Global Governance, Human Rights and International Law

Combating the Tragic Flaw

Errol P. Mendes

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781134443611
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book offers a stimulating introduction to the links between areas of global governance, human rights global economy and international law. By drawing on a range of diverse subject areas, Errol P. Mendes argues that the foundations of global governance, human rights and international law are undermined by a conflict or 'tragic flaw', where insistence on absolute conceptions of state sovereignty are pitted against universally accepted principles of justice and human rights resulting in destructive self-interest for both the state and the global community. The book explores how human rights and international law are applied in some of the critical institutions of global governance and in the operations of the global private sector, and how States, institutions and global civil society struggle to fight this 'tragic flaw'.

The book is brought up to date by considering developments in the role of the IMF, the World Bank, bilateral investment treaties; the likely failure of the Doha round of WTO negotiations; the legacy of the 2008 financial crisis; and the role of the International Criminal Court and the evolving Responsibility to Protect doctrine in international peace and security crises in the Middle East, Central and West Africa among other regions of the world. With its intensely interdisciplinary approach, this book motivates new thinking in the realm of global governance and international law, and promotes the development of new strategies for negotiating between conflicting leadership and organisational values within global institutions.

The book will be of great interest and use to students and researchers of public international law, international relations and political science, business and human rights, global governance and international trade and economic law.

1 Combating the tragic flaw in the UN

1.1 The contested history of sovereignty and the promise of the Atlantic Charter

The architects of international law have long been driven by the need to find a unifying element to the chaos of inter-state relations. To this end Hans Kelsen developed the concept of the grundnorm, a fundamental legal principle or basic norm against which all other legal duties could be assessed and validated, or not as the case may be. In international law, this would be regarded as the fundamental principle from which all subsequent international legal rules flow. Even though Kelsen himself doubted that sovereignty was the grundnorm of international law,¹ prevailing practice and scholarly opinion have long regarded sovereignty as the grundnorm of international law, purporting that it govern all aspects of relations between states and also foundational aspects of the institutions of global governance.

This understanding of sovereignty was made fashionable in an 18th century treatise on the laws of nations by Emerich de Vattel, who envisioned a rigid conception of sovereignty as freedom from interference in the internal matters of the state. The leading international law jurists that followed this early architect generally built upon the concept. Robert H. Jackson like H. J Morgenthau defined sovereignty as ‘the basic norm, grundnorm, upon which a society of states ultimately rests’.² These opinions also find support in international case law. In the Lotus Case, the Permanent Court of International Justice ruled that restrictions on sovereignty could not be presumed. In the Nicaragua Case, its successor tribunal, the International Court of Justice, affirmed that a state’s domestic policy falls within its exclusive jurisdiction.³ Finally, as one scholar recently emphasised, the view of sovereignty as an international grundnorm can also be gleaned from the connection between sovereignty and the key norms found in the United Nations Charter (UN):

The sovereignty norm affirms the territorial integrity of the state and the rule of non-intervention. While many scholars have traced its development to the Peace of Westphalia, the sovereignty norm did not enter the lexicon of international law until the 18th century, with the writings of Emerich de Vattel. Since then, the stature of the sovereignty norm has increased. In 1945, its primacy in international law was affirmed through codification in Article 2(4) of the United Nations Charter: ‘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 …’. The International Court of Justice (‘ICJ’), which is the principal judicial organ of the United Nations, has acknowledged the importance of the sovereignty norm on numerous occasions.⁴

However, it is not universally accepted among international jurists that sovereignty is the grundnorm of international law. Andrew Clapham has argued that sovereignty is a changing notion that adjusts to the developing nature of international law. Furthermore, Bruce Broomhall has argued that sovereignty does not arise in a vacuum, but is constituted by the recognition of the international community, which makes its recognition conditional on certain standards.⁵

In this first chapter, the analysis will focus on the status of sovereignty, as the asserted grundnorm of international law and the institutions of global governance, and whether it has been undergoing an unprecedented and dramatic global transformation, despite the assertions of leading jurists and rulings from international courts that sovereignty is unfettered from any higher norm or principle. This thesis will be assessed through the events that occurred in the course of the past century, one of the most catastrophic and murderous periods in human history, which saw two global wars, a monstrous Holocaust and the proliferation of crimes against humanity, war crimes and genocide.

Powerful states such as China, Russia and India, along with leading international law jurists, cling tenaciously to the position that sovereignty and indeed international law are grounded substantially on notions of territorial independence and non-intervention. International jurists who support this view of sovereignty claim that its legitimacy can be traced back to the often evoked but less frequently understood Peace of Westphalia.

Leading historians specialising in the Peace of Westphalia have demonstrated that in creating the system that would end the religious wars of 1618–1648, none of the parties had envisaged the total impenetrability of territorial independence now enshrined in the UN Charter. Instead, the Treaties of Münster, Osnabrück and the Pyrenees, which constituted the Peace of Westphalia, envisaged the limitations and interdependence of the newly established sovereign powers. These new sovereigns realised that to prevent a Hobbesian state of perpetual brutal warfare, mutual recognition of each other’s internal sovereignty had to be established, but with limitations. These limitations included the fact that the treaties constituting the Peace of Westphalia did not define sovereignty as being absolute within a given territory. On the contrary, the treaties provided for an increase in religious rights for individuals and groups against their princes, with the ultimate aim of securing religious peace. The Peace of Westphalia signalled the evolution of sovereignty, from the unipolar world of the Holy Roman Emperor and Papacy to the multipolar world of states.⁶ Above all else, the rise of the Westphalian sovereign state was supposed to be about the legitimisation of the exercise of power within an emerging international society built on the remnants of the medieval Christian empire. The attempts at the legitimisation of power by secular rulers against the Papacy had been going on for hundreds of years before the end of the Thirty Years’ War. Until the Peace of Westphalia, these attempts were unsuccessful because the secular rulers resisted conferring religious rights on their citizens.

The Westphalian notion of sovereign states built on mutual recognition and non-interference (to a limited extent as long as religious rights were respected) would remain fragile in the centuries that followed. The rise of the pan-European empires and the resulting clashes between colonising powers exemplified that fragility. Two great world wars, genocide, mass atrocities and what proved to be one of the most savage periods in human history provide uncontested proof that if sovereignty is to be the grundnorm of international law, it will have to gain the acceptance of the broader international society, which demands that sovereign power must be exercised responsibly and legitimately. Ultimately, in the aftermath of the Second World War most states came to the recognition that the acceptance of its citizens’ fundamental human rights was critical to the legitimate and responsible exercise of both internal and external power.

However, despite the questionable historical origins of the impenetrable state, the absolute view of territorial sovereignty as the grundnorm of international law continued into the early 20th century. The consequence of this view was that the sovereign’s power could only be limited by consent, whether through treaties or other forms of interstate agreements. Eventually, the practice of sovereign states began to be treated as signifying the creation of legal obligations, thereby creating another limitation on state sovereignty in the form of international customary law. It was not until the 1940s, in one of the darkest periods of human history, amidst the development of international law and the emergence of global governance institutions, that the narrow view of territorial sovereignty, as the grundnorm of international law, began its dramatic transformation. Unfortunately, in the process of transformation, the legacy of the old grundnorm gave rise to a tragic flaw within the nature of global governance.

The concept of the tragic flaw is a metaphor adapted from ancient Greek and Shakespearean tragedy. It indicates how conflicting and opposing beliefs and natures, within both individuals and institutions, can ultimately threaten their legitimacy and sometimes even their very existence. The tragic flaw is manifest in the rules of international law and global governance through the perpetuation of the narrow conception of state sovereignty, which persists despite the evolution of a global society towards a more expansive definition of sovereignty, consisting in the legitimate exercise of state power through a respect of the fundamental rights of individuals and groups. This more expansive notion of sovereignty demands that the state exists to serve its people; the people do not exist to serve the state. In the course of the most catastrophic global war in human history, two of the leaders of the ultimately victorious side would lay down the foundations of this more expansive view of sovereignty and the need for the institutions of global governance to promote it.

In August of 1941, ‘somewhere in the Atlantic’, President Roosevelt agreed to meet with Winston Churchill and discuss the growing threat of aggression from Hitler’s Nazi Germany, and the increasing desire for world dominance of the Axis Powers. The United States (US) was still not at war, but the pressure was building from within the US to assist the British in what increasingly looked like a desperate attempt to save Europe, and Britain itself, from the shadow of fascist totalitarianism.

The location of the naval force that brought the two world statesmen together should be of special interest to Canadians, for it was at Placentia Bay in the waters off Newfoundland. A leading historian of human rights, Paul Gordon Lauren, describes the meeting of the leaders as an almost desperate attempt to save the peoples of Europe and the rest of the world from a cataclysm of evil.⁷ According to Lauren, the primary focus of the discussion between the two leaders concerned the role of the United States in the war. While the United States was still a nonbelligerent, discussions took place on how it could assist in the fight for the survival of freedom and human dignity in Europe, North Africa and Asia. The plan needed foundational principles that could serve to inspire and lead their respective populations into action. If the period since the Treaty of Westphalia had not already made it clear that the grundnorm was not holding, the actions by the Axis Powers and Nazi regime would forever shatter the immutable permanence of sovereignty and territorial independence as foundational principles of international law.

On 14 August 1941, Winston Churchill and Franklin D. Roosevelt – the leaders of the two great democratic powers standing in opposition to the Axis assault on the territorial independence and fundamental freedoms of persons across Europe and the greater part of the populated world – concluded their conference in a joint declaration of principles in what became known as the Atlantic Charter. The principles in the Atlantic Charter reinforced the notion of sovereignty, the alleged grundnorm of international law, but also included additional principles that they hoped would lead to a better future for the world:

FIRST, their countries seek no aggrandizement, territorial or otherwise;

SECOND, they desire to see no territorial changes that do not accord with the freely expressed wishes of the people concerned;

THIRD, they respect the right of all peoples to choose the form of government under which they live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them;

FOURTH, they will endeavour, with due respect for their existing obligations, to further the enjoyment by all States, great and small, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of the world which are needed for their economic prosperity;

FIFTH, they desire to bring about the fullest collaboration between all nations in the economic field with the object of securing, for all, improved labour standards, economic advancement and social security;

SIXTH, after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in the lands may live out their lives in freedom from fear and want;

SEVENTH, such a peace should enable all men to traverse the high seas and oceans without hindr...