Sovereignty as duty to protect human rights.

• Author: Popovski, Vesselin
• Position: ESSAY

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.

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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...