No More: The Battle Against Human Rights Violations by David Matas

Author:David Matas [Matas, David]
Language: eng
Format: epub
Tags: General, Political Science, Political Freedom, History, Canada
ISBN: 9781554882434
Google: oy2Z6pzwKQgC
Goodreads: 17045383
Publisher: Dundurn
Published: 1994-10-01T00:00:00+00:00

PART IV

STATE REMEDIES

CHAPTER ELEVEN

SOVEREIGNTY AND THE RIGHTS OF THE INDIVIDUAL

In a conflict between sovereignty of the state and human rights of the individual, which is to prevail? That question assumes that sovereignty of the state and individual human rights are in conflict and asks us to pick one over the other. If for no other reason than that I am an individual and not a sovereign, I would prefer human rights of the individual over sovereign rights. But I do have a number of other reasons.

But first, I want to point out that there are two important respects in which the initial assumption is not true, in which sovereignty and human rights of the individual do not conflict.1

One has to do with the nature of sovereignty. Sovereignty of states is not absolute and unconditional. Sovereignty is limited by the restrictions states have imposed upon themselves. Once a state signs a treaty, it is bound by that treaty and cannot plead sovereign rights to violate it. For it has willingly limited its sovereignty by signing that treaty. Once the community of nations has developed a customary international law, through practice viewed as legally binding, then every state is bound by that law, as a member of the community of nations. The rights of sovereignty are one set of a package of rights defined by customary international law. The whole package of rights has to be examined to determine what sovereignty means and how far it goes. No state can pick one element of the package, sovereignty, and expect other states to recognize it to the exclusion of the rest of the elements of the package.

The rights of the individual are extensively defined and elaborated both by treaty law and by customary international law. The treaties which states have signed that articulate fundamental human rights are now a legion. To list only a few, there is the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; and the Convention on the Elimination of All Forms of Racial Discrimination.

One cannot say that these treaty rights conflict with sovereign rights. States, exercising their sovereign powers, have chosen to be bound by them. Rather here, sovereign rights and the rights of the individual are in consort. They stand together in the same corner of the ring.

There are two corollaries that follow from this observation. Everyone, presumably, wants to minimize the conflict between sovereign rights and the rights of the individual. In so far as that is so, we would want to encourage as many states as possible to sign and ratify as many international human rights instruments as possible. The more international human rights instruments states accept, the more their sovereignty is limited by the obligation to respect the rights of the individual.

Secondly, we would want to see as many international human rights instruments developed as possible. New instruments can articulate new standards that become acceptable to the international community.

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