Sovereignty: The Battle for the Hearts and Minds of Men

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D Held ‘The Changing Structure of International Law: Sovereignty Transformed?’ in D Held and AG McGrew (eds), The Global Transformations Reader (2 nd ed Polity Press Cambridge 2003) 162–76. The Book of Lord Shang and the Origins of the State, Yuri Pines (Hebrew University of Jerusalem, Israel) First of all, sovereignty could not be invoked to escape the legitimate authority of the human right to have rights at domestic level. Sovereignty can only protect political autonomy when it exists in a normative sense; it cannot therefore be opposed to the legitimate authority of the international human right to have rights. In such a case, self-determination is undermined and sovereignty forfeited. G Sørensen Re-examining Sovereignty. From Classical Theory to the Global Age (Macmillan London 2000).

It follows therefore that legal and political sovereignty, even though they are conceptually distinct and can exist separately in some cases, are not logically separable in the long run. This also implies that when they are both granted, neither of them can be given priority over the other. This does not, however, imply that they should be regarded as identical as on a Kelsenian model; they have a conceptually distinct nature and content. There is, in other words, an imperfect logical relationship between the two forms of sovereignty.

Summary

Well before international sovereignty was deemed to be law-based and hence inherently limited through law, it was regarded as a source of law. The classic paradigm of sovereignty was precisely that international law could be based exclusively on sovereign States’ consent. Self-limitation was the condition for the binding nature of international law on sovereign States. Nowadays, the inherent legality of sovereignty is one of the central characteristics of modern sovereignty and especially of popular sovereignty. And this is also true of modern international sovereignty since 1945. To understand how this internationalization of modern sovereignty finally came about, it is useful to distinguish two key developments: the internationalization of popular sovereignty, and the development of sovereignty beyond the State. International sovereignty is not only law-based, as discussed before, but it is also a source of international law itself.

These considerations about the role of sovereign States and IOs as international law-makers have important normative consequences. States and IOs do not make international law for themselves as free rational agents, but as officials for their respective populations, other States, and IOs. Their role as officials constrains their competence not only in terms of internal accountability, but at the international level itself. States are bound by the rule of international law, ie the set of values and principles associated with the idea of international legality. In the last resort, sovereign States are not the bearers of ultimate value. They exist for the sake of a people. In the international context, States are recognized by international law as trustees for the people committed to their care. This, of course, becomes clear from international human rights law, but it is also the point of most norms of international law: ultimately, international law is oriented to the well-being of human individuals, rather than to the freedom or autonomy of States. T Broude and Y Shany (eds) The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity (Hart Oxford 2008). A Chayes and AH Chayes The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press Cambridge 1995).

Book contents

With time, however, increased integration in IOs has given rise to new channels of political decision-making that do not fit the intergovernmental framework of the 19 th century and first half of the 20 th century and hence also to new fora of human rights protection beyond the State. The EU is the paradigm example of such a supranational organization. One may find a confirmation in the gradual democratization of its decision-making processes and the recent transformation of its human rights framework into a municipal human rights body. Interestingly, even when the conditions for the legitimate authority of international law over sovereign States are fulfilled, there could still be some matters over which it is more important for a sovereign to be able to decide independently. This is by analogy to what applies to individuals: it is important that, in some cases at least, a person reaches and acts on her own decision, rather than take a putative authority’s directives as binding, even if doing the latter would result in decisions that, in other respects, better conform to reason. Sovereignty and human rights are often held to be in tension and even in opposition. As argued before, this approach is misleading given the parallel development of modern sovereignty and international human rights in the second half of the 20 th century. A hundred years after Bodin, the English author Thomas Hobbes recast the idea of sovereign authority with his Leviathan.