must be conditioned upon the possibility of obedience or acquiescence of those over whom it is exercised. The sultan of Turkey, for example, absolute as he was, Would hardly have dared to interfere with the religion of his subjects the British Parliament, with power legally unlimited, would hesitate to tax the colonies, or to pass a decennial act, or to establish the Episcopal Church in Scotland it is doubtful if any Roman emperor would have dared to subvert the national religion of Rome, Louis XIV, who is credited with having boasted that he was the state, would never have been able to force Protestantism on his subjects.
However, an examination of these limitations will show that legally they are no restrictions on sovereignty at all. The law of nature, the principles of morality, the laws of God, the dictates of humanity and reason, the fear of public opinion, and other alleged restrictions on sovereignty have no legal effect, except in so far as the state chooses to recognize them and give them force and validity.
They are not such limitations as the courts will ordinarily enforce in the decision of legal controversies. Thus, if the British Parliament, which is the legal sovereign in the British Empire, should pass an act opposed to the principles of morality or contrary to the rules of international law, however repugnant the statute might be to the moral sense of the people or their ideas of justice and good faith, it would not be legally invalid.
The courts would presume that Parliament did not intend to violate the rules of morality or international law principles. They would not listen to an argument that rested on the assumption that Parliament had exceeded its authority.
If, in any case, the limitations of the divine law or the law of nature are recognized, ed, the state in the last analysis must be the interpreter thereof, so that, in fact, the restriction is nothing but a self-limitation. In other words, the principles of morality, of justice, of religion, etc., so far as they constitute limitations on the sovereign, are simply what the state decides them to be, for there can be no other legal conscience than that of the state.
The same may be said of the state’s limitations upon how its powers shall be exercised, such, for example, as the method of procedure that it may have prescribed for making changes in its own constitutional organization. Such rules of procedure cannot be considered legal restrictions upon the state’s sovereignty, and it is a matter of common knowledge that such provisions have been time and again set aside for other methods.
The inevitable conclusion, therefore, to which we are led, is that all attempts to place legal restrictions upon sovereignty are futile and useless. Whoever or whatever can impose limitations on it is itself the sovereign. Not until we reach that power that is legally unlimited do we come into the sovereign’s presence. Supreme power limited by positive law, said Austin, is a flat contradiction in terms.
Criticism of the Doctrine of Unlimited Sovereignty:-
The doctrine of unlimited sovereignty is sometimes criticized because it leads to the legal despotism of the state. But granting arguendo that sovereignty may be limited in the interest of liberty or the people’s rights, we are no better off. We should still be brought face to face with another sovereign, namely, that which imposes the limitation-the very thing from which we should be seeking to escape.
John Austin, with clearness and incisiveness, stated the matter correctly when he said :
the power of the superior sovereign imposing the restraints on the power of some other sovereign, superior to that superior, would still be absolutely free from the fetters of positive law. For unless the imagined restraints were ultimately imposed by a sovereign not in a state of subjection to a higher or superior sovereign, a series of sovereigns ascending to infinity would govern the imagined community, which is impossible and absurd.
The Criticism Not Well-Founded:-
It isn’t easy to see what is to be gained by trying to avoid such a conclusion. It is necessary to recognize in the state a power to which all things and all wills are potentially subject. Otherwise, the state is no different from the other associations and organizations into which humanity is grouped. But this recognition does not imply an admission of the state’s moral right to control and regulate all the interests and activities of the people over whom sovereign power potentially exists.
In all modern states, there are a large group of interests, a wide domain of human conduct, which is, in fact, exempt from all governmental interference. There is no likelihood that any state will ever exercise all of the power it is legally capable of exercising. Considerations of expediency, to say nothing of justice, require that in practice, the greater part of its power should exist only in potentia and that the individual should be left free from governmental éontrol within a certain sphere.
Any sovereign, whether monarch or assembly, which should attempt to exercise its undoubted legal power to regulate all the interests and relations of human life, would soon be overthrown by revolution.
It is difficult to see how the doctrine of unlimited sovereignty is inconsistent with the broadest liberty idea. It does not require profound thinking to see that the more fully and completely sovereign the state, the more secure and permanent must be the people’s liberty.
During the eighteenth century, the state’s sovereignty was generally confused with the absolutism of particular kings. Therefore the doctrine of unlimited sovereignty had few defenders except among those who, like Hobbes, were the apologists of kings who sought to rule arbitrarily and without regard to their subjects’ rights. With the disappearance of absolute monarchy and the general introduction of constitutionalism, however, the theory of the state’s unlimited sovereignty came to have more advocates than opponents.
When the state came to be organized outside of the government and sovereignty was understood in its true light, namely, as an attribute of the former rather than the latter, it became an easy matter to reconcile the doctrine of unlimited legal sovereignty that of a limited government.
The Theory of Self-Limitation:-
A much-discussed theory of sovereignty is first enunciated by Ihering and later adopted by Jellinek and various other German writers, which conceiyeé sovereignty tobe that attribute or power of the state in virtue of which it can be bound only by its own will.
This is the theory of auto-determination, auto-limitation, and auto-obligation. Its supporters do not deny the existence of limitations, in fact upon sovereignty-they even admit that the modern state is a Rechtsstart, that is, a state bound by its own law. Still, they maintain that all such limitations are merely admitted and self-imposed restrictions. They assert that the state alone is the source and creator of law. Therefore, any limitations that the law imposes upon a sovereign state’s power are limitatiOns those that the state has voluntarily imposed upon itself.
Similarly, they admit that the state is bound by the prescriptions of international law and the stipulations of treaties into which it has entered. Still, they too are merely self-imposed obligations which the state may throw off at will since, according to their conception of sovereignty, no outside power can impose upon a sovereign state legally binding obligations.
Finally, admitting that the state is bound by the principles of the so-called law of nature, that limitation is equally a self-imposed one. The state itself is the judge of nature’s law and determines for itself the extent to which its principles shall bound it.
The Theory of Auto-Limitation Criticized:-
The doctrine that the Power of a sovereign state can be limited only by its own will has found many critics, especially French jurists. One of the most eminent of them, August, pronounces the theory to be brutal, dangerous, and unfounded. He maintains that the state is limited by a jural principle, the rule of law, which has its foundation in social solidarity and interdependence.
He denies that the state is the exclusive source and creator of law. Law is a system of conduct that men observe, and it may exist anterior to the creation of the state and IS there: fore independent of its will. Likewise, he contends that men have natural rights that also exist anterior to the state’s establishment. The state is legally bound to respect them and refrain from making any law that would infringe upon them.
He asserts that the state is a subject of law and is therefore bound by its rules even when it makes the law itself. Consequently, the law’s limitations upon the sovereignty Of the state are legal and not merely moral or self-limitations.
These limitations are limitations not only on the legislature or other organs of the state but also on the state. He concludes. This auto-limitation of the state is illusory. If the state is subject to law only because it so desires and only to the extent it so desires, it is not in reality under obligation to law at all, and so it is about the treaties to which it is a party.
Many other French writers repudiate the German theory of auto-limitation and hold that the state is bound by law independently of its own will is So does the Dutch jurist Krabbe, and apparently, his American translators Sabine and Shepard, Laski, Figgis, and others, although some of them do not go to the length of Duguit, Michoud, and LeFur, who include in the category of the law which limits the sovereignty of the state, the principles of natural law.
This view’s merits depend in part upon the conception of sovereignty, which is adopted, and in part on the soundness of the promise that law has its source outside of and independent of the state. The partisans of auto-limitation doctrine adopt a purely formal or juridical conCeption of sovereignty and refuse to consider it from the historical or sociological point of view.
Thus, it is hard to see how sovereignty can be limited and remain: sovereignty. If it is subject to other limitations than those which are self-imposed, it is no longer sovereignty in the legal sense; on the other hand, the premise of those who deny the validity of the doctrine of autoLIimitation, namely, that law is not the creation of the state and is therefore superior to the state, will never be admitted by the analytical jurists? Furthermore, certain naturalistic jurists’ thesis that the state is limited by the principles of natural right and natural law can hardly be accepted unless it is admitted that the state itself is the judge of what those principles are and the extent to which they are binding upon it. If that be admitted, then they are legally nothing more than self-limitations.
Finally, the evidence does not lack that some of those who have attacked the theory of self-limitation have confused the state and government. When they assert that the state is limited by law, they really mean merely its government organs. In that sense, they are, of course, entirely correct.
Limitations of International Law the Traditional Theory:-
Is the sovereignty of a state that is a recognized member of the family of nations limited by the obligations it has assumed by entering into treaties and conventions with other states and by those established by the generally recognized rules of customary international law?
Formerly, German writers generally (for example, Hegel, Jellinek, and Treitschke), while admitting that a state may be bound in honor and good faith by its treaty obligations and customary obligations international law, denied that these obligations constituted legal limitations upon its sovereignty.
Legally, it was argued, they are voluntarily imposed and consequently amount to nothing more than self-restrictions. Every state, said Treitschke, has the undoubted right to declare war and is consequently entitled to repudiate its treaties and thus rid itself of the limitations upon its sovereignty which they have imposed.
As to the limitations imposed by customary international law, they too are merely self-limitations since the voluntary assent of the state is necessary to their binding validity, and that assent once given can be withdrawn. The subjects of international law being sovereign states, subject to no legal superior, are the judges in the last analysis of their own rights and their obligations to other states. This is still the legal theory maintained by some jurists.
Denial of the Traditional Theory:-
This view of the state’s sovereignty vis a vis other states never was anything more than a pure legal theory and is contrary to the practice and the facts of international life. Given the recent growth of international solidarity and international law development, it may be seriously questioned whether it can any longer be regarded as even a defensible legal theory.
An increasing number of jurists to-day deny that the state is in any real sense sovereign in its relations with other states. That is, sovereign in the sense that it is the final judge and interpreter of its obligations to other states, absolutely free to fix its own international conduct standards or even to determine for itself without responsibility to others what are the purely domestic matters that fall within its exclusive jurisdiction.
When one says, as Chief Justice Marshall once said, that the jurisdiction of a state over all persons and things within its territory is absolute and exclusive, it may be a correct statement of the traditional legal theory. Still, it would be pure self-deception to allow ourselves to believe that it is the rule which states actually follow in their intercourse with one another.
Chief Justice Marshall himself admitted that considerations of mutual benefit and advantage in practice made necessary relaxation of that absolute and complete jurisdiction which sovereignty is said to confer. It is quite true that the limitations imposed upon the freedom of action of a state by treaties and conventions are voluntary and self-imposed. A state may repudiate them and compel the other party to acquiesce in its action if it has the power. Similarly, a state may refuse to be bound by the obligations created by the generally recognized principles of customary international law.
But in both cases, the right to do so is limited by the universally recognized principle of international responsibility, according to which the injured state is entitled to demand reparation for the wrong which it or its nationals have suffered thereby. Ordinarily, if it has the power, it will exact by force, if necessary, the reparation demanded. It is only when the injured state chooses to submit to the wrong or is too weak to enforce its demand for reparation that the opening state will be able to make good its claim to absolute freedom of action.
American politicians have often asserted that the acceptance of international law and the assumption of its obligations is an essential condition upon which states are admitted to the family of civilized nations that their Ultimate liability to one another is determined nor by their own law, but by international law and that a state Which repudiates the authority of that law places itself outside the pale of international intercourse.
If we examine the facts relating to the intercourse of state & today, no other conclusion is possible than that the practice no longer corresponds to the traditional legal theory. If usage and practice are sources of international law, it follows as a consequence that the absolute sovereignty of the state in its international relations is not only a legal fiction but a baneful and dangerous dogma which ought to be abandoned and that the notion should be expunged from the literature of international law.
Much indeed may be said in support of the thesis of Kohler, Pillet Alpheus H. Snow, and various others that today not only is international law superior in fact to the municipal law of every state but its supremacy has even acquired a legal basis, from which it results that the limitations which it sets to the liberty of action of states are legal limitations and not merely self-imposed restrictions.