Sovereignty: Is it a defence to cover up?

January 29, 2014

Introduction The term sovereignty is frequently confronted with hostile claims. Human right and anti corruption movements are often challenged by various groups with different notions and ideologies on sovereignty. The purpose of this brief article is to examine some of the legal issues with reference to the concept of sovereignty in a global political context, especially in the light of the UN harter. !mergence of concept of sovereignty It is interesting to note that the emergence of sovereignty too" place at a time where #rance, !ngland and $pain were loo"ing for philosophical %ustification to have &supremacy over citi'ens without being bound by law and without recognising any external superior(. #rench writer )ean *oding +,-./0123 supplied the theory that &sovereignty is power supreme over its citi'ens and sub%ects, and not itself bound by the laws(. He too, however, thought that the sovereign rulers are sub%ect to at least two limitations vi'. &moral responsibility for his actions, and private property was inviolable without sub%ect4s consent(. $everal philosophers developed the theory and for example, Hobbs argued that $overeignty is so absolute that consistent misrule on the part of the sovereign gave the sub%ect no right to rebellion. Unqualified obedience was expected. The great philosopher *entham +,5670 ,7.83 had defined sovereignty as &any person or assemblage of persons to whose will a whole political community are +no matter on what account3 supposed to be in a disposition to pay obedience9 and that in preference to the will of any other person(., In application of this theory to national legal systems and political realities, philosophers such as :ousseau +,5,80 ,5573 and )ohn ;oc"e +,2620,58.3 challenged the basis of the concept of sovereignty9 they saw sovereignty being vested in the people themselves as expressed in their general will. $overeignty has thus turned to be a political tool in different historic settings, influencing

political revolutions and constitutional ma"ing. It is in this context, many onstitutions, including ours, recognise the concept of sovereignty8. <s pointed out above, the concept of sovereignty emerged initially as a domestic or internal facet for state control or command but later became a matter of external characteristic against interference. =rotius, regarded as father of international law, developed the theory in a historic context of the thirty year war, which devastated !urope between ,2,70,267, resulting in emerging nation states. =rotius emphasised &the external aspects of sovereignty > sovereign states were independent of foreign control(.. !xternal or state sovereignty deals with the relationship of a ruler with another ruler or a state. Ian *rownlie describes the principle corollaries of state4s sovereignty and equality as follows? &+,3 )urisdiction, prima facie exclusive, over a territory and a permanent population living there9 +83 duty of non intervention in the area of exclusive %urisdiction of other states9 and +.3 dependence of obligations arising from customary laws and treaties on the consent of the obligors.(6 $uffice it to refer to the third element above in order to emphasise the fact that, there is no violation of external sovereignty, if any action is ta"en in terms of &customary laws and international treaties(. To ma"e this part of the article complete, let me also cite @artti Aos"enniemi, who ac"nowledged the difficulty in defining the meaning of sovereignty but attempted to characterise sovereignty as follows? &in the relations between $tates signifies independence9 independence in relation to a portion of the globe is the right to exercise therein, to the exclusion of any other $tates, the functions of a $tate(.ritical current international debate The application of human rights norms was initially resisted, and still being resisted by a few states including our own in a political context, rather than a conceptual basis. Boctrine of Human right accepts that a gross abuse of human rights is no longer a matter of domestic %urisdiction. It recognises the universality of human rights as well as the duties of the international community to collectively advance and protect them. In the context of United Nations onventions and Treaties, $tates are sub%ect to various reviews, which have become part of the international human rights law. Thus, based on various state obligations arising out of those treaties and conventions, international law permits member states, expert panels, treaty bodies etc. to examine the status of human rights of a sovereign state. No doubt, this can be seen as interference into domestic affairs of a country, unless we closely examine the relevant provisions of the UN harter. Cn the other hand, whether we li"e it or not, globalisation too has made the world smaller and open in every aspect. To ma"e this point shorter, let me reproduce the often quoted words of one0time UN $ecretary =eneral, Aofi <nnan on the concept of sovereignty in today4s context? &$tate of sovereignty is redefined by forces of globalisation and international cooperation. The $tate is now widely understood to be a servant of the people and not vice versa. <t the same time, individual sovereignty had been enhanced by renewed conscious of the right of every individual to control his or her own destiny. Those parallel did not lend themselves to simple conclusions. They did, however, &demand of us a willingness to thin" anew( how the United Nations responded to political, human rights and humanitarian crises affecting so much of the worldD.(2

It is therefore my contention that the doctrine of sovereignty has changed its original meaning due to the emerging global treads and has now gained a position that is consistent with the modern trends in human rights. <rticle 8+53, Non Interference and !volution of Thin"ing It is <rticle 8+53 of the UN harter that is often cited to thwart the development of pro0human rights global developments and to restrict the application of international human rights standards to domestic situations. <rticlde8 +53 states thus? &Nothing contained in the present harter shall authorise the United Nations to intervene in matters, which are essentially within the domestic %urisdiction of any state or shall require the members to submit such matters to settlement under the present harter9 but this principle shall not pre%udice the application of enforcement measures under hapter EII.( The literal meaning of this <rticle suggests that no country can interfere in another country in its domestic affairs. *ut, is that the meaning, when there are gross violations of human rights in a countryF <re we to forget that the United Nations Crgani'ation was founded in response to the unprecedented gross human rights abuses by HitlerF <re we to overloo" the fact that the international community came together to ensure that gross abuses of human rights would not be tolerated in the futureF In fact several other provisions of the harter echo the basic ob%ectives of the UN, which includes &promotion( of human rights and fundamental freedoms5. In fact, in interpreting <rticle 8+53, the global community and experts have adverted, inter alia, to <rticles -- and -2. !xcerpts of <rticle -and -2 are given below? <rticle --. Gith a view to creation of conditions of stability and well0 being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self0 determination of peoples, the United Nations shall promote? +a3.. +b3D +c3 universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sec, language, or religion <rticle -2. <ll @embers pledge themselves to ta"e %oint and separate action in co0operation with the Crganisation for the achievement of the purposes set forth in <rticle --. It too" a considerable time to deal with the tension on the two &seemingly conflicting( provisions as aforesaid. In this route, many treaties had to address specifically how state parties cooperate with the UN and respect and protect human rights in specific country. In the mean time, UN organisations have developed practices to avoid the conflicts. <rticle , of the harter spells out the Hurposes and Hrinciples of the UN, which specifically recognises that it is the duty of the UN to &achieve international cooperationD in promoting and encouraging respect for human rights and for fundamental freedoms for all(. UN has established the ommissioner of Human :ights and now a Human :ights ouncil. UN and its Treaty *odies have also ta"en many strides in promoting human rights in line with the UN harter. The UN harter itself contains many provisions enabling the &lifting the veil of sovereignty( in appropriate cases involving gross human rights abuses.

Nevertheless, from time to time, few $tates too" up the defence of sovereignty, in opposition to the application of international human rights instruments, affecting their respective countries, primarily based on the restrictive interpretation of <rticle 8+53 of the harter. ;et me go bac" to few instances to ascertain whether &defence of sovereignty +i.e. domestic %urisdiction defence or non0interference3 is maintainable. The &domestic %urisdiction( defence was effectively challenged during $outh <frican apartheid period. ;et4s briefly examine the issues involving the position ta"en by the $outh <frican apartheid regime and UN response to it. In ,1-8, UN =eneral <ssembly appointed a $pecial ommission on :acial $ituation in $outh <frica and the Union of $outh <frica raised the defence of &non interference( under <rticle 8+53. This ommission however concluded that &<rticle 8+53 prohibited only &dictatorial interference, a phase interpreted as implying a peremptory demand for positive conduct or abstention > a demand which if not complied with involved a threat of or resource to compulsionD <rticle 8+53 referred only to direct intervention in the domestic economy, social structure or cultural arrangement of the $tate concerned but does not in any way preclude recommendations, or even inquiries conducted outside the territory of such $tate.(7 This interpretation sealed off the counter argument that intervention is absolutely impermissible in case of gross violations of human rights. Invocation of domestic %urisdiction defence has not been successful in gross abuses of human rights in Israel, <fghanistan, hile and many other places. $teiner and <lstern argues that it has been difficult to pull together a wide range of governments to advance a strong defensive interpretation of <rticle 8+53 of the harter that is consistent, because states arguing for such an interpretation in their own defence have nonetheless occasionally or frequently insisted that measures be ta"en against other violator states1. The position of hina, which is a regular proponent of the defence of state sovereignty is worth considering at this stage, particularly it raises a common concerns among li"eminded countries such as :ussia, $ri ;an"a, *elarus and Eene'uela. Information Cffice of the $tate ouncil, *ei%ing made the position of hina clear in ,11, in a while paper,/, which is hitherto considered the most authentic document on the sub%ect by the hinese =overnment. < few excerpts from the statement are reproduced below? &Cver a long period in the UN activities in the human rights field, hina has firmly opposed to any country ma"ing use of human rights to sell its own values, ideology, political standards and mode of development, and to any country interfering in the internal affairs of other countries on the pretext of human rights, internal affairs of developing countries in particular and so hurting the sovereignty and dignity of many developing countriesD hina has maintained that human rights are essentially matters within the domestic %urisdiction of the country. :espect for each country4s sovereignty and national law, which are applicable to all fields of international relations and of course applicable to the field of human rights as well. <rticle 8+53D ;i"e many other countries, $ri ;an"a has also come under criticism for failure to respect human rights. Unfortunately, instead of ta"ing genuine efforts to comply with international obligations, $ri ;an"a has %oin a li"eminded countries to &attac"( UN human rights bodies, alleging that the UN is being manipulated by interested parties. These debates, in my view, will pose a threat to human rights discourse and to cover up domestic atrocities. The recent allegations against $ri ;an"a of war crimes should not dilute the validity of universality and universal commitment to address human rights globally. $uffice it to say that these allegations and counter allegations are not yet verified and whether it will ever be established is yet

another question. Ghile ac"nowledging the need to examine and address the operations aspects of the UN itself, it is important, in the interest of human"ind, to safeguard and promote human rights themselves within the available UN mechanism( The argument that principle of non interference in internal affairs does not apply to the issue of human rights is, in essence, a demand that sovereign states give up their state sovereignty in the field of human rights, a demand that is contrary to international law. Using human rights issue for the political purpose of imposing the ideology of one country on another is no longer a question of human rights, but manifestation of power politics in the form of interference in the internal affairs of other countries. $uch abnormal practice in the international human rights activities must be eliminatedD hina is in favour of strengthening international cooperation in the realm of human rights on the basis of mutual understanding and see"ing a common ground while reserving differencesD hina has always held that to effect international protection of human rights, the international community should interfere with and stop acts that endanger world peace and security, such as gross human rights violations caused by colonialism, racism, foreign aggression and occupation, as well as apartheid, racial discrimination, genocide, slave trade and serious violations of human rights by international terrorist organisationsD( $imilar sentiments have been echoed by few identified political leaders, who see the UN is imposing political ideology on their states. Cne can reasonably argue that these views are also plagued with political ideologies. Ghat is significant however is that even those countries, li"e hina, has recognised certain circumstance in which state sovereignty cannot be a defence in large scale abuses of human rights. Today, not many countries raise the issue of domestic sovereignty to defend an atrocious human rights record of a country. Ghat is significant is that e most of those countries have a common interest in protecting their regimes through the doctrine of sovereignty rather than protecting and promoting human rights. ;i"e many other countries, $ri ;an"a has also come under criticism for failure to respect human rights. Unfortunately, instead of ta"ing genuine efforts to comply with international obligations, $ri ;an"a has %oin a li"eminded countries to &attac"( UN human rights bodies, alleging that the UN is being manipulated by interested parties. These debates, in my view, will pose a threat to human rights discourse and to cover up domestic atrocities. The recent allegations against $ri ;an"a of war crimes should not dilute the validity of universality and universal commitment to address human rights globally. $uffice it to say that these allegations and counter allegations are not yet verified and whether it will ever be established is yet another question. Ghile ac"nowledging the need to examine and address the operations aspects of the UN itself, it is important, in the interest of human"ind, to safeguard and promote human rights themselves within the

available UN mechanism. ;et us read what Hresident :a%apa"sa said during the last UN =eneral <ssembly session,,? In spite of the visible progress made, and consistent engagement with UN mechanisms, many countries are surprised at the disproportionate emphasis on $ri ;an"a, and the unequal treatment through the multi0lateral framewor". The basis for this relentless pursuit is also questioned. It is my conviction that the UN system should be astute to ensure the consistency of standards applied so that there is no room for suspicion of manipulation of the UN $ystem by interested parties to fulfil their agendas. *y nature, human beings have the capacity to achieve the most challenging and noble goals in life, through strong commitment and dedication. I am confident that, by our own collective efforts these results would prove to be beneficial to all humanityD The underpinning message in the above speech is that UN system is unfair and being manipulated and $ri ;an"a should on its own, without involvement of international community, address its destiny. This is total under0estimation of the international human rights system and the scope of UN harter. #urther, under the onstitution of $ri ;an"a, which binds all organs of the state, $ri ;an"a &shall promote international peace, security and cooperation, and shall endeavor to foster respect for international law and treaty obligations in dealing among nations,8. Cur courts have repeatedly recognised that the :ule of ;aw is a fundamental principle which lies at the very foundation of the onstitution. oncept of :ule of law is well recognised in the international sphere and often lin"ed to fact that the $tate itself is accountable in line with international human rights norms. :eport of the $ecretary =eneral of UN states? &#or the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the $tate itself, are accountable to laws that are publicly promulgated, equally enforced and independently ad%udicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision0ma"ing, legal certainty, avoidance of arbitrariness and procedural and legal transparency.(,. In conclusion, the concept of sovereignty cannot be resorted by a government to cover up gross abuses of human rights in a $tate. In my argument, the international human rights norms protect people against gross abuses and grave violations committed by the state where they live in. IThe writer is a onstitutional ;awyer, !isenhower #ellow, $enior <sho"a #ellow. This article was first published in Hulftsdorp ;aw )ournal, olombo ;aw $ociety +8/,63.J