The traditional distinctive attributes or characteristics of sovereignty are: permanence, exclusiveness, all-comprehensiveness, inalienability, indivisibility, and absoluteness.
Sovereignty is permanent and it continues uninterrupted as long as the State exists. Changes in government do not mean cessation of sovereignty. Bearers of the authority of government may change, but the State endures and so does sovereignty.
It does not cease with the “death or temporary dispossession of a particular bearer or the reorganisation of the State, but shifts immediately to a new bearer as the centre of gravity shifts from one part of a physical body to another when it undergoes external change.”
The sovereign power is exclusive and there is none to compete with it. There can be only one sovereign power in a State which can legally command the obedience of its inhabitants. To hold otherwise would be to deny the principle of the unity of the State and “to admit the possibility of an imperium in imperio.”
Sovereignty is universal in character and it extends to all persons and associations within its territorial limits. It is co-extensive in its operation with the jurisdiction of the State and comprehends within its scope all persons and things in the territory of the State.
The modem State does not recognise the existence of any rival within its jurisdiction. There can be neither any person, nor any organisation, however universal, which can affect the sovereignty of the State.
The only exception to the universality of sovereignty is the extra-territorial jurisdiction allowed to embassies. An embassy is subject to the law of the State of which it flies the flag and the ambassador and his staff are amenable, within the premises of the embassy, to the law of their own country.
The law of the State in which the embassy is located does not apply to it. It must, however, be remembered that the extra-territorial sovereignty is only a matter of international courtesy and is, under no circumstances, a limitation on the sovereignty of the State. If any State wishes, it can deny this privilege and history provides many such examples.
The sovereignty of the State cannot be alienated. Liber has said that “sovereignty can no more be alienated than a tree can alienate its right to sprout or a man can transfer his life and personality without self-destruction.”
The State and sovereignty are essential to each other. But when the State cedes a part of its territory, it does not mean that the State has lost its sovereignty. It is, on the other hand, “an excellent example of the working of the sovereignty of the State. All that happens is that, whereas formerly there was one State, now, with such cession, there are two States.”
Closely connected with inalienability is the attribute of the imprescriptibility of sovereignty. This means that sovereign power cannot be lost with the lapse of time by the non-exercise of such power. “Sovereignty cannot be lost,” says Garner, “by mere I lapse of time, as property in land may be lost by prescription at private law.”
The pluralists believe in the duality of sovereignty. The legal sovereignty I aim at its unity. It is asserted that sovereignty is indivisible and division of sovereignty I mean destruction of sovereignty.
Jellinek has remarked that the notion of a “divided, I fragmented, diminished, limited, relative sovereignty” is the negation of sovereignty. If I we accept the pluralist point of view and concede sovereignty to all associations and I groups, it is simply to paralyse the existence of the State.
The existence of several I supreme wills, each equally capable of issuing commands and exacting obedience, would I obviously result in conflicts, disintegration of the State, and ultimately in its extinction.
Wherever it may reside, sovereignty “is an entire thing: to divide it is to destroy it. It is I the supreme power in a State, and we might just as well speak of half a triangle as if me half sovereignty.”
But all do not subscribe to the view that sovereignty is unity. The question of divided sovereignty was brought into prominence when the United States of America emerged as a Federation. A federation is normally the result of a union between hitherto sovereign States. It is one of the essential features of a federation that while agreeing to a union, the federating units must preserve their individuality.
The subjects of administration are, accordingly, divided between the newly created central government and the federating units. At the time of adopting the Constitution, it was generally held by the publicists in the United States that both the central government and the units of a federation remain sovereign within their own respective jurisdiction and sovereignty, as such, was divisible.
This theory was strongly supported by Hamilton and Madison. It was endorsed by the Supreme Court in Chisholm v. Georgia (1792) wherein, it was held that “the United States are sovereign as to all the powers of government actually surrendered by the States while each State in the union is sovereign as to all the powers reserved.”
This theory of dual sovereignty received the approval of such eminent constitutional lawyers as Judges Cooley and Story and political writers as De Tocqueville, Hurd and many others. “There is no question,” says Hurd, “that the statesmen of all sections who made the constitution of the United States understood that political sovereignty was capable of division according to its subjects and powers.”
This is not a correct estimate of sovereignty in a federation. A federal union does not envisage two States. It makes only one State and, therefore, one sovereignty. The units of a federation are not really States.
It is a misnomer if they are named so. They are subordinate lawmaking bodies with guaranteed powers. They are not sovereign, but autonomous within their sphere of powers as the national government is within its own sphere of jurisdiction.
What is divided in a federation, between the centre and units, are the powers of government, and not sovereignty. Those who believe in the division of sovereignty confuse the State and government.
Calhoun says, “There is no difficulty in understanding how powers appertaining to sovereignty may be divided and the exercise of one portion be delegated to one set of agents and another portion to another, or how sovereignty may be vested in one man, in a few or in many. But how sovereignty itself, the supreme power, can be divided it is impossible to conceive.”
Where, then, do we discover sovereignty in a federation? The jurisdiction and powers of legislatures at the centre and in the units, called states both in the United States and India but Provinces in Canada, composing a federation are limited.
They derive their authority from the Constitution and each gives legal expression to its will within prescribed limits. If they attempt to go beyond the powers therein enumerated, the courts are likely to hold such an act invalid.
The legal sovereign in a federation is the body which can amend the Constitution and by doing so, gives commands to every other organ of government. The amending body is supreme; legislatures are subordinates.
It is, however, important to note that in a federation the Constitution amending power is indeterminate. There is no single point or body in which such authority can be said to reside.
Laski has said, “The discovery of sovereignty in a federal State is, practically, an impossible adventure.” It may, therefore, be concluded that sovereignty is a quality of the State. Like the honesty of a man or the beauty of a flower, it does not need to be located.
The sovereignty of the State is absolute and unlimited. It is subject to no legal limitations, either internally or externally. Without sovereignty there can be no State. It is the supreme characteristic of Statehood.
Sovereignty, therefore, implies absence of any restraint on its authority, either from within or without. To hold otherwise is to create some high power by which the sovereign authority is limited. Absoluteness of sovereignty also implies its universality, permanence and indivisibility.
All this is true in terms of law, but there is no such thing on earth as absolute sovereignty It is through human agency that the sovereign power is expressed and exercised. Man can never be perfect and independent. Dependence is his very nature.
How can he be absolutely sovereign then? Even the most despotic ruler is limited by his natural limitations. Sovereign power is, also, limited by what Gilchrist calls “human endurance.” He says that the religion, education, character and environments of the sovereign must colour his actions.
There are, accordingly, limits of individuality, expediency and commonsense. Moreover, some writers hold the view that man possesses; certain natural and inherent rights. These rights exist independently of the State and no sovereign can supersede them.
Bluntschli says that even the State as a whole is not almighty, for it is limited externally by the rights of other States and internally by its own nature and by the rights of its individual members.
The doctrine that the State is absolutely supreme is fallacious and even dangerous. We have already discussed the nature of political sovereignty and the vast mass of influences which perpetually shape, limit or forbid the actual direction of the forces of society by the sovereign. There are some who even maintain that sovereignty is limited by the prescriptions of divine law.
Sir Henry Maine tried to establish that the sovereign can, under no circumstances, act contrary to the immemorial customs and long-established traditions. No autocrat, to repeat, be the Ranjit Singh, or Galeazzo Visconi, can compel an unwilling people to change their deep-rooted habits and customs.
He is always: confronted with the risk of revolution. Nor has any State so far devised machinery for controlling thoughts. In fact, none has gone as far as this, though the devise of brainwashing is there.
Finally, there are limitations imposed by the rules of International Law and by the constitution of the State. The State may bind itself by treaty not to exercise its powers in certain ways.
For instance, it might bind itself not to change its tariffs or the value of its currency without the consent of other States. Governments in constitutional States are set within legal orders which determine their bounds and may limit their activities. In the United States no government may pass an ex post facto law.
Even the State, as it operates through the amending power, is subject to limitations. It may strive to enact law that runs so counter to the convictions of large number of its people that it fails to be obeyed and to receive the requisite “acceptance.” Such was the case with prohibition in the United States.