Modern international law finds its basis in the ruins of the global order following WWII, when the major superpowers of the USA and the Soviet Union were allied against Nazi Germany, and human rights were at the top of the agenda. At the Moscow Conference in 1943, the foreign ministers of the United Kingdom, the United States, and the Soviet Union discussed the end of the war and spoke to the importance of establishing "at the earliest practicable date a general international organisation, based on the principle of the sovereign equality of all peace-loving States ... for the maintenance of international peace and security." It was this event, preceded by the London Declaration and the Atlantic Charter of 1941, that led to the creation of the United Nations at the Yalta Conference in February 1945.
The basis of international law, therefore, is the equality between all States - the notion that international law cannot be imposed on a sovereign State without its consent - and here we can find its fatal flaw. Under domestic law, one cannot opt in and out of legal rules, for this would disrupt the very basis of a legal system - in an extreme scenario, one could opt out of the prohibitions on murder. We don't, of course, recognise individuals as sovereign entities, but when we do recognise States as such, there are a number of important consequences that both protect smaller countries from domination by world powers, but also allow countries to get away with egregious violations of legal norms. This blog post shall examine the ways in which the sovereign equality of States permits the degradation of the international legal system, and prohibits bold and progressive action on issues as varied as climate change, pandemics, or human rights.
Section I: The international legal order and its failings
The international legal system is comprised of a number of sources, set out in art.38 of the ICJ Statute: (a) international conventions or treaties, (b) international custom, referred to in this post as customary international law, or CIL, (c) the general principles of law recognised by civilised nations, and (d) judicial decisions and academic writings.
While treaties may be seen as the most robust source of international law, this is where we find our first failing in holding States accountable: reservations. According to the Vienna Convention on the Law of Treaties (VCLT) art.2(d), a reservation is "a unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, where, it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." Firstly, there is no obligation for States to sign up to treaties, aside from the political pressures they may be facing, but once a treaty has been written, States can still 'opt out' of certain clauses, provided that these don't undermine the "object and purpose" of the treaty. This has allowed over twenty countries, including China, Myanmar and the USA, to 'opt out' of clauses of the Genocide Convention which allows for persons charged with genocide to be prosecuted without the consent of the governing State or that stops the Convention applying to non-self-governing territories. Fitzmaurice notes the problem with reservations, particularly as it pertains to human rights treaties, arguing that "the system [of reservations under the VCLT] was difficult to apply, particularly as regards the compatibility of reservations to human rights treaties with their 'object and purpose'."
Under CIL, the persistent objector doctrine, which allows a State who has objected consistently to a rule of law to 'opt out' of the application of the rule, also provides challenges to the legal system, where States can obtain a different application of legal rules than their non-objecting neighbours, perhaps allowing for more favourable treatment for objecting States. But this are just two opaque instances of the sovereignty of States as the basis for international law permitting States to break what would, but for their objections, be valid law.
The sovereignty of States also places the onus on States to solve their own problems, and provides disincentives for States to interfere in the internal workings of others, and in no case is this more apparent than in the law of armed conflict, or LOAC. Noorda argues that particular challenges are found when a State is engaged in armed conflict with a non-State actor, such as the fight against ISIS, where States, including the USA and UK, have conducted military operations on the sovereign territory of countries such as Syria, in violation of the necessary respect for sovereign equality. These challenges, Noorda argues, can be circumvented if the territorial State consents to outsiders using force on their territory, and she gives the assassination of the suspected Al Qaeda member al-Harethi in Yemen by the CIA as an example. Respect for sovereign equality can also be circumvented if the territorial State is either unwilling or unable to take the appropriate action itself, out of respect for the other core value of international law: protection of the peace. Nevertheless, serious questions have to be asked when States act with a lack of respect for human rights, such as the detention of Uighur Muslism in Xinjiang, China, or the genocide against the Rohingya Muslims in Myanmar, where States are reluctant to get engaged to directly prevent the atrocities from taking place, and so, as we have seen in the Myanmar case, resort to lengthy legal battles that cannot result in the immediate cessation of genocide. This is not to say that armed conflict is the only way of preventing human rights violations from taking place, and indeed often armed conflict brings about further abuses of rights, but the respect for sovereign equality - a modern conception, according to Stirk - is impeding action being taken to prevent human rights violations.
Furthermore, the complex situation as regards the recognition of States means that geopolitical interests often take priority over reality. A key example of this is Palestine, which is widely recognised as a State, and yet lacks the same legal recognition afforded to Israel, with the unfortunate consequence of otherwise illegal settlements or an 'Apartheid regime' being permitted by the international legal system. Zarakol argues that even when official legal recognition is afforded to a State, the concept of sovereign equality, designed to protect States from subjugation, "not only masks relations of domination in the international system by 'translating' them into seemingly voluntary contracts entered by seemingly equal agents, but also helps perpetuate the hierarchies of the international system." Thus affording a legal conception of Statehood is meaningless unless it is followed by actual control over their nation without reliance on or domination by external actors, including the superpowers of the day.
Section II: Towards a more robust international legal system
Now we have considered the failings of the concept of sovereign equality in reinforcing the global values of respect for human rights, or even actual autonomy, we must now examine some proposed changes that can deliver on the promise of equality, not just for States but for people, too.
Roth argues we are seeing the erosion of the concept of sovereign equality of States through three key areas: the expansion of jus cogens norms (rules of international law that States cannot derogate from, for example, the prohibition on genocide); the expansion of direct effect (when international law binds States); and the erosion of the norm of non-intervention, particularly in conflict situations. While jus cogens norms tend to be strongly associated with human rights - a positive step forward in building a more robust international enforcement mechanism - the erosion of the non-intervention doctrine is less clear and more likely to result in further human rights violations, even in situations where the intervention is intended to remedy violations in the first place. An example of this can be seen in the US interventions in Syria, Libya and Iraq, where the US engaged in armed conflict or military activities purportedly to protect the human rights of the inhabitants of those countries, which were undoubtedly being violated by brutal dictators, but left the situation in similarly hazardous terrain, particularly with the rise of ISIS in Syria and Iraq.
The problem is not limited to situations of non-intervention. Schabas has written critically of reservations attached to human rights treaties, such as the Convention on the Rights of the Child, which "detract from the protection of individuals which is the purpose of international human rights law," but he offers no remedy other than "creativity and innovation in this difficult area." A blunter approach was taken by Roth, who argued that "the sovereign equality doctrine is an unromantic set of norms befitting an unromantic global reality," particularly given the varying views on issues such as women's rights or LGBTQ+ rights which cast doubt on the universal acceptance of human rights standards. Indeed, while significant progress is undoubtedly being made across the world, scholars such as James Finn and Po-Han Lee argue that the universalisation of human rights, and their enforcement by States, is not a question of the colonialism and Westernisation that pervades the entirety of international law, but a question of robust enforcement of human values, which is sorely lacking.
There is, therefore, no easy remedy in international law to the problem posed by the sovereign equality of States in the enforcement of human rights, and while stronger enforcement mechanisms can, and probably should be adopted by international bodies, the safer and simpler way is to enforce human rights at the national level, and for activists worldwide to act as though international law does not exist - because currently, it may as well not.
Click here for the audio version of this blog post
The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the blog owner, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner. The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.
- Hans Kelsen, 'The Principle of Sovereign Equality of States as a Basis for International Organisation' (1944) 53 The Yale Law Journal 2
- Malgosia Fitzmaurice, 'The Practical Working of the Law of Treaties' in Malcolm Evans (ed) International Law (5th edn, OUP 2018)
Comments
Post a Comment