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State Sovereignty and International Human Rights

  • Jack Donnelly
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I am skeptical of our ability to predict, or even forecast, the future—of human rights or any other important social practice. Nonetheless, an understanding of the paths that have brought us to where we are today can facilitate thinking about the future. Thus, I approach the topic by examining the reshaping of international ideas and practices of state sovereignty and human rights since the end of World War II. I argue that in the initial decades after the war, international society constructed an absolutist conception of exclusive territorial jurisdiction that was fundamentally antagonistic to international human rights. At the same time, though, human rights were for the first time included among the fundamental norms of international society. And over the past two decades, dominant understandings of sovereignty have become less absolutist and more human rights–friendly, a trend that I suggest is likely to continue to develop, modestly, in the coming years.

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NOTES

1 Philpott, Daniel, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton, N.J.: Princeton University Press, 2001).

2 Consider Sections 1, 4, and 7 of Article 2 of the UN Charter. “The Organization is based on the principle of the sovereign equality of all its Members. . . . All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state . . . . Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state”—that jurisdiction being understood territorially. Although Article 10 of the Covenant of the League of Nations also guaranteed territorial integrity and political independence against external aggression, these words never were supported by a pattern of state practice.

3 Going back to Westphalia, particular issues that we today consider matters of human rights—most notably minority rights—were addressed. See Krasner, Stephen D., Sovereignty: Organized Hypocrisy (Princeton, N.J.: Princeton University Press, 1999), ch. 3. A general concern for human rights, however, was first stated in the Charter.

4 For introductory overviews of multilateral implementation mechanisms, see Forsythe, David P., Human Rights in International Relations (Cambridge: Cambridge University Press, 2012), ch. 3; and Donnelly, Jack, International Human Rights (Boulder, Colo.: Westview Press, 2013). In much greater depth, see Alston, Philip and Megret, Frederic, The United Nations and Human Rights: A Critical Appraisal (Oxford: Oxford University Press, forthcoming).

5 The principal exceptions were highly politicized campaigns directed at human rights abuses in South Africa, Israel, and Chile.

6 Kofi Annan, “Two Concepts of Sovereignty,” Economist, September 18, 1999.

7 The central document outlining the doctrine of the responsibility to protect is the report of the Intentional Commission on Intervention and State Sovereignty (2001). For recent developments, see www.globalr2p.org/, www.responsibilitytoprotect.org/ and the journal Global Responsibility to Protect.

8 Rather than an indication of regional bias, this largely reflects the intersection of the jurisdiction of the court (which must be voluntarily accepted) and the global geographical distribution of potential cases. Furthermore, four of the situations were referred by the governments of the states in question.

9 The story I tell here focuses on international action on behalf of human rights. Globalization, however, may also have malign effects on the national enjoyment of human rights. Because enforcement is almost entirely reserved to states, reductions in state capabilities, which are widely seen as a consequence of globalization, may reduce their ability to provide human rights protections—unless alternative mechanisms of protection and provision are developed (which do not seem to me to be on the horizon).

10 The strong regime of regional judicial enforcement of the Council of Europe is a cold war era creation that has only incrementally (although not insignificantly) expanded over the past two decades.

11 The idea of “soft law” points in a similar direction, but with a problematic assumption that “hard” law is treaty law. Discussions of soft law also often focus excessively on paper norms (rather than state practice).

12 Chayes, Abram and Chayes, Antonia Handler, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Mass.: Harvard University Press, 1995).

13 The literature on global governance is immense and varied. For useful overviews, see Avant, Deborah D., Finnemore, Martha, and Sell, Susan K., Who Governs the Globe? (Cambridge: Cambridge University Press, 2010) and Weiss, Thomas G., Global Governance: Why? What? Whither? (Cambridge: Polity, 2013).

14 Simmons, Beth A., Mobilizing for Human Rights: International Law in Domestic Politics, (Cambridge: Cambridge University Press, 2009); and Risse, Thomas, Ropp, Steven C., and Sikkink, Kathryn, The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge: Cambridge University Press, 2013).

15 Merry, Sally Engle, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press, 2009), p. 5.

16 Mills, Kurt, Human Rights in an Emerging Global Order: A New Sovereignty? (New York: St. Martin's Press, 1998), p. 10; and Cardenas, Sonia, “National Human Rights Commissions in Asia,” in Montgomery, John D. and Glazer, Nathan, eds., Sovereignty Under Challenge (New Brunswick: Transaction Publishers, 2002), p. 57.

17 Aceves, William J., “Relative Normativity: Challenging the Sovereignty Norm Through Human Rights Litigation,” Hastings International and Comparative Law Review, 25, no. 3 (2002), pp. 261–78; Clark, Ann Marie, Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms (Princeton, N.J.: Princeton University Press, 2010), p. 25.

18 Viljoen, Frans, International Human Rights Law in Africa (Oxford: Oxford University Press, 2012), p. 20.

19 Schwab, Peter and Pollis, Adamantia, “Globalization's Impact on Human Rights,” in Schwab, and Pollis, , eds., Human Rights: New Perspectives, New Realities (Boulder, Colo.: Lynne Reinner Publishers, 2000), p. 214.

20 Krasner, Stephen D., “Compromising Westphalia,” International Security, 20, no. 3 (1995), pp. 115–51.

21 Donnelly, Jack, “International Human Rights Since 9/11: More Continuity than Change,” in Goodhart, Michael and Mihr, Anja, eds., Human Rights in the 21st Century: Continuity and Change since 9/11 (Houndmills, Basingstoke: Palgrave Macmillan, 2011).

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Ethics & International Affairs
  • ISSN: 0892-6794
  • EISSN: 1747-7093
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