Reducing the price of peace: the human rights responsibilities of third-party facilitators.

Author:Saliternik, Michal
Position:Continuation of IV. Theoretical Foundations for Facilitator Responsibility through Conclusion, with footnotes, p. 209-243
  1. The Traditional Model of Sovereignty

    The traditional model of sovereignty is assumed to have its origins in the 1648 Peace of Westphalia. This model asserts that sovereignty--that is, the power to control a territory and govern central aspects of human life within it--resides in states or governments. The most important implication of this conceptualization of sovereignty is the right of states, through their governments, to exercise exclusive authority within their borders free from external intervention in their domestic affairs: the right to non-intervention. (110) Upon its establishment in 1945, the United Nations formally endorsed the Westphalian notions of sovereignty and nonintervention. (111) The UN Charter states that the United Nations is based "on the principle of the sovereign equality of all its Members" and provides that it shall not intervene in matters that are "essentially within the domestic jurisdiction of any state." (112) The prohibition on intervention in the domestic affairs of states was reiterated and expanded in 1970 in the UN General Assembly's Declaration on Friendly Relations among States. Whereas under the UN Charter this prohibition applies only to the United Nations as an organization, the Declaration on Friendly Relations among States extends it to individual states and elaborates that it applies to all forms of intervention, "directly or indirectly, for any reason whatever, in the internal or external affairs" of any state. (113) Similarly broad interpretations of the principle of non-intervention can be found in the constitutive documents of some regional peace and security organizations. (114) In the case of Nicaragua v. U.S., the International Court of Justice (ICJ) affirmed the customary nature of the principle of non-intervention, articulating that intervention in a state's affairs is prohibited if it has "bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely." (115) The ICJ considered that these matters included the choice of political, economic, social, and cultural systems, and the formulation of foreign policy. (116)

    However, while the right to non-intervention has been formally embedded in key treaties, judicial decisions, and UN resolutions, at the same time numerous other (and sometimes even the very same) international legal documents have acknowledged an apparently contradictory right of states and international institutions to interfere with the treatment accorded by states to their own citizens within a state's own borders. (117) These legal developments have most notably been associated with the emergence of international human rights law. The main purpose of international human rights law is to ensure that state governments will not use their power to abuse their citizens and, moreover, that state governments will take positive measures to protect and promote human rights for their citizens. Another major area of international law that emerged during the second half of the twentieth century and challenges traditional conceptions of sovereignty and non-intervention is international criminal law, which has enabled the prosecution by international and foreign tribunals of individuals, including state officials and even heads of state, for violations of international humanitarian law and international human rights law committed against their own people. (118) To give one more example, the so-called law on democratic governance--which, at a minimum, seeks to protect the right to free elections by regulating national election processes--also presents a major inroad into the traditional model of state sovereignty. (119)

    Alongside the well-established right of states to create norms and collective mechanisms that regulate the domestic affairs of other states, in recent years a new and still contested duty to intervene in some domestic affairs has arguably been emerging in international law. To the extent that such a duty exists, however, it is currently limited to the most egregious situations in which states inflict upon their citizens mass atrocities or fail to protect them from such atrocities. These include cases of genocide (120) and perhaps also of ethnic cleansing, crimes against humanity, and war crimes. (121) In these cases, the world's states are assumed to bear a collective responsibility to prevent, stop, and/or rectify the wrongful acts of the delinquent government.

    Seeking to reconcile the interventionist nature that international law has been assuming since the end of World War II with the traditional concept of non-intervention, which still purports to govern international relations, (122) some commentators have argued that intervention in domestic affairs is compatible with the principle of state sovereignty if it is based on previous consent by the intervened state, which can be expressed, inter alia, by accession to relevant treaties (e.g., human rights treaties and the Statute of the International Criminal Court) or by ad hoc approval (e.g., in the case of 'invited' military intervention). According to this positivist view, the power of states to enter into international agreements that limit their domestic authority is part of their sovereign competence. (123)

    However, justifying the international protection of human rights and the rule of law on the basis of state consent seems to be problematic as a matter of principle, because it entails that states do possess the initial authority to mistreat their citizens and that they may decide to retain this authority at their discretion. Moreover, at the practical level, posing states' consent as a precondition for limiting domestic authority may leave citizens of dissenting countries without sufficient protection for their basic human needs and may also undermine international interests associated with their protection.

    In view of these difficulties, contemporary efforts to mitigate the apparent tension between state sovereignty and international norms addressing domestic affairs seem to be turning away from consent-based justifications for intervention. Instead, these efforts seek to redefine the concept of state sovereignty itself and identify its inherent limitations. Under these alternative conceptualizations of state sovereignty, the international community's mandate to interfere with national policies does not depend on the will of the state concerned. (124) Rather, the mandate of a state to pursue its national policies depends on its subscription to certain international norms.

    Two such conditional understandings of state sovereignty are reflected in the concepts of popular sovereignty and human sovereignty. As will be explained in the next section, popular sovereignty asserts that sovereignty belongs to the people rather than to the government and that government authority is therefore conditional upon its ability to promote the well-being of the people. This Article argues, however, that even the concept of popular sovereignty does not provide adequate justification for international intervention in domestic affairs. Human sovereignty can better account for such intervention.

  2. The Popular Model of Sovereignty

    Seeking to justify international intervention in domestic affairs, contemporary scholars commonly argue that sovereignty resides not in governments, as the traditional model suggests, but rather in peoples, who confer upon their governments the power to make policies and execute them on their behalf and for their benefit. Once given such power, a government is bound to act as a trustee of its people--it must use its power for no other purpose than to promote the collective interests of the citizens. A government that fails to do so risks the loss of its sovereign authority and should anticipate an international action to protect the interests of its citizens. (125)

    The concept of popular sovereignty has its roots in the writings of seventeenth century philosophers such as Hugo Grotius and John Locke. (126) These writers' main concern was the internal legitimacy of governments. They sought to establish a domestic constitutional theory that would limit the power of the government vis-a-vis its subjects and define the terms under which the people have the right to revoke the power of the government. Contemporary discussions on popular sovereignty are different from the Grotian and Lockean classic accounts in that they seek to justify not only domestic resistance but also international intervention against a government that fails to fulfill its duties toward its people. Using the concept of popular sovereignty to justify or require such international intervention is, however, a highly questionable move. It is not clear why the mistreatment of citizens by their government should bear implications not only for its domestic legitimacy but also for its relationships with other states. (127) It is for this reason that Michael Walzer, in his famous critique of humanitarian intervention, rejects the view that "a tyrannical government ... because it has no standing with its own people (no moral claim upon their allegiance), has no standing in international society either." (128) While this Article does not concur with Walzer's non-interventionist approach, it accepts that, under the prevalent understanding of sovereignty, the international standing of a government does not derive directly from its standing with its citizens.

    Moreover, it could be argued that the principle of popular sovereignty not only does not provide sufficient justification for external intervention against a bad government but actually prohibits such intervention. According to this view, sovereignty of the people entails that the domestic failures of a government should only be corrected by domestic mechanisms that are designed to reinforce the popular will, such as elections and judicial review. (129) Even in situations in which such mechanisms are...

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