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STATE SOVEREIGNTY IS PARAMOUNT TO INTERNATIONAL HUMAN RIGHTS

Presuppose this screenplay; it’s 1608 and the East India Company arrives in Surat aboard the ship Hector, commanded by William Hawkins, and by 1612 it has established its first permanent factory. In 1623, the company approaches the crown to get rights to administer the criminal justice system in the factory areas and is granted so. But the question remains, why? and more importantly, how? How did a trading company gain the right to govern an independent nation that was under the rule of the then Mughal Emperor Jahangir? The answer to it is unornamented; India was not a sovereign state. Our nation was not a political entity represented by one centralized government.

The criminal justice system is the prerogative of the sovereign and you cannot ensure a successful administration of Human Rights, until and unless you back them up with a strong law enforcement agent in the designated territory of the sovereign state.
Professor W. W. Willoughby very aptly commented, “Sovereignty is the life, soul and the extreme will of the state and it cannot be alienated without destroying the state itself.”[1] Lieber supported him by beautifully constructing the analogy that, “Sovereignty can no more be alienated than a tree can alienate its right to sprout or a man can transfer his life or personality to another without self-destruction”[2]
In Westphalia in 1648, treaties were signed which considerably modified the character of international peacekeeping relations. [3]  It was the inception of two principles – State Sovereignty and The Notion of Non-Interference. Similarly, the treaties designed on the 1933 Montevideo Convention, which advised these principles, through its definition of the state, a territory that is defined by its indisputable sovereignty led to building of a similar definition in the United Nations’ (UN) charter. [4] 
In the present times, states may have accepted restrictions under international law treaties whereby they have impliedly surrendered a part of their sovereignty which ceases it from being illimitable and indivisible but that does not mean that a state derogates from its right to withdraw or continue with an International norm no matter how high or absolute it may be.
In the recent Kulbhushan Jadhav Judgement [5] of the ICJ, Pakistan was declared to be in breach of the obligations incumbent upon it under the Vienna Convention on Consular Relations. The state gave importance to its right as a nation-state to remain the maker and changer of both municipal and international law and thus decided to prosecute an individual posing as a threat to its national security versus the human rights obligations undertaken by it. The ICJ respected its right and only suggested a review and reconsideration of the conviction and sentence but did not order any release. Therefore the ICJ stayed the hanging by its order dated 18 May 2017 but in its verdict, on 17 July 2019, rejected India’s appeal for release and directed Pakistan to allow consular access and effectively review the death sentence.
These series of events are a result of 2016, the inclusion of the Paris agreement within the definition of the Vienna Convention on the Law of Treaties, which is still an ongoing debate over whether the provisions of this agreement should be legally binding or not. Thus, a country like Pakistan that is a signatory to the convention cannot be forced or be sanctioned to oblige by it; similar to a country like the USA that has not even signed the convention but may only face a derogatory backlash for not abiding by it.
Human Rights are inalienable as they are essential for living life simply as a human being. Any civilized country or a body like the United Nation recognizes them. But, the legal duty to respect, promote, and observe the application of these rights is not carried on by the preachers of International Law solely.
It is a principle to remember that the domestic and international workings are closely interwoven. Therefore, matters of breach of human rights are subject to the scrutiny of the municipal justice system of a nation because it forms the part of the constitution of that sate. And it is only a ‘sovereign nation’ that will ensure its domestic jurisdiction under Article 2 (7) of the UN Charter [6] to resolve any threat to its peace, or the gross violation of Human Rights in its nation.
Subject to treaties and international customary law, in 1938 Lord Macmilian [7] gave the rule of the jurisdiction in following terms: “It is an essential attribute of the sovereignty of this realm, as of sovereign independent states, that it should possess jurisdiction over all persons and things within its territorial limits and in all causes, civil and criminal arising within its limits.” Acceptance of such a principle would mean that the determinate superior is sovereign in that society. ‘Sovereignty’ is deeply embedded in the international legal regime and ensures order, stability, and certainty in peacekeeping. This holds true for both customary and international law which are nothing but a manifestation of state sovereignty. At the same time, certain international legal norms such as human rights have attained a status so high that they have become absolutely non-derogable, and are termed as ‘jus cogens’ norms and are ‘erga omnes’ obligations which nation-states have to adhere to.  Claims of “independence” and “competence” by nations especially in the current day western-centric hegemonic world order hold importance because otherwise, imposing limitations upon sovereign rights of nation-states has the possibility to threaten their existence.
In today’s time, more or less all the nation-states have in the interest of the International community accepted restrictions on its liberty of action. These self-regulated restrictions make them members of the UN because if the violation of a human right gives rise to a dispute or a circumstance that poses a threat to International Peace and Security, the Security Council may take enforcement measures. But as Prof. Edward Hambro pens, “In the world of the 20th century, no frontal attack on national sovereignty will avail.” [8] Thus, the obligations do not make the charter obsolete which ensures the sovereignty of equality of members and further, does not prevent the states from retaining their freedom of action for the good of their nation.
The complexities of modern developed societies need peaceful co-existence. The world today bears a little resemblance to the world of 1945 when the U.N System was set up. We are currently in a period when governments, the basic units of the U.N. systems, have less and less control over the forces that are shaping the future. Nationalism and Sovereignty are 2 concepts that prevent any economically or resource powerful state from imposing their authority on a weaker state and establishing their rule. The right of the people to control their fate without subordination to outside authorities wields symbolic power and yet there is little consensus in countries like the United States about what sovereignty actually entails. The U.S. doesn’t respect other countries’ sovereignty and the past decade has seen American drones and forces push against the borders and sovereign rights of Pakistan, Iraq, and Afghanistan. This advancing interest of nations such as the USA in our complex world to gain authority, autonomy and influence pulls on the basic concept of sovereignty and is easily hijacked by political opportunists, to shut down debate.
It is necessary to acknowledge global challenges such as arms control, nuclear proliferation, trade, border security, migration, terrorism, global pandemics, and climate change. And thus, while addressing these challenges the traditional concept of national sovereignty may be under a serious strain, but it is in the interest of especially the developing countries to watch and respond continuously to the new ideas of sovereignty to protect the interests of its people which in furtherance will lead to the protection of their human rights.
There is no denying that state sovereignty has remained an undeniable pillar of international relations for decades and is still essential to the international community. However, the traditional definition of state sovereignty doesn’t thoroughly apply to the modern world we inhabit today; but it gives us an opportunity to redefine it. [9] It can be the primary step to creating a more relevant form of government suited to 21st-century politics.

References

[1] LL.M IInd Sem, Jurisprudence II (L- 2002), Sovereignty, Available here
[2] Sovereignty, Dr. Tanuja Jha, Madhav University, Available here
[3] Is State Sovereignty At Risk In Our Modern Society?, Marion Valentin, IAPSS, Available here
[4] The Organization’s foundation depends on the equal sovereignty of all its members.
[5] Jadhav Case (India V. Pakistan), Order of 17 July 2019, International Court of Justice
[6] Charter of the United Nations, Chapter I — Purposes and Principles, Article 2(7) – 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 VII.
[7] Compania Naviera Vascongado v. S.S. Cristina, House Of Lords, 1938 Jan. 13, 14, 17, 18, 20; March 3
[8] Company Law, MSR Blog, Available here
[9] Supra note 3.

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