Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, September 14, 2009

Some reflections on sovereignty by one who studies the Church’s social doctrine and public international law



            I would like to thank Patrick and Greg for their discussions about sovereignty. As Patrick mentioned, there was not the opportunity to hear from the realms of public international law or theology at the symposium that was described, so perhaps I could offer a few thoughts on these topics.

            Within the realm of international law, at least as it is today, states have the primary duty of enforcing the international principles and legal norms. Ironically, states have often been the perpetrators responsible for violating these norms. Yet there are mechanisms, albeit imperfect, for making corrections that would negate or minimize violations. A principal means of achieving this is through instruments, i.e., treaties and other agreements, which give rights and place responsibilities on the states parties. Those states which have ratified these instruments have acknowledged their duties to obey the norms which the instruments contain. Yet, as sovereigns, these states have also pursued actions conflicting with norms, and they have justified their actions on the grounds of exercising their state sovereignty. An illustration of this last point would be the promulgation of the Nuremberg Laws by the Third Reich. As a result of pursuits such as these, critics of state sovereignty have become more vocal in their condemnation by arguing that traditional notions of sovereignty cannot insulate states from their obligations to abide by the fundamental norms. This sentiment has been asserted by Michael Ignatieff in his summation that the NATO campaign against Yugoslavia “depends for its legitimacy on what fifty years of human rights has done to our moral instincts, weakening the presumption in favor of state sovereignty, strengthening the presumption in favor of intervention when massacre and deportation become state policy.” The challenge to traditional notions of state sovereignty has been argued by others elsewhere.

            While the exercise of state sovereignty has led to the unwarranted violation of well-understood legal norms, it would be imprudent to conclude that sovereignty must be curtailed in order to ensure the respect for the rule of law. Arguably, sovereignty as a legal concept in domestic and international law has more than one dimension or practice. If my contention has merit, then it would be wise to investigate whether the exercise of sovereignty can be or is compatible the protection of these fundamental norms of international law. Here, I contend that sovereignty, which is exercised by people in their exercise of self-determination, is also a matter which needs to be protected as an important human right. It is this kind of sovereignty—popular sovereignty—which is essential in the protection of many fundamental international norms, especially but not limited to those addressing basic human rights. Should popular sovereignty be subjected to criticism and attack that lead to its demise, the integrity of other norms, especially those dealing with basic rights of the human person, can also be open to attack. Popular sovereignty and many international norms and human rights are inextricably linked. When popular sovereignty is criticized, what will become of the other norms?

To be properly understood within the framework of international law, sovereignty is a compound doctrine that is best understood by examining the relationship between the sovereignty of a state and the sovereignty of peoples, i.e., the sovereignty of nations. While a sovereignty-exercising state can be a totalitarian regime, it can also be a democratic one in which the sovereignty of the people confers and controls the sovereignty of the state. And these people exercise their sovereignty in the implementation of their basic human rights.

Although it is far from an ideal institution, the United Nations has a role in protecting this fundamental right of self-determination and popular sovereignty. As the Charter of the United Nations declares, one of the primary purposes of the organization is “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…” An illustration of the United Nations promoting this purpose occurred on December 14, 1960 when the General Assembly adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples thereby recognizing the sovereignty of a subjugated people against a colonial power. In this declaration, the approving U.N. members stated that “all peoples have an inalienable right to complete freedom, the exercise of their sovereignty, and the integrity of their national territory.”

Even though exercises of sovereignty can be the source of violation of fundamental international norms, they can also be equivalent to expressions of fundamental rights of nations and of individuals. Therefore, in some instances sovereignty and its exercise can be crucial to the protection of rights because it can be an expression of how individuals and the communities which they form put into practice those elements of self-determination which are constitutive of human rights. Here the concepts of subsidiarity and solidarity, essential elements of the Church’s social doctrine, come into play

When criticism is made of sovereignty in this day and age, it does not seem to take account of those sovereignties which rest in the nation, that is, the people themselves. If, indeed, some people are interested in the protection of human rights, they must also take account of the fact that the right of political, cultural, and social self-determination is inextricably related to people exercising sovereignty. Efforts made to curtail this kind of sovereignty would deleteriously affect the exercise and protection of a wide variety of other international norms, especially those addressing basic human rights. A sovereign nation is a community of people who exercise shared values concerning human dignities which shape and direct the particulars of their communitarian self-determination.

            I would suggest that the Church contends that the concept of “self-determination” benefits from a preferred status in the world of international law. This is a point alluded to when Pope John Paul II spoke at the UN for a second time in 1995. It is a notion that brings together the interests of the individual and relates them to the interests of the group. The interests of both the individual and the group concentrate on the ability to exercise their selections about how they wish to live their lives and to be free from the interference and imposition of others. This theme appears in the purposes of the United Nations as identified in the Charter when the founders of the U.N. agreed that the organization was to encourage friendly relations amongst nations “based on respect for the principle of equal rights and self-determination of peoples.”

If making people count is at the center of concern for human rights, it is relevant to take stock of what is at the center of human existence. The theoretical rights to which each person is presumably entitled are exercised in reality through each person’s relationship with others through shared sense of what is due each person, the suum cuique. But, what is due each person depends on what is due others.  Rights are not things unto themselves, but are constitutive elements of human existence which frame the relationships that bring individuals together into the various communities where they live, work, play, learn, worship, deliberate, and govern. The fundamental community as recognized by the central principles of international human rights law is the family—the fundamental unit of society. It is in the family that individuals begin to experience and practice their individual and communal identities. It is in the family where the due of each person begins to develop in the establishing and testing of the extent of rights and responsibilities. As a consequence, it is the family—the basic unit of society and human civilization—which must be protected if human civilization and the basic rights of people are to be protected.

It is in the family where individuals begin to explore who they are and how they relate to one another. It is also in the family where individuals begin to define what is the individual’s right—what is due each person— and what is each member’s duty to accept and respect what is due all others. It is the family where the sense of contribution to both the self and the other takes place where an appreciation of what is each person’s due becomes a norm for daily existence. It is an appreciation of this contribution which is key to the role each individual can and must play in the democratic processes that permeate the notion of self-determination of peoples.

Well, these are just a few thoughts from one who spends a fair amount of his time thinking about sovereignty from the joint perspectives of the social doctrine of the Church and public international law.


RJA sj

RJA sj


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