The scope of this article is to shed light on the subject of the legal rights of deposed sovereigns and their heirs’ vis-a-vis to the current international jurisprudence.
First and foremost, we have to understand sovereignty. Sovereignty can generally be defined as the supreme authority. (see Philpott, Daniel (1995). “Sovereignty: An Introduction and Brief History”. Journal of International Affairs. 48 (2): 353–368. ISSN0022-197X. JSTOR
“… the concept of sovereignty formally implies a power that is absolute, perpetual, indivisible, imprescriptible and inalienable.” (Andrew Vincent, Nationalism and Particularity, 2002, p. 17)
Sovereignty is absolute, and absolutes don’t exist in degrees. You can’t be partially pregnant, sort of dead, kind of human, or almost sovereign.
The full power of sovereignty includes:
(1) the “ius imperii” — the right to rule over a people and a territory,
(2) the “ius gladii” — the right to the lawful monopoly of the use of force(army, police, death penalty, etc.)
(3) the “ius majestatis” — the right to be recognized and honored by titles, respected, and protected
(4) the “ius honorum” — the right to honor and reward merit
The kings/reigning princes have all four of the above sovereign powers in full either in a dormant/inactive state or in an active state where they can exercise some part of their full sovereignty.
The “ius imperii” and “ius gladii” usually are delegated by the sovereign either constitutionally or by appointment. Even if the use of these sovereign qualities is not readily available, the “ius honorum” (right to be honored and honor others), is usually in full active force.
The kings or sovereign princes are still rightful and royal in every way, even if they are limited to be only a ceremonial figurehead, an icon, or a full head of state.
“. . . the King is the fountain of all honor and possesses exclusively all the attributes of sovereignty.” (E. C. Wilkinson, Trial, 1839, p. 128)
The reason for that can be explained by the fact that the sovereign power is based on the “Divine right” present in the great majority of monarchies all over the world, regardless of religion. Meaning, the sovereign powers are assigned directly by God (or a deity) to that person (and that family, usually in perpetuity) making them “above all men”, in other words, they cannot be judged or limited by anyone.
“The Divine Right of Kings is a political and religious doctrine of royal absolutism. It asserts that a monarch is subject to no earthly authority, deriving his right to rule directly from the will of God. The king is thus not subject to the will of his people, the aristocracy, or any other estate of the realm, including the church. According to this doctrine, since only God can judge an unjust king, the king can do no wrong. The doctrine implies that any attempt to depose the king or to restrict his powers runs contrary to the will of God and may constitute heresy.” http://en.wikipedia.org/wiki/Divine_right_of_kings
“. . . claim was made by a number of powerful European dynasties, including the Merovingians, the Carolingians, the Stuarts, the Plantagenets, the Habsburgs, and even Emperor Constantine, who have all traced their ancestry back to the House of David. It was this claim upon which they based the legitimacy of their rule . . .” (Tracy Twyman “In Defense of Kingship and Divine Right:” )
That’s definitely outdated in practice. Our world is more and more secular every day and religions are more and more distant from the matters of State. However, as archaic as that might sound, it’s still a very current practice worldwide and no longer limit itself to monarchies. Just as an example, in courts all over the world people still have to put their hand on the bible when testifying under oath. But it goes further.
The modern principles of international law are called: sovereign immunity and State immunity.
“Sovereign immunity, or crown immunity, isa legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger rule as regards foreign courts is named state immunity.”
The only difference is that in a monarchy the sovereignty resides in the person of the ruler and his/her lawful heirs, whereas in republics. it belongs to the people being managed by the elected officials.
That can also be seen in treaties between nations.
“. . . International law is dependent upon the voluntary paticipation of States in its formulation, observance, and enforcement.” (Nelson Dordelly-Rosales, “State Sovereignty and the Protection of Human Rights,” Paper presented at the Annual Meeting of the Law and Society Association, Montreal, Quebec, Canada, May 27, 2008: http://www.allacademic.com/meta/p235808_index.html)
A sovereign State can sign a treaty in one day and withdraw the next day.
It’s pacific jurisprudence that deposed sovereigns and their heirs remain “sovereign” as long as they don’t surrender their claim.
According to Johann Wolfgang Textor, famous international lawyer, and German publicist in his book “Synopsis Juris Gentium“, Chapter 10, Nos. 9-11:
“A King who has been driven from his kingdom by force of arms, and has lost the possession of his sovereignty, has not thereby lost his right [or his descendants’], or at any rate not irrevocably, unless he has in the meanwhile given his assent thereto, but he loses it conclusively at the moment when he consents to a transfer of it to the Estates / i.e. Parliament / or his rebel subjects, and then it must be recognized that the Kingdom has been made to a State which has been founded in accordance with the Law of Nations.”
Dr. Stephen P. Kerr y Baca, JD, FAS, “King and Constitution in International law“, p. 125
“Thus, de jure [by right] sovereigns and governments-in-exile retain their status as long as they do not surrender their sovereignty to the de facto [by fact, the usurper] government.”
Under public international law a Government-in-Exile, monarchical or republican, is deemed to have the implied constitutional power to perform all normal acts of State, such as those acts which by its own constitution would require the consent of an organ of government, like a parliament, which are at present suspended due to the conditions arising from usurpation of sovereignty. See F. E. Oppenheim, “Governments and Authorities in Exile,” 36 American Journal of International Law (1942), pp. 568 at 581-582.
During the World War II the Governments-in-Exile of Belgium, Czechoslovakia, Greece, Luxembourg, The Netherlands, Norway, Poland, and Yugoslavia resident in London performed the normal day-to-day activities of Governments such as legislation, taxation, making treaties, declaring war, appropriating money, and raising armies – all of which required the concurrence of their respective Parliaments. See Oppenheim, F.E., “Governments and Authorities in Exile”, 36 American journal of International Law (1942) pp. 568-595
In the advent of a “Government-in-exile” there are several limitations that make it impossible to convene a parliament, as well as many governmental constitutional institutions that are part of the regular bureaucratic apparatus.
“Perhaps the best explanation of how a Government-in-exile becomes vested with the implied constitutional power to perform the normal acts of state which constitutionally required the consent of an organ of government which has become unavoidably suspended due to the conditions of exile can be found in a series of decisions by the Belgian Supreme Court, the Cour de Cassation, which upheld the power of King Albert to legislate by Royal Decree during World War I when it was impossible to convene the Belgian Parliament even though the Belgian constitution does not give the King the power to so legislate in such an emergency. The court stated that as a matter of jurisprudence the decrees issued by the King on his sole authority as King without the consent of Parliament as required by the constitution were valid on account of the German invasion, as the legislative bodies could not function. The Cour de Cassation based their decisions on the broad principles of general Public and International Jurisprudence that:
(1) Belligerent occupation and invasion do not suspend or destroy the sovereignty of the occupied state. (2) No nation can live without a sovereign government, and (3) The legislative power is indispensable for the existence of a government. Therefore, the Cour de Cassation concluded that since the Chamber of Deputies and the Senate were paralyzed due to the conditions of occupation and exile, the legislative power was vested in the King alone. It is to be noted that these highly important decisions were based on general principles of International and Public Jurisprudence. Hence, the reasoning of the Cour de Cassation is applicable to any exile situation and is, indeed, the principle cited by most governments-in-Exile as the justification for their exercise of the powers belonging to their parliaments.” (Ibid.p.128) “It can, therefore, be stated as a doctrine of international law that a Sovereign-in-Exile possesses the implied constitutional power to perform the normal acts of state which constitutionally require the consent of an organ of government which has become unavoidably suspended due to the condition of exile. Thus, the Chief of a Royal House in his capacity as de jure King (Head of the Government-in-Exile) has the authority to act in the place of Parliament and to perform those acts of state which under the various Constitutions requires the consent of a Parliament.” (Ibid. p.129)
It is also understood in international law, that in a constitutional monarchy, the sovereign might have limited powers because he or she chooses to. Even if in practice that condition might be imposed by political circumstances and/or popular pressure. The ruler being sovereign, he (or she) can withdraw that promise at any time, just like a sovereign nation can withdraw from a treaty. Obviously, that’s not necessarily feasible politically, having several examples in history of rulers even losing their thrones (and lives) when trying to change the “status quo“.
“That Sovereignty is not less Sovereignty, though the Sovereign at his Inauguration solemnly promises some Things to God, or to his Subjects, even such things as respect the government of the State [like following a constitution]. (Hugo Grotius, The Rights of War and Peace, Jean Barbeyrac, Trans., Book I, chapter 3, no. 16)
He then made a comparison between a king and the head of a household:
If the head of the household promises that he will do for it something which affects the government of it, he will not on that account cease to have full authority over his household. . . . A husband, furthermore, is not deprived of the power conferred on him by marriage because he has promised something to his wife. (Ibid.)
Professor Kerr added:
“The fact that a monarch has agreed to restrict the exercise of his Sovereign Power by swearing to a constitution in no way derogates from the unalienable Sovereignty residing in his person. Although a monarch may restrict the powers he personally exercises by granting a constitution, he, nevertheless, remains the source of power for all other branches and instrumentalities of his government. (The Augustan, vol. 18, no. 4, p. 130)
In other words,
“The constitution derives its force from his assent to it. He is the grantor of whatever rights the constitution bestows . . .” (Ibid) “As a monarch is the source of the Sovereign Power of the state and the grantor of any constitution, he is not deprived of the power conferred upon him by his kingship merely because he has promised to exercise it in a certain way . . .” (Ibid.)
Some suggest if a king or reigning prince is limited, he is not sovereign, however:
“. . . a holder of sovereignty need not be supreme in all matters.” (Daniel Philpott, Revolutions in Sovereignty, 2001, p. 19)
“. . . it [the constitution] ascribes to him sovereignty, imperial dignity, and perfection . . .” (Edward Wynne and William Meechan Bythewood, Eunomus; or, Dialogues concerning the Law and Constitution of England, 1822, p. 418)
HM King Charles III. Even in a constitutional monarchy, all sovereignty legally belongs to the King that decides to assign its use through a constitution
Dr. Marek Stanislaw Korowicz, acclaimed scholar of international law, explains that there is no such thing as a “limitation of Sovereignty.
” Sovereignty cannot be limited, only a “limitation of the exercise of Sovereignty . . . Sovereignty may be limited in a quantitative sense [through checks and balances], but not [in] a qualitative one.” (Some Present Aspects of Sovereignty in International Law, 1961, p. 108)
“… in constitutional monarchies . . . sovereignty rests formally with the crown . . . politically by ‘the people,’ . . . except in times of crisis [if the government must go into exile].” (www.uslaw.com/us_law_dictionary/m/Monarchy)
“The bedrock of the British constitution is the supremacy of the Crown in Parliament.” (Lord Bingham in R (Jackson) v AG 2005 Lords: www.law201.co.uk/12.pdf)
By the aforementioned, we can easily conclude that, even according to contemporary international jurisprudence, if a sovereign ruler is unjustly dispossessed of his/her throne, he (or she) keeps the legal sovereignty during the interregnum in exile. Even having the “ius imperii” and “ius gladii” dormant until the monarchy is restored, both the “ius majestatis” (the right to be recognized and honored by titles, respected, and protected) and the “ius honorum” (the right to honor and reward merit) remain active and intact. In hereditary monarchies, that sovereignty is passed to the lawful heirs in perpetuity.
Both “ius majestatis” and “ius honorum” exist according to international law, however, the exercise of those can be limited or even not recognized according to the domestic law of a country. It’s the prerogative of each State to recognize the exercise of those rights or not. Or even to limit their exercise. But that doesn’t mean they don’t exist. Many Arab countries still don’t recognize the State of Israel, but Israel exists fully as a sovereign State. (See also Prof. Furno’s citation below about China)
Another example is Austria. None disputes the Imperial rights of the Habsburg family according to international law. However, Austria doesn’t allow the family to use any titles, to bestow any honors. or even to use the “Von” (“of/from” in German, indicative of a royal or noble title).
There’s absolutely no reason in international jurisprudence to limit the “ius honorum“. One may either accept that the heirs of deposed sovereigns inherit the “Fons Honorum”, or not. Some scholars, without a single empirical base, state that a lawful heir from a deposed monarch doesn’t have the power to create new orders of chivalry or merit. According to them, the prince pretender has only the right to keep the orders created by the ancestor while ruling. That creates a legal antinomy/paradox since this process is not created “by magic”, the sovereign rights of “Jus Majestatis” and “Jus Conferendi” (“Fons Honorum”) are passed to the lawful heir by blood (“Jus Sanguinis”), as aforementioned, these rights are not dependent on a State (as “Jus Imperii” and “Jus Gladii” are) and that’s why they can continue with the lawful heirs. If “magically” only the valid orders were the ones created while in power, the sovereignty and the “Fons Honorum” would reside on the juridical person of the organization (order), not on the sovereign blood! It’s the same thing as your grandfather leaving you a house as aninheritance and someone with no legal authority tells you that you can only live there from Monday to Thursday.
Deposed sovereigns and their heirs have an “encroached sovereignty” but this so-called “encroachment” exists due to the “dormancy” of “ius imperii” and “ius gladii“. There’s absolutely no literature or jurisprudence in international law stating any limitation on “ius majestatis” and “ius honorum“.
Either the “Fons Honorum” passes by blood or not! The lawful heir or prince pretender of a deposed dynasty exercises his “Fons Honorum” every time a knight is invested. That has nothing to do legally with the date that the order was created and whether it was created during the reign or not!
Some scholars defend that exiled monarchs or heirs cannot create titles that are not historically coherent with the time when the family was ruling. One thing is modesty and coherence. Obviously, it’s of good tone that heads of dynasties apply parsimony, criteria, and good sense when creating a title. But again, there’s absolutely no legal impediment to the creation of any title or honor. Again, we either accept the validity of those legal powers or we don’t since, as demonstrated here, even constitutional limitations are debatable restricting deposed rulers and their heirs. The “government-in-exile emergency situation (interregnum)” accumulates all the sovereign powers in the person of the deposed ruler and/or heirs.
His Majesty the late King Kigeli V of Rwanda was deposed in 1961 and was heavily criticized for creating titles that didn’t exist during the history of the kingdom before the deposition. Another attempt to limit something that cannot be limited. Many dynasties in history have made changes in their presentations, uniforms, titles, etc based on the European nobility. That happened due to the European colonialist pattern. Also, European nobility is more well-known and recognizableinternationallywhen in exile. That same emulation happened in reverse after the first Crusades when European kings imitated the pomp of the Muslim courts.
Some examples of monarchs that adopted “European-inspired” uniforms and honors exercising their sovereign prerogatives
Professor Emilio Furno, an advocate in the Italian Supreme Court of Appeal, writes as follows “The Legitimacy of Non-National Orders”, Rivista Penale, No.1, January 1961, pp. 46-70:
“The qualities which render a deposed sovereign subject of international law are undeniable and in fact constitute an absolute personal right of which the subject may never divest himself and which needs no ratification or recognition on the part of any other authority whatsoever. A reigning sovereign or head of State may use the term recognition in order to demonstrate the existence of such a right, but the term would be a mere declaration and not a constitutive act.” (Furno, op.cit.)
“A notable example of this principle is that of the People’s Republic of China which for a considerable time was not recognized and therefore not admitted to the United Nations, but which nonetheless continued to exercise its functions as a sovereign state through both its internal and external organs.” (Furno, op.cit.)
We see in practice that the principle of sovereign immunity is exercised by deposed sovereigns and their heirs.
Even clear written and recognized renunciations and abdications were revoked and contested in history.
As a clear example, in a declaration dated 31 May 1961, HIRH Archduke Otto von Habsburg (1912-2011), the Head of one of the greatest Imperial and Royal Houses of Europe, the Habsburg-Lorraine, renounced all claims to the Austrian throne and proclaimed himself “a loyal citizen of the republic“a move that he made only after much hesitation and certainly “for purely practical reasons“. In a 2007 interview on the occasion of his approaching 95th birthday, the Archduke stated:
“This was such an infamy, I’d rather never have signed it. They demanded that I abstain from politics. I would not have dreamed of complying [with that demand]. Once you have tasted the opium of politics, you never get rid of it.”
Even with that clear juridical instrument of renunciation, the House of Habsburg-Lorraine is considered very much alive and recognized worldwide. In 2007, after more than 45 years of his abdication, Otto passed the rights to his son Karl.
However, the House of Savoyremains very active with all princes using their titles and bestowing the orders of merit and chivalry, a great example that, if we accept that deposed sovereigns and their heirs inherit the “ius honorum“, there’s absolutely no legal reason to limit this power in any way, shape or form.
THE ROYAL HERALD 
Thank you your Highness for clarifying many issues.
Sincere regards,
Prof. Yassin Nimir
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