In the context of international relations, sovereignty is no more or less than the legal identity of a state based upon exclusive jurisdiction within the limits of its national territory combined with the right to autonomously interpret its own national interests and the discretionary authority to act accordingly. Like other legal principles governing jurisdiction, it is not absolute. Indeed, universality and human dignity – those two grand principles that are the foundation of human rights – constrain the meaning of state sovereignty in theory as well as in actual practice. Naturally, to actually realise protection of individuals and collectivities against their own state requires a good deal of judicial activism.
The state is a historical reality that cannot be understood “apart from its realisation in the development of human society” (Dooyeweerd 1957: 411). Its core feature is to present itself as “an institution of the public interest, in which political authority is considered a public office, not a private property” (Dooyeweerd 1957: 412). The link with public justice implies duty rather than mere discretionary power. A real step forward in this connection is the current emphasis on the other side of the sovereignty coin: the “responsibility to protect” (International Development Research Centre 2001). In other words, sovereignty, in the sense of the execution of national authority, implies responsibility in addition to discretion, although the emphasis has been on the latter for too long. (Incidentally, that notion is far from new, as illustrated in the notion of Carence de Souveraineté.19)
Originally, sovereignty as a combined right and duty to execute public-political authority lay with the Sovereign, i.e. the executive. As such, the role of the legislature was to act as a mere consultative assembly for monarchs (Loewenberg 2007). Yet, it is precisely in this branch of public office that the notion of limits to the powers of the state originates. Although they are the bearers of the responsibility to protect, legislatures are nevertheless restrained by their plural nature to being arenas for mere debate rather than effective decision-making bodies (Loewenburg 2007). This is clearly not the case regarding the third branch of state power: the judiciary. In order to protect citizens against any abuse of power that violates their basic rights, members of this institution have to be appointed to an independent position and they must preserve the autonomy of that position in day-to- day judicial decision-making.
Indeed, the importance of creating and maintaining an independent, impartial, competent, legitimate and effective judiciary cannot be overestimated (Bakker 1998). Indeed, sovereignty as “responsibility to protect” confronts us with the complex relationships between the three branches of state power: the legislature, the executive and the judiciary. In each of these, people charged with the execution of state authority – the “government” – are not free to use their powers in a fully discretionary manner, but are bound to principles, rules and values incorporated in laws. Foremost among these is the constitution, which creates a “regime” governing the realisation of public order and justice. In this regard, the relevant notions from a human rights perspective are democracy and the rule of law. In the narrow sense of the legality principle, the rule of law implies that everyone, including the state itself and its functionaries, is subject to the law in the sense of clear and unambiguous rules and standards that generally have no retroactive effect. It is rather questionable whether that would be possible without the fundamental characteristics of a democracy, namely, functioning mechanisms for the substitutability of individuals in power; a judiciary that is impartial, independent and accessible; and general arrangements for the participation of those affected by public-political decision-making. While Singapore, Hong Kong, Oman, Kuwait, Bahrain and the United Arab Emirates are often mentioned as undemocratic instances of an effectively functioning rule of law (Peerenboom 2005; Janse 2008, 20) in actual judicial practice protection of basic freedoms in these countries appears to be rather constrained. The acid test of democracy, as Geoffrey Robertson (1998) once put it, “is a justice system where there is at least a chance, a possibility of beating the state at its own game”. A key concern underlying the effort to incorporate international human rights standards into sovereign political arrangements, in other words, lies in the relations between the three distinct branches of state power. Here, international standards and mechanisms on the limits of national discretion may well play their part.