Human Rights Lexicon: Sovereignty and Human Rights
In this, the fourth contribution to our Human Rigths Lexicon, Aoife O’Donoghue–a regular contributor here on HRinI–considers sovereignty and human rights.
The Irish use of sovereignty, as with most invocations, developed as part of the system of law between nation states which evolved in Europe after the Treaty of Westphalia and alongside the move away from the monarch as sovereign to the modern constitutional state. However both as a legal concept and as a general tool of politics sovereignty is a very difficult idea to define; though it is an oft used word. It can be described as a system of power allocation, where the level of governance is decided by the state. The state through a system of consent makes horizontal agreements with other similar sovereign bodies as well as vertically either as a federal system, a system of devolution or local government scheme within the domestic state. In this description however the power allocation always emanates from the state at the core. As such sovereignty is considered by many to be the backbone of international law and more specifically of international human rights treaties where state consent underlies all law which is made.
Sovereignty may also be considered from the angle of natural and non-natural resources, whereby the state has a right to decide upon all elements of governance to do with those natural and non-natural (including persons) within its borders. While states have rights within sovereignty they also have corresponding duties with regard to cross-border natural resources, the treatment of foreign citizens and other similar obligations.
Article 2.1 of the UN Charter appears to affirm this interpretation of sovereignty when it states that,
‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’
This can be interpreted broadly to consider the UN Charter and the purposes it supports as supreme or narrowly to consider that state sovereignty will shield the state from intrusion of outside forces.
It is argued by some however that traditional sovereignty can no longer be achieved; the development of globalisation, technical advancement and the increased degree of interdependence together with the autonomy that is now exercised by international and supranational organisations means that sovereignty is no longer the cornerstone of international law. Indeed according to Malanczuk the ‘primacy of the traditional state is gradually coming to an end…we are new medievalists’ (Friedl Weiss, Erik M.G. Denters and Paul J.I.M. de Waar (eds)International Economic Law with a Human Face 46-47). However this debate is far from settled.
Within the Irish context, membership of the UN, the Council of Europe and the EU as well as the situation within Northern Ireland has exposed it a number of sovereignty related issues with particular regard to human rights. If sovereignty has now been displaced within international law for example this could be interpreted to mean that the ability of the Irish Government to simply ignore international human rights norms, be they treaty based or otherwise and claim they do not bind Ireland has been greatly lessened. Ireland would thus be both restrained from taking certain acts internationally as well as domestically as its consent to the creation of new norms or laws would form only an element of the creation of these new norms or law, as other actors such as international organisations displace some of the space usually taken by the nation-state in law-making. While the formation of law and its enforcement is only one aspect of the sovereignty debate it is often one of the most critical.
The Irish Constitution affirms in Article 5 that, ‘Ireland is a sovereign, independent, democratic state’ and in Article 1 that, The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.’ This is certainly in line with the traditional understanding of sovereignty, the ability to choose all internal policies and law and externally to deal with other states as it sees fit. However if sovereignty is loosing its place as the nucleus of international law then these absolute rights may have to be reconsidered in light of a legal regime which does not consider states hermetically sealed.