Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples
Lenzerini, Federico, Texas International Law Journal
I. INTRODUCTION: THE EVOLUTION OF THE CONCEPT OF SOVEREIGNTY FROM POLITICAL THEORY TO INTERNATIONAL LAW
The controversial nature of the topic of indigenous sovereignty is inherent in its very theorization, in that it constitutes a powerful challenge to the basic foundations of international law. In order to properly understand whether and to what extent such sovereignty actually exists within the framework of contemporary international law, it is necessary to have a retrospective look at the evolution and development of the concept of sovereignty in the modern world. Such preliminary investigation serves the purpose of ascertaining whether the notion of sovereignty in international law must be conceived in an absolute sense or, on the contrary, whether its scope is subject to the influence of other competing values that could therefore represent the foundations for asserting the existence of a given degree of indigenous sovereignty parallel to the sovereign power held by the State.
At the time that the philosophy of sovereignty, in the modern sense of the term, first developed it was certainly conceived as an absolute prerogative of the sovereign entity. In Shakespeare's Richard II, the former King of England, forced by Henry IV to hand over his crown, is killed in prison by Sir Pierce of Exton, who thought that it was Henry IVs wish that Richard II be dead. When Sir Pierce of Exton brings Richard II's body before Henry IV, the new King bitterly blames the murderer:
Then, he banishes him from the Kingdom:
The prophecy of disgrace incumbent upon Henry IV and England is a corollary of the idea of the impossibility of destroying, even by assassination, the enduring nature of the King, representing the mystical dignity and justice of sovereignty.3 The inherent dignity of the King was above the earthly idea of life and death, and also above the law. The conception of the sovereign power as the supreme entity, over the law and the life and death of the subjects, was shared by most theorists and philosophers from the early modem times, such as Nicole Machiavelli, Jean Bodin, and Thomas Hobbes, although such an idea was often the result of considerations of realpolitik rather than of supernaturalism-based thoughts. In the words of Machiavelli:
Those who have been present at any deliberative assemblies of men will have observed how erroneous their opinions often are; and in fact, unless they are directed by superior men, they are apt to be contrary to all reason.4
The only way to establish any kind of order there is to found a monarchical government; for where the body of the people is so thoroughly corrupt that the laws are powerless for restraint, it becomes necessary to establish some superior power which with a royal hand, and with full and absolute powers, may put a curb upon the excessive ambition and corruption of the powerful.5
In sum, it was just the public interest that required an absolute type of sovereignty, which justified the use, by the prince, of any kind of instrument, irrespective of its moral implications, including force ("the stick"), bribery, or deceit.
From these premises, the objective idea of sovereignty that emerged in early modern Europe was of a power concentrated in the hands of an authority bundled into a single entity, which governed a collectivity unified by the sharing of a single set of interests and confined within territorial borders. The sovereign authority held supremacy in the collective interest.6
When Europe came out of the Medieval darkness (politically speaking), the internal absoluteness of sovereignty was not yet reflected in its external dimension. In particular, the Holy Roman Empire retained a nearly exclusive power over religious matters, and this allowed the Pope to interfere in the internal affairs of independent "sovereign" States. The transition from the "vertical" structureheaded by the Pope and the Holy Roman Empire-to the "horizontal" structure of independent sovereign States-which in principle were equal in authority and legal legitimacy-was consolidated in 1648 with the Peace of Westphalia (ending the Thirty Years' War in Europe), which introduced the so-called Westphalian sovereignty. …