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THE RELATIONSHIP BETWEEN NATIONAL SOVEREIGNTY AND OBLIGATIONS
UNDER INTERNATIONAL HUMAN RIGHTS LAW
1. Historical evolution of state sovereignty
I. Westphalian concept of sovereignty
The sovereignty form of government can be analyzed on the basis of the Westphalian system that
was formulated after the two Treaty of Westphalia held in 1648. Concerning the latter, this
principle thus introduced the concept of territorial sovereignty and non-entanglement in other
states’ affairs. Taking the top spot in sovereignty, the Westphalian model has developed a system
of balancing by equal sovereign states as the basis of inter-norm. However, according to
Fassbender (2021), there has been a progressive encroachment of this kind of sovereignty by the
changing international relations as seen in the issues of human rights. The conflict between legal
permissiveness derived from the sovereignty of the state and legal prohibitions in the form of
international human rights law originated in this idea and was fostered by the Westphalian model
in which states claimed international legitimacy for actions that might be internationally
unlawful (Koskenniemi, 2021). However, according to Klabbers (2020), such a notion is still
vital in the modern world of international law, even though the concept has been transformed to
accommodate the idea of interconnectivity of the contemporary society. Later, due to the
development of globalization and the construction of the AHRS, the strict implementation of the
Westphalian principle has been criticized. The Universal Declaration of Human Rights launched
in 1948 and other following human rights conventions and charters have presented norms which
are in frequent opposition to the Westphalian concept of complete state sovereignty. Today,
States are expected to respond for their records on human rights both in lieu of the groups of the
international community and the global civil society. Such change indicates an increased focus
on the sovereignty-human rights responsibility dichotomy where sovereignty is supplemented by
the protection of human rights (Bellamy, 2019). In addition, globalization has been ensued by the
advent of international criminal tribunals as well as universal jurisdiction that has also brought
down the Westphalian barriers. These changes demonstrate the global interaction’s
determination to halt and penalize human rights abuses, even in the context of sovereign states
(Cassese, 2019). Therefore, the sovereignty concept of the Westphalian has formed the basis of
modern state system and diplomatic order all over the world but having been entrapped within
the boundaries of the idea all has not been well, but the world has had to adjust by
accommodating the sovereignty to contain this rising factor of human rights in world politics.
II. Emergence of modern nation-states
The existing relations between peoples received new peculiarities, and the idea of sovereignty
was firmly established with the appearance of modern nation-states. This process, which became
prominent in the 18th and 19th centuries, was the centralization of politics and the establishment
of nations with their respective geographic areas (Fassbender, 2021). Although the nation-state
model featured the maximization of authority within borders; it also brought new problems to the
implementation of international relations activities. For that reason, Eckert (2019) pointed out
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that recently nationalism does make the claim to sovereignty stronger, which occasionally
happened at the expense of minorities or international cooperation. The clash between
nationalism and Internationalism increased, and states often used the sovereignty principle to
deny International pressures and demands for ratification of human rights (Donnelly, 2021).
Among the most visible changes which took place in the given period was the state-building,
including the processes of defining the state borders and centralizing the government to control
the state. With this centralization of powers, it was possible to develop more integrated national
directions which in return aided the state to boost the acceptation of its formation and
governance (Fassbender, 2021). However, this process also had the negative consequences of
discriminating minorities and eliminating conflict of opinions because the unity of the nation
became the priority in many states. The nation-state system on the one hand confirmed the
authority of the state in the international relations while on the other provided the foundation for
international cooperation and creation of international institutions. For instance, after the second
world war, formation of United nations, ratification of human rights conventions offered States
opportunities to meet and discuss human rights (Nash,2019). These commitments have
contributed to this slow process of installing the human rights norms in the domestic legal
systems while states balance the national and the international legal systems. Furthermore the
contemporary system of nations has played a crucial role in; the legal development of the world,
including the sphere of human rights. Today, through involvement in treaty processes and
accession to global human rights organizations, states have offered to the creation of a rigorously
formulated structure of human rights protection (Nash, 2019). This framework also involves;
aspect of monitoring of compliance, infringement other related aspects of accountability.
III. Decolonization and self-determination
The process of decolonization that occurred in the mid-20th century brought comprehensive
changes to the concepts of sovereignty and self-determination of the world community.
According to Bailey (2020), decolonization process that characterized the mid-20 th century
produced many new sovereign states that all claimed sovereignty rights and non-intervention.
This period popularized the principle of self-determination into law and questioned the moral
authority of colonialism and the people’s right to self- determination over their political statuses
(Davis, 2020). But the decolonization led to, new conflicts concerning sovereignty and human
rights. Post-colonial new states gave emphasis on state consolidation and growth than on the
protection of human rights; therefore, they trampled upon human rights standards (Moyn, 2019).
A prominent question related to the decolonization was the demarcation of colonial borders,
which were not in any way related to ethnic, cultural, or historical division of the territories.
Closely related to the previous structural problem, the legacy of the Ottoman and Habsburg
Empires is a shifting population base of different degrees of identification with the new nations
(Koufa, 2020). The creation of realistic great powers combined with the necessity to unite the
disparate people and preserve territorial integrity most often resulted in the oppression of
minorities and indigenous people, fueling internal crises and human rights violations. However,
decolonization is also served as an opportunity which strengthened the development of the
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international human rights regime. They emerged in large numbers into the international society
and thus offered diverse views and opinions in the international organizations and the human
rights organizations. These new states extended the recognition of issues regarding; colonialism,
racism, and economic oppression which facilitated, the expansion of the IHRC and NGOs’
mandate and the human rights framework in general (Simmons, 2019). Furthermore, sovereignty
or self-determination, as the core of decolonization process, formed the basis of the human rights
international law. This principle not only; established the right to self-determination of peoples,
but also the right to vote, the preservation of cultural identity, as well as the right to economic
and social development and freedom. Therefore, decolonization accentuated the development
and consolidation of the long-standing worldwide human rights corpus and the legal instruments
where newly liberated nations became involved and endorsed (Simmons, 2019).
IV. Globalization's impact on sovereignty
Sovereignty which was initially a preserve of independent states has been highly threatened by
globalization leading to either the deterioration or improvement of human rights. According to
Eckert, (2019) due to globalization that promotes integration of economies, cultures and even
information frontiers, the autonomy of state control has been compromised. This change has
resulted in; thinking differently about sovereignty due to interdependence and collective action.
Klabbers (2020) states that increase in globalization require dynamism on the sovereignty
because there is cooperation in international relations on issues like human rights, environmental
concerns and economic liberalization. , this change has not happened without encountering
certain debates that will be discussed here. The forces of traditional sovereignty are seen as a
threat to vagaries of states, hence cultural identity, causing a backlash against international
human rights norms (Alston, 2019). The above discussion indicates that with the introduction of
globalization, state sovereignty and human rights have become intertwined in a rather
complicated manner. Globalization on the one hand has promoted the expansion of democracy
and the increased recognition of human rights standards because with information technology
and other necessary means of global communication today there is faster spread of ideas and
advocacy for them (Eckert, 2019). Non-state actors such as international NGOs and activists,
states and international organizations have emerged as important actors in the promotion and
protection of human rights across nations and have applied pressure on nation states to follow
through their international treaty obligations (Hafner-Burton, 2019). These networks have served
in, raising awareness of cases of human rights violations; bringing together people and/or voicing
change to different governments and international bodies. On the other hand, these process
facilitated the protection of human rights are accompanied by resistance from states which regard
any attempts to protect human rights as interference with the internal affairs of those states. Such
resistance is attributed to cultural preservation, political instability, and control of fiscal policies
all of which are major impacts highlighted by Alston (2019). The conflict between global
universality and sovereignty is one of the most evident scenarios in the discussion regarding
globalization and human rights. At the same time globalization has also provided opportunities
for better coordination and collaboration on global problems that are not restricted by
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geographical location and border post. For example, global initiatives in climate change, human
trafficking, and governance of TNCs’ involve the pooling of efforts and to some extent surrender
of national sovereignty for the realization of collective objectives (Klabbers, 2020).
2. Development of international human rights
I. Universal Declaration of Human Rights
The International human rights can be dated to; when the United Nations General Assembly
passed the Universal Declaration of Human Rights in 1948. It is mentioned by Henkin (2020)
that the UDHR set the goal for all peoples and nations and enumerated for the first time the
rights that everyone is endowed with. The influence thus resides in the universality of the stated
desire and in the contribution that this declaration made to the other human rights instruments.
However, there are some controversies regarding to the UDHR, especially due to the fact that
most of the requirements contained in the UDHR were outlined in a non-binding document. A
recent evaluation by Donnelly (2021) has submitted that although the declaration started off as a
discourse in the strict sense of the term, the UDHR has accrued a great moral and political value
to the extent that most of the ban’s provisions are today considered part of the customary
international law. It is thus not only the legal foundation for human rights but; streams of other
legal instruments or human rights treaties including; the International Covenant on Civil and
Political Rights, and also the International Covenant on Economic, Social as well as Cultural
Rights. These covenants along with the UDHR that indeed constitutes the International Bill of
Human Rights has played a highly significant role in entrenching human rights in international as
well as national law (Ramcharan, 2020). Consequently the applicability of the UDHR has
encouraged the adoption of innumerable regional human rights instruments and national
constitutions, underlining the UDHR’s influence further. However, there are difficulties in;
achieving the proclaimed values of this document in practice. Moyn (2019) noted that the
prevalence of focusing on human rights has sometimes detracted focus from other global
annihilations of justice such as inequality. The critics claim that the tendency that is evident
within the UDHR to limit civil and political rights whereas the economic, social and cultural
rights are as important for the attainment of dignity of the human being. This and similar
measures prompted further discussions on the issue of the universality and absoluteness of
human rights to suggest that; there’s a need to integrate and supplement the existing human
rights systems. However, in terms of concrete application of the UDHR there are challenges
especially in nations, states with bad governance. Although the UDHR defines ideology, its
implementation is based on the commitment of the state and the efficiency of the legal
instruments on human rights.
II. International human rights treaties
The signing of binding international human rights treaties has been significant in bringing about
change from the rhetorical vision of UDHR since they are legal instruments of the states. There
are important legal tools that; have shaped a strong framework of state obligations, it has the
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
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Economic, Social and Cultural Rights (ICESCR). These treaties have provided the frameworks
for; monitoring and reporting on cases of human rights abuses thus increasing the accountability
of state parties on cases of human rights abuses. However, as cited by Goodman and Jinks
(2019), there is always the question of state practice towards the treaties, meaning these treaties
are only as good as the States that ratify them and how they commit themselves to honor those
treaties besides the variation that comes with perceived domestic political interest and perception
of treaty law among States. The number of human rights treaties has also led to concerns with a
possibility of some rights being in conflict with each other and whether states are capable of
meeting all those commitments at once. For instance, sometimes satisfying economic, social, and
cultural rights may be resource intensive as well as time consuming and may therefore be a
challenge to states which are economically strapped or states that are politically unstable. On the
other hand civil and political rights even though are less costly in terms of resources, trigger
conflict with well-established political systems and cultures of certain states resulting into
selective compliance or even defiance. However common finding is that the efficacy of
international human rights treaties depends on the existence of sound national practices and
CSOs’ participation. According to Simmons (2019) , treaties have played the important role of
shaping international best practices. The transformative impacts are even deeper, when the
treaties’ provisions correspond to domestic political and social activism on rights. Such an
alignment may enable incorporation of the said international norms into both domestic
legislation and practice and thus the enhancement of the human rights regime in a given state.
International human rights treaties also have diplomatic and solidarity functions in; making
international cooperation. Like in any performance contract, the states are supposed to make
their reports from time to time and also undergo reviews in a technique that enhances emulation
of performance by the states among themselves by adopting best practice(s). However, this peer
review mechanism does not only, enhance the transparency and accountability in the delivery of
services. However, there still are shortcomings in the means for the full and proper realization of
human rights treatises. Governments can have challenges in implementing and achieving the set
goals and targets for various reasons including; inadequate resources, political support, or
institutional capability.
III. Regional human rights mechanisms
There are main regional human rights mechanisms that have developed to complement the
international human rights structure as they are more nuanced grinding mechanisms for rights
protection. Benedek (2020) has also explained that due to regional approaches, regional
protection mechanisms such as the European Court of Human Rights, Inter-American
Commission on Human Rights and the African Commission on Human and Peoples’ Rights have
developed specialized regional approach and enforcement mechanisms. Among these regional
bodies, there are often more similarities in cultures and their politics underpinning the members’
states potentially making it easier to enforce Human rights norms. The case in point is the
subsidiarity principle with the European Court of Human Rights and the margin of appreciation
doctrine with particular emphasis on reception of human rights principles with Europe’s legal
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systems as explained by Helfer (2020). Subsidiarity is used as a principle in organizations like
the European Court of Human Rights to allow regional and national authorities to work together,
while still maintaining the independence of national bodies when it comes to decisions, as long
as they meet the aspects of human rights. Margin of appreciation doctrine affords states certain
degree of latitude on human rights obligations recognizing and accepting cultural and situational
variations (Helfer, 2020). This balance is to establish cooperation between the regional human
rights bodies and the member state since the protection of human rights is to be achieved in
harmony with sovereignty. However, regional mechanisms also experience certain problems, one
of which is differences in the levels of state compliance and financial limitations. Benedek, for
example, notes that in the African and Inter-American systems, the aforementioned issues can
hamper the operation of human rights bodies due to the scarcity of financial and administrative
assets (2020). Moreover, political instabilities and low governance in certain member countries
would limit the implementation of the regional human rights decisions hence limiting on their
effectiveness. Further, it must be stated that the regional understanding of the human rights might
differ from the global understanding which results in skepticism regarding the universality of the
human rights. As King (2021) observes, regional human rights mechanisms are culturally and
politically sensitive, resulting from the fact that they are adjusted to those regions; however, such
adjustments may cause deviations from the standardized IHRL. Such divergences make it
imperative for a be continuous communication and collaboration between human rights
institutions on the regional and international levels in order to; promote coherence of the norms
being developed and as a way of strengthening the implementation of the norms.
IV. Non-state actors in rights protection
Participation of non-state actors in protection of human rights has received much attention due to
the changing context of international relations and the weaknesses of state-centered systems.
Byrnes (2019) noted that businesses and corporations should play a crucial role and take
responsibility for human rights; this role utilizes the UN Guiding Principles on Business and
Human Rights (GPBHRI). It also recognizes that in the world of globalized dynamics, actions of
private corporations have implications for; human rights, thus the need for corporate
responsibility mechanisms. At the same time, CSOs and NGOs play a significant role in
promoting rights, reporting on violations, and delivering services to the rights’ holders
(Satterthwaite, 2020); because many non-state actors operate in states where the state is either
unwilling or unable to implement the rights obligation. Companies and corporations are hence
central to the descriptions and definitions of global human rights. As large global organizations,
they have the potential of; influencing the labor relations, environmental management, and
stakeholders’ relations within the communities. UN framework on Business & human rights is
underpinned by the Guiding Principles on Business and Human Rights which set out the
institutions that business must uphold through the ‘AAA’ model of respect, avoid, and remedy
(Byrnes, 2019). These principles compel organizations to; carry out research, be more open, and
consult their stakeholders properly on human rights issues as they incorporate them into their day
to day business. Civil society organizations and NGOs are very vital in the human rights system.
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They are to save victims from states and corporations that trample on their rights, and are often
the only point of contact between the people and policymakers (Satterthwaite, 2020, p. 3). Thus
their role in documenting abuses, raising awareness among the population, and advocating for
the change in the policies of countries, is invaluable. Since they are immersed in their
communities, they can deliver essential services including legal assistance, medical services, and
education to the deprived section of the society that the state fails to reach. Nevertheless, the
engagement of the actors other than states also poses various issues of; responsibility and state
sovereignty. According to Ruggie (2019), non-state actors can participate in protection of rights
and this should not justify states’ non-compliance with their obligations in protection of human
rights. Governments are still the primary obligations-bearers on the international level of human
rights protection, and it is impossible to shift them entirely on other actors, be it non-state ones.
3. Sovereignty as a shield
I. Non-intervention principle
The principle of non-intervention which is enshrined in the Charter of the United Nations is one
of the most widely used clichés that slippery states use to fend off critics of their ill-treatment of
their citizens. According to Fitzmaurice (2020), it means that this principle which based on the
prohibition of the use of force and non-interference with domestic affairs in the UN Charter has
been a two-edged sword in the sphere of human rights. Thus, the conflict between non-
interference principle and human rights can be observed in the cases of severe human rights
violations, or humanitarian crises. Murphy (2019) goes further explaining that such a challenge
has led to emergence of concepts that include Responsibility to Protect though it tries to uphold
sovereignty while at the same time encouraging the international community to prevent mass
atrocities. R2P claims that if states fail or are unwilling to shield their communities from
genocide, war crimes, ethnic cleansing, and crimes against humanity, then the international
community has a legal right to respond within diplomatic, humanitarian, and, in some occasions,
violence. Still, the implementation of the R2P concept is questionable. Even some of the critics
today such as Bellamy (2019) have criticized R2P for this reason because it has been used to
advance the strategic interest of the international community and not necessarily to protect
civilians. This concern relates to the fine line of arguing that human rights’; warrant
interventions and it points to the need for clear cut definition of when such justified interferences
are warranted. Nevertheless, the decreasing tolerance in the international community towards
certain types of state interference with human rights of individuals forces the recognition of the
necessity for finding the middle ground between the principle of non-intervention and states’
obligations under international human rights law. In this regard, Higgins (2020) also speaks
about how the changing concept of sovereignty in international law also implies more and more
obligations. While they are international persons who enjoy complete freedom to manage their
internal affairs without external interference, they are also responsible for the welfare of their
citizens against human rights violations. Such development resonate with other emergent
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conceptualizations of sovereignty as not only involving rights but also responsibilities and
among them the responsibility of protecting the human rights of people under sovereign power.
II. Domestic jurisdiction arguments
Domestic jurisdiction is often used as a kind of shield in the Global Village where nations
incorporate different strategies to avoid being pressured into change of their policies and
practices on human rights violations. It commonly involves using historically rooted definitions
of sovereignty which focus on the state’s exclusive control of all the activities within its territory.
, as Koskenniemi (2021) notes, these arguments have been employed to justify almost any
practice from the international scrutiny – be it minorities’ treatment or the economic policies
with diverse human rights ramifications. Still, the use of domestic jurisdiction as a claim to limit
the application of the human rights has been more and more questioned in the past years.
According to Donnelly (2021), the current numerous international human rights treaties are
largely a tool to internationalize many issues that were previously domestic only, generating
enforceable legal rules and constraints on states’ freedom of action. This evolution embodies the
rate at which state actors are being forced to change their thinking process to accommodate the
idea that even domestic actions possess international consequences hence should be subjected to
international supervision. However, following Simmons (2019), it becomes apparent how
national courts and civil society activists use IHRL to shape domestic policies, and thus, there is
no clear division between national and international levels here. Such a dynamic shows that;
there is a transfer of norms of human rights on the international level and effects on the national
practices of governance. Nevertheless, some states still count on the principle of domestic
jurisdiction as an excuse not to implement the rights of individuals by referring to culture and
politics. This perpetual conflict; sums up the dynamic between; sovereignty and the international
human rights norms in today’s international politics. It becomes the question of how to best meet
state interests and sovereignty aspirations on one hand while, on another, meet international
community’s obligations face-to-face basic human rights principles. It must be understood that
states are still mostly responsible for the human rights in their jurisdictions; however, there are
rights and duties under the international human rights law which are overruling national
jurisdiction. This tension creates the need for; interaction, coordination, and strict accountability
systems as a way of strengthening human rights across the world. Although domestic jurisdiction
stands as one of the essential means on which states rely to promote their sovereignty, the latter
is not limitless within the context of the international human rights law and progressive trends to
the development of the international legal framework for global governance.
III. Cultural relativism debates
It has recently emerged as a hot topic which is a fundamental issue of international human rights
with more states arguing from cultural differences to turn a blind eye on rights that are contrary
to the international legal imperative. Koufa (2020) further notes that when cultural relativists
advance their arguments, what they question is the ability of human rights to transcend cultures
and be implemented as such; instead, such rights should be interpreted through a cultural prism.
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It has especially surfaced in discussions on; women, religious, civil and political liberties within
societies. Critics of cultural relativism argue that their approach; preserves cultural differences
and protects cultures in the Third World, from being actually colonized by the values of Anglo-
Saxon civilizations. However, opponents like Nickel (2021) opined that cultural relativism is a
flawed theory that only serves to justify human rights abuses and uphold oppression as a worth
of defending cultural sovereignty. The debate raises concerns about; the challenges of the
harmonization of local and international human rights noting that, cultural differences must be
taken into consideration when applying these young standards, but at the same time questions the
extent to which these principles must be protected. This relationship is a complex one; while
criticizing strong cultural relativism that does not allow for violating any local culture, Donnelly
(2021) puts forward for a ‘weak cultural relativism’ only, which recognizes the value of culture
along with the rights of man. It acknowledges cultural relativism while asserting that there are
some norms that need to be global and principally acceptable, like the ban on torture. Although
this debate is still active, there is a gradually emerging consensus regarding the critical idea that
human rights protection demands an appropriate dose of universality as well as cultural
relativism. As Nash (2019) aptly points out, this relationship is not easily defined or summarized,
the need to have dialogue that is sensitive to cultural differences but should also aim towards the
respect of human rights internationally defined. Such dialogues are crucial for, establishing
goodwill and constructive engagement in dealing with hostility faced by; cultures in the modern
society. Albeit, presenting a problem to the relativistic understanding of human rights, one has to
admit that it gave an important focus on the contextual implementation of human rights.
Understanding the social equity and maintaining the balance between, the culture of human
rights and cultural differences continues to be significant for; the progressive development of an
all-encompassing human rights system, as well as the recognition of sovereignty and cultural
identity of every nation while; enhancing the status of every human, regardless of nationality,
race, religion, political views, and other factors.
IV. State immunity in courts
Evaluating the role of courts in preventing human rights abuses by states, the paper identifies
state immunity as the biggest challenge; whereby states cannot be sued in foreign courts.
Kamminga (2020) opines that although the state immunity as a doctrine plays the role of
maintaining diplomatic relations as well as avoiding diplomatic crises. This tension is highest in
situations where it is necessary to hold the perpetrators to account especially when they engage
in gross violations of human rights including torture, war crimes, and crimes against humanity.
Some have tried to address this problem while others have not with everyone being different in
some way. In the case where it has been impossible for victims to seek justice in other ways
some courts have sought to limit the audacity of state immunity, mainly in gross human rights
violations. While accepting the absolutist approach towards the state immunity Cassese (2019)
notes that it seems very hard to sustain in light of the progressive development of human rights
law means and individual criminal responsibility for international crimes. Nevertheless, majority
of the state still claim state immunity in cases of human rights litigations due to sovereignty as
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well as risk of political litigation. Hence, Higgins (2020) observes that state immunity continues
to stir controversy, which is a general violation of state sovereignty and the protection of human
rights according to international law. However, there is a perceptible tendency to remove
immunity where there has been flagrant violation of human rights. This trend indicates a shift to
appreciate the claim to state control and exercise it accompanied by an obligation to address the
question of who will be held accountable for violation of the international law. According to
Mégret (2021), it points to this assumption of sovereignty’s higher obligation, especially when
the state interferes with fundamental human rights. All in all, it can be held that even if state
immunity remains a concern for holding human rights violators to account, the modern trends
speak for the slow but steady progression toward increasing the number of cases of justice for
abuse victims in the sphere of international law. That said, the disagreement only serves to
further elucidate the dilemma between; state self-reliance and the human rights imperative on the
one hand and the dynamic nature of the legal processes of combating heinous crimes in the
international realm on the other.
4. Human rights as sovereignty limitation
I. Responsibility to Protect doctrine
Despite this however, the Responsibility to Protect (R2P) stands out from other traditional
sovereignty perspectives significantly due to the fact that the sovereignty it refers to is not only a
right but it is also a responsibility. Murphy (2019) explains that R2P postulates that if a state is
unable to protect its citizens from coming to harm through such things as genocide, war crimes,
ethnic cleansing, and crimes against humanity, then it is the international community’s duty to
step in. This doctrine designates; a departure from the traditional intervention policy and is
conducted in an effort to; restrain grave violations of human rights. But the diffusion of R2P has
met many difficulties and has been practiced unevenly. Bellamy (2019) observe that even though
R2P has received theory support, its application has rarely been comprehensive instead has
depended on the political climates of certain countries. Skepticisms, as by Hehir in 2020 have
pointed, out that R2P also may lead to a situation when military interventions are performed in
the name of the noble idea, but in reality they are inspired by strategic interests instead of
humanitarian ones and thus become damaging to the international law and the principles of
sovereignty. However, the enthusiasts like Orford (2020) put forward the view relating to R2P as
indicating an important shift in international relations, acknowledging that sovereignty means not
only rights but also duties before populations’ extermination. This perspective underlines; the
evolution of the perception of socio-political sovereignty that emerged as a result of, the
transformation of the international community understanding of its task which is to; protect basic
human rights amid acute threats. The controversies also discuss how interventions in the cases of
R2P are not simple but are based on a delicate balance between the sovereignty of states and
their responsibility towards the international community of protect human rights during acts of
genocide. This discourse also reveals the status of sovereignty change as it reacts to; deep-seated
human right issues and emphasize more on the enhancing of the international system so that it
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will be able to provide a more rigorous and more sound response in such crises. Hence, despite
the theoretic innovations brought by R2P for the humanitarian crises handling by the
international law, politics is bourgeoning and to practice it, one has to beware of legal and
heraldic politics of Legality and Legitimacy. Such dialogues are helpful to constantly remind the
sovereign states to be responsible for their people and the need to guard against worst human
rights abuses on vulnerable groups in the society.
II. Universal jurisdiction for crimes
Universal jurisdiction is a modern power that has made its way into international criminal law as
an efficient means for holding accountable those individuals who inflicted bodily harm in
connection with such heinous international crimes irrespective of their nationality and the place
where the crimes were committed. This principle, according to Cassese (2019), enables national
courts to prosecute persons who are charged with crimes against humanity, war criminals or
genocide, regardless of relevance of the crimes to the prosecuting state. At the core, universal
jurisdiction entirely disrupts sovereignty because it postulates that there exist certain offenses
that offend the collective interest of mankind and therefore are outside the realm of sovereignty.
However, the use of universal jurisdiction has been contentious and stability has been a major
hindrance. The opponents of universal jurisdiction, for instance, Mégret (2021), maintain that
some nations view this concept as an infringement on their authority because it may be abused
for politically motivated aims or to prosecute the states’ officers. Some other challenges specific
to this area of law have also made it difficult to implement it effectively; these are issues to do
with evidence collection from theatre of war, and problem of affording trial to accused persons.
Nevertheless, Simmons (2019) asserts that the fact that there is a possibility of legal action under
the principle of universal jurisdiction proves useful in that it helps to; deter offenders and hence
help in the evolution of international criminal law. Universal jurisdiction restores measures of
justice on an international level, when it comes to; the worst human rights abuses, giving the
world a framework for holding certain people criminally accountable. The clash of ideals
between universal jurisdiction and state sovereignty proves that much like the mixed response on
balancing national interest with international justice. Altogether, universal jurisdiction is
arguably an important innovation in international law’s capacity to; fight impunity for
international crimes, although the exercise of the system entails; properly addressing particularly
sensitive political dynamics and the question of procedural justice. This was so simply because
there was an increasing appreciation of the international community to embrace the fight for
human rights and justice notwithstanding the divergence of interests and legal systems of nations
worldwide.
III. International criminal tribunals
Thus, creation of the international criminal tribunal has become one of the most important steps
in the formation of international legal order as it limits the situation when state acts brutalities.
Specifically, these tribunals apply precise principles represented by the bodies such as the
International Criminal Court (ICC) and ad hoc international criminal tribunals for certain
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conflicts and qualify as the collective efforts to punish individuals for grave violations of human
rights and other international crimes. Mégret (2021) points out that these judicial bodies’
decouple from established notions of sovereignty to exercise jurisdiction on acts perpetrated
within national territory, as well as by national authorities. The formation of the ICC is a
significant advancement towards a permanent international criminal justice system but people’s
non-cooperation due to its status as an international court has somewhat dented it. Cassese
(2019: 370) reveals that the international tribunals have immensely advanced the IL of
international crimes, albeit discords pervading the obligation of these tribunals stay halting future
crimes. Some scholars like Hehir (2020) opined that these tribunals could be politically
influenced and they may also compromise the local justice delivery systems. However,
Moravcsik (2020) holds a view whereby international criminal tribunals have altered the face of
international relations through promotion of new orthodoxy of accountability at international
Relations. Thus, any state not directly involved in these tribunals must consider the standards of
justice and responsibility that these institutions encourage in the global community. This can be
seen with the use of the simultaneous dual of state sovereignty and the jurisdiction of
international criminal tribunals which act to demonstrate the dynamic of international law. It
captures a trend of a shift from state responsibility and impunity for serious human rights abuses
in terms of; denying the sovereign immunity of a State against individual criminal responsibility.
Thus, the criticisms and challenges may exist but the fact remains that the international criminal
tribunals bring about a new era of Just World Order. They show the development of the
international society in relation to observance of human rights and addressing the issue of
immunity for the worst of international crimes; they portray the formation of the modern
international legal and diplomatic partnerships.
IV. Economic sanctions for violations
Economic measures have moved to the foreground as a distinct category of international
measures for human rights compliance and the assertion of a state’s compliance with
international human rights protection, which shifts traditional sovereignty paradigms. Goodman
and Jinks (2019) have defined these as ranging from selective measures directed at specific
individuals to broad measures applying to entire countries’ economies. Sanctions are claimed by
advocates as a non-military way of pressurizing states into a compliance with the international
human rights standards. Nevertheless, sanctions have generated quite some controversy
regarding their effectiveness and operation based on the international norms of ethics. There is a
great debate among scholars on the usefulness of broad economic sanctions, or wither they hurt
innocent civilians more than enemies, and Alston says that it usually fails to accomplish its
political goals. In addition, the states target of sanctions tend to use sovereignty arguments to try
and prevent what is seen as unnecessary outside interference. The targeted use of sanctions has
also been criticized, especially regarding the humanitarian element of sanctions and propounded
questions of mercantilism and international politics (Abbott & Snidal, 2021). Still, Hafner-
Burton (2019) suggests that even if economic sanctions tend to be weak in their direct effects,
the mere threat of sanctions inhibitory enough and has helped bring transitions in occasions’
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human rights conditions. Such a perspective forms the basis of; a indeed shifting paradigm that
enforces human rights agendas through economic power in international relations. The debate of
the status of extending or imposing economic sanctions has as well continued to generate a
balance between state sovereignty on one hand and, international human rights on the other. It
brings to the forefront the matching dance between economic pressure and encouragement of
rights of human globally. These aspirations have not altered over the years, as countries grapple
with these dynamics, the efficacy of ethical considerations and the use of economic sanction
shall prevail in future discourses regarding the strict observance of human rights and respect for
sovereignty and non-interventionism in national affairs.
5. Reconciling sovereignty and human rights
I. Sovereignty as responsibility
It is thus a new development as the concept of state sovereignty has evolved within the guiding
framework of human rights. According to Arias and Bayefsky (2020), this view is proposed as
the sovereignty right turns into a list of responsibilities that states bear not only to their own
people but to the world in general. From the perspective of this paradigm, the control over
people’s rights is the determinant of authority and legitimacy of the state. According to Wiener
(2020), such a reconceptualization has set in within international debates, especially on the
doctrine of Responsibility to Protect (R2P). This approach attempts to; bring sovereignty and
responsibility together in order to, combine the main ideas of the state sovereignty principle with
that of human rights protection. It makes states understand that the promotion and protection of
human rights is not a luxury or an added fiscal burden for states to undertake but it is core
business of government. But, the ideas of sovereignty as responsibility, though very critical, also
have some practical difficulties and criticisms. Orford (2020) warns that this idea can be easily
used as rhetoric to explain an attack on a less developed country while more developed countries
defend themselves against the same narrative. This prompts questions about the witness’s
reliability and arbitrage as well as guarantees that it is not a political tool under the pretext of
human rights protection. However, fundamental to these criticisms, sovereignty as responsibility
still plays a significant role in international politics and promotes a world where state realize the
importance of human rights as part of the domestic legal order. Higgins (2020) has posited that
this shift in perspective can be also linked to the global shift in understanding that sovereignty, in
addition to being a shield of rights and liberties, also implies one bearing obligations to the
individuals, within and outside its territories. Claims and criticism notwithstanding, sovereignty
as responsibility is a; progressive innovation towards the rights-based theory of international
relations. Thus it reinforces semiotic flux in sovereignty regarding human rights standards and
calls upon states to perform and fulfill the legal obligations of human rights protection as part of
their sovereign mandate.
II. Subsidiarity principle in implementation
Subsidiarity principle in protection of human rights is a doctrine with a view of balancing the
sovereignty of states with the international legal regime on human rights. The principle of
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subsidiarity as postulated by Mahler (2019) states that any decisions should be made as closely
as possible to the population interested in them, with the higher levels involved only when
necessary. Thus applied to human rights we have the main premise that national governments are
the prime movers in securing and enforcing human rights with international agencies and
organizations as backup or as a last resort. Helfer (2020) opined that subsidiarity can easily
tackle sovereignty considerations since it honors states’ freedom in how they discharge their
human rights’ responsibilities while being monitored by international actors. Thus, it respects the
role of local contexts and national democratization in the achievement of; human rights in
different societies. However, critics like Benedek (2020) noted that overemphasis on subsidiarity
can compromise the rationality and general applicability of protection and promotion of human
rights across different states. Some critics have claimed that, human rights could be subject to
different national approaches to their interpretation and realization which in theory could;
weaken the idea of the universality of human rights’ principles. Nevertheless, the subsidiarity
principle remains an important part of the contemporary system of; international human rights
norms and their implementation. Abbott & Snidal (2021) argue that the principle of subsidiarity
provides a way of reconciling sovereignty issue with the need to adhere to principles of human
rights for everyone. Subsidiarity as such advocates for mutual cooperation where the universal
intervention offers its support to the national one; thus, attempting to enhance the global
protection of human rights by preventing the ill-suited outside interventions. In conclusion; one
can come to the idea that, despite a number of contentious issues arising out of subsidiarity
concerns in the implementation of human rights; it is essential to find a proper balance between
the, references to the sovereignty of states and the provision of strong and equally effective
protection of, human rights on a global level. As is evident from the preceding analysis of
subsidiarity’s history and current use, the continual changes and uses of subsidiarity are
suggestive of the continuous attempts to balance these priorities in the sphere of international law
and human rights activism.
III. Margin of appreciation doctrine
The margin of appreciation doctrine, commonly linked to the European Court of Human Rights,
is a flexible approach regarding the state sovereignty and human rights. According to King
(2021), this doctrine allows states a specific amount of freedom in how they perceive and
implement human rights, as the international standards differ across countries. It also recognizes
that national governments are often in a better place to appreciate the circumstances on the
ground, and the people’s culture, which makes the implementation of the human rights better
conducted locally. But this principle has not been without criticism. Helfer (2020) says that its
use could lead to variability in human rights practice, allowing for states to commit violations
under the rare circumstances excuse. Opponents also stretching the margin of appreciation may
also water down the rationale for human rights demanding variation across states and
geographical jurisdictions. Instead, the issue is in the demarcation of the precisely right margin
of appreciation. Striking a balance is crucial; it is always the case that going too broad in
covering the margin undermines the protection of human rights while preparing a very precise
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measure may fail to account for national differences as well as push for poor implementation.
Nevertheless, those amongst supporters like Moravcsik (2020) have argued that the ‘margin of
appreciation’ has a very important role to play in enhancing overall compliance with human
rights standards. This doctrine might help increase the acceptance of and compliance with human
rights norms, where people of different nations differ reasonably. The ongoing discussion of the
margin of appreciation accustoms; the general debate striving to combine the universality of
human rights and their legal application within national frameworks and cultural disparity. Thus,
as the international human rights law develops, the search for an appropriate reasonable and
principled approach to the use of the margin of appreciation is; a crucial foundation for human
rights protection with the respect of; state sovereignty and the pursuit of the compliance with the
international human rights law.
IV. Constructive dialogue and cooperation
Such mechanisms as constructive dialogue and cooperation between states and IHRTs have
come out as proper tactics of balancing sovereignty and human rights. This approach is as an
inclusive of working together in solving issues without involving the violent inflection of the
law. Analyzing the opinions of Goodman and Jinks (2019), they stated that such dialogue might
help states take more responsibility for the cause of human rights and therefore can contribute to
more significant and sustainable changes. An ideal example of the kind of approach highlighted
herein can be observed in provisions such as the Universal Periodic Review as conducted by the
United Nations Human Rights Council. The main strength of the UPR process is that during the
evaluation of a member state, that state can get constructive criticism and even advice from other
states, hence a process of learning from one another in matters of human rights. Though dialogue
and cooperation is highly cherished in their promotion of human rights, their efficiency is under
much controversy. Skepticism about diplomacy to enhance the accountability of states highlights
that, such methods may not be enforceable, and states can; easily avoid the responsibility for the
abuses of individuals’ rights. Still, the supporters point to the potential of generating change over
time through dialogue and bringing human rights deeper into the domestic legal systems
(Simmons, 2019). This is where the main problem of how to engage in a productive conversation
and arrive at positive outcomes while at the same time promoting respect for difference and
strong reporting techniques. As stated by Hafner-Burton (2019), this strategy presupposes good
faith of both national and international entities on human rights and their compliance with their
promises. Nonetheless, stressing the continuation of the constructive communication the
distribution of such a conflict between the principles of sovereignty and human rights obligations
has remained an inspiring factor in the dynamics of their development. As such, these
mechanisms also seek to resolve; the complications emerging from the political relations of the
international community in the process of enhancing human rights conditions across the globe.
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6. Challenges and future perspectives
I. Extraterritorial human rights obligations
Extraterritorial human rights obligations question the state sovereignty notion by presenting the
fact that the actions of States can cause, or benefit from human rights impacts within other states.
The relations in today’s global environment suggest that something like environmental
conservation, liberalization of economies and military interventions in other countries may very
well influence human rights. Coomans (2020) opined that these impacts have to be recognized
by the states and the protection of human rights has to be extended further. For instance, the
international organization, specifically the UN treaty committees, has been the recent, to
recognize the meaning of extraterritorial obligations particularly when states have effective
control over a foreign territory or individuals as observed by Neuman (2020). This recognition is
different from the purely mercantilist views of sovereignty that are related to territorial
jurisdiction; however, it also symbolizes a less restricted understanding that can freely take into
account the sovereignty of human rights beyond the international jurisdiction. However, the
obligation of extraterritorial jurisdiction is debatable and its scope is limited as to practice. Most
states shy off from huge pronouncements due to sovereignty consideration and implementation
problems (Lavenex, 2021). Some scholars fear that if extraterritorial obligations are defined too
loosely, their imperatives would violate the non-intervention principle and impose improper
influence over other states’ affairs. However, there is a rising acceptance that the protection of
global human rights entails the assessment of states’; intraterritorial responsibilities. In this
regard, following the insights of O’Donnell (2019), further advances in this field are going to
entail search for a fine line of the proper understanding of sovereignty on the one hand and, on
the other, people’s rights as a universally common and shared value. Striking this balance is
important for the development of international human rights and the promotion of global
governance, the state relations in the contemporary century.
II. Non-state actors' accountability
The rate at which technology is developing in the digital era brings both prospect and risks on
the mechanisms of defending human rights hence the need to reconsider fundamental rights’
definitions and protection frameworks. Technology plays a critical role in increasing monitoring
and reporting of human rights abuses a but at the same time, it comes with more risks, most
notably, privacy and freedom of speech per O’Donnell (2019). The idea of sovereignty is another
factor where technology presents a major problem as it is global in nature. Everything that
happens in cyberspace has implications in other countries, legal jurisdiction is a problematic
matter and exercising one’s rights within a territory can largely be problematic at best.
Furthermore, advanced implementation of; artificial intelligence AI and big data analytics as key
tools in governance and mainly decision making system, has various implications on human
rights. According to Alston (2019), the following rights including nondiscrimination, may be
affected or new forms of discrimination may ensue from these technologies. The interference of;
privately owned technology businesses complicates the protection of human rights even more.
Page 17 of 23
Ruggie (2019) maintains that there is a need for new forms of governance that will explain the
above issues while at the same time respecting the principles of the protection of human rights.
This includes attendance in providing accountability and transparency beginning in the
advancement and using of development that breaches human rights. Moving forward, people
around the world come across the challenge of building new generally accepted norms and
practices necessary to protect the human rights in the World Wide Web context. This involves;
striking a delicate balance, maximizing the usage of technology that has come with the advanced
world, while at the same time ensuring that people’s freedom and dignity are not infringed upon.
It also poses complex challenges of; collective action between states, international organizations,
private sectors, and civil society to find; understanding and normative and institutional
arrangements on rights protection in the age of technology.
III. Technology and rights protection
The emerging trends of rapid technological growth in the era of digitalization poses both
opportunities and threats towards the protective frameworks of human rights and hence calls for
the reconsideration of how rights should be defined and protected. O’Donnell (2019) opines that
despite technology in promoting, monitoring and reporting Human rights abuse, it also brings
new threats such as issues to do with privacy and freedom of speech. On the same note,
technological advance is another problem since it transcends borders posing a great challenge to
sovereignty. Activities carried out in cyberspace may have an impact on; the jurisdiction of
different states, which, exhausts the abilities of states in terms of enforcing rights within their
territories. However, the use of artificial intelligence (AI) and big data analytics in governance
and decision-making processes; affects human rights in many ways. Some critics raise a worry
that these technologies may exacerbate current prejudices or create new ones thusly affecting a
few rights including the nondiscrimination and right to privacy as pointed out by Alston (2019).
These two aspects of policy-making increase substantially the role of private tech companies
thus contributing to the confusion of human rights protection. Hence, Ruggie (2019) argues for
the development of new forms of governance that might be capable of tackling such issues whilst
remaining compliant with the standards of the protection of fundamental rights. This must entail
the correct recording of the process and outcomes of the creation and use of the technology in
human rights treatment. As for the outcome, the international community is left with the
necessity to; create the new norms and the new mechanisms, which will protect human rights in
the information society. This involves; striking a delicate balance, utilizing the advantages of
using technology while reducing the negative impact that can thwart several liberties and the
human person’s dignity. This also calls for the collective work of states, IOs, technology firms,
and civil society to develop a common vision on what is ethically right or wrong, legal or
unlawful, permissible or prohibited on the protection and promotion of human rights in the
constantly emerging digital environment.
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IV. Climate change and human rights
As the new deadly face of climate change emerges, a shift in the discussion on human rights has
been identified as the framework of international law has been shifted to a level of human rights,
which challenges the sovereignty and rights protectionism. As Coomans (2020) noted, climate
change affects the world and despite the fact that state obligations stem from the human rights
treaties, they are not confined to territorial boundaries. The change of focus means;
reconsideration of state activities and their possible extension to actions that; harm the world’s
environment. The two major concepts of concern in the context of evaluating the main topics of
discussion are differential responsibilities between the developed and the developing countries
on the one hand and the principle of intergeneration equity on the other. Displacement and
migration due to, change in climate add to the issues of state sovereignty and require improved
international cooperation (Lavenex, 2021). Responding to climatic conditions, traditional norms
of human rights’ protection, which correspond to immediate violation, also have drawbacks. In
her estimation, looking at the future, O’Donnell (2019) opined that enhancing the reaction under
human rights components of climate change will require new forms of international intervention.
This could entail; devising new laws that are intermediate, which, respects sovereignty of states
but acknowledges international society’s duties. One possible output is restructuring rights like
the right to a clean environment to include global and temporal horizons of entities. The
phenomenon of global warming means that the world community is faced with the problem of
the protection of human rights under the conditions when environmental conditions in many
respects depend not so much on state policies but on the interaction of states and international,
and even interplanetary systems. This requires sound international legislative preparedness
besides improved system of governance accountability, as well as preventive and responsive
strategies and mechanisms for climate change impacts that respect human dignity and human
rights for all in the global village.
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