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SP, JP. October 8: Sovereignty

This section explores the development and role of international organizations, looking at the more developed and complex institutional arrangements between states than the treaty committees we have seen so far.

It is argued that international organizations have become important actors in the international system of sovereign states and have changed the nature of international law and life. These international organizations have been created by states, in order to ensure the respect of international norms such as Human Rights. Independently, states have no incentive to act against violators of Human Rights, these organization thus put more pressure on violators and help enforce international norms. Yet, this creates tensions: states create institutions which to a certain degree limit their scope of action, and influence their behavior.

Inis Claude argues that international organizations have emerged as a response to the modern state system and are a necessary part of the system. He talks about constitutional problems (problems caused by the establishment of the organizations) and substantive problems (the reasons why these organizations are established) and argues that these two classes cannot be divided, and states should balance their concern for these types of problems.

Ernst Haas brings up the issue of power imbalances within international organizations, and argues that international organizations do not have a substantial influence on foreign policy.

David Kennedy investigates the relationship between states and institutions, looking at historical developments such as the change in voting systems at the heart of international organizations. These changes, even though they keep bringing up similar arguments, show a maturity of the system.

There has been a cycle of enthusiasm and hopelessness regarding international organizations, the book presents an article comparing international human rights law to international environmental law. It is argued that environmental law is more flexible and dependent on cooperation; it also is directed towards the private rather than the public. Finally, Steiner critiques the basic structure of many Human Rights institutions, arguing that they do not correspond to state interests and thus are problematic.

Section B of the reading deals with the intersection between issues of state sovereignty and the human rights regime. First, it addresses definitions of the term sovereignty, essentially determining that while sovereignty is generally agreed to signify the independence and freedom of action of a state, in practice it has no clearly ascertainable meaning. Thus Koskenniemi argues that this lack of a fixed meaning makes it impossible to define the full extent of a state’s legitimate sphere of action or the areas in which restrictions on state action would be allowed. Next, Stephen Krasner expands this discussion of definitions by identifying four distinct uses the term sovereignty: domestic, interdependence, international legal, and Westphalian. Domestic sovereignty refers to the organization and effectiveness of political authority. Interdependence sovereignty deals with the individual state’s ability or inability to control the movement of commerce, people, and ideas across borders. While globalization is often said to entail a loss of state sovereignty, Krasner asserts that this is a loss only of interdependence sovereignty, or control, and not a problem of authority. The third category of sovereignty, international legal sovereignty, is defined as a state’s status in the international political system. It is mainly an issue of recognition and perceived authority, and does not necessarily correspond to the state’s ability to control either domestic or cross-border developments. Finally, Krasner identifies Westphalian sovereignty as dealing primarily with a state’s territoriality and freedom from the influence of external actors in structures of domestic authority. Under this conceptualization, a state’s sovereignty is violated anytime that an external force has coercive influence in domestic affairs, even if it was invited to do so, while international legal sovereignty can be violated only by intervention.

Richard Falk argues for a concept of “responsible sovereignty”, which views states not just as bearers of rights but also as the subjects of obligations, which may be legitimately enforced both by their own citizens and by external bodies. Both he and Margaret Keck and Kathryn Sikkink point out that state sovereignty is seen by many, especially in the post-colonial world, as an essential protection rather than simply a threat to human rights. These views complicate an investigation of the relationship between state sovereignty and human rights.

The next readings focus on ongoing political debates about state sovereignty within the United Nations in connection with UN peacekeeping activities. First, a number of views by government leaders are expressed on this topic. United Nations Secretary-General Kofi Annan saw a trend towards an understanding of the state as a servant of the people, along with an enhanced consciousness of individual sovereignty. Because of this, he believed that we must think more about how the UN will respond to political and humanitarian crises. Abdelaziz Bouteflika, the President of Algeria, raised important questions on where the line was to be drawn between the humanitarian, the political, and the economic, and questioned whether interference was valid only for weak or weakened States. Surin Pitsuwan, the Minister of Foreign Affairs commented on the emerging concept of “human security.” In a New York Times Article, Judith Miller discusses Kofi Annan’s view that the world can not let countries like Yugoslavia commit genocide and hide behind the UN charter that has traditionally protected national sovereignty, because the principle of sovereignty cannot provide “excuses for the inexcusable.” However, not all agree, as the Russian Foreign Minister states that “Human rights are no reason to interfere in the internal affairs of a state.” Finally, the last reading comments on how UN organs have systematically reduced the scope claimed for the domestic jurisdiction ‘defense.’ Although Article 2(7) states that nothing contained in the UN Charter can authorize the UN to intervene in matters that are essentially within the domestic jurisdiction of a State, this defense now rarely stands.

Discussion Questions:

1. Are international institutions necessary? What problems do unequal power balances present to these institutions?
2. According to Abi-Saab, the concept of state sovereignty arose in a particular historical context for a particular purpose. Is sovereignty still a valid concept in today’s circumstances? What purpose do assertions of state sovereignty serve today?
3. Which should be given priority: the protection of human rights or the principle of state sovereignty? At what threshold can state sovereignty be violated to protect human rights (if it can)? Who can decide?

IC, CP,

This section discusses the current human rights debate between a number of East Asian states intent on economic development and Western states’ views of basic human rights and universalism.

A first perspective comes from Bilhari Kausikan. In his comment, Kausikan argues that human rights touch upon delicate matters of culture and values. In Kausikan’s view, realities and interests must be taken into account when promoting or speaking about human rights. Kausikan states that although abuses and inconsistencies continue to exist in Asia, the human rights situation has greatly improved in the last 20 years. Kausikan believes that Western states’ self-interest and pressure on Asian countries, which are often insufficient and condescendingly ethnocentric, deny the improvements that the region has made.

Next, Kausikan comments that the diversity of cultural traditions, political structures, and levels of development, is difficult and almost impossible for a universal view to apply in regards to the human rights regime in Asia. Whereas the West has an individualistic ethos approach, the East and South-East Asia have a communitarian approach. As a result, Kausikan states that there is “a general discontent throughout the region with a purely Western interpretation of human rights” (540). In order to find a balance between a pretentious and unrealistic universalism and a paralyzing cultural relativism, Kausikan writes that a genuine and fruitful dialogue will need to take place in order to expand and deepen consensus between Western and Asian states on the issues of human rights. According to Kausikan, “the West will have to accept that no universal consensus may be possible and that states can legitimately agree to disagree without being guilty of sinister designs of bad faith… it will require the West to make complex political distinctions, perhaps refraining from taking a position on some human rights issues, irrespective of their merits, in order to press others where the prospects for consensus are better” (543). By allowing cultural leeway in interpretation human rights, are we undermining the essence of the rights themselves? Where should we draw the line?

The White Paper provides us with the government of China’s view on human rights issues. According to China, “as history develops, the concept and connotation of human rights also develop constantly… the most urgent human rights are still the right to subsistence and the right to economic, social, and cultural development; therefore, attention should first be given to the right of development” (547). In addition, the paper argues that human rights are essentially a matter of domestic jurisdiction. For China, “international human rights activities should be carried on in the spirit of seeking common ground while reserving differences, mutual respect, and the promotion of understanding and cooperation” (548).

A second perspective comes from Yash Ghai. Ghai criticizes the Asian approach that because human rights are propounded in the West on individuals, they have no relevance to Asia, which is based on the primacy of community. Ghai argues that perceptions of human rights in Asia are reflective of economic, political, and social conditions; therefore, they vary from country to country and cannot be summarized into one “Asian” view. In addition, Ghai states that some Asian governments use communitarian arguments to support their proposition that rights are culture specific. According to Ghai though, this argument is flawed because it is also used to deny the claims and assertions of communities in the name of ‘national unity’ and ‘stability.’ In addition, Ghai argues that Asian governments’ view of the State is not synonymous with community. Ghai writes that the State is an imposition on society. Some Asian governments use the justification of ‘in the name of development’ to justify the denial of and violation of human rights. As Ghai states, “the contemporary State intolerance of opposition is inconsistent with traditional communal values and processes” (552). In what ways can communitarianism foster an individual understanding of human rights that does not undermine the community at large? Is it possible?

A third perspective comes from Jack Donnelly. Donnelly invites us to consider the contemporary arguments against universal human rights standards on the basis of cultural relativism. Donnelly states that, “we must be alert to cynical manipulations of a dying, lost, or even mythical cultural past” (553). According to Donnelly, cultural relativist arguments are the economic and political elites’ tools to justify their corruptions and maintain their power.

A fourth perspective comes from Soek-Fang Sim. Sim explores the logic of the one-party rule in Singapore and how the meaning of Asian Values is instrumental to sustain this logic. According to Sim, within the Asian Values discourse, “nation [is placed] above self.” Capitalism and authoritarianism are therefore reinforcing. In addition, Sim refers to Asian Values as “a strong normative centre” that plays the role of the social gaze. As she argues, “Asian Values makes for the subordination rather than the incorporation of dissent.” Is dissent possible under an authoritarian regime?

AM, NA

This reading reviews the development of the formation of universal children’s rights. The main document in question is the UN Convention on the Rights of the Child (CRC), ratified by 191 states excluding only Somalia and the United States. The convention includes articles concerning a variety of rights among them the preservation of identity, the right to express opinions, prevention of abuse, and access to health care. One problem raised concerns the idea of “childhood,” and children’s role in society. Some object to the CRC’s definition of the responsibility of the child, saying that assuming children should not work at an early is a Western notion. The argument explains in the West industrialization allowed children to leave the workforce and remain “protected” by their parents.

One problem with creating a set of universal laws is that in many developing countries children must work to survive, thus is it the role of the government to step in and support the family? If not the government’s job, then whose is it? Two things not resolved in the convention are corporal punishment and abortion. How can these controversial issues be addressed? Should they be decided by another body? How do deal with cultural relativism in these cases?

The text also reviews several cases of children’s rights, such as the Michael Faye case in Singapore regarding the use of corporal punishment for crimes. As in Kenya, should corporal punishment be allowed if it is closely controlled by the state? Clearly there exist problems of enforcement in this area, and if rules are not being followed what is the next step? Should universal laws then come into play? Is the banning of corporal punishment a violation of privacy and religious rights of the parents?

How should problems of corporal punishment be addressed in schools and in the home?

What are the duties and responsibilities of parents in protecting the rights of the child? What are the duties of the society?

Should non-government organizations play a role in the drafting and enactment of international convention?

How do you deal with children who must work to survive?

INTL254 Introduction to International Human Rights
Professor Nadya Nedelsky
reaction essays prepared by students AM, NA (more…)