2019IBA – The Politics of International Law
In recent times tbigbihere has been a great shift towards more accountability of a Sovereign State for its internal activities that threaten the rights and duties owed to domestic inhabitants. With the establishment of international bodies (such as the United Nations) and global discussion forums, the introduction of the notion of Human Rights has effectively begun to erode the sanctity of traditional Sovereign Rights. Where in the past Sovereign Nations have enjoyed complete discretion over their actions towards their own citizens and inhabitants, the adherence to ratified Human Rights has challenged the primacy of the State in matters of National Security and self-determination. Matters concerning the State such as counter-terrorism and the treatment of citizens now must be handled with deference to established human rights, an issue of controversy causing the global community to debate the question: which rights should be more significant; Human Rights or the Primacy of State? This essay will seek to address this topic with respect to the vying importance of State versus Human rights using two examples of contemporary international issues; namely the Humanitarian Interventions from the United Nations in areas of genocide and the discussion of the social utility of violating Human Rights with respect to counter-terrorism. These issues will be discussed with the conflict between Sovereign and Human rights in mind and will lead to the determination of whether the relevant international statutory bodies should continue their effort to uphold Human Rights as paramount to Sovereign Rights. I. SOVEREIGN AND HUMAN RIGHTS
The concepts of Sovereign Rights and Human Rights have evolved over centuries of international relations; however only have been formally recognised and codified more recently since the Age of Enlightenment. Scholars in the 17th Century began to discuss both notions of Sovereignty and Rights on an intellectual basis, culminating in what can be considered the first rudimentary records of claims of Sovereignty and Human Rights with the Peace of Westphalia treaties and the English Bill of Rights respectively.
A. SOVEREIGN RIGHTS
“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.”
United Nations Charter, Article 2.(7)
Sovereignty is essentially the supreme authority of the decision-making process of an independent State and in maintaining domestic order. Academics have interpreted the concept for various purposes since Socrates, often using the notion to justify the change in power of a secular Monarch or in support to bolster the power of a reigning authority against Rebellion.
The modern concept of sovereignty came about after the Social Theory postulations of Thomas Hobbes in his work Leviathan. Hobbes argued that the Sovereignty of a ruler is provided by way of a Contract between himself and his people, a trade of some of their rights in exchange for the Sovereign power to maintain their safety. Various other philosophers have expounded upon Hobbes’ notion of Sovereignty, such as Locke, Rousseau and Austin, however the Peace Treaties of Westphalia of 1648 provide the first practical example of the concept of Sovereignty with respect to international relations.
Following the European 30 Years War, a number of delegates from European States formed a congress to discuss the terms of Peace within the region. One of the three main tenets of the