On Sovereignty

Sovereignty has many different kinds throughout history and in different countries. The kinds of sovereignty relevant to Australia include:

• Defacto sovereignty - the ability for an authority to exert physical, material force

• Dejure sovereignty - the legal authority to command the use of the above force

• Popular sovereignty - the will of the people as determined by a vote, or gauged by survey, protest or other forms of expression

• Titular sovereignty -  such as the hereditary divine right to rule held by the King of the Commonwealth of Nations (in places like Malaysia, this right can be rotational, and in other countries it has been selected by election or appointment). In absolute monarchies, this is not mediated by institutions like Parliament and the courts. In theocracies, sovereignty is determined by God through divine inspiration, its mediators such as the clergy and scripture, or by clerical institutions.

• The Uluru Statement from the Heart mentions another kind of sovereignty - spiritual sovereignty, a concept which in my view is most closely aligned to ‘Titular’ sovereignty or divine right, however it could be seen as a much broader concept. The Australian classic film; “The Castle” is a good example of this in demonstration as it highlights the right of all Australians to resist unjust orders by their governments if they are not in ‘the vibe’ of the Constitution’. The term ‘the vibe’ is actively used in legal circles as it is an effective word to substitute our lack of a Bill of Rights and the historical lack of Human Rights Charters, and our non-accession to several covenants like UNDRIP. Spiritual sovereignty could also be based on the ancestral laws - which is the case for many First Nations people, often based on their uninterrupted and enduring connection to their land, as well as a byproduct of a process of decision making such as genuine consensus based on informed deliberation and decision making between all members of a group or individuals elected or appointed from that group, such as Parliaments.

• Carl Schmitt’s view of a sovereign is the institution or individual who decides on exceptions, like government departments that are immune to public scrutiny. Another example is a bureaucrat or minister who doesn't consider every law and principle relevant to a particular decision. If that decision goes up the chain of delegations and is approved with the error uncorrected, that bureaucrat or minister effectively acts as the sovereign (and even more so when a precedent is set on that decision and left unscrutinised). This could also technically apply if the bureaucrat or minister makes the correct decision (by whichever standards the institution or the public deem it to be correct). 

• Westphalian sovereignty is a European concept of sovereignty that developed from the Peace of Westphalia setting the borders of states at the limits of their armed forces at the time, evolving into a principle of the UN Charter that prohibits the UN from interfering into the internal affairs of any sovereign states. This concept conflicts with the principle of Responsibility to Protect which advocates for the need to ensure a pathway to facilitate humanitarian interventions.

• Shared sovereignty is a concept that has two definitions; a condominium of jurisdictions and multiple individuals holding the position of the head of state

• Pooled sovereignty is a concept that describes the collection of sovereignty into supranational unions

• Its arguable that the Australian classic "The Castle" highlights two other forms of sovereignty

  1. a form of personal sovereignty over one's life and property which should not be interfered with, even when public interest is at stake, requiring the government to alter its planning rather than supressing their will.

  2. the vibe of a document, as portrayed in the film in relation to the Australian Constitution. In essence this means that a holistic reading of a document enables the assent of principles that are not contained within it, but can be reasonably construed from it. 

• In other nations, such as China, sovereignty has historically been linked to the ‘Mandate of Heaven’ which is similar to divine right, but also meritocracy. In the latter case, powerful positions were assigned to individuals who excelled in entrance exams in Confucian academies, often linked to the public service. In other places, like Russia, sovereignty was projected by some combination of the understanding of and ability to use the machinery of the state, knowledge of the states' priorities that demonstrate an understanding of or an ability to pre-empt the will of the people for a greater good including a sense of justice and social justice. 

• At its essence though, you could live a life in the bush, a forest on a farm and exercise many or all of the above kinds of sovereignty, while remaining formally bound to the set of laws that apply to you. This is interesting, because in my view, consciousness is the source of sovereignty as it gives rise to all of the aforementioned forms - it is what gives political systems their mandate by voting, enables a sense of connection to a territory even if one isn't present there. How that mandate is distributed differs in each political system. Things we all share as conscious beings are sentience and sapience - the ability to feel and think. Each of us is an aspect of the universe observing itself in a localized form, and this can include other animals too. 

• Another dimension of sovereignty is the ‘scorekeeping’ that the representatives of countries engage in - whether in a relationship between countries, or a relationship between different parts of the same country.