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Courts of international law represent one way in which the international community has decided to limit the sovereignty of states. Certain crimes must be prosecuted, whether states like it or not; if national governments shirk this responsibility, mechanisms are in place to supersede state authority. In some cases, advocates of human rights and humanitarian concerns believe broader and more substantial interventions are justified.
One such instance occurs when a genocide is in progress and can either be prevented or stopped. The relevant problem becomes: under what circumstances can the priority of state sovereignty be ignored in the interests of humanity? Humanitarian intervention has been defined by Robert Keohane and J.L. Holzgrefe as:
The threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own, without the permission of the state within whose territory force is applied.
The key points here are: it involves the use of force; it occurs without permission; and its purpose it to prevent “widespread and grave” violations of human rights on the scale of genocide.116
Intervention thus constitutes a serious challenge to the authority of a sovereign nation and requires an equally serious justification. Where competing interests are at stake – such as the general reluctance to engage in unprovoked military activity and the imperative to protect human rights – one must be sacrificed.117 Sometimes violations of individual freedom and human dignity are so objectionable that the presumptions in favor of sovereignty and against the use of force are eroded.
Some argue that sovereignty is not a prerogative automatically conferred on all states. Human rights should be the priority because they are “intrinsic,” while sovereignty is merely “instrumental,” meaning it is only a means to the end of ensuring that human dignity is respected.118 According to one version of this argument, “In the nineteenth century, full sovereign rights were extended only to states that met minimum standards of ‘civilization’…[now it seems that] human rights—or, more precisely, avoidance of genocide—is emerging as something like a new standard of civilization.”119
Just as one can argue that individual rights double as duties, that is, that they require reciprocal respect for the rights of others before they can be exercised, so too could one claim that sovereignty entails duties as well as right for all states. If states cannot protect the most basic human right—the right to life—then they are not entitled to invoke the mantle of sovereignty in their defense against the compelling interest of the international community to deal with genocide.
For an application of this concept, please read “The Libyan Civil War and a Chance for R2P.”
116 Barsa.
117 Peterson.
118 Peterson; Terry.
119 Donnelly 250
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