The relationship between human rights and sovereignty is a key theoretical and practical issue that has aroused heated debate in the international human rights field. What are the viewpoints and positions of Western countries and developing countries on this issue? What is the deeply rooted reason for this debate? How can the relationship between the two be properly handled? This article will analyze these questions.

 

 

Since the mid-20th century, an important political phenomenon has been the emergence and development of international human rights protection. Along with this, the question of the relationship between international human rights and national sovereignty has also arisen.

 

What is national sovereignty? National sovereignty refers to the highest authority of a state for independently administering domestic and diplomatic affairs. The concept of national sovereignty was proposed by the French philosopher and jurist Jean Bodin (1530-1596), who defined national sovereignty as the absolute and perpetual power of a nation state.1 National sovereignty has both domestic and diplomatic attributes, which respectively refer to the highest authority in governance and the highest decision-making power in independently dealing with international affairs. After the Peace of Westphaliawas signed in the 17th century, the sovereignty of nation states was defined as a fundamental principle of international relations.

 

Human rights ideas have existed as long as there have been human beings. In human history, the first to clearly propose human rights ideas were modern European capitalist Enlightenment thinkers, who voiced the shocking motto of freedom and equality and cultivated the natural rights theory. Human rights ideas greatly influenced the concept of sovereignty. The connotation of sovereignty gradually transformed from the sovereignty of the monarch to the sovereignty of the people.

 

Since its emergence, the human rights concept has long been used for administering domestic affairs. The massacres carried out by the Fascists in World War II as well as their contempt for and trampling of human dignity stunned the whole world. This brought human rights issues into the limelight for the international community.

 

The United Nations was established after World War II as the first international organization. The United Nations Charter, which was adopted in 1945, put forward the aims of “promoting and encouraging respect for human rights,”“maintain(ing) international peace and security” and “develop(ing) friendly relations among nations.” The Preamble to the Charter “reaffirm(s) 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.”Since then, human rights principles have been fundamental to international law. On December 10, 1948, the United Nations issued the landmark Universal Declaration of Human Rights, which was the first special document on human rights issued by an international organization. It set forth for the first time the universal human rights concept and for the first time systematically defined the basic principles and content of human rights, and placed human rights in the lofty position of being the root of human dignity. The ratification of the declaration symbolized that human rights ideas had gone from the domestic to the international arena.

 

International human rights protection is derived from domestic human rights protection, and is also an important result of the political civilization of human beings and reflects the efforts of humanity to pursue peace and advancement. This also has brought about the question of how to understand and deal with the relationship between human rights and national sovereignty. With the establishment of the United Nations, some Western scholars began to raise the question of the relationship between national sovereignty and human rights. In 1948, Dr. Herbert Vere Evatt, president of the United Nations General Assembly, said the ratification of the Universal Declaration of Human Rights showed that the international community acknowledged that human rights and fundamental freedom were higher than the domestic laws of sovereign states. In the 1960s, an American scholar pointed out that national sovereignty was challenged by international organizations and human rights. British international law scholar Elihu Lauterpacht put forth the view that human rights were higher than national sovereignty from the perspective of the efficacy of international law and the individual right of petition, arguing that legislation or the application of law in sovereign states jeopardizes human rights or shocks the conscience of human beings, and that humanistic principles should be higher than the laws of sovereign states.2 However, due to the international environment at that time, these viewpoints were not accepted by mainstream Western ideologues or political scientists.

 

 

The relationship between human rights and national sovereignty has received great attention from Western, particularly American, scholars. Since the 1990s, it has become a heated topic among theorists. There have been a lot of papers and books in the United States on topics such as national sovereignty no longer being sovereign, exceeding national sovereignty and new sovereignty. The theory that “human rights are superior to sovereignty” has had a great impact on international politics, arousing debate and confrontation between Western countries and developing countries.

 

There are three aspects to the theory that “human rights are superiority to sovereignty.”

 

First, human rights are not something that only belong to domestic politics, and have no national boundaries. The theory argues that human rights used to be something that was administered as a domestic matter. However, the international human rights movement has caused human rights not to simply be a matter of individual countries. The principle of non-interference in countries’ domestic affairs that was defined in the United Nations Charter and international laws was not suitable for human rights issues. American international law scholar Louis Henkin argued that if human rights are always within the boundary of the administration of domestic affairs but are not issues of external concern, related articles in the United Nations Charter, the Universal Declaration of Human Rights and other international human rights treaties and agreements as well as numerous activities organized by the United Nations and other international organizations, resolutions or legal activities in particular, would be an infringement on national sovereignty. Other scholars related human rights to the trend of globalization, arguing that concern and protection for international human rights is part of globalization, which should not be controlled by any states. If a state infringes on human rights, any other state may interfere.

 

Second, national sovereignty should be restricted and weakened. Some argued that national sovereignty is an excuse for dictators to beef up their power. Therefore, weakening national sovereignty might help to improve the political status of the majorities who are marginalized in those states. American scholar Michael Riesman argued that the traditional concept of national sovereignty, which is outdated, impedes human rights protection. American scholar Jack Donnelly argued that human rights are exactly opposed to national sovereignty. National sovereignty by its nature means anarchy in the international community. The major function of international law is to weaken national sovereignty and non-interference principles. International laws are the system whereby sovereign states accept restriction of their sovereignty through the legal system.3

 

Third, the legitimacy of humanitarian interference. Western international law experts usually define humanitarian interference as activities that prevent non-humanitarian events from occurring in other countries. The humanitarian interference theory arose in the 19th century, when capitalism was expanding in the world. In history, the theory has been used as an excuse by Western powers for overseas expansion.

 

The theory that “human rights are superior to national sovereignty” clearly states that humanitarian interference should be an important aspect of international human rights protection strategy and interference in the domestic affairs of other countries for the purpose of human rights protection is legitimate. In 1999, Professor Shaw at Oxford University said governments that fail to protect human rights should not be respected and should have no national sovereignty. Because they are not sovereign states, international interference may be conducted in order to protect human rights.

 

People who advocate the theory that “human rights are superior to national sovereignty” argue that the principle of non-interference is outdated and should be replaced by a higher goal of protecting human rights. Law professor Michael Glennon of the University of California wrote in an article, “The New Interventionism: The Search for a Just International Law,” published in Foreign Affairs: “As the 20th century fades away, so too does the international consensus on when to get involved in another state's affairs. The United States and NATO -- with little discussion and less fanfare -- have effectively abandoned the old United Nations Charter rules that strictly limit international intervention in local conflicts.” He argued that humanitarian interference should be included in the United Nations Charter and that the international community should pay attention to and take necessary action in any countries that have human rights violations.

 

Some international law scholars have argued that the use of force for the purpose of humanitarian interference is allowed by international law.

 

The theory that “human rights are superior to national sovereignty” has greatly influenced international relations. One case was the war launched by NATO against the former Yugoslavia. The disastrous consequences of the war triggered questioning by the whole world regarding the theory. In debates in the United States, some argued that the NATO intervention was an invasion. From a moral perspective, NATO’s justification did not have a leg to stand on.

 

However, some American scholars defended the theory, arguing that under special circumstances such as ethnic cleansing, international intervention should be conducted even if it is not authorized by the UN Security Council or it violates international law. Such intervention is targeted at the higher purpose of saving millions of lives. In a debate on human rights and national sovereignty at the UN General Assembly in September 1999, Western countries went further by stating that the international community should never allow rulers, under the pretext of national sovereignty and territorial integrity, to carry out ethnic cleansing, genocide or other shocking violations of human rights.

 

 

The theory that “human rights are superior to national sovereignty” has aroused heated debate around the world. China and other developing countries are firmly opposed to the theory.

 

China’s white paper on human rights clearly stated that human rights issues in essence are subject to domestic governance. Respecting national sovereignty and non-interference in domestic affairs are widely accepted as standards of international law, which should be applicable to all aspects of international relations, and are naturally suitable to the human rights field. In international law, domestic governance refers to internal affairs.

 

How should internal affairs be defined? First, it should be acknowledged that in modern times human rights have an international protection aspect. Before the establishment of the UN, human rights were a domestic affair. What citizens should enjoy in terms of civil rights and how such rights should be protected were always defined by domestic law. At present, human rights are defined by international human rights conventions. The treatment of citizens in individual countries should be compatible with responsibilities defined by international human rights laws. International cooperation is needed to address common challenges and problems of human society, such as combating terrorism and environmental deterioration.

 

Second, international human rights protection should be built on the basis of respecting national sovereignty. Against the backdrop of the international human rights movement, human rights protection and realization should basically depend on domestic mechanisms. Human rights issues in a sovereign country should be resolved by political, economic, legal, administrative and educational measures in the country itself. Without approval of the sovereign country, any international monitoring mechanism set up by international human rights conventions should not restrict the power of the sovereign country. Even in a country that is a member state of certain international human rights conventions, international organizations should be able to accept human rights complaints only after the country has exhausted all possible means for addressing the issues. Regarding those issues that do not completely come under domestic jurisdiction, but essentially come under domestic jurisdiction, the principle of non-interference is applicable. The United Nations Charter stipulates:“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.” Italian international law scholar Antonio Cassese said that in drafting the United Nations Charter, the United States led in advocating for an article that protected national sovereignty. Before the end of the 1970s, the United States insisted that national sovereignty should be superior to human rights. Since U.S. President Jimmy Carter pushed forward human rights diplomacy in 1977, however, the United States has gradually changed its position.

 

What are the reasons for international intervention? China’s human rights white paper stated that, regarding activities that endanger world peace and security, such as human rights violations resulting from colonialism, racism, foreign invasion or occupation, as well as racial segregation, racial discrimination, ethnic cleansing, slave trade or international terrorism, the international community must interfere or make efforts to stop these activities and carry out international protection. China supports and participates in international human rights protection under these eight such circumstances.

 

Why does China oppose the theory that “human rights are superior to national sovereignty?” First, developing countries have an important task in safeguarding national sovereignty. In October 1989, in a meeting with former U. S. President Jimmy Carter, Comrade Deng Xiaoping said, “China supports human rights, but never forgets there is national sovereignty. When talking about human dignity, one should also remember national dignity, particularly in Third World developing countries like ours. Without national dignity or independence, no country will stand.”4 Chinese President Jiang Zemin reaffirmed at the UN Millennium Summit in September 2000, “As long as there are national boundaries and people live in their respective countries, safeguarding national independence and sovereignty is in the highest interest of their governments and people. Without national sovereignty, there are no human rights.”5

 

Many developing countries have similar views to China on this issue. At a 1999 UN General Assembly meeting, Algerian President Abdelaziz Bouteflika said his country and others were sensitive to any infringement on their national sovereignty, which is regarded as the last line of defense against imbalanced international rules for those countries that do not participate in any decision-marking procedures of the UN Security Council. Colombian President Ernesto Samper Pizano said at a Non-Aligned Movement ministerial meeting in 1996 that the national sovereignty of underdeveloped countries is not a rhetorical concept, but a survival concept, similar to how sardines may unite to combat big sharks.6

 

Second, China and other developing countries oppose the theory that “human rights are superior to national sovereignty” because Western humanitarian intervention is conducted with a double standard. At a UN General Assembly in 1999, the Brazilian Foreign Minister questioned Western countries regarding double standard on human rights -- Why did they frequently use certain means to address certain dilemmas but fail to use similar means to address other similar dilemmas? The foreign minister said that many developing countries feel that the record of Western humanitarian intervention shows that Western countries that have the capability and resources to intervene are usually not real guardians of international human rights, warning Western countries not to interfere in the domestic affairs of Brazil.

 

Many developing countries have a long history of being colonized or controlled by Western imperialists and thus were marginalized in the international political and economic order. They usually very much cherish their national sovereignty, which is placed higher than human rights.

 

IV. Reasonably understand the relationship between human rights and national sovereignty

 

The theory that “human rights are superior to national sovereignty” forces human rights and national sovereignty to be abstractly opposed to each other, but this does not comply with historical evidence or reality. Human rights should not contradict national sovereignty. For example, the human rights movements of the 1950s and 1960s in some colonized countries were also in support of national sovereignty. Development of human rights helps consolidate national sovereignty, which also benefits the protection of human rights.

 

In reality, contradictions may appear between human rights and national sovereignty. However, proper analyses should be conducted to understand under what circumstances such contradictions appear and what need there is for international human rights protection. There should not be a hurried conclusion regarding the theory that “human rights are superior to national sovereignty.”

 

The theory is also harmful to world peace and human rights protection. In the world’s nearly 200 countries, each has its own human rights problems.

 

Addressing human rights problems should be the primary responsibility of each country. President Xi Jinping mentioned that one could always improve one’s work on human rights issues. Various countries have various national conditions, different cultural traditions and are at different social stages. Therefore, they may employ different measures to protect human rights. If some big countries regard their own modes or standards of human rights protection as universal standards for the world, this might lead to biased opinions about other countries’ human rights conditions and protection efforts. Under current international political circumstances, ignorance of national sovereignty might risk supplying big and powerful countries with excuses for interfering in the domestic affairs of small and weak countries. Random use of international human rights protection might do harm to world peace and cause a human rights catastrophe.

 

Although some Western scholars advocate the theory that “human rights are superior to national sovereignty” based on their idealistic perspective, the theory, as a basis of national policy, in essence serves hegemony and power politics. International human rights protection is a new international political phenomenon that appeared after World War II and continues to be an international trend in the new century. However, international human rights protection does not mean discretionary intervention in the human rights problems of a country. Power politics and hegemony must not be allowed under the pretext of protecting human rights. International human rights protection should be based on respecting national sovereignty and cooperation between sovereign nations, and should not contradict national sovereignty. Participation in international human rights conventions should not weaken national sovereignty but should be done to better exercise and safeguard national sovereignty and address shared problems faced by the international community.

 

With regard to international law and international practice, although international human rights protection and economic globalization have brought changes to national sovereignty, the principles of sovereignty and non-interference are not outdated and should still be the basic principles of international law and the basis of international relations. In modern times, the principles of human rights, national sovereignty and non-interference are all basics of international law. The appropriate stand regarding the relationship between human rights and national sovereignty should be safeguarding national sovereignty, promoting human rights and opposing hegemony.

 

(The author is director of the Human Rights Center of the Party School of the CPC Central Committee)

 

1. Xu Datong, ed. History of Western Political Thought, Tianjin Education Press, 2000.

 

2. Elihu Lauterpacht, ed. Oppenheim's International Law, 1st vol., Commercial Press, 1981, p. 22.

 

3. Jack Donnelly, International Human Rights, Westview Press, 1998, p. 27.

 

4. Selected Work of Deng Xiaoping, vol. 3, 1st ed. October 1993, p. 331.

 

5. Jiang Zemin, speech at the UN Millennium Summit, People’s Daily, September 7, 2000.

 

6. Xu Chongwen, “Issues on national sovereignty in economic globalization,” Theory Frontier, vol. 4, 2000.