International Law and the Limitations of Sovereignty of Nations

International Law and the Limitations of Sovereignty of Nations

A constitutional myth that has developed in recent years is that of Sovereignty. Whenever the United Nations or a foreign government focuses on an act or omission of any nation, the immediate response is that our sovereignty is under threat or attack, or it is condemned as an infringement of our sovereignty, or as an affront to national sovereignty.

The rule of customary international law recognized the doctrine of state sovereignty. According to that rule, a sovereign had full, complete and exclusive authority to deal with its own territory and with its own nationals. It followed that international law did not permit any interference or intervention by any other state, or by the community of states, in respect of either of these matters. Accordingly, a state was free to deal with its own nationals in whatever way it chose to. In particular, it alone had the right to determine the subject-matter and content of its domestic laws. In the context of the doctrine of state sovereignty, it was inconceivable that international law could vest an individual with any rights exercisable against his own state. But that doctrine has long been eroded.

The erosion of the doctrine of state sovereignty, in so far as it related to the treatment by a state of its own nationals, began as far back as in the early nineteenth century with the incorporation of certain humanitarian norms in international law. The first was a series of international treaties which declared that “trading in slaves is forbidden in conformity with the principles of international law”. Their object was “the complete suppression of slavery in all its forms and of the slave trade by land and sea”. Thereafter, every state enjoyed the right to board, search and confiscate any ship, to whomsoever it belonged, if it was engaged in the slave trade. The second were the series of Geneva Conventions that now regulate the treatment of combatants and victims of war, including the victims of internal armed conflicts, such as those between the armed forces of a government and dissidents or other organized groups which control part of its territory. The third were the series of multilateral labour conventions that now regulate working conditions. The fourth were the series of treaties that formed an integral part of the peace settlement following the end of the First World War in which provision was made for the protection of the rights of minorities living within the newly carved boundaries of several European states.

These were the only areas in which the doctrine of state sovereignty had begun to erode and where the international community could presume to judge, or even legitimately express its concern at, a government’s treatment of its own citizens. But the Second World War and the events that preceded it in Germany (and in the territories under German occupation), where unprecedented atrocities were perpetrated on millions of its own citizens by the regime then lawfully in power, demonstrated how hopelessly inadequate international law still was. According to the strict doctrine of state sovereignty, any foreign criticism of the domestic laws that authorized those atrocities was illegitimate. It was also meaningless. Unless there was established a set of superior standards to which all national law must conform – an overriding code of international human rights law. That was precisely what the Charter of the United Nations set out to do.

The United Nations Charter was the standard-bearer, the first of several international treaties that helped to create an international human rights regime. Article 55 imposed a mandatory obligation on the United Nations “to promote universal respect for, and observance of, human rights and fundamental freedoms for all”. Article 56 imposed a similar obligation on member states to take joint and separate action to achieve that objective. Therefore, while Article 56 bound each member state (according to the International Court of Justice) to observe and respect human rights within its territorial jurisdictions, it also imposed an obligation on other states and on the international community generally, to ensure that this obligation was fulfilled. From being solely a matter of domestic concern under the archaic doctrine of state sovereignty, a government’s treatment of its own nationals has now become the legitimate concern of the international community.

When a nation signed and ratified the International Covenant on Civil and Political Rights (ICCPR) and the First Optional Protocol, it gave certain solemn undertakings to its own nationals and to the international community.

First, that it would respect and ensure to all individuals within its territory the rights recognized in that covenant. Second, that it would adopt the necessary legislative measures to give effect to those rights. Third, that it would provide an effective remedy in respect of those rights. Fourth, that it would report periodically to the Human Rights Committee on the measures it has adopted and the progress made. Fifth, that it would give effect to the decisions of the Human Rights Committee in respect of individual complaints lodged by its nationals. It is a matter of common knowledge that many nations have failed or neglected to perform these obligations even to a reasonable degree. When a government fails to abide by the terms of a multilateral treaty, other states parties to that treaty have the right, under international law, to draw attention to that failure in any form or manner permitted by law, and in any forum they choose to.

Whether for purely cosmetic reasons or because of a genuine desire to improve conditions within their territories, an overwhelming majority of states have ratified or acceded to international human rights treaties. Therefore, there is now an international climate that is increasingly sensitive to the illegality of human rights violations, less willing to tolerate them, and more responsive to public and private efforts to prevent them. If some states choose to respond, while others do not, it is because realpolitik often determines the conduct of foreign relations. To invoke an obsolete doctrine of state sovereignty to defend oneself is to deride the contemporary world order. It may also suggest, particularly to the international community, that the facade of apparent defiance only seeks to obscure from view a host of rattling skeletons.

The challenge that faces many nations is to recognize, acknowledge and address the fact that in recent decades compliance with human rights obligations has remained on the backburner. The space that ethnic, religious and linguistic minorities are entitled to as of right has been denied them. Political dissent and opposition has been wedged in by suffocating authoritarianism.

As a great judge once remarked, “amidst the clash of arms, the laws are not silent; they speak the same language in war as in peace”. To denigrate those who criticize us or to demonize those who seek to hold us to account, is only to lay bare our own culpability.

Excerpts adapted from the writings of Dr. Nihal Jayawickrama, Professor of Law at the Universities of Hong Kong and Saskatchewan, in the “Island“.

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