In this article I explore human rights and their impact on sovereignty. On the first part I briefly review the state-centred approach in International Relations theories. Then, I analyze some of the conditions that provoked a change in the centrality of states. I analyze human rights emergence in the light of normative theory and in the final part I reflect on the impact of this approaches by suggesting constructivist theories as a powerful element to study human rights and sovereignty. I conclude by indicating how different normative theories have served as argumentative tools to defend or redefine the idea of sovereignty in the relations between nations and transnational actors. These relations are historically and geographically specific and should be studied in detail, from a constructivist approach.

 

State-centered model

Most of the “big theories” that we (students of International Relations) learn are based on the states as a main actor of world politics. The centrality of the state in International Relations Theory is usually based in the Westphalian model. “The 1648 Treaty of Westphalia is considered by most to be the intellectual basis for the discipline, establishing a <<revolution in sovereignty>>.” (Buzan and Lawson, 2013: 621-22) Although historiographical evidence has largely established that sovereignty was not rooted in this treaty, as Buzan has pointed out; it has been the basis for the discipline to think of states as individuals who pursuit their own interest and protect themselves from others. As we still learn in many first classes of International Relations (IR), the discipline is concerned with the causes of war and the conditions for peace. (Smith, 2013) This problem gave IR its own object of study.  However, “both the theory and practice of international relations, neither the permanence of its problems, nor key normative concerns, can be taken for granted in perpetuity.”(Crawford, 2000: 18)

It seems that there have been some changes going on with IR’s object of study and preoccupations. I am not saying that states are no longer the main actors in world politics, but there are new actors and situations that are being incorporated as part of the discipline’s area of concern. The appearance and development of relatively recent phenomena, such as human rights, has challenged what some authors called the “classical tradition” (Holsti, 1987) and the centrality of states in the study of world politics. These challenges have been both empirical and theoretical. World dynamics provoked a de facto loss of centrality for the state.  By the end of the Second World War the state-centered model, based on the independency between sovereign states, seemed weakened because more and more state and non-state actors were developing links that led to deep interrelations. (Keohane, 1977)

Some authors have identified, at least four empirical changes that challenge the centrality of the state: globalization, as a multidimensional phenomenon with economic, cultural, political and environmental and social implications (Garret, 2000); processes of privatization that implied state’s property going to private hands; new technologies that allow the flow of goods, ideas and capital; and the end of Cold War, that symbolized the victory of liberal democracies over other models. (Avant, Finnemore and Sell, 2010)

These changes brought several reactions and challenges to state-centric theories. Normative theory pointed out that the focus on states, war and peace had left behind the possibility of change. This theory poses a critique to realism, which was accused of ignoring the moral dimension of world politics. Normative theory sees its task as a prescriptive one, meaning that “all theory making [is to be] concerned with what ought to be.” (Chandler, 2001: 73) Human rights may be explored through the lenses (and as a result) of normative theory, as they aim to explore “moral expectations, decisions and dilemmas in world politics.” (Erskine, 2013: 37)

 

Cosmopolitanism vs. communitarianism

IR debates on human rights can be divided between cosmopolitanism and communitarianism. These strains of thinking provide different answers to moral problems of world politics and they imply different status and operationalization of rights. The basic disagreement between these positions is the universal or group nature of rights. While communitarianism sees ethical communities as the source of rights, cosmopolitanism locates it in the humanity of individuals.

Communitarianism rejects universalism as a point of departure of rights, both in empirical and ideal terms. This approach observes rights as a symptom and not as a cause for civilization. (Brown, 1997) For this strain of the normative theory the idea of individual rights, based on the mere fact of being human, is highly dubious. Instead, rights can only make sense as the product of specific conditions of societies. A universal agreement on what rights should all the members of all communities be entailed to is impossible because of the difference between social conditions. As for the empirical dimension, one example is that despite the large consensus around Universal Declarations of Human Rights (UDHR) this document was not approved unanimously, which implies the exclusion of certain communities. (Hardwick, 2012)

Now, since rights come as an expression of communities’ values, they express themselves through positive law. Rights are recognized by the sovereign state, and they come from the community, not from human nature. This is why for communitarians, such as Brown, it makes sense that different societies have access to different rights. This approach requires not only the recognition of rights by the state, but also the participation of moral agents. This is why, communitarian approach can be easily related to democratic and republican proposals. (Delanty, 2007). One consequence of the communitarian approach is that, although groups become relevant, the centrality of the state is still there since it is the mean to express the will of communities. States, through their sovereignty, can recognize and enforce rights for the members of the community. But communitarianism, also sees the importance of non-state actors, such as civil society, that can express their opinion and modify the positive law through state’s channels.

On the other hand, cosmopolitanism has at least two different meanings. Ethical cosmopolitanism thinks of world citizenship as a goal, as a normative aim. This kind of citizenship entails openness to difference, but also universal rights shared by every individual. Legitimacy of the rights comes from a universal moral ground, or from a universal agreement. For ethical cosmopolitanism, we are citizens of the world because our citizenship and the rights it entails come from being human, not from our national citizenship. The second meaning of cosmopolitanism is political cosmopolitanism. This version of cosmopolitanism “advocates the elimination or radical transformation of state borders, with the aim of achieving either a world government or some system of representation that transcends political division.” (Erskine, 2013)

Communitarianism and cosmopolitanism have different explanations and judgements about human rights. For the latter, universal rights have their root in humanity and the problem to solve is how to make governments to respect and enforce those rights. Rights are not based on national citizenship and the state-nation should respect them or even “get out of the way”. For the former, the idea of universal rights does not make much sense. Rights can only be a consequence of development of communities; rights must be an expression of the members of the group. For communitarianism, what we now call ‘human rights’ are actually liberal rights that are the expression of the development of the civilizations who created them in sovereign nations. Those rights might be shared some day by the rest of the world, but they would have to be the expression of their own development and sovereignty.

Both strains of normative theory have consequences in terms of international politics, and they might have different theoretical implications in the concept of sovereignty. Ethical, and especially political cosmopolitanism have an explicit intention of undermining sovereignty. This can be seen as a reaction of some of the horrors that sovereignty has led to in the Second World War. The concentration camp was the “ultimate sovereign place” (Chandler, 2001) and it needed to be debilitated to establish universal human rights that eliminated the possibilities of this to occur again. For other authors, such as Arendt, the problem was precisely the absence of citizenship, and the lack of state that would have protected their rights.

In sum, we have two main preoccupations regarding human rights: where do they come from? And who is entitled to them? If human rights are inherent to being human, then they come from a universal moral ground an everyone is entitled to them. To achieve the exercise of these rights, states might get in the way, so it would be better to build some kind of global governance to enforce them. If, on the other hand, human rights are specific of some societies and they are the result of specific democratic conditions, then the only thing we could do for others to enjoy them is to help them create those conditions. Both stands can represent a threat to sovereignty; the first one because it limits the specific content of the policies that government can make; the second one because it can impose specific ways of sovereignty. This is why human rights may be in contradiction with democracies as some authors have pointed out. (Chandler, 2001) The fundamental point of democracy is that the questions are always opened, and answers are always unfinished ones, so they can be posed many ways; even in ways that go against human rights. If agency is required for rights to exist, as democrats and some communitarians would argue, the aim of rights should be those who lack agency. This argument can lead to a breach of national sovereignty because “the lower the capacity of the human subject, the greater the need for some form of external assistance”.(Chandler, 2001: 83) On the other hand, if agency is not required, as cosmopolitanism would say, then we still need some sort of system to enforce rights, because governments are not protecting the basic rights and they can even violate them.

 

Human rights and sovereignty

Some authors talk about human rights regime. This would mean that there are a “set of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations.” (Krasner, 1983: 2) There is certainly a discussion around this topic. Since it is not my main goal in this article to evaluate the regime status of human rights, it suffices to say that more and more human rights are being coded and adopted by many nations. Procedures to enforce them are various and diverse, so I would say that they definitely make actors’ expectations to converge.

Whether formally accepted or not, governments all over the world know that there are going to be consequences of violating human rights. This can also be seen as an imposition of great powers interest, but no only of their interest. For example, it is undeniable that the creation of the UDHR worked to advance liberal powers’ interests against communism, but it also worked as an opportunity for countries in the global south to address inequalities and try to solve them. (Serrano, 2010)

The tension between human rights and sovereignty has been visualized since the creation of treaties and agreements. In the UDHR, although the first article recognizes human rights and their promotion universally, the second one has a strong prohibition against interventions. This tensions in the development of norms and institutions of human rights have also changed since its creation. One recent development occurred in the 2005 General Assembly of the United Nations Organisation where a resolution on the Responsibility to Protect (R2P) was approved. (Serrano and Weiss, 2014). In this resolution, we can observe the tension between sovereignty and human rights, rooted in the normative discussion between communitarianism and cosmopolitanism. It is written that “[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity” respecting the principle of sovereignty; but it also establishes “international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability” (United Nations Organization, 2018). Frictions between cosmopolitanism and communitarianism can be traced in this resolution; and in a way it may explain why human rights agreements are written in what seems to be an ambiguous way. Normative theories can be really helpful in order to understand this apparent unclearness.

Now, human rights goal is to impact in the actual lives of persons around the world. Another strain of literature in IR have focused on the study of how does human rights work in their implementation. Some scholars have studied the use of human rights discourse as a tool for military intervention and have found, for example, that “the U.S. is more likely to deploy its armed forces in defense of human rights protection in comparison to democracy promotion or a reduction terrorist activity in other countries” (Choi and James, 2016: 909). In my opinion, both cosmopolitanism and communitarianism operate as argumentative tools that support certain actions in global politics. This is why tracing human rights’ justification can enlighten the reason that state and non-state actors use to act.

In this final part, I briefly explore some of the recent theoretical advancements that have been made specifically on human rights. They explore the function and incorporation a diversity of actors that transcend national borders. As strange as it is to find a consensus in IR theory, most scholars agree on some of the conditions that produce human rights’ violations. Violent conflict and failures of states’ institutions are the main causes. (Hafner-Burton, 2014) This can also be interpreted in terms of sovereignty. Violent conflict can be seen as a result of weakened sovereignty. On the other hand, perversities of states’ institutions that perpetuate human rights violations can be read as an excess of sovereignty. The world has experienced many human rights violations and reactions to them. Some of the elements that have been used in trying to restore the balance of human rights and sovereignty are military interventions, trade and investment methods, foreign aid, economic sanctions, international law and information strategies. (Hafner-Burton, 2014) In some of these actions, the state is an indispensable condition; but others, such as trade methods or information strategies require the action of non-state actors like multinational companies and non-governmental organisations.

Kathryn Sikkink and a large number of scholars have identified dynamics that involve state and non-state actors to enforce human rights across boundaries. This changes the original dimension of sovereignty in at least two ways. First, local (domestic) actors get to influence the action of government beyond representative channels, inaugurating a post-liberal dimension. (Arditi, 2005) The second way in which sovereignty is re-dimensioned is through the action of transnational actors. The combination of these actors result in transnational advocacy networks which are “distinguishable largely by the centrality of principled ideas or values in motivating their formation”. (Keck and Sikkink, 1998: 10)

The spiral model, activated by transnational advocacy networks, involves the action of local organizations, intergovernmental organizations, members of local and foreign governments. (Risse-Kappen, Ropp and Sikkink, 1999) This model resembles one of the principles of the constructivist theories of IR, as they challenges assumptions “about states as unitary actors; [and] instead, they see states as the dynamic results of the social process that constitute their existence.” (Tickner and Sjoberg, 2013: 210) With the lenses of constructivism, states’ sovereignty is a negotiated part of their identity. Nations have history, and through it we can see how they relate to human rights and how this and other elements make part of their identity. Both state and non-state actors configure the identity of nations through domestic and global politics. Here we see a continuous constituent process between specific groups and ideas; between communities and human rights; between communitarianism and cosmopolitanism. In sum, human rights represent “less a challenge on the very concept of sovereignty, rather a re-definition.” (Hall, 2010) Sovereignty is still a fundamental element in international relations and in the discipline. But it must now be seen as a conditional relation between different actors and ideas. Human rights work as a limit to what sovereignty might decide. In the absence of a central global government, they are enforced through the action of several actors who by cooperation and conflict configure states’ sovereignty.

 

Conclusion

IR theories offer a wide range of options that let us explore contemporary phenomena. The creation and evolution of human rights is better understood under the scope of normative theories. The tensions between cosmopolitanism and communitarianism have driven the development of human rights agreements and institutions. The relation between human rights and sovereignty are at play in both normative and empirical dimensions. Rather than trying to declare everlasting law-like sentences of how sovereignty is re-dimensioned by human rights; the study of this relation must be specific and based on the analysis of cases. Since sovereignty results from social dynamics, it has to be studied in specific societies. Sovereignty is not a closed concept in this sense; it is a relational and negotiated one, as indicated by constructivist theories. As IR students and scholars, we do not need to decide if our starting point is “pure anarchy” or “full global governance”, but rather assume the coexistence of both elements and the need to investigate geographically and historically specific cases.

 

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