Sovereignty and humanity: reality and possibility.

• Author: Corell, Hans

Address at a Meeting at Oriel College, University of Oxford 2007 Oxford Module, American Bar Association Section on International Law September 29, 2007

Jeffrey Golden, Chairman of the ABA Section on International Law, Professor Nanda, Members of the Planning Committee, Colleagues and friends,

Let me begin by thanking the members of the Planning Committee for inviting me to speak on this occasion. Thanks also to Jeffrey Golden for his kind words of introduction.

It is with great pleasure that I address you tonight. Isabella Bunn suggested that almost any theme related to sovereignty and humanity would be ideal. I therefore choose for my presentation the somewhat provocative title "Sovereignty and Humanity: Reality and Possibility."

The point I am going to make is that both sovereignty in its modern sense and humanity are necessary to create human security and that human security can only be created through democracy and the rule of law.

Earlier today, we discussed new developments in public international law, war crimes tribunals, torture, and tensions between sovereignty and humanity. In a sense, it is sad that topics of this kind are on the agenda of a meeting of lawyers at the beginning of the 21st century. But unfortunately, they reflect the reality of today's world.

Let us first look at sovereignty. Many challenge state sovereignty today. Some would suggest that the word carries with it a negative connotation--a reflection of an old system with its roots in the peace of Westphalia in 1648. According to this system, the head of state or government would be entitled to deal with matters within the boundaries of his or her state without interference from abroad. The right of a foreign state to intervene would be limited to protecting its own interests or the interests of its citizens--jus protectionis.

Others would argue that state sovereignty is less relevant today for the simple reason that other actors have entered the scene--actors with more power than many sovereign states. There are today multinational corporations that by far overshadow many states in economic terms. Unfortunately, there are also transnational criminal syndicates that do the same.

I would suggest, however, that if we look at world governance there is presently no alternative to the sovereign nation state. On the contrary, the problem is that too many states are too weak and pose a risk to international peace and security.

But sovereignty is not the same as in the past. Today, sovereignty means among other things that the state should be governed under the rule of law with full respect for the human rights and the fundamental freedoms of those who reside in its territory.

You will recall that in September 2003 the then UN Secretary-General Kofi Annan appointed a High-level Panel on Threats, Challenges and Change. On 1 December 2004, the Panel presented its recommendations. In so doing, the Panel maintained that any event or process leading to large-scale death or lessening of life chances and undermining states as the basic unit of the international system is a threat to international security.

It is also important that we remind ourselves that the UN Charter is built on the principle of the sovereign equality of all its members. Another principle is that all UN members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. It is true that enforcement measures are permitted, but this is subject to a decision by the Security Council, based on the determination that there is a threat to the peace, breach of the peace, or an act of aggression.

The reality is that these provisions are not always respected--not even by states from which one has reason to expect better.

Let us now look at humanity. If we consult the dictionary that is named after the city where we are presently gathered, we find that one of the basic meanings of the word is humaneness/benevolence.

Sadly, humanity in the sense of human beings is often treated with little humaneness and benevolence. And yet, humanity in this latter sense is an aspiration that is generally recognised.

Over time an impressive body of law has been developed both at the national and international level for the protection of the human being. Human rights and humanitarian law are constant elements in the political debate. The number of conventions and other binding instruments in these fields is just as impressive as their contents. But the reality is that their implementation is far from satisfactory.

Human rights and humanitarian law are also high on the agenda of the United Nations and other international organisations. Numerous bodies have been set up to...