By: Dr Alessandro Pelizzon LLB, LLM, PhD
What is Sovereignty?
Under current international law, sovereignty is defined as follows:
It is also defined as the '[u]ltimate authority, held by a person or institution, against which there is no appeal'.2
Native Title is just one form of title over the land, it does not give ultimate authority, it does not give sovereignty. You may have Native Title, but you are not free to determine your own laws or how to use your land as you wish.
Sovereignty vs Self Determination
Self-determination is a more imprecise word for sovereignty. Sometimes, it is used as an alternative, while other times it is used to describe a form of 'limited sovereignty' under the sovereign power of someone else. In international law, sovereignty is a more precise term than self-determination.
The origin of the concept of Sovereignty
The concept of sovereignty as it is used in international law today, and as it is used by Australia to justify its authority over the land, derives from the idea of the 'sovereign', the monarch, of medieval Europe. However, today the term is used to identify the ultimate power of a state, regardless of whether there is a monarch or not.
Who has Sovereignty?
At the moment, Nation-states have sovereignty. For example France and Germany are 'sovereign entities', no one can tell them what to do internally (apart from some international law mechanisms). [*Australia?]
How is sovereignty recognised?
Sovereignty is recognised reciprocally. In other words, sovereign entities recognise each other's sovereignty. Currently, in international law Nation-states are members of the United Nations and recognise each other as sovereign entities. France, Germany and Australia, for example, recognise each other's sovereignty, while they do not recognise the sovereignty of other groups within their lands. Therefore, the recognition of sovereignty is related and interdependent, and it is connected to the international arena.
How is sovereignty acquired?
In international law, there are very precise ways through which sovereignty is 'acquired' (or, in other words, sovereignty is taken). The three main ones (although there are some minor ones) are:
Competing claims to sovereignty - who decides?
If there are two sovereign entities that claim sovereignty and their claims compete with each other (maybe because they are over the same territory), the matter can be resolved through:
'Municipal' or 'domestic' courts (courts that are internal to a sovereign entity, including the High Court of Australia) cannot 'adjudicate' (that is, make a decision) on sovereignty. Only international courts (the International Court of Justice) can. This is why the High Court in Mabo (No 2) stated that sovereignty is 'not justiciable' in a municipal court. In other words, the High Court does not have the authority to make a judgement (of any kind) on the issue of sovereignty.
Who has sovereignty in Australia?
Australia as a nation-state 'claims' sovereignty over all of its territory and its peoples. In Australia, sovereignty 'is vested in' the Crown in Parliament. In other words, the Monarch PLUS the Parliament, together, determine and exercise the sovereign power of Australia. The sovereignty of Australia is recognised internationally by all other nation-states and by the United Nations.
Currently, there are a number of Aboriginal groups and persons that challenge the idea that Australia has absolute and exclusive sovereignty in Australia. Aboriginal people have never relinquished their sovereignty, these groups argue. The consequence of these claims are that:
1H Steinberger, ‘Sovereignty’, in Max Planck Institute for Comparative Public Law and International Law, Encyclopedia for Public International Law, vol 10 (North Holland, 1987) 414.
2 World Encyclopedia (Oxford University Press, 2008) sovereignty