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Volume13
MonthMay
Year2012
TitleSovereignty in Theory and Practice
Author(s)Winston P. Nagan, Aitza M. Haddad
First Page429
AbstractOur study moves into the sovereignty idea in the context of international law with reference to the work of Grotius, the Dutch international lawyer of the early 17th century. Grotius took the sovereignty discourse to another level by considering the problem of sovereignty in an environment of multiple sovereigns. This was an environment, which required law and legal skills and therefore provided a framework within which reasoned legal elaboration would provide a mechanism to coordinate sovereign relations and thereby provide international restraints on sovereign absolutism. The Article then considers a significant 17th century juridical event in the practice of international law. We refer to the Treaty of Westphalia (1648) and its relevance to the development of sovereignty in practice. The importance of the Treaty is that it juridicalized the idea of an international society based on sovereign nation States. It is a framework that has had incredible traction over time, and was reflected in the most powerful theories of international law founded on the nation-state participants. The Article then reviews the work of other international scholars and philosophers from Pufendorf to Austin. These early international lawyers grapple with the idea of sovereignty and the subordination of sovereignty to the idea of international obligation. Their work begins to show the influence of positivism and the development of international law based on empirical sources such as treaty and custom. These developments are then confronted with a new and rigorous jurisprudential theory of sovereignty developed by the English legal philosopher, John Austin. Austin developed the theory of sovereignty of considerable power and durability and modified versions of his idea of sovereignty continue to be important in international law and international relations today.