Note to Readers: This essay is part of a forthcoming book called Toward a New Partnership: International Norms in the U.S.-European Relationship since 1980 edited by Christine Inglebritsen and Sabrina P. Ramet.
In a volume entitled International Norms and Norm Enforcement, it is entirely appropriate, even essential, to consider the norms of sovereignty and human rights, as well as the key notion of the legitimacy of these norms, in the post-Cold War international system. And, of course, because Europe has historically been the source of these norms, it obviously makes sense to consider them in the context of European events. Each of these terms—sovereignty, human rights, legitimacy—in fact represents what one might call a bundle of prior value choices, choices which often go unexamined. Part of my task in this chapter will be to unbundle these built-in choices so that we may examine their character and interaction. Sovereignty, for example, encapsulates a conception of supreme political authority as well as an implicit scheme for organizing relations among states; and of course the contested discourse of human rights has penetrated virtually every kind of political debate. My argument in this chapter is straightforward: norms of human rights have fundamentally and irrevocably challenged traditional norms of national sovereignty. One may of course ask about the legitimacy of these challenges: but I shall further argue that the notion of international legitimacy itself is currently evolving in a way that emphasizes substantive ideas over procedural consensus.
Recent events and high level exchanges among diplomats and leaders have demonstrated, if such demonstration be required, that issues of the character of international norms and the nature of their enforcement engage practicing politicians as well as academic observers and theorists. Consider the following statements:
Such arguments as “human rights taking precedence over sovereignty” and “humanitarian intervention” seem to be in vogue these days. But respect for sovereignty and non-interference are the basic principles governing international relations and any deviation from them would lead to a gunboat diplomacy that would wreak havoc in the world.
Europe has found itself facing challenges. These challenges are global in nature, and their nature is directly bound up with changes in the international climate and the arduous quest for new models of co-operation.… Not all the ideas that have arisen in the course of the discussion about the future of Europe seem to us to be justified. I’m thinking in particular of the appeals for humanitarian interference—this is a new idea—in the internal affairs of another state, even when this is done on the pretext of protecting human rights and freedoms.
Both these speakers—China’s Foreign Minister Tang Jiaxuan at the United Nations and Russian President Boris Yeltsin at the November 1999 meeting of the OSCE in Istanbul—regard themselves as reaffirming the fundamental international norm of the sovereign independence of states, and a corresponding duty to respect the domestic jurisdiction of states. (At the same United Nations debate in September 1999, the Indian Foreign Minister warned that international action should not in anyway diminish state sovereignty.)
Both China and Russia condemned the NATO action in Kosovo in these terms: “the outbreak of war in Kosovo has sounded an alarm for us all. A regional military organization, in the name of humanitarianism and human rights, bypassed United Nations and took military action against a sovereign state. It created an ominous precedent in international relations.” Or as Yeltsin put it “we all know already what disproportionate consequences such interference can cause. Suffice it to recall the aggression of NATO, headed by the U.S., that was mounted on Yugoslavia. Now, on the threshold of a new era, it is more urgently necessary than ever before that our principal commandment for our joint efforts in Europe should be ‘Do not harm.’”
Clearly these statements all appeal to the traditional norm of sovereignty, and its corresponding norm of non-intervention. Other leaders and diplomats have offered starkly contrasting analyses of the intervention in Kosovo and of the relationship between sovereignty and human rights. Responding to Mr. Tang, the Chinese Foreign Minister, at the September UN debate, German Foreign Minister Joschka Fischer said, “The Kosovo conflict marks a change in the direction of the development of international relations. --one in which human rights are valued as much as sovereignty.” Václav Havel, President of the Czech republic, has expressed this interpretation with his usual eloquence, and I quote him extensively:
[Kosovo] is probably the first war ever fought that is not being fought in the name of interests but in the name of certain principles and values. If it is possible to say about war that it is ethical, or that it is fought for ethical reasons, it is true of this war. Kosovo has no oil fields whose output might perhaps attract somebody’s interest. No member country of the alliance has any territorial claims there and Milošević is not threatening either the territorial integrity or any other integrity of any NATO member. Nevertheless the alliance is fighting. It is fighting in the name of human interest for the fate of other human beings. It is fighting because decent people cannot sit back and watch systematic, state directed massacres of other people. Decent people simply cannot tolerate this and cannot fail to come to the rescue if a rescue action is within their power. This war gives human rights precedence over the rights of states.... I see this as an important precedent for the future. It has now been clearly stated that it is not permissible to slaughter people, to evict them from their homes, to maltreat them and to deprive them of their property. It has been demonstrated that human rights are indivisible and that if injustice is done to some, it is done to all.
Earlier in the same speech Havel asserted “the idol of the state must inevitably dissolve in a world that connects people, regardless of borders, through millions of links of integration-- ranging from trade, finance, and property, to information links that impart a variety of universal notions and cultural patterns.” And in his answer to Boris Yeltsin at the OSCE meeting in November 1999, President Bill Clinton said “In country after country, the ideals of human rights and the rule of law are now ascendant, and a quarter-century after Helsinki, the question is not whether democracy will survive, but when it will be embraced in every European country. ... I do not believe there will ever be a time in human affairs when we will ever be able to say we cannot criticize [an] action simply because it happened within the territorial borders of a single nation.”
As a final example of this view consider this assertion of a Turkish newspaper columnist, writing on the eve of his Prime Minister’s visit to Moscow: “On his way to Russia, Mr. Ecevit said that Chechnya is Russia’s internal affair. But in today’s world there can be no such thing. Human rights have become globalized, and no state can justify violating those rights by saying “this is our internal concern.”
Why multiply these quotations? In themselves they prove nothing, but they do, I think, illustrate an important change in the international normative environment: the traditional norm of sovereignty, as both the supreme source and location of values worth protecting, is increasingly being questioned. To put it differently, the legitimacy of state sovereignty—both as a commanding value and as the organizing principle of international relations—is being challenged by the cluster of values we associate with human rights. The February 2000 response of the European Union to Austria’s inclusion of a neo-fascist party in its government underlines this point. Citing human rights concerns, members of the EU essentially challenged the results of a standard election process within a sovereign state. For the purposes of this argument, the ultimate results of placing Austria on, as it were, diplomatic suspension, matter less than the fact that it happened at all. For here we have an instance of an international body taking action against one of its sovereign members because of the human rights implications of a domestic political process. Even if one may judge this to be an overreaction, or indeed inappropriate, the action shows that the claim of sovereign independence no longer automatically trumps other claims of values.
But what precisely is meant here by the norm of sovereignty? The term is notoriously prone to conflicting definitions. “Sovereignty” can be defined as “supreme authority” in a domestic political context, as juridical, international legal sovereignty, or as so-called “Westphalian” sovereignty, the characteristic institutional arrangement of the world into separate, independent territorial units, so-called because it can be traced, historically, to the Treaty of Westphalia in 1648. This version of sovereignty, i.e., a particular institutional arrangement of nation-states, is obviously the most relevant to the present discussion. Of course, as many have recognized, sovereignty has always been more an ideal-type than a faithful description of reality (thus inspiring Stephen Krasner’s title “organized hypocrisy”), and departures from the ideal type version are by no means new. This has led to another kind of distinction--formal or legal sovereignty versus operational sovereignty. States with formal, or legal, sovereignty may in fact have limited capacity to guarantee, or enforce, their autonomy from outside actors and influences. In a world of interdependence, in which currency values, capital flows, communications and energy are subject to no centralized control, states may claim to be independent and autonomous, but the operational reality obviously belies this claim.
My purpose in this chapter is not to survey empirically the erosion of Westphalian sovereignty or to assess its relative strength against the many inroads against it. Rather my concern is normative. In a process well described by Immanuel Kant in 1784, the system of sovereignty finds itself struggling against the universalism of human rights and a new set of institutions designed explicitly to guarantee these rights. The process is slow and evolutionary. A human rights regime is not straightforwardly replacing Westphalian sovereignty. Rather, it exists in a kind of creative tension with it, and we are witnessing (to quote Kant) “attempts to bring about new relations between states..... till finally, partly by an optimal arrangement of the civil constitution and partly by common external agreement and legislation, a state of affairs is created which, like a civil commonwealth, can maintain itself automatically.” Kant here describes a process that is not binary, but mutually reinforcing. On this view, the Westphalian system will gradually give way to a different "state of affairs," as a result of a process of internal and external change. The development of the European Union—with its roots in the European Steel and Coal Community, evolving to the Treaty of Rome’s European Economic Community, and finally to the current European Union—seems to exemplify the kind of evolution Kant had in mind. Gradually, the European states have moved to constrain their own sovereign independence in service of a broader goal of achieving a peaceful, more extensive, social order. This has not occurred all at once, nor has it meant the end of European sovereign states. But the EU does represent a significant normative and institutional change in the way heretofore quite independent states relate to each other. And it has, to a considerable extent, made war among its members quite unthinkable.
Legitimacy and the Westphalian system of sovereignty
Examined conceptually, the process we are observing amounts to a decline in the legitimacy of the norms of sovereignty and a rise in the legitimacy of the norms associated with human rights. But what is meant here by the concept of legitimacy? Rather like sovereignty, legitimacy is a problematic term. Typically, following Max Weber’s usage, it is deployed as a classification of claims to authority. Weber’s trichotomy of aristocratic, rational-legal, and charismatic legitimacy bases itself on the kind of claim to authority made by a ruler. For him the reasons people may submit to rule, or believe in the authority of a given regime, are “not decisive for the classification of type of [legitimate] domination… What matters is the kind of claim made by leaders.” But, as Carl J. Friedrich pointed out, this usage “confus[es], if not identif[ies]” legitimacy and authority. As he puts it “authority as the capacity for reasoned elaboration is capable of creating legitimacy whenever it provides good “reasons” for the title to rule.” For him, legitimacy “revolves around the question of the right or title to rule;” and it can be “achieved only when there exists a prevalent belief as to what provides a rightful title to rule.” 
Two key elements of legitimacy stand out in Friedrich’s approach: first, he focuses our attention on the character of the belief rather than the type of claim, and thus changes the subject of the inquiry from the ruler to the ruled; and, second, he reminds us that beliefs about legitimacy inevitably involve values. By what right does someone rule, or act? We can determine whether a regime possesses legitimacy by asking whether there is “some measure of agreement on one fundamental: the kind of rule that is right and the kind of ruler who is entitled to rule.” Thus legitimacy involves a value-laden belief as to who is entitled to rule on the basis of particular principles. What principles? Friedrich proposes four kinds of legitimacy: (1) religious, admitting of a number of some types, (2) juristic (philosophical), (3) traditional, and (4) procedural and pragmatic, based on performance. More recently, Sabrina Ramet has proposed that legitimacy be viewed “triadically,” as consisting of “moral, political, and economic aspects.”  Both Friedrich and Ramet point out that legitimate rule is more effective because it is based on consensual belief rather than sheer coercion or fear. Legitimate and illegitimate regimes can be expected to behave quite differently both internally and externally. Regimes confident of their own legitimacy, especially when the foundation of that legitimacy is a substantive belief in particular values, tend to treat regimes with the same kind of legitimacy with greater respect. Indeed, following Kant’s insight, there is now a whole literature suggesting that democratic or liberal states seldom, if ever, go to war with other democratic or liberal states.
These approaches to legitimacy focus on the character of domestic regimes, and they note that the beliefs of the ruled may often combine substantive and procedural or pragmatic elements. Thus, one may be a conservative and accept the rule of socialists because one believes in democracy and/or democratic procedures. But how do these beliefs operate at the inter-state level? In my view, the norms of sovereignty amount to the kind of legitimacy Friedrich calls procedural and pragmatic. Thus few believe deeply that nation-states should be the sole focus and source of our political values, but accept pragmatically that the system of sovereign states works to preserve domestic values. But what happens when deeply held values that resonate domestically—obviously I refer here to the values of human rights—conflict with the norms of sovereign independence? In such instances, I believe, especially in Europe, the substantive beliefs in human rights are slowly, but inexorably, coming to trump the procedural beliefs associated with sovereignty.
Why should this be so? A substantial part of the answer has to do with the power of the idea of human rights, as I shall argue in the next section. But what seems to me operative here is a kind of consistency in belief. If I believe that people are entitled to the rights codified in the Universal Declaration on Human Rights within my own country, there is an obvious consonance in believing that people outside my particular country have the same rights. Thus the polity of a legitimate liberal state finds it hard to understand why people just outside its borders should not enjoy the same rights as its own citizens do. Or, to put this more concretely, citizens in democratic Germany or France find it hard to understand why “sovereignty” should allow the leader of an illegitimate regime to persecute innocent people with impunity, just because those people live within that leader’s sovereign jurisdiction. In a Europe joined by common economic and political institutions, including a human rights tribunal in which individuals have the right to bring cases, the legitimacy of a human rights regime is growing ever deeper; and the willingness to suspend this belief for the procedural value of “respect for sovereignty” seems clearly to be waning. This seems to me to explain why European public opinion supported the NATO action against Serbia in the wake of the latter’s brutality in Kosovo, despite the predictions of many querulous American observers. The claims to sovereignty, and thus to non-interference, made by an obviously illegitimate regime paled against the deeply-held belief in the legitimacy of human rights norms, especially when carried out, or sanctioned, by entities (NATO, the EU, even the United Nations) themselves held to be legitimate.
Norms of Human Rights: Sources
The distinguished legal scholar Louis Henkin has called human rights “the idea of our time.”Certainly the discourse of human rights permeates contemporary politics, domestic and international, and seems to have provided a kind of normative lingua francawhich operates across many divides:
There is no agreement between the sector and the theological, or between traditional and modern perspectives, on man and the Universe. One cannot prove, or even persuade, whether a substantially free economy or substantial planning is more conducive to the good society or the good of individual man. But there is now a working consensus that every man and woman between birth and death, counts, and has a claim to an irreducible core of integrity and dignity. In the consensus, in the world we have and are shaping, the idea of human rights is the essential idea.
This “working consensus,” or in the terms of Friedrich employed above, this “prevalent belief” on human rights, exists for several different reasons. First, belief in human rights may proceed on several different foundations, philosophical or religious. One can, but need not, be a Kantian foundationalist in ethics to believe in the idea of human rights.
Of course, as the impressive body of work by the neo-Kantian philosopher Allan Gewirth demonstrates, this kind of philosophical commitment can yield an arguably universal foundation for human rights. Certainly Gewirth and his followers believe that his account of rights based on the “principle of generic consistency” provides a powerful philosophical basis for human rights. Other deontological approaches to ethics are also quite consistent with ideas of human rights. Utilitarians, especially rule utilitarians, also find the ideas of human rights quite compatible with their general approach to ethics. Even an avowed anti- or non-foundationalist like Richard Rorty, despite his disdain for foundations, nevertheless holds on to the idea of human rights as a useful expression of our “culturally mediated intuitions.” So one may arrive at the idea of human rights using quite different philosophical, even meta-ethical, routes.
Some legal scholars like Henkin avoid “philosophical constructs” altogether. On this view, human rights are essentially the result of agreements among states: “In international instruments, representatives of states declare and recognize human rights, define their content, and ordain their consequences within political societies and in the system of nation-states. The justification of human rights is rhetorical, not philosophical. Human rights are self-evident, implied in other ideas that are commonly intuited and accepted.” Here the task of the analyst is not to seek a universal philosophical (or religious) foundation for the idea of human rights; rather, it is to trace the origin and development of the international law and institutions concerning human rights. This approach to human rights has the advantage of relying on actual negotiations, agreements, legal instruments, and the evolving practices and institutions designed to enforce the norms. But of course it avowedly leaves the issue of foundations unaddressed.
Finally there is an approach to human rights that emphasizes its historical role in the evolution of modern states and the modern state system. Here human rights is treated as an extraordinarily effective idea, indeed, a vital tool, for the gradual elimination of tyranny and arbitrary rule. One may, without too much exaggeration, call this the approach of Kantian universal history. On this view, the importance of human rights lies not in the character of its foundation, nor in the evolution of international legal instruments, but in the role the idea of human rights has played in changing the way those with power may rule. This argument looks to the historical development of European politics as establishing a broad, historical pattern in which the values attached to human rights gradually, but inexorably, come to limit the arbitrary actions of government. Again, making no foundational claim, this approach to human rights emphasizes the sheer effectiveness of belief in the idea. The more prevalent the belief that rightful title to rule entails respect for fundamental human rights, the more difficult it becomes for rulers who deny these rights to establish or maintain legitimacy. Ultimately, rulers who deny the applicability of human rights will be forced to rule without legitimacy; they will need to rely on fear, coercion, or the absence of viable alternatives. And if one shares Kant's confidence, or even a less teleological version of historical inevitability (consider Kennan's remark in 1951 about the Soviet Union: “there can be no stability in any system which is based on the evil and weakness in man’s nature”), the idea of human rights will eventually come to win the day.
The variety of these approaches to human rights—foundational, legal, historical—suggests a reason for the ubiquity of the idea. It seems to require no agreement on fundamental philosophical or religious premises, even as it is compatible with many such premises. The notion that all of us have rights simply by virtue of our common humanity has spread far and wide, almost by virtue of its sheer power and simplicity. In her remarkable speech at the United Nations just after the adoption of the Universal Declaration on Human Rights in December 1948, Eleanor Roosevelt predicted that “a curious grapevine” would spread the ideas contained in the Declaration far and wide: “Information may seep in even where governments are not so anxious for it.” The “curious grapevine” has indeed penetrated through the walls of tyranny and oppression, even if in far too many places in the world today those walls still stand.
Thus far, I have described a change in the extent of the legitimacy of sovereignty and a concomitant deepening in the legitimacy of human rights, and I have explained this change largely in terms of the appeal of the values the idea of human rights seek to promote. To be frankly normative, and not just descriptive, in my view this is a development to be encouraged. For too long, states have coasted on a kind of presumptive legitimacy derived simply from their status as nation-states. The internal legitimacy of their rule has gone unexamined, unquestioned, as if a government’s treatment of its own citizens were opaque to outside scrutiny. States have (largely correctly) assumed that they could maltreat their own citizens or subjects with impunity: the outside world could not, or would not, critically examine such behavior, much less interfere with it. But the advance of human rights ideas has ended this opacity: we can now see in. Sovereignty no longer means that internal actions are beyond scrutiny. A state that oppresses and violates the autonomy and integrity of its citizens and subjects can no longer claim that sovereignty shields it from such scrutiny and “outside interference.” Indeed, the European Court on Human Rights has frequently sided with individuals who press a human rights claim against their home state, as in the recent ruling against Britain’s exclusion of gays and lesbians from its military. And although Western protestations against Russian military action against Chechnya proved to be ineffectual, these protests and inspections at least affirmed the principle that no state actions that so clearly violate human rights are beyond international attention, even when these actions are represented as internal matters.
Of course, the gap between international “attention” and effective action of prevention or enforcement is huge, and the image of a devastated Grozny haunts our collective conscience. Too many such images—from Srebenica, to Sarajevo, to Rwanda or East Timor—have crowded the landscape of sovereignty and international inaction. Not even Dr. Pangloss could look at such pictures with satisfaction. As Judith Shklar has written in her remarkable essay, “The Liberalism of Fear,” “We say ‘never again,’ but somewhere someone is being tortured right now, and acute fear has again become the most common form of social control. To this the horror of modern warfare must be added as a reminder.”
Thus, the next challenge for those who value human rights is to find ways to translate principle into action. Shklar suggests that “the liberalism of fear…concentrates on damage control….For this liberalism the basic units of political life are not discursive and reflecting persons, nor friends and enemies, nor patriotic soldier-citizens, nor energetic litigants, but the weak and the powerful. And the freedom it wishes to secure is freedom from the abuse of power and intimidation of the defenseless that this difference invites.” A condition for securing this kind of most basic freedom, I suggest, is to remove, or at least qualify, the protection or shield which sovereignty has afforded to all sorts of oppressive states. We must continue to press the notion that recognition of and respect for human rights must come before the principles of state sovereignty and non-interference. An egregious violation of human rights is no less so because it occurs within the borders of a particular state. “Today, what is internal doesn’t remain internal for very long,” UN Secretary-General Kofi Annan has said. “We have to examine our willingness to act in some areas of conflict while limiting ourselves to humanitarian palliatives in other crises that ought to shame us into action. We have to find rational guidelines or an understanding of the spectrum on which the choices of intervention exist. We need a new consensus…The founders of the United Nations in 1945 came out of a world war determined to stop conflicts between states. The time has come for our generation to look at its responsibilities toward civilians who in today’s wars are deliberately targeted.”
The deepening legitimacy of the ideas of human rights provides the context for Annan’s assertion. It is perhaps remarkable that the leader of an interstate organization is able to promote an agenda that many states, qua states, would find troubling, if not offensive. The Secretary-General surely understands this, but perhaps takes more seriously the article that opens the Universal Declaration on Human Rights: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” The Declaration may now be more a statement of lofty aspiration than a list of enforceable rights in a world of conflict within and between sovereign states. But this defines our task ahead: to translate the norms of human dignity and rights into practices and institutions that can make these norms realities. Immanuel Kant, at least, was confident that we human beings could do it: “The human race,” he wrote in 1793, “has made considerable moral progress, and short term hindrances prove nothing to the contrary.” 
 Quoted in the New York Times, Sept. 23 1999, p. A5.