Indivisibility as a characteristic of sovereignty can be said to emerge as a logical deduction of the characteristic of absoluteness. If sovereignty is absolute, it has to be characterized by unity, otherwise it will be logically inconsistent. As Jellinek remarks ‘a divided, fragmented, diminished, limited, relative sovereignty’ is contradictory. If law is the command of the sovereign, the command must emanate from a unified body or it may lead to conflicting and ambiguous commands. Thus, sovereignty worth its name cannot be divided, as divided sovereignty is tautological. To divide sovereignty is to create two sovereigns. Writers and statesmen like G. Jellinek, J. C. Calhoun and R. G. Gettell have argued that sovereignty cannot be divided without either dividing the sovereign into two sovereigns or by destroying the same. Gettell says, ‘If sovereignty is divided, more than one state exists.’ In a similar manner, Calhoun says that ‘sovereignty is an entire thing, to divide it is to destroy it.’
For Hobbes, a divided sovereignty is against the terms of the social contract whereby all agreed to cede their all rights to the sovereign. He even denied a independent existence to any social or religious agencies. For Rousseau, the division of the General Will is to divide it into various ‘actual wills’ or even groups of ‘actual wills’. For Austin, sovereignty lies in the determinate human superior and in indeterminate numerous people or authority.
The question of the divisibility of sovereignty has emerged either due to confusing legal and legislative sovereignty with other types like political or popular sovereignty or due to confusing sovereign authority with governmental and executive power or political arrangements. The theories of Althusius (popular sovereignty), Locke (limited sovereignty), Rousseau (popular sovereignty) and Dicey (political sovereignty) have added to this debate where legal or legislative sovereignty is confused with political and popular sovereignty. If Bodin’s, Hobbes’s and Austin’s or even Bentham’s legislative sovereignty is seen in perspective, the doubts about divisibility are taken care of. In the last analysis, the authority of law and the sanction behind it in the context of the State emerges from the supreme legislative power of a person (a President supported by legislature or a dictator) or a body of legislators (Parliament, Senate). For example, what worth does a Bill have if it is not assented to by the President of India; what worth does a treaty signed by the US President have if it is not approved by the Senate? We may argue that political and popular sovereignty gets reflected in legal sovereignty.
Some of the political and administrative arrangements like confederations (where there are several relatively autonomous political unites and one central setup which controls a few areas), federations (where there is a political arrangement between the political units and central setup with clear allocation of powers between two levels and also joint control over areas which are of joint interest), protectorates (where a state is administered by another), condominiums (where two states exercise control conjointly over the same territory) have been cited as example of the divisibility of sovereignty by some writers. Some of the examples in the twentieth and twenty-first centuries may bear this point out. Between 1900 and 1905, Manchuria, though part of China, was administered by Russia. Presently, the status of Hong Kong and post-Saddam Iraq gives instances of ambiguous sovereignty. Ambiguity or duality in the control of a State has given rise to arguments of the divisibility of sovereignty.
We may recall the famous position of Alexander Hamilton and James Madison who argued for duality of sovereignty between the Union and the States in the newly created United States. In the Federalist, Madison wrote, ‘the sovereignty is divided between the states on the one hand and the union on the other, so that the whole sovereignty consists of a number of partial sover-eignties.’32 This view was also adopted by the US Supreme Court as early as 1792 when it declared, ‘the United States are sovereign as to all powers of government actually surrendered by the states, while each state in the union is sovereign as to all powers reserved.’ J. C. Calhoun, who enunciated the concept of undivided sovereignty that sovereignty being a unit was incapable of division, contested this position of dual sovereignty. However, doubt as to whether the power left to the states in USA is sovereignty or mere local autonomy still exists. Writers like A. C. Lowell have argued that ‘there can exist within the same territories two sovereigns issuing commands to the same subjects on different matters.’ Similarly, doubt may not be found in the case of India as well as the federal units in India (states) have powers as part of devolution from the Union. The states did not come together and cede power to the Union in India; rather, it was the other way round. The Constitution of India provides three lists—the Union List, the State List and the Concurrent List. With one Constitution and overriding powers to the Union, we may not find as great a doubt in the case of India as in the case of USA.
We may conclude here the debate on the divisibility of sovereignty by differentiating between sovereignty and power. While sovereignty is unique and the repository of all powers, the latter could be expressed in governments and political arrangements. In this process of expression, power could be divided or delegated. Sovereignty should not be confused with its emanations. J. J. Rousseau stated that power may be divided though ‘will’ never can be. J. C. Calhoun, who championed the cause of the unity of sovereignty, also said that, ‘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.’ W. W. Willoughby, in his comments on the US political system, expressed similar views when he stated, ‘that there cannot be in the same being two wills, each supreme, is obvious. But though the sovereign will of the state may not be divided, it may find expression through several legislative mouthpieces, and the execution of commands may be delegated to a variety of governmental organs.’
Thus, we can say that while sovereignty is associated with the State, power is associated with government and as the government is the agent and expression of sovereignty, the power of sovereign is expressed through governments, its organs and political arrangements. Federations represent one way of organizing power; it does not divide sovereignty.
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