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Sovereignty Rules: Human Rights Regimes and State Sovereignty

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This paper explores the relationship between Westphalian sovereignty, defined as the state’s domestic autonomy in relation to external actors, and international and regional human rights conventions. It disputes the dominant position in the scholarly literature, namely that the conventions compromise and constrain sovereignty. I argue that, on the contrary, the core international conventions have no effect on the autonomy of the state parties because they exclude enforcement and binding adjudication mechanisms. These conventions are quintessentially sovereignty-respecting institutions. The regional human rights systems in Africa, the Americas and Europe are different from the international conventions in that they have human rights courts with binding decision-making authority, thereby creating the potential for consensual compromises of sovereignty. From a global perspective, however, compliance with the courts’ decisions is exceptional and the dominant trend is to respect and protect sovereignty. In general, the norm of sovereignty takes precedence over the norm of human rights. This does not imply that sovereignty is ethically superior to human rights – rather, it is a consequence of the elemental fact that human rights regimes are constructed and overseen by states, whose paramount interests lie in preserving sovereignty.

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