Humanity as the A and Ω of sovereignty

Abstract

The article argues that the principle of sovereignty is being ousted from its position as a Letztbegründung (first principle) of international law. This trend is welcome. Sovereignty must and can be justified. The normative value of sovereignty is derived from and geared towards humanity that is the legal principle that human rights, interests, needs, and security must be respected and promoted. State sovereignty is not merely limited by human rights, but should be seen to exist only in function of humanity. It has thus been humanized. Consequently, conflicts between state sovereignty and human rights should not be approached in a balancing process in which the former is played off against the latter on an equal footing, but should be tackled on the basis of a presumption in favour of humanity. A humanized state sovereignty implies responsibility for the protection of basic human rights and the state's accountability. The humanization of sovereignty also suggests a reassessment of humanitarian intervention. In contrast to sovereignty, non-intervention is constitutive for the international legal order and must be upheld as a rule. Moreover, the independent principles of human rights protection and self-determination constitute additional shields against unilateral interventions. But when human rights, needs, and interests are acknowledged as the systematic and doctrinal point of departure of the legal argument, the focus is shifted from states' rights to states' obligations towards natural persons. A state which grossly and manifestly fails to discharge these duties has its sovereignty suspended. Starting off from human needs leads, in a system of multilevel governance and under the principle of solidarity, to a fall-back responsibility of the international community, acting through the Security Council, for safeguarding humanity. In that perspective, the Council has under very strict conditions the duty to authorize proportionate humanitarian action to prevent or combat genocide or massive and widespread crimes against humanity. The exercise of the veto by a permanent member in such a situation should be considered illegal or abusive. The ongoing process of a humanization of sovereignty is a cornerstone of the current transformation of international law into an individual-centred system. © EJIL 2009.