The beginning of the interstate system, represented by the Peace of Westphalia, established the beginning of formal inequality between Western states and “the Rest”. Under Westphalian norms, not all territories were considered states, and the rights of sovereignty (intended as the control of the state over all other authorities on his territory and the independence from external authorities) were restricted to the Western powers. This situation did not change throughout the 18th and 19th century, when, even though Europe was experiencing a rise of nationalism accompanied with the ascent of the idea of self-determination, this concept was ignored in relations to the non-Western world, especially in the European colonial quest.
In the aftermath of the First World War, Wilson’s Fourteen Points and the creation of the League of Nations affirmed the principle of self-determination and limitation of the Great Powers’ sovereignty. Article 22 of the Covenant of the League still declared that the tutelage of the territories ‘inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’ should be exercised by certain advanced nations. However, it also indicated ‘the principle that the well-being and development of such peoples form a sacred trust of civilisation’ and established the mandate system, which presupposed that sovereignty over colonies could only be temporary.
Under the Covenant, sovereignty rights were made conditional on the domestic conditions of the state and on the fulfilment of empirical terms of statehood. It was only after the Second World War and the establishment of the UN Charter System, which recognized all states as equal, that sovereignty was made unconditional. The UN Charter represented a crucial moment in the transformation of sovereignty since empirical statehood ceased to be the criterion for establishing sovereignty and was supplanted by self-determination. Apart from granting equal sovereignty, the UN Charter also embodied the principle of non-intervention, this ideal was strengthened in General Assembly Resolution 2625 (XXV), stating that ‘the strict observance by States of the obligation not to intervene in the affairs of any other State is an essential condition to ensure that nations live together in peace with one another’.
The concept of sovereignty as inviolable was to change in the 1990s with the practice of humanitarian intervention. State sovereignty was clearly no longer to be considered unassailable; governments were endorsing the international law of human rights when offence against human rights was committed by a foreigner against his or her own state. The practice of humanitarian intervention seemed to suggest the emergence of an international justice regime and the end of state-sovereignty as conventionally understood. Sovereignty reverted from being inherent to the state authority to a situation of dependence, where it became conditional on state behaviour: For a state to be sovereign, it was deemed necessary for it to possess certain attributes, such as the rule of law, a free market, and the promotion of democratic principles.
In order to gain independence, within the international society and non-interference in domestic affairs by other states, the state had to live up to its responsibilities. As such, sovereignty as responsibility rested on two fundamental principles: firstly, the recognition of the inviolable nature of human rights and second, the understanding that state authorities are to be deemed responsible for the protection of the rights of the population they are accountable for. This meant that in the case of a state failing to protect or abusing its citizens’ rights, the international community would be entitled to intervene respecting the guidelines of the UN Charter.
The notion of human security, conceived as ‘security of individuals and communities, expressed as both “freedom from fear” and “freedom from want”’, emerged in this context, and it can be seen as the principle at the basis of sovereignty as responsibility. Following the shift in global politics, new powers of intervention were granted to international institutions and states engaged in the advocacy of human rights. In December 2001, the ICISS (International Commission on Intervention and State Sovereignty) published The Responsibility to Protect; which officially outlined a new conception of sovereignty, and namely that of sovereignty as responsibility and asserted that UN membership brought with it certain obligations. With this document the official definition of sovereignty was refined within the framework of the human rights regime.
Evidence can be found in the fact that states still represent the main framework in which international human rights law is enforced and interventions are endorsed. Since the UN, NATO and OSCE all derive their authority from interstate agreements and, ultimately, from states, the state can still be considered the primary actor in international relations. The advent and rise of the human rights regime thus did not cause the annihilation of the concept of sovereignty, however the understanding of sovereignty has changed because the equality of human rights has been given priority over the equality of sovereignty rights, and this has had very different impacts on Western and non-Western states.
If the rise of human rights has caused international law to become formally subordinate to domestic law in Western states, the opposite is true for the “developing” non-Western regions. This meant that Western states have experienced an expansion in the scope of their sovereign rights: These, through the practice of humanitarian intervention, can now be extended beyond their national territory, into the borders of states that cannot live up to the responsibility to protect their citizens. Non-Western states, on the other hand, have experienced a reduction of the scope of their sovereignty, which is now subject to the supervision and judgment of the more “developed” states on the basis of human rights practice. An example can be seen in the increasingly stronger role played by international financial institutions such as the IMF and WTO in the internal affairs of Third World countries. The demands made for the Third World states to reform their internal organisation following the neoliberal framework proposed by these institutions, can be seen as a continuation of the “civilising” quest undertaken by the West during colonial times and after WW1.
The emergence of the human rights regime and the subsequent changes in the notion of sovereignty, have caused a redistribution of sovereignty at an international level and the departure from the notion of sovereign equality as codified in Article 2.1 of the UN Charter. Sovereignty rights, which since 1945 had been embedded as a universal legal principle, could be revoked on the basis of human rights violation. This marked the return to a condition similar to pre-1945 establishment, which saw sovereignty as conditional on the degree of “development” of a country, the difference between the two structures can be found in the fact that the new system is not legitimised on the basis of racial and cultural superiority, but rather on the grounds of supremacy in the implementation and defence of human rights. These two models, however, appear to be pretty consistent when considering the fact that both cultural and racial inferiority, as well as poor human rights score are associated with a low degree of “civilisation”.
The idea that non-Western peoples and states cannot be trusted at the most basic level of the administration of law and government is increasingly articulated by Western policy-makers and NGOs. An example can be found in the intervention in Afghanistan, which had no legal justification and marked the shift to a unilateral right to intervention.
According to human rights lawyers, the intervention was justifiable because of the Taliban’s refusal to take action against Bin Laden, which provided a mandate for the US and its allies to breach Afghanistan’s sovereignty. It is clear that for a state without the same global reach it would have been impossible to act the same way, the redistribution of sovereignty according to human rights records thus also entails a new international hierarchy based on abidance to human rights.