Negotiating Sovereignty and Human Rights

Actors and Issues in Contemporary Human Rights Politics

Michaelene Cox, Noha Shawki

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780754677192
• eBook ISBN: 9781317089223
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Providing an overview of institutional developments and innovations in human rights politics, this volume discusses some of the most important current and emerging human rights issues. It takes stock of the initiatives, policy responses and innovations of past years to identify some of the challenges that will likely require bold and innovative solutions. The contributors focus on actors and/or issues that are outside the mainstream of international human rights politics; the chapters address issues that have only emerged as an important part of the international human rights agenda and generated much advocacy, diplomacy and negotiations since the end of the Cold War. These issues include: the International Criminal Court, the norm of Responsibility to Protect (R2P), the proliferation of small arms and light weapons and its human rights impact, truth commissions, and the rights of persons with disabilities. The contributions offer a direct challenge to entrenched notions of state sovereignty and represent a departure from established ways of policy making.

PART I
Actors, Institutions, and Institutional Innovations

Chapter 1
Redefining Sovereignty: Humanitarianism’s Challenge to Sovereign Immunity

Anne L. Clunan1

State sovereignty is at root a set of rules about institutional boundaries that divide political and territorial space and determine who can do what to whom and for what reason (Bull 1977; Kratochwil 1989; Holsti 2004).2 Human rights are seen as a critical challenge to state sovereignty, as they challenge its central premise of the state as the ultimate legal and political authority in world politics. How are the set of rules defining sovereignty—its boundary—changing, and what has produced those changes (Deutsch 1953; Haas 1964, 1990; Wendt 1999, 1994, Krasner 1999; Biersteker and Weber 1996; Ruggie 1993)? This chapter takes up these questions, and assesses how humanitarianism—in its legal forms—has undermined one of the classical tenets of state sovereignty—the immunity of state officials from prosecution for official acts—and yielded a new set of institutions and relationships among states and individuals.

State sovereignty has two components: internal sovereignty and external sovereignty (Bull 1977; Jackson 1990).3 Internally, the classical state sovereign has exclusive authority over a particular territory, in other words freedom from outside interference. With the 1648 Treaty of Westphalia as a convenient historical marker, states over the next three hundred years increasingly recognized each other’s rights to determine for themselves the structure and content of their internal political, economic, and social life. These rights were codified in the Charter of the United Nations. States, within a particular set of territorial and extraterritorial boundaries, have the authority to police their citizens and regulate their social, political, and economic relations. In the classical formulation of sovereignty, states have the right to establish the extent of hierarchical subordination of the individual to state authority.

Externally, the state sovereign has both the exclusive right to wage war, and international legal personality, allowing it to enter into binding contracts and generally conduct international relations (Roberts and Guelff 2000; Gray 2004; Walzer 1977).4 The institution of sovereignty creates clear rights and privileges as well as obligations and responsibilities of the state. Other actors do not have international legal personality, and cannot act as states internationally, including the right to sue a state. The right of legal personality is a core institution in international law, as it is in domestic law. It establishes which actors have the capacity to act within the institutional boundaries of legal orders. Sovereignty enshrines the state as the legal and the political actor at the international level. Without sovereignty, a state cannot legally enter into the game of international relations and its political clout is significantly hampered (Holsti 2004, 115).5 Traditionally, state sovereignty has imposed obligations that are externally oriented: responsibilities to act or refrain from acting towards other states as well as to make reparations for wrongful acts (Carter et al. 2003).6 The most important obligation is to refrain from interfering in the internal affairs of other states, as this would violate a state’s right to internal sovereignty.

The erosion of the institution of internal sovereignty has received much attention in the academic literature. The notion of exclusive authority over a territory was questioned first by the literature on the impact of interdependence, then the newer focus on globalization’s erosion of state control (Keohane and Nye 1989; Rosenau 1990; Strange 1996; Mathews 1997; Slaughter 2004). These works focus on the de facto erosion of internal sovereignty. Here the focus is on the reduced capacity of the state to control what occurs within its borders under the strains of increasing economic and information flows. As Stephen Krasner notes, such de facto challenges to internal sovereignty are not particularly new. He therefore argues against over-exaggerating the erosion of state sovereignty. Following the realist tradition, he views sovereignty less as a constitutive institution creating a society of sovereign states than as a cognitive script enacted whenever powerful actors deem it useful (Krasner 1993). Krasner argues that international institutions, including sovereignty, are fundamentally less institutionalized and path dependent than domestic institutions. As Krasner says,

Compromising the sovereign state model is always available as a policy option because there is no authority structure to prevent it: nothing can preclude rulers from transgressing against the domestic autonomy of other states or recognizing entities that are not juridically autonomous (Krasner 2001).

Krasner argues that because there is no hierarchy of authoritative rules at the international level, rulers will always be faced with situations in which different rules apply, and power and interest are most likely to determine how they act. Rulers will voluntarily or involuntarily abandon the institution of sovereignty as incentives and power dictate (Krasner 2001). As Krasner correctly notes, power remains at the center of international relations. Yet the international system is more institutionally developed than Krasner allows, and these institutions do affect the rights and powers of state sovereigns in important ways.

Recently sovereignty has been challenged de jure in ways that are undermining the basic and traditional powers of sovereigns. Material power alone cannot explain why states are changing the boundaries of the core institution that provides order and protects their rights internationally. Moreover, these changes have not only domestic but international consequences for states. One area in which the boundary of state sovereignty has been most changed is human rights and the emergence of international criminal law out of the laws of war and human rights. The creation and expansion of the human rights regime during the latter half of the twentieth century has been one of the most remarkable changes in international relations, setting the stage for the rise of post-Cold War innovations such as those examined in this volume. As Robert Jackson notes, the very “perception of international human rights violations presupposes general standards and expectations of humanitarian conduct,” in effect placing sovereign states within a broader web of international societal institutions (Jackson 1990, 141).

The human rights regime has changed the institution of state sovereignty in two ways. First, because certain human rights are understood to be universal, it has reduced the legitimate scope of all states’ internal sovereignty, in effect shrinking the exclusive jurisdiction of the state and increasing their accountability to other states. The past few years have seen efforts to institutionalize the norm of “contingent sovereignty” that links sovereign authority directly to the treatment of citizens (United Nations 2004). Second, it has given individual human beings legal personality to confront states. While at the time of their creation international conventions may have been entered into cynically and deemed to have little real significance, today these conventions have improved the capacity of individuals to act at the international level. They have also reduced the ability of states to act with legal impunity at home (Krasner 2001; Thomas 2001). A few examples help make this shift in sovereignty’s boundaries evident.

State Sovereignty Confronts Extraterritorial Jurisdiction

Increasingly, sovereigns are no longer able to claim absolute immunity from other states’ interference within their own boundaries or even beyond their borders. This applies both to the agents of the sovereign state as a whole, and to the head of state. The classical institution of state sovereignty conferred absolute immunity from laws and courts within other states on officials acting in the capacity of the state, regardless of the nature of the act.7 This classical notion of state sovereignty held that states only had authority to apply, enforce, and adjudicate laws over their own citizens and private foreigners, but not against foreign state representatives, even after they had left office. At the same time, this institution limited states’ accountability: sovereign states were not accountable to other sovereign states for acts committed within their sovereign jurisdiction or by their sovereign agents.8 For centuries, sitting and former heads of state enjoyed absolute immunity from prosecution by foreign courts unless they consented to appear before such a court.

The rule of absolute sovereign immunity was first challenged in its application to private commercial transactions conducted by state agents (Sweeney 1963; Fox 2004).9 The United States in 1952 replaced the absolute doctrine with the restrictive doctrine of sovereign immunity, in which “sovereign immunity should not be claimed or granted in actions with respect to real property…or with respect to the disposition of the property of a deceased person even though a foreign sovereign is the beneficiary.”10 This restrictive doctrine of immunity was recently codified in the 2005 UN Convention on Jurisdictional Immunities of States and Their Property. The restriction to exclude private property transactions (jure gestionis) from governmental actions (jure imperii) is easily explained through rationalist accounts of reciprocal policy coordination though it was never easy to practice (Robertson 2002, 405).

What is less easily explained in a straightforward rationalist manner is why states now increasingly exclude official human rights abuses from immunity. A shift in sovereignty’s boundaries has placed gross human rights abuses under extraterritorial jurisdiction, removing states’ exclusive jurisdiction over the persons on their territory. This shift has become the center of a battle royal between governments and judiciaries.

The Pinochet Precedent

1998 was a seminal year for international human rights. The arrest and 17 month detention of General Augusto Pinochet in London on a Spanish warrant set a precedent that has further reduced the boundaries of sovereignty immunity (Agence France Presse 2001).11 As a consequence, individual legal access to state officials dramatically increased and the privileges of state sovereigns have been further eroded. The mere act of serving a former head of state with an arrest warrant was an historic event, as states rarely place their human rights obligations above the “political benefits of avoiding international disagreements.” (Rothenberg 2002, 928) The Pinochet case fundamentally undermined the role of the sovereign state in two ways: immunity for official violations of human rights was revoked, and national courts exercised extraterritorial jurisdiction to punish human rights crimes in foreign countries, despite the diplomatic consequences.

The Pinochet precedent was not set overnight, and did not start or end in Great Britain. In 1996 Spanish and later non-Spanish citizens and their families filed suit in Spain in a special court, the Audencia Nacional, designed to investigate crimes such as drug trafficking that occur outside of Spanish territory. They charged former leaders of Argentina and leaders of the Chilean junta with terrorism and genocide. The Spanish high court overruled government lawyers’ arguments that these cases were not subject to Spanish jurisdiction.

Traditionally, states may claim jurisdiction over an alleged crime on the basis of the territory on which the act occurred (the territorial principle), the effects on a sovereign (the effects principle), the personality of the alleged perpetrator (the personality principle) or victim (the passive personality principle). By far the most common and accepted is the territorial principle, which reinforces a sovereign’s control over acts and persons within its territory. Jurisdiction to hear the cases involving Spanish victims of Chilean acts falls under the passive personality principle that states have the right to protect their citizens while abroad. States rarely assert this right to hear cases of foreign criminal acts, such as terrorism or political violence, involving their citizens. However, this principle does not cover non-citizens; for such a claim, the state must claim that the alleged crime is universally illegal. Until 2003 Spanish law specifically affirmed the principle of universal jurisdiction for certain crimes including genocide and terrorism. Because of the inclusion of non-Spaniards in the Argentinean and Chilean cases, the Spanish investigating judge argued that the alleged crimes were subject to universal jurisdiction (Rothenberg 2002, 933).

Universal jurisdiction is a part of customary international law that recognizes that some acts are so reprehensible that any state, not just the state in which the acts occurred or which suffered injuries as a result, may take jurisdiction over the perpetrator “because the offenders are ‘common enemies of mankind and all nations have an equal interest in their apprehension and prosecution.’” (Browne-Wilkinson 1999) Universal jurisdiction was used in the eighteenth and nineteenth centuries to prosecute pirates and slave traders. It fell out of use until the Nuremberg war crimes trials at the end of World War II. There, the allies relied explicitly on universal jurisdiction to prosecute Nazi officials for acts that were not illegal under Nazi Germany’s laws, but were deemed to be “crimes against humanity” (Bass 2000).

Using the argument that the alleged crimes committed in Chile were subject to universal jurisdiction, the Spanish investigating judge issued arrest warrants and an extradition request in late October 1998 while General Pinochet was on an unannounced visit to Great Britain for medical treatment. After his arrest, the Pinochet case went straight to Britain’s highest court, the Law Lords. The first panel of Law Lords ruled 3–2 in favor of extraditing the former Chilean head of state to Spain to stand trial on charges of crimes against humanity, unless the Home Office interfered. Remarkably, Home Secretary Jack Straw refused to step in after the first trial, “finding,” as Geoffrey Robertson puts it, “no reason not to let the law take its course.” (Robertson 2002, 397–8) Straw explicitly rejected the notion that Pinochet enjoyed immunity for the alleged crimes, and held that Britain’s obligations under international law overcame the usual deference to state sovereignty (BBC News World Service 1998).12 After a personal connection between one of the Law Lords and Amnesty International was made public, a second trial was held to establish the legality of extraditing Pinochet. This seven judge panel ruled 6–1 in favor of extradition, again subject to the Home Office’s determination that such extradition would not be unduly onerous (Browne-Wilkinson 1999). Straw ruled on 15 April 1999 that Pinochet should be extradited to Spain. After the second Law Lords ruling, medical examiners declared in October 1999 that Pinochet was mentally unfit to stand trial on the grounds that he had suffered brain damage following two strokes. After asking for a medical examination of the general, Home Secretary Straw allowed Pinochet to leave Great Britain for Chile in March 2000 (BBC News World Service 2000; AFP 2001). Subsequently, and much to the surprise of Chileans and international observers, the Chilean Supreme Court rescinded Pinochet’s life-time immunity (granted to him in 1990 as a condition of his transfer of power to a civilian government), and stripped him of immunity in three human rights cases (BBC News World Service 2004a, 2005).

Beyond Pinochet

What stands out for our purposes is that “In its ruling of 24 March 1999, the British Law Lords definitively rejected General Pinochet’s claim of immunity as a former head-of-state” (Wilson 1999, 977). Subsequent acts suggest the precedent has been set for a changed boundary of sovereign immunity. The Mexican Supreme Court in June 2003 ruled that a former Argentine military officer be extradited to Spain for alleged atrocities he committed in Argentina in the 1970s and 1980s (Peters 2003). Argentina itself has shifted its position and has detained 46 former military officials and repealed laws and edicts granting them and other officials’ lifetime immunity in preparation for extradition to European countries. Its Supreme Court ruled in August 2004 that there is no statute of limitations for crimes against humanity (Rohter 2003; Jonas 2004; BBC News World Service 2004b). In June 2004, the US Supreme Court upheld the Alien Tort Statute of 1789 (ATS), which allows US courts to assert jurisdiction for well-defined crimes committed outside the United States and against foreigners that are against the law of nations or self-executing treaties. The Court expressly rejected the claim that the ATS was meaningless, and affirmed the right of foreigners to use federal courts to...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Figures
• List of Tables
• Notes on Contributors
• Introduction
• Part I Actors, Institutions, And Institutional Innovations
• Part Ii Current Issues In International Human Rights
• Index