Sovereignty has been one of the most persistent notions in modern political theory and law. Since the Westphalian era of the sovereign state began in the seventeenth century and reached its peak in the nineteenth century, along with the emergence of its modern definition, the concept of sovereignty has had three different but intertwined meanings: a) supreme power or authority; b) the authority of a state to govern itself or another state; and c) a self-governing state.
The new world order that emerged gradually since the First World War is often depicted as the post-Westphalian era in which international organizations became increasingly independent sites of authority. The shift was accompanied by the so-called constitutionalization of the global order and the global attempt to regulate and moralize the international state of anarchy, through documents such as the Charter of the United Nations and the Universal Declaration of Human Rights (UDHR). This movement was further supported by the emergent post-colonial states that had become independent from European colonial rule, and the rise of international organizations, such as the United Nations.
This post-Westphalian era caused a dramatic change in the definition of sovereignty. The previously supreme arbitrary rule of sovereign power (i.e, states and national authorities) was now required to be bound, at least in theory, by internal (constitutions) and international laws (such as the UN charter, the UDHR, the 1966 covenants, etc). Despite its challenges, the scale of this major achievement was unprecedented in the history of mankind.
However, there are indications that the achievements of the post-Westphalian era and the authority of international laws have, in recent years, been increasingly challenged and are thus eroding, while the extrajudicial endeavors of governmental bodies in the name of security are prevailing. Whereas in the post-Westphalian era sovereignty was limited by legal structures, it is now reviving as the capacity to exact extra-judicial power.
The “global war on terror” that followed the September 11 attacks in 2001 is the best example and a central starting point of this new paradigm of sovereignty, through which national security and “state of emergency” measures justified restrictions and violations of human rights both internally and internationally. Aside from the massive destruction and the global destabilizing effects of this paradigm, a major consequence was the normalization of extrajudicial politics and the gradual exclusion of the rule of law.
The evolution of this new paradigm has been a function of the diversity of contexts and of the power and influence of authoritative states that have changed their model of sovereignty. In all cases, however, a “state of emergency” via executive orders has become a justifying tool for extralegal actions such as , , , usage of chemical weapons by the in its war against the oppositions, proliferation of nuclear missiles by , misuse of , and so forth.
As Yuval Noah Harari , in the post-truth world “with the rise of Big Data algorithms, it becomes increasingly easy to hack humans, manipulate their feelings and control their desires. So, eventually, freedom will mean the ability not to identify yourself with whatever feeling or desire pops up in your mind.” Such unprecedented ability to control the individuals by sovereign powers would be a major challenge to human rights.
In principle, Human Rights were designed to apply to all people and at all times, including situations of armed conflict. However, according to the on extrajudicial killings, the increased usage of extra legal means, such as drones in irregular warfare, has also become a major challenge to the system of international law including, most severely, Human Rights. As a matter of fact, then, this view that Human Rights have universal application is increasingly rejected from concerns that it would subject and limit the “defensive” measures of a particular state to supra-state legal regimes that do not directly appeal to the preservation of said state.
Nevertheless, states cannot be perceived merely as agents of “exceptionalism” since they still occupy important sovereign functions in the protection of their nationals. In fact, with the increasing influence of non-state and beyond-state actors, states as protective structures are becoming increasingly important. Of course, the trend has not been homogenous. In some parts of the world, the state as a protective structure as we previously knew it is dissolving, while in other parts, it is still playing an important role in the lives of its nationals.
In the contexts in which states retain their protective functions, non-state actors have become catalysts of the new condition of sovereignty. They include, for example, counter globalization and the fascination for populist movements such as in . The valorization of populist politics is partly rooted in the decline of the welfare state, increasing level of corruption and the deterioration of the economic situation for various strata of society. As a result, as Zygmunt Bauman and Carlo Bordoni argue in their State of Crisis, the “state of crisis” is in fact the “crisis of state”. Unlike state actors, these new “unsocial movements” are controversial. Whereas they demand equality, justice and more rights for their strata of society, they simultaneously can be chauvinist, racist, misogynist and polarizing within their societies.
This conundrum brought about by “unsocial movements” and a new paradigm of sovereignty is thus a clear challenge to the universality of Human Rights. While the features and consequences of the new condition are yet to be known, the challenges that it has created require immediate action. A number of new questions are now on the global agenda: What will happen to Human Rights and other universal norms, to agreements and declarations? How do we control and supervise the extra-judicial actions of sovereigns that do not intend to be bound by the law? Should we reconsider and redefine universality according to these overwhelming particularities? In this case, what will be the consequence of such a redefinition for the moral and inclusive structure of Human Rights and their application?
Because of this situation, the question of inclusion/exclusion, particularly “who is the human of the Human Rights?” seems more urgent than before. The reason is that if it is the sovereign who decides on the exclusions to the definition “humanity”, then humanity will surely not be a universal concept and not every actual human being will enjoy the full effect of their Human Rights. After all, we must remind ourselves that Human Rights intend to decrease the sufferings of all human beings. Otherwise, they will be neither obligatory nor meaningful. If the most vulnerable people such as migrants, the poor, politically suppressed, socially discriminated against and dislocated people are unable to enjoy Human Rights, its claim to universality becomes, in large part, artificial.
Above all, the new meaning of sovereignty suggests a strong correlation between politics and law. It reaffirms that Human Rights will not work efficiently in the absence of pertinent democratic sociopolitical structures. The rising tide of sovereignty valorized by the unsocial movements reminds us of a double movement on the part of civil society and Human Rights activists. In other words, there is a clear need for the democratization of political structures, and of society and the economy.
About the author
Fatemeh Sadeghi is an Iranian political scientist and gender studies scholar.
She is currently an O’Brien Fellow in Residence at the Faculty of Law of 鶹AV.