Human rights as a restraint on state sovereignty and as its basis

Abstract

The notions of human rights and state sovereignty are the main pillars of the current international order. To some degree, this poses a theoretical tragedy, since both concepts seem to be in conflict. In its classical meaning, sovereignty refers to the capacity of a state to take final decisions within their jurisdiction, while human rights are rights that are common to all humans and that states should respect regardless of any other consideration. The obvious paradox that these definitions pose may be summarized in the following question: How can states be really sovereign if they are required to respect certain rights of their citizens and they are not free to make decisions about them? The purpose of this chapter is to provide a brief overview of the solutions that philosophy has offered to the supposed tension between state sovereignty and human rights, and to suggest that it is only an apparent tension. As we will see, human rights and sovereignty are not conflicting concepts; they are complementary categories with the same normative origin and they are also mutually reinforcing: human rights can only be realized under a sovereign authority and this sovereign authority can only be morally justified when itreasonably fulfills the human rights of its inhabitants.