Sovereignty as Duty to Protect Human Rights

Article excerpt

Two major values in international law--an old one, respect for state sovereignty, and a more recent one, respect for human rights--were integrated with the adoption of the UN Charter. But their coexistence has not been easy; the two principles more often confronted than partnered. This article supports a modern concept of sovereignty that involves a duty to protect human rights.


For many centuries, the principle of State sovereignty has been regarded as overwhelming and unconditional in international law. States trumped any attempts to limit or even question the absolutism of their sovereign power. An example is the 1919 Treaty of Versailles, which established a commission to investigate and identify persons, including the Kaiser of Germany Wilhelm II, as liable for war crimes, recommending the creation of an international tribunal. The victorious States, however, opposed such option, regarding the trial in international court of a head of State as "unprecedented in national and international law, contrary to the basic concept of national sovereignty". (1) They feared that such precedent might later turn against them. Similarly, the intention to prosecute the officials responsible for the Armenian genocide in 1915 failed for political reasons. When Hitler proclaimed his genocidal plans against the Jews and the Slavs, he was heard saying, "Who now remembers the Armenians?" (2) The impunity for horrific crimes against humanity committed during the First World War made possible even more horrific crimes during the Second World War.

In 1945, this lesson was learned, and international military tribunals were established to prosecute top State officials. The defense lawyers in Nuremburg argued that international law is exclusively concerned with the actions of sovereign States, not of individuals, and therefore the defendants should not be liable for international crimes. The judges, however, rejected this defence. In a landmark advance against the historical State-centric tradition, they made individuals directly accountable in international criminal law. But if individuals are bound by international law and can be prosecuted in an international court, then it must follow that they must equally be protected by such law. The idea of individual accountability logically twinned with a strong international sympathy toward individual human rights. (3) Accordingly, the recognition of individuals as subjects of international duties led to their recognition as beneficiaries of international rights. The individualization of the perpetrators' accountability was paralleled with the individualization of the care for the victims.


The Second World War gave birth to two significant documents: the UN Charter established as one of its aims, "promoting and encouraging respect for human rights and fundamental freedoms for all without distinction"; and the Nuremberg Charter unequivocally raised the issue of individual accountability for war crimes and crimes against humanity. This dual process of duties in international law and individualization of rights has been rapidly codified: the Genocide Convention, the Geneva Conventions and their additional protocols, and the Universal Declaration of Human Rights, followed by two UN International Covenants--on Civil and Political Rights and on Economic, Social and Cultural Rights. Unfortunately, implementation has been unhurried.

The concern for human rights gradually inspired and shaped the decisions of the UN Security Council--the highest international authority empowered to define threats to peace and adopt enforcement measures. This development has not been easy. For many decades, the Council could unite and apply sanctions only on a few occasions. In 1950, it authorized States to intervene and restore the sovereignty of the Republic of Korea. In 1960, it adopted enforcement measures to preserve the sovereignty of the Republic of the Congo against a secessionist movement, applying its authority to a non-international armed conflict. …


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