State Sovereignty vs. Human Rights
Dr Gyan Basnet
Human rights help to define the inherent dignity of every human being: they belong to us all in equal measure because we are all human - male or female, young or old, rich or poor, atheist or believer. They are a set of minimum standards that one may expect by virtue of being human – a universal concept that reaches out to every person alive. However, a huge dilemma arises when sovereignty challenges human rights since each is seen as a fundamentally opposite concept.
Throughout history, the idea of human rights has confronted antagonistic claims based on conceptions of sovereignty. In democratic states, citizens may take their rights - especially their human rights - for granted. Indeed, to guarantee basic human rights might seem to be a policy that any and every state and society could support, but in many the matter is highly contentious, and central to the debate always is the issue of sovereignty. Heinous violations of human rights continue to persist, and the perpetrators continue to claim that they are protected by ‘national sovereignty’ and the internal policy of their state.
Many times in the past and now very recently we have experienced this dilemma in our own context. In the wake of the arrest of Nepal Army Colonel Kumar Lama in London for alleged torture and extra-judicial detention during the ten-year conflict, the Nepal government and all political parties have voiced strong opposition to the UK government’s move. They claim that the arrest is an infringement of Nepal’s national sovereignty and that the whole thing is an internal matter for this country alone. Moreover, the Maoist party, which leads the coalition government at present and was the initiator of ten-year civil war, regards the issue as a serious conspiracy against itself. The case then certainly highlights the tension between human rights and state sovereignty.
Many questions need to be asked today: How can the norms and values of human rights be regarded as nothing more than an internal matter in the 21st century? Should the values of the rule of law, constitutionalism, the right to life, the right to a fair trial, and the right to protection from torture, crimes against humanity, genocide and war crimes not be matters of universal concern? Is the position taken by our government, our political parties and their leaders that the arrest of Colonel Lama is an internal matter and that foreign intervention is in a matter of national sovereignty not contradictory and paradoxical in view of the international human rights covenants and other instruments to which Nepal is a signed-up party?
The Westphalian Syndrome
Sovereignty is the supreme power by which a state is governed. The concept is often associated with the notion of absolute power and authority of governments and states with no role for external agents in domestic structures. It was perceived in the Westphalian framework of world order as it emerged from the peace treaty that concluded the Thirty Years War in 1648. The framework was regarded as establishing the modern European system of territorial states premised on the juridical ideal of sovereign equality. It recognises sovereign prerogatives that possess unconditional authority in state and society relations. A Westphalia nation-state has two main characteristics: ‘a specific area of land which is considered part of the nation, called territoriality, and a ruling structure that has the ultimate power to rule over the nation without yielding to any external agency.’ Such states are constitutionally independent (sovereign) and have exclusive authority to rule within their own borders and territories.
Since the mid-20th century, however, an impressive body of international conventions has provided for the protection of human rights in almost all spheres of social and political life: sadly, though, their enforcement in several parts of the world is lagging. Moreover, it is state sovereignty that has been the major factor in arriving at such a lamentable state of affairs. It is, indeed, the principal ground for rejecting international human rights standards, their norms and universal values.
It is crucial to appreciate, therefore, that the Westphalian concept of sovereignty has ceased to apply in the new global society with its increasingly powerful non-state actors. The erosion of national boundaries means a world without borders or, as Professor Serge Sur puts it, a ‘new world with no shores’. In this world without geography, the economic links resulting from worldwide communications, goods and services mean a new and deeper interdependence. Westphalian sovereignty has ceased to be relevant. The flow of people, technology, the Internet, mass media and ideas across territorial boundaries has rapidly eroded the traditional concepts of sovereignty and territorial integrity.
The Erosion of Sovereignty
In recent decades, the world has advanced its pursuit for global justice. Human rights have matured beyond expectation and now exert a moral and political force above the legal order of the state. According to David Scheffer: ‘In the post-Cold War world . . . a new standard of intolerance for human misery and human atrocities has taken hold . . . There is a new commitment – expressed in both moral and legal terms – to alleviate the suffering of oppressed or devastated peoples.’ The Universal Declaration of Human Rights, which describes itself as ‘a common standard of achievement’, is now accepted as declaratory of customary international law.
Article 55 of the UN Charter clearly states that ‘the United Nations shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all’ and Article 56 provides that ‘all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55’. The Charter mandates all members to make commitments, in co-operation with the UN, to protect, promote and further human rights as part of the universal obligation and global responsibility for a common goal of social justice. In addition to those provisions of the UN Charter that protect and consolidate human rights and fundamental freedoms, numerous subsequent multilateral, bilateral and regional treaties have been implemented to protect human rights and absolutely limit the sovereignty of states. These include the Conventions on Torture, Genocide, Refugees, Race, Children, Discrimination against Women, and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. These conventions, ratified by a majority of the world’s states, limit the range of permissible actions that a state may take vis-a-vis its own citizens, thereby limiting its sovereignty and territorial authority.
This subversive thrust is reinforced by the development and institutionalization of international criminal law, the enforcement of accountability claims against pariah leaders such as Milosevic and Saddam Hussein, the establishment of the International Criminal Court, and the issue of arrest warrants for many war criminals. Human rights are now clearly a matter of international concern, and the international community values human rights above national sovereignty.
The human rights standards that came into being after World War II were not drawn up by a few powerful nations. On the contrary, they were drafted by representatives from many countries, who agreed that state sovereignty could never be used to justify practices, such as genocide and torture, by any government. It is wrong, therefore, to support the contention that internal human rights are ‘essentially within the domestic jurisdiction of any state’ and hence insulated from international law. As Professor W. Michael Reisman rightly argues: ‘The international human rights program is more than a piecemeal addition to the traditional corpus of international law, more than another chapter sandwiched into traditional textbooks of international law. By shifting the fulcrum of the system from the protection of sovereigns to the protection of people, it works qualitative changes in virtually every component.’
The state is now the servant of the people. The world can no longer permit nations intent on committing crimes against humanity, genocide and mass killings to hide behind the excuse that what they do is purely an internal matter. Human beings and their wellbeing must be placed at the centre of global politics, and both national and international politics must be guided by the general interests of the people, their empowerment and, most importantly, the protection and promotion of their freedoms regardless of race, origin, religion and geography. Achieving a common humanity is the motto of the human rights concept in the 21st century, and state sovereignty can be no barrier to achieving that goal.
The Primacy of Human Rights
It has been argued that ‘a government that engages in substantial violations of human rights betrays the very purpose for which it exists and so forfeits not only its domestic legitimacy, but its international legitimacy as well’. The power of human rights now has a global reach, and their jurisdiction crosses all borders. The classical concept that so-called ‘state sovereignty’ provides a shield against ‘universal jurisdiction’ has already diminished. States can no longer claim sovereign rights in order to violate human rights. Human rights after globalization should be, in the words of Ronald Dworkin, ‘political triumphs that outrank sovereignty, laws, or cultures’. Or as Kofi Anan noted: ‘Sovereignty cannot provide excuses for the inexcusable.’ I strongly believe that if the doctrine of sovereignty could be erased from the minds of our politicians, it would certainly help to reduce many forms of human suffering that we face today.
The present government must change its illiberal attitude towards fundamental freedoms, with its unnecessary encroachment on the media, and its open interference with the justice system of the country. All recorded perpetrators of heinous human rights violations in the conflict era need to be brought to a court of justice and punished according to the law. The existing criminal justice system must be made more effective. A transitional justice mechanism must be established with the existing criminal justice system and the truth commission working in parallel to establish the truth and provide greater justice for all. Alongside these, Nepal must ratify the Statute of the International Criminal Court without delay in order to deter similar rights’ violations in future.
Nepal cannot deny the international jurisdiction of human rights in the way that it protested in Colonel Lama’s case. That was wrong and brought shame on our country in front of an international audience. We simply must accept that human rights as derived mostly from international bills can no longer be regarded as ‘internal matters’. In today’s world, the authority and legitimacy of any governmental action depends on its linkage to justice, and not simply to power. Vaclav Havel once declared that ‘the rights of human beings are above the rights of states’, and he called on the ‘higher moral law’ of human rights to guide the future international order. The terms ‘state sovereignty’ and ‘internal matter’ have no place in any plea for impunity where a gross violation of human rights is concerned.
(Basnet, a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Constitutional Lawyer in the Supreme Court. Email: firstname.lastname@example.org)
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