State Sovereignty and Human Rights: Towards a Global Constitutional Project
| Published date | 01 March 1995 |
| Author | Allan Rosas |
| DOI | 10.1111/j.1467-9248.1995.tb01736.x |
| Date | 01 March 1995 |
| Subject Matter | Article |
Political Studies
(1995),
XLIII,
61-78
State Sovereignty and Human Rights:
towards a Global Constitutional Project
ALLAN
ROSAS
The
Landmarks
of
1945 and 1948
In the international human rights system of today, the Universal Declaration
of Human Rights of
1948’
stands out as a foundation and symbol
of
pivotal
importance. The establishment three years earlier
of
the United Nations with
its legal framework, the UN Charter, had laid the basic institutional structure.
The Charter also came to include some general references to the protection of
human rights and fundamental freedoms. According to the Preamble
of
the
Charter, the peoples of the United Nations were ‘determined
.
.
,
to reaffirm
faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and
of
nations large and small’.*
The Universal Declaration was meant to give more concrete substance to such
rather sweeping
formulation^.^
Some commentators saw the new emphasis on human rights in the Charter,
as supplemented by the Universal Declaration, as an almost revolutionary
achievement. Others were more ~ceptical.~ Until recently, most general standard
courses and textbooks of public international law have paid secondary if any
attention to human rights.’
In
political science and the study
of
international
’
UN General Assembly resolution 217
A
(111) of 10 December 1948.
’See also Article 1, para. 3, and ch. IX (Articles 55-60) of the Charter.
On the status, significance and content
of
the Universal Declaration see e.g. A. Verdoodt,
Naissance el signification de la Declaration Universelle des Droits
de
I’Homme
(Louvain, Editions
Nauwelaerts, 1964);
J.
P. Humphrey,
Human Rights
&
the United Narions: a Greal Adventure
(Dobbs, Ferry, New
York,
Transnational, 1984), pp. 1-77; A. Eide,
G.
Alfredsson, G. Melander,
L. A. Rehof and
A.
Rosas,
The Universal Declaration
of
Human Rights: a Commentary
(Oslo,
Scandinavian University Press, in co-operation with Oxford University Press, 1992).
See, in particular,
H.
Lauterpacht,
International Law and Human Rights
(London, Stevens,
1950), pp. 424-8, with references. Lauterpacht himself stressed a new paradigm based on human
rights and the notion of the individual as a subject of international law: ‘International law, which
has excelled in punctilious insistence on the respect owed by
one
sovereign State
to
another,
henceforth acknowledges the sovereignty of man. For fundamental human rights are rights
superior to the law of the sovereign State’ (p.
70).
He was sceptical with respect to the specific
importance of the Universal Declaration, however, arguing that it lacked legally binding force,
(pp. 394-428).
51n
D.
P.
O’Connell,
International Law
(London, Stevens, 2nd ed., 1970), 20 pages (Vol. 11,
pp. 742-61) out of a total of 1123 pages (is.
less
than
2
per cent) deal with ‘personal jurisdiction:
human rights’ in
a
Part on ‘jurisdiction’. In
I.
A. Shearer,
Starke’s International Law
(London,
Butterworths,
1
lth ed., 1994), 10 pages (pp. 328-38) out
of
a total of 597 pages (again less than 2
per cent) deal with ‘human rights and fundamental freedoms’. Cf. I. Brownlie,
Principles
of
Public
International Law
(Oxford, Oxford University Press, 4th ed., 1990), which already contains a
somewhat more elaborate chapter
(XXIV)
of
some
50 pages (of a totality of 748 pages) on ‘the
protection of individuals and groups: human rights and self-determination’.
Political Studies Association
1995.
Published
by
Bldckwell Publishers,
108
Cowley Road, Oxford
OX4
IJF,
UK
and
238
Main
Street, Cambridge,
MA
02142,
USA.
62
Stote
Soreriigtit~'
und
Human
Rights
relations, human rights have been an even odder figure. Especially for the
realist paradigm, human rights, and the Universal Declaration as their basic
normative exposition, have been largely irrelevant, except perhaps as a
rhetorical device for expressing disguised state and other interests.h
Gradually human rights have nevertheless crept into foreign policy,
international relations and theories about them.' The 1980 and 1990s have
witnessed an unprecedented upsurge of human rights concerns and activities,
as witnessed by the proliferation of international treaties and institutions, both
universal and regional. Of particular importance are the two International
Covenants of 19668 (entered into force in
1976),
which completed the so-called
International Bill of Rights (consisting
of
the Universal Declaration and the
two Covenants).
If
International Labour Organisation and other special
conventions. regional conventions and bilateral treaties are included, the
number of human rights treaties can be counted in the hundreds rather than in
the tens.'
The 1993 World Conference on Human Rights in Vienna" and the
subsequent establishment of a UN High Commissioner for Human Rights"
are perhaps small but
still
significant further steps in an evolving institutional
and normative framework. According to the Vienna Declaration and
Programme of Action, the universal nature of human rights and fundamental
freedoms 'is beyond question' and human rights 'are the birthright of all
human beings'. Hence their protection and promotion 'is the first responsibility
of
Governments'.
These developments are historically grounded in the UN Charter and the
Universal Declaration. But the power
of
these instruments does not seem to be
limited
to
forming a historical basis for an enlarged agenda of international
relations. The Universal Declaration offers a paradigmatic challenge to the
Hobbesian strand of the Westfalian legacy. which has seen the international
system as a horizontal inter-state system based on the sovereign equality
of
states. This is because the Universal Declaration:
concerns matters between the state and its
own
population
(vertical
approach) rather than inter-state relations
'For
a survey
of
the relation betueen human rights and different theories
of
international
relations. see
e.g.
R.
J.
Vincent,
Humar7 Rights
mid
Intc~rnatioricd
Relations
(Cambridge, Cambridge
University Press, 1986). pp.
11
1-28,
'The foreign policy
of
the US Carter administration
(1977-81)
was-in retrospect
-a
significant
precedence. On this period in
US
foreign policy. see e.g.
B.
M.
Rubin and
E.
P.
Spiro (eds),
Human
Righit
untl
I'.S.
Fort~ign
Policy
(Boulder
CO.
Wcstview. 1979);
D.
P.
Kommers and
G.
D. Loescher
(eds).
Human
Kighis
utid
Armvic~rn
Forrigri
Polir.?,
(Notre Dame. Indiana. University
of
Notre
Dame Press, 1979). See more generally. Vincent.
Humm
Rights
and
Inrernationaf
Rdczrians.
'
International Covenant on Economic. Social and Cultural Rights and International Covenants
on Civil and Political Rights (the latter with two Optional Protocols, the
first
of
1966
establishing a
qystem
of
individual complaints).
"The texts
of
ihe most in~portant rreaties and other instruments are published, e.g.
in
Human
Ri,chis:
N
Compilarion
qf
Inrernatiorzal
Insfrtrm~nt.~, Vol.
I,
Parts 1-2 (New
York,
United Nations.
1994),
Vol.
I1
(forthcoming).
"On
25
June
1993,
representatives of 171 states adopted by conseiiws
the
Vicnna Declaration
dnd Programme
of
Action
of
the World Confcrence on Human Rights.
lJN
doc. A/CONF.157/23.
The previous World Conference was held in Teheran in 1968.
"
IJN
General Asscmbly rewlution 48,141 establishing the High Commissioner was adopted by
consensus. The establishinent
of
this post had been a contentious question
for
more than
twenty
years. Ambassador
Jose
Ayah Lasso
of
Ecuador has been appointed the first High Commissioner.
i
Polilical
Studies
Aisociation.
19Y5
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