Human Rights Lexicon: Sovereignty and Human Rights
In this, the fourth contribution to our Human Rigths Lexicon, Aoife O’Donoghue–a regular contributor here on HRinI–considers sovereignty and human rights.
The Irish use of sovereignty, as with most invocations, developed as part of the system of law between nation states which evolved in Europe after the Treaty of Westphalia and alongside the move away from the monarch as sovereign to the modern constitutional state. However both as a legal concept and as a general tool of politics sovereignty is a very difficult idea to define; though it is an oft used word. It can be described as a system of power allocation, where the level of governance is decided by the state. The state through a system of consent makes horizontal agreements with other similar sovereign bodies as well as vertically either as a federal system, a system of devolution or local government scheme within the domestic state. In this description however the power allocation always emanates from the state at the core. As such sovereignty is considered by many to be the backbone of international law and more specifically of international human rights treaties where state consent underlies all law which is made.
Sovereignty may also be considered from the angle of natural and non-natural resources, whereby the state has a right to decide upon all elements of governance to do with those natural and non-natural (including persons) within its borders. While states have rights within sovereignty they also have corresponding duties with regard to cross-border natural resources, the treatment of foreign citizens and other similar obligations.
Article 2.1 of the UN Charter appears to affirm this interpretation of sovereignty when it states that,
‘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, or in any other manner inconsistent with the Purposes of the United Nations.’
This can be interpreted broadly to consider the UN Charter and the purposes it supports as supreme or narrowly to consider that state sovereignty will shield the state from intrusion of outside forces.
It is argued by some however that traditional sovereignty can no longer be achieved; the development of globalisation, technical advancement and the increased degree of interdependence together with the autonomy that is now exercised by international and supranational organisations means that sovereignty is no longer the cornerstone of international law. Indeed according to Malanczuk the ‘primacy of the traditional state is gradually coming to an end…we are new medievalists’ (Friedl Weiss, Erik M.G. Denters and Paul J.I.M. de Waar (eds)International Economic Law with a Human Face 46-47). However this debate is far from settled.
Within the Irish context, membership of the UN, the Council of Europe and the EU as well as the situation within Northern Ireland has exposed it a number of sovereignty related issues with particular regard to human rights. If sovereignty has now been displaced within international law for example this could be interpreted to mean that the ability of the Irish Government to simply ignore international human rights norms, be they treaty based or otherwise and claim they do not bind Ireland has been greatly lessened. Ireland would thus be both restrained from taking certain acts internationally as well as domestically as its consent to the creation of new norms or laws would form only an element of the creation of these new norms or law, as other actors such as international organisations displace some of the space usually taken by the nation-state in law-making. While the formation of law and its enforcement is only one aspect of the sovereignty debate it is often one of the most critical.
The Irish Constitution affirms in Article 5 that, ‘Ireland is a sovereign, independent, democratic state’ and in Article 1 that, The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.’ This is certainly in line with the traditional understanding of sovereignty, the ability to choose all internal policies and law and externally to deal with other states as it sees fit. However if sovereignty is loosing its place as the nucleus of international law then these absolute rights may have to be reconsidered in light of a legal regime which does not consider states hermetically sealed.
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I would say that human rights law is probably the biggest legal challenge to the individual soverignty of nations at the moment. However, the means by which human rights treaties (supra-national treaties creating obligations between states) are being incorporated into domestic law (and thus allowing actions between private citizens or private citizens and the State) while still, in form, respecting sovereignty is ingenious. Two examples: the U.S. Alien Torts Statute and the European Convention on Human Rights. The former grants jurisdiction to the US district courts to hear a tort case by a non US citizen, where the tort is in violation of “the law of nations or a treaty of the United States.” It does not matter that the parties are not US citizens, or that the tort was committed outside U.S. soil. In the UK and Ireland the ECHR (and international treaty to which we signed up in the 1950s) is incorporated as legislation, i.e. at a sub-constitutional level. In both examples, the supranational document is given internal legal force by the legislature, i.e. its validity is not traceable to the supranational document/treaty, but the act of parliament. In this way, sovereignty is perfectly respected, but the international treaty is incoporated as part of the body of substantive law. It seems to me, at least, that until supranational institutions gain far more power, and until sovereignty does indeed ebb away, that these types of mechanisms are an effective backdoor for pursuing a homogenous transnational law (albeit one which incorporates the pluarism of the legal systems of each nation state). Indeed, it may accelerate the procees, reducing the hostility of people to “foreign” law as that law will have formed part of their own domestic legal system for many years.
Thanks Neil for your comment. Those are both really good examples of international human rights law in action and as you say are the most successful within the tradition sovereignty framework. I agree with you that sovereignty remains an essential element of understanding incorporation and enforcement of human rights norms, however I would suggest that these are currently too patchy and that states retain their allegiance to sovereignty more out of sense or fear of review from outside than necessarily reflecting the practice of some(though I admit not all) international institutions. The two examples also are perhaps more indicative of the common law view of international law, the approach of our civil law compatriots within the Council of Europe tends to be quite different. Sovereignty remains a strong tool of policy and within domestic courts a very strong tool of law.
Yes, I would agree that it is very early doors for such developments.
I suppose ultimately enforcement mechanisms are predominately state-orienated and all such transnational law is in one way or another tethered (for the most part) to the State. In the example I gave of the ECHR Act, the tool of incorporation at a sub-constitutional level is really a disingeneous method of proceeding. In substance if not in form, every lawyer dealing with the Act knows that in reality it is a legal norm at a supraconstitutional level; it is just that States are loath to acknowledge that because of the high regard for sovereignty. I’m interested in your comment about our civilian counterparts in the Council of Europe; there must be something in their legal culture that makes them less hostile to the recognition of such law.
Neil I think it’s just different legal systems–common law dualism is also not as hostile to international law in its pure structural sense as people sometimes think it is. After all, customary international law is automatically part of the common law in traditional structures.
As for the ECHR Act, the reality is that the Act creates statutory rights drawn from the Convention but it’s not clear from the Act that those statutory rights are the same in content and scope as the Convention rights. They are presumptively the same, I think, but they are ultimately statutory rights. The same is true in the UK with the HRA. The ATS is quite different in my view because it simply creates a jurisdiction, in essence, and the law being applied in terms of the substantive princiles and doctrine (e.g. what is torture) is basically international law. ATS is a very interesting statute though and the litigation under it continues to fascinate me.