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Human Rights and Sovereignty[1]

This is an Occasional Paper (6:OP:2, 1994) of the Joan B. Kroc Institutefor

International Peace Studies at the University of Notre Dame. It is anearly and

short version of the first chapter from my dissertation. Comments arewelcome.

You can send me e-mail at [email protected].

1994

Kurt Mills

Department of Political Science

The American University in Cairo

Return to the bibliography on humanitarian access and intervention.

Go to the Global Politics Home Page.

Table of Contents

Introduction

A Postmodern Perspective

International Law

Subnational and Transnational Actors

Human Rights

The New Sovereignty

Introduction

For three or four centuries, and certainly by the Peace of Westphaliaending the

Thirty Years War in 1648, state sovereignty has been the guidingprinciple of

international relations. The state has been the way people haveorganized

themselves, and has been seen as the natural or inevitable end productin the

evolution of international society. States are supposedly endowed withthe right


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to do whatever they want within their borders without threat of outside

intervention.

Yet, this view of sovereignty has come under attack in recent years on awide

variety of theoretical and empirical fronts. Analysts have pointed outthat with

changes in technology, the development of a truly global economicsystem, and

the identification of border-spanning environmental effects, talk ofabsolute

sovereignty and total control of borders is no longer realistic. One of

the

major theoretical challenges to sovereignty has to do with questionsrelating to

human rights and humanitarian issues. That is, to what extent hasincreased

interest in human rights issues, various international agreements havingto do

with human rights, and other humanitarian efforts by a wide variety ofstate and

non-state actors undermined the classical notion of sovereignty whichsays that

the state is immune from outside interference for its internal actions?

This paper is an attempt to come to grips with theoretical and empirical

challenges to sovereignty from a human rights and humanitarianperspective. I

will begin by placing my analysis in the context of what is becoming amajor

critical perspective in international relations -- the postmoderncondition.

While reserving judgment on much of what the postmodern critiqueproposes, I

will argue that this perspective is useful in "denaturalizing" thestate. Then,

I will look briefly at the relationship between international law and

sovereignty. Next, I examine some of the ways nonstate actors have begunto

challenge traditional notions of sovereignty through social movements,


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attempts

to "relocate" authority, and assertions of self-determination. Then, the

relationship between the social purpose of the state and the concept of

sovereignty will be examined from a human rights perspective. Finally, Iwill

propose a framework for understanding these challenges and put forth a

reformulation of sovereignty which encompasses a renewed view of humanrights as

the standard in assessing sovereignty.

A Postmodern Perspective

In recent years, analysts within international relations, as well asother areas

of study, have begun to introduce a new perspective -- postmodernism --in

analyzing events, interactions, and institutions. Postmodernism, in itsmost

basic form, is a realization that the reality we experience is sociallycreated.

It is a repudiation of the Enlightenment faith in the ability of science

and

reason to comprehend some objective reality. It, in other words, "deniesthe

capacity of language, mind, or spirit to establish standards in anobjective

manner."[2] Words and ideas construct our reality.[3]

A postmodern perspective is suspicious of metanarratives, broadinterpretations

which supposedly describe truth and reality. These metanarratives, whichcan

become "totalizing discourses," include the aforementioned idea ofprogress,

Marxs theory of the inevitability of class struggle and revolution,Freuds

psychoanalytic theories, and various explanations within the naturalsciences,

including Einsteins theories of relativity. Metanarratives canmarginalize

other perspectives. As the market system engulfs the world, other


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economic

perspectives are submerged. As attempts to control the environmentproceed,

perspectives which call into question the abuse of natural resources are

silenced. And, as state sovereignty is accepted, and the state becomesthe

"master noun of political argument,"[4] other possibilities aredismissed or

forgotten.[5]

This is where a postmodern perspective is useful in analyzingsovereignty. The

state and the concept of sovereignty are rooted in a particularhistorical and

socio-political context. The sovereign state system came about as aresponse to

specific historical circumstances, namely the disjunction between the

development of an increasingly secular society in Europe and thecontinuing hold

of religious authority on state (or pre-state) authority during the lateMiddle

Ages. It was a solution based on a movement from a hierarchy ofauthorities --

culminating in the authority of the church -- over perhaps 500semi-independent

political units to a system of decentralized system of independent --that is

sovereign -- political entities called states.[6]

Just as the concept of sovereignty came about as the result of an

historical

process, so is the reevaluation of sovereignty arising from a newcontext which

is problematizing the concept. Sovereignty has become a "totalizingdiscourse."

As Camilleri and Falk note, the "sovereignty discourse [is] a way ofdescribing

and thinking about the world in which nation-states are the principalactors,

the principle centres of power, and the principle objects ofinterest."[7] The


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sovereignty discourse has marginalized other ways of thinking aboutsocial

arrangements and the locus of power and authority. Postmodernism is a

way to

counter this marginalization, a way "to render the invisiblevisible."[8]

Sovereignty "is more than just an idea":

It is a way of speaking about the world, a way of acting in the world.It is

central to the language of politics but also to the politics oflanguage. It is

part of a more general discourse of power whose function is not only todescribe

political and economic arrangements but to explain and justify them asif they

belonged to the natural order of things. Sovereignty in both theory andpractice

is aimed at establishing order and clarity in an otherwise turbulent and

incoherent world. Its historical function has been to act asfundamental source

of truth and meaning, to distinguish between order and anarchy,security and

danger, identity and difference.

Sovereignty, as both idea and institution, lies at the heart of themodern and

therefore Western experience of space and time. It is integral to thestructure

of Western thought with its stress on dichotomies and polarities, and

to a

geopolitical discourse in which territory is sharply demarcated andexclusively

controlled.[9]

Thus, the state as sovereign has come to be seen as necessary andnatural. And,

over the centuries, state sovereignty has been reified through thoughtand

practice. As power has become centralized within state structures, it

seems


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natural that it should be that way, although Alexander Wendt observesthat

"[t]he sovereign state is an ongoing accomplishment of practice, not aonce

and-for-all creation of norms that somehow exist apart frompractice."[10] Those

who are seeking to secede or throw off oppressive state structures are,for the

most part, only trying to create their own state structures rather thansome

other type of social arrangement. For example, the recently decolonized

countries, especially those in Africa, hold onto the concept of

sovereignty for

they see this as the only way keep out their former colonizers. And, asWalter

Truett Anderson points out, the most potent form of reification is theprocess

by which people "invent institutions and then forget they have doneso."[11] He

further notes that "reification is often deification," which mightinclude

viewing a monarchy as being sanctified by god, as well as "the popularreverence

for the framers of the Constitution" in the United States which hasbecome

"secular deification."[12]

Yet, even as the state has become reified, there is a need to"denaturalize" the

state as Der Derian has put it.[13] Allott observes that "[s]overeigntyis not a

fact of the physical world.... Sovereignty is not a fact but atheory."[14] As

Camilleri and Falk note:

sovereignty may not be the last word on the subject. Given thefar-reaching

transformation of the social and political landscape we have witnessedthis

century, and especially these past several decades, there is a pressingneed to

rethink the concept and practice of sovereignty.[15]


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Anderson ties these transformations to adopting a postmodern worldview:

Globalizing processes require us to renegotiate our relationship withfamiliar

cultural forms, and remind us that they are things made by people:human,

fallible things, subject to revision. Globalism and a postmodernworldview come

in the same package; we will not have one without the other.[16]

Investigating the postmodern condition can be disconcerting. It is arecognition

of contingency and ambiguity in our social relations. Sovereignty has

acted as

"a foundational source of truth and meaning,"[17] thus negating any

uncomfortable ambiguity. Yet, questioning this "foundational source" is

necessary to combat the reification processes which have shored up state

sovereignty as an absolute institution which, in turn, contributes tothe

international communitys inability to deal with the problems enumeratedbelow.

We must recognize that "all social activity is determined by dilemmaswhich will

never be fully resolved, full of paradoxes and mysteries anduncertainties which

will never be finally elucidated."[18] The following pages will discusssome of

contradictory centralizing and decentralizing tendencies, the movementsfor

autonomy from national units, and the calls for greater control overformerly

sovereign entities now emerging in global politics. These are just someof "the

ambiguities which at every level now surround the principle ofsovereignty,"[19]

but which also must be faced in dealing with the emerging globalorder.[20] Thus

we turn to the humanitarian challenges to the sovereignty discourse.

International Law


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In most discourse related to the rights and duties of states, andespecially

with regard to sovereignty and human rights issues, international law is

perceived as the foundational source for such discussion. There are twopolar

views on the relationship between international law and sovereignty. Onthe one

hand, Lapidoth points out that one implication of the concept ofsovereignty is

that the basis of international law -- law between sovereign states --is

positivistic.[21] That is, states are only bound by what they explicitlyagree

to. There is no other entity, or idea, or force which can bind stateactivity,

especially within territorial borders. Thus international agreements are"acts

of sovereignty." And intergovernmental international organizations arepremised

on the existence of sovereign states.[22] On the other hand, some viewnatural

law -- variously conceived as coming from a deity, the natural order ofthings,

etc. -- as a constraint on state behavior. That is, various moral codesof

conduct which are perceived as being based on some sort of scripture orsome

other source from the natural world impinge on how states can act.

Several observations can be made on this dichotomous understanding of

legal

constraints on state behavior. First, identifying law with state consentis much

easier than trying to identify the basis for natural law. Yet, accepting

positivism means accepting that, in the end, states do not have limitson their

power. However, accepting natural law restrictions is problematicbecause its

basis is cannot be pointed to in any concrete way. Saying it derivesfrom god


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helps little because there are so many different gods, antideists,nondeists,

and interpretations of gods words around the world that saying

something

derives from god is problematic, if not impossible. Basing law on asupposed

natural order of things regardless of the existence or nonexistence of adeity

does not get us much further, because our postmodern perspectiveessentially

tells us that we cannot identify an overarching natural order. This mayseem to

be excessively nihilistic. However, postmodernism can also help us tosee that

our realities, our ways of interpreting the world are sociallyconstructed, and

thus imbued with social purpose. We may thus recognize that any view oflaw is

contingent, but the firmness or ephemeral nature of this contingency isbased on

the purpose of the idea, structure, or institution we are concerned

about. This

is as true in law as in other realms: "State-societies do not have anyinherent

legal powers.... To claim legal power, as much for a state as for anyprivate

citizen, is to acknowledge social purpose."[23] States are conceived ofas

existing for the security and well-being of their inhabitants, which isa social

purpose. One might conclude, therefore, that states may be restricted intheir

conduct at least insofar as they violate this social purpose. This pointwill

discussed in greater detail below in relation to human rights. For themoment,

however, it is enough to note this restriction on state sovereignty.

A second point regarding various understandings of constraints on statebehavior

concerns the rights and duties of states within a system of states. As


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Ingrid

Delupis points out:

since international law regulates the behaviour between members of the

society

of nations there must necessarily exist some rules, based onreciprocity, which

restrain the power of a state within its own territory. A state cannotenjoy its

exclusive and general rights within its territory under internationallaw

without at the same time assuming corresponding obligations.[24]

States, by virtue of their membership in the club of states, haveobligations to

the other members of the club and thus restraints on their sovereignpower.

There is thus a contradiction between sovereignty and membership in

international society. Weiss and Chopra sum up this point:

The supremacy of state sovereignty over law is untenable. Sovereignty asa

transcendent source of law is supposed to operate hierarchically between

ruler

and ruled; it is not supposed to function horizontally, or relativelywith other

sovereigns. Sovereign equality supposedly prevented developing orlegitimating

primus inter pares. The basic flaw in the theory is that it was aunitary

concept operating in a community: mutual respect implied not beingsovereign at

all. As such, it is universally recognized that in conflicts betweenlaws of a

national sovereign and international law, the latter prevails.[25]

In addition, engaging in activity between states, particularly joining

international organizations, can further erode sovereignty. It is truethat such

institutions are based on the existence of sovereign states. Yet, asnoted

above, these institutions are created by states because they recognizethere are


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issues which they cannot adequately address independently, and thearrangements

to deal with these issues within the context of international

institutions can

intrude upon sovereignty:

International organizations have further contributed to the erosion oftextbook

notions of state sovereignty. The earlier principle of unanimity votingin the

League of Nations became decision-making by majority in the UN, whichmeans that

sovereign states can be bound against their will by the votes of otherstates.

The veto power of the permanent members of the Security Council vitiatesthe

sovereignty of all other members because by definition, one state cannotbe

"more" sovereign than another. Paradoxically, rapid decolonization ledto the

creation of a Third World sensitive to domestic jurisdictions and at thesame

time eroding the concept of sovereignty because newly emerging stateswere often

weak and had to rely on community laws for security.[26]

In addition, with the proliferation of treaties and organizations, wehave

witnessed the formation of what Stanley Hoffman has called "polycentric

steering."[27] That is, there are now numerous loci of power andauthority

concerned with various aspects of international life.

Subnational and Transnational Actors

We have thus far seen how various factors and processes are erodingsovereignty

from outside the state. Equally important are the threats from within,including

especially social movements and calls for self-determination.

One challenge to state authority has come from what are called "new" or

"critical" social movements. These social movements are a response to


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the

expanded scope of the state as it insinuates itself into more realms ofpersonal

and social activity and the accompanying breakdown of the consensus ofwhat

encompasses the political. In addition, there has been a realizationthat the

pursuit of nonmaterial goods is no longer assured by modern materialwell-being

and economic growth, but, rather, is constrained by these developments.There is

a focus, in other words, on what Kitscheld characterized as "life

chance,"[28]

which encompasses the values of autonomy and identity, "that statesovereignty

can neither satisfy nor contain."[29] These movements include thewomens

movement, environmental movement, and various anti-nuclear and peacemovements.

They are antisystemic, working outside state institutional structures,and thus

directly challenge statist conceptions of decision-making and, withtheir focus

on autonomy, call into question state authority. "[T]hey are in processof

redefining the meaning and boundaries of civil society.... reaffirmingthe

priority of civil society over the state, of popular sovereignty overstate

sovereignty," and thus perceive the state as useful "only to the extent

that it

can be used as a vehicle for the realization of popularsovereignty."[30]

Such social movement activity is a large part of what Richard Falk calls

"evasions of sovereignty" -- "political action by nonstate actors thataddresses

the agenda of global concerns."[31] These evasions can occur within,across, or

beyond boundaries. For example, various Green Parties, while workingwithin


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state structures, are calling into question state efficacy on a range ofissues

while espousing a global rather than state-centric ethos. They may have

as their

goals either reform or transformation of state structures, or a mixture.These

individual parties may also be seen as part of a global Green movement.A

multitude of groups and movements also operate beyond the bounds ofstate

authority. Amnesty International provides critiques of the human rights

practices of all countries around the world. Greenpeace, as a part ofthe

environmental and anti-nuclear movements, poses direct challengesthrough both

information and direct action to state practice. That they are perceivedby

states as threatening can be seen in the "extraterritorial act of war"on the

part of the French government when it blew up Greenpeaces boat TheRainbow

Warrior which was used in direct action against French nuclear testingin the

Pacific. Supranational evasions -- those beyond boundaries -- are notdirectly

connected to social movements but are still critically important, and,to

varying degrees, have already been mentioned above. They come in twotypes --

involuntary and voluntary. The first type involves state loss of controlas a

result of various interdependence related processes, such as thosehaving to do

with environmental or economic concerns. This would include thetransboundary

effects of the Chernobyl disaster or Bangladeshs loss of low-lyingcoastal

lands as a result of global warming and Nepalese deforestation to whichits has

made little contribution. Voluntary supranational evasions involve


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transferring

authority to international institutions in order to deal withinvoluntary

evasions.[32]

Thus, returning to the question of social movements, there has beenincreased

activity on the part of individuals working within non-statecollectivities

which challenge state-centric conceptions of authority and which are"evading"

states sovereign controls. These individuals have become

citizen-pilgrim[s].... withdrawing energy from territorial modes ofidentity and

loyalty, thereby weakening the claims of the state in general anddisclosing

that other constellations of power, authority, and community might bebrought

into being and deserve our loyalty.[33]

This is, in turn, having effects on the concept of sovereignty itself:

The notion of sovereignty as absolute authority exercised by the state

as the

by-product of an actual or hypothetical social contract is undergoing aprofound

mutation. Increasingly it is being supplanted by the notion of autonomy,that is

the right of individuals and collectivities to pursue their life chanceswithout

infringement by other individuals or collectivities, the stateincluded.[34]

In other words, there are calls to "relocate" authority, making new lociof

allegiance and authority possible. This has been made possible by the

communications revolution. For example, Thierry Breton provides us witha

fictional account of what he calls a "logical state," "an assemblage of

individuals who already share the same interests and aspirations, whosubscribe

to the same values and are acting toward a common purpose, wherever theymight


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be found on the planet."[35] It is "a supranational community that bearssome

resemblance to those nations that have been dispersed by historical

forces but

which have preserved their national identity...."[36] The fictionalexample that

Breton uses is that of a plan by the Vatican to use communicationstechnology in

order to link up all Catholics around the world and be able to addressthem

directly all at once. In this way, the authority of Rome could moreeasily be

exercised, and citizens might shift more of their allegiance from the

territorial state in which they live to the nonterritorially-boundCatholic

logical state. Although this has not happened[37] -- yet -- one couldimagine

any number of possible candidates for logical states -- other religions,

including Islam and Judaism; various transnational ethnic groups, suchas the

Kurds; or, possibly, even transnational corporations attempting to gaingreater

allegiance from their far-flung employees. Any attempts to relocateauthority in

this way could have an extremely destabilizing impact on states as the

traditional holders of power and authority, and theseterritorially-bound units

would be hard-pressed to stop this process. The control of territory,

which has

been an important aspect of sovereignty, may diminish in importance: "asthe

information revolution makes the assertion of territorial control moredifficult

in certain ways and less relevant in others, the nature and significanceof

sovereignty are bound to change."[38]

Currently, some of the most concrete and problematic threats to

sovereignty come


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from assertions of ethnonationalism and calls for self-determination.This issue

will be discussed further below in the context of a reformulation of

sovereignty. For the moment, however, a brief discussion of the broadoutlines

of the problem will suffice.

Around the world, many states are being torn apart by groups which arefighting

for autonomy and self-determination. Yugoslavia has been broken up intoseveral

independent, and not so independent, states as a result of secessionist

movements, fighting, and "ethnic cleansing." In an astonishingly shortperiod of

time, the Soviet Union completely fell apart into its constituent parts;yet,

ethnic fighting still threatens the new countries. The 30 year longcivil war in

Ethiopia recently came to an end, and as a result, Eritrea seceded andbecame an

independent state. Next to Ethiopia, in Somalia, internal civil war has

eliminated any idea of internal sovereign control. The Kurds, on theother hand,

represent a transnational ethnic group asking for self-determinationfrom

several states, including Iraq and Turkey. In Canada, the Quebecois andnative

peoples, in a much less violent way, are asking for some sort ofautonomy from

the Canadian government. The list could go on; however, the above

examples are

enough to indicate that state sovereignty is under assault from withinby

national and subnational groups, and this trend will likely increase.

In 1992, even before the Summer Olympics were over, planners werepreparing for

more than 200 country delegations for the next Olympics, up from 172.One

geographer has estimated that there will be more than 300 states within

the next


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25 to 30 years.[39] Ernest Gellner has estimated that, in addition tothe

approximately 200 states, there are around 800 "effective nationalisms"and

something on the order of 8000 "potential nationalisms" which correspondto an

estimated 8000 languages around the world.[40] At first glance, thesetrends

might indicate nothing more than an increase in states, a reification of

borders, and the further triumph of the sovereign state over other formsof

political organization. However, these trends and the factorscontributing to

them are much more ambiguous and contradictory. They reflect,simultaneously,

the globalizing and localizing trends discussed above. On the one hand,we see

the effects of economic and technological integration decreasing theimportance

of borders:

As were challenging the traditional ideas of state sovereignty,globalizing

economies and communications, and breaking up the last empires, thegeography of

the world is unhooking old connections and hooking up new ones. Alongwith

borders, the dynamics and functions of states will change too.[41]

At the same time, there have been localizing tendencies which put morefocus on

smaller and smaller political entities and loci of authority. What JamesRosenau

has called the "skill revolution" has enabled individuals and socialmovements

to question and challenge state authority.[42] That is, there is anincreased

awareness on the part of large numbers of people "of their own leverage,of

their ability, through joining in collective action, to tip the balance

toward


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either systemic order or subsystemic autonomy."[43] The end of the ColdWar has

unleashed ethnonational sentiments which were buried by decades ofbipolarity.

Unlike the decolonization era when self-determination was equated withthe

creation of states within colonial borders, current movements arechallenging

some of those borders as well as others, especially within Europe andthe former

Soviet Union. Thus, to a certain extent, the focus has moved from thesouth to

the north, and identity is identified more with the nation than with the

state.[44] There is a perception on the part of many people that currentlevels

of authority are too far away from their experiences and thus cannotrespond to

their needs, that the social and cultural identities of smallercommunities are

being marginalized within large states: "People want empowerment at thelocal

level. When they feel their lives are being run by others far away whocant

identify with them, they retreat into regionalism and local identitiesto

counter the dehumanizing effect."[45] Further, "these governments willbe closer

to people where it counts on issues of culture, education,languages."[46]

This is leading toward a devolution of authority from large centralgovernments

to, in some cases, smaller central governments, and, in other cases,local

non-central governments. In other words, while some calls forself-determination

are leading to independent states, others will result in some as yet

undetermined form of autonomy. Some smaller political communities may,as a

result of membership in regional blocs and other more globalinstitutions, be


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able to make it on their own away from their former affiliations withlarger

states. Others, however, will (have to) be content with various forms of

autonomy within the context of larger states. With more and moreauthority and

allegiance being associated with smaller entities, the notion of acentral

government possessing absolute sovereignty within its territorialboundaries

becomes increasingly problematic: "The notion of boundaries as weveknown them,

in terms of absolute sovereignty and legalities, will in timedwindle."[47]

Thus, calls for self-determination have begun to challenge "unfetteredstate

sovereignty."[48]

Human Rights

Thus we come to the most fundamental issue regarding sovereignty -- thatof the

relation of individuals to sovereign entities and their rights containedin this

relationship. Since the first formulations of sovereignty were putforward there

have been debates regarding what limits the sovereignty entity -- thestate --

has in its dealings with its citizens. In other words, do people haverights

beyond what the state grants them? A further question, then, is if these

rights

do exist who has the right to ensure that they are upheld? The latterquestion

will be dealt with in the last part of this paper. The previous questioncan be

answered in the affirmative without much hesitation. Why this is so canbe

investigated from two different perspectives, corresponding to thesources of

law discussed above.


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First, while contending that the source of natural law is hard toidentify, I

argued that, instead, if we accept that we are living in a postmodernworld

where our realities are socially constructed, we can examine the socialpurpose

of our ideas and institutions for a (contingent) ground for law. In thisway, by

looking at the social purposes of the (denaturalized) sovereign state,we can

interrogate what limits this puts on this social creation.

Theoretically, states exist for the well-being of their inhabitants. We

are told

that the primary function of states is that of protection. In otherwords, the

state exists to ensure that its citizens are able to live their livesfree from

the fear that an outside force will interrupt their lives.[49] Areasonable

extension of this would be that the inhabitants of a state should alsobe as

free from internal persecution as from external persecution. For, therewould be

no reason to protect people from external threats if they weremistreated at

home. Thus, the social function of states is to ensure the ability ofpeople to

live.

If, then, the state exists only for the purpose of enabling theindividuals who

comprise the state to live their lives relatively peacefully, and for noother

purpose, then one cannot say that sovereignty ultimately rests with thestate.

Rather, it rests with individuals within the state. They may turn overpart of

their sovereignty to the state as a condition for protection and toenable the

state to engage in activities which will provide for various needs of

the


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individuals, but, ultimately, this is only a loan which, theoretically,can be

called in whenever the state is not fulfilling the conditions implicitin the

loan.[50]

If sovereignty rests with individuals what does this actually mean? Inother

words, are there certain rights which go along with this sovereignty --

fundamental human rights? As will be seen below, there are many suchrights

recognized within the realm of positive international law. However, forpurposes

of this discussion, we can say that recognizing the state as a socially

constructed institution with the social purpose of providing securityfor its

inhabitants would be incomprehensible without at the same time linkingthat

social purpose to each and every individual within its realm. In otherwords,

since the social purpose of the state is to enable its citizens to live,then it

makes sense to recognize that social purpose as a right for each person.

Thus, we can say that the right to live is the most basic right. Inaddition,

one might expand the concept to include the right to live in a certainway. One

part of this right would be freedom from torture and other persecution-- such

as unwarranted detention, discrimination, or mass movements of

populations,

which, while not necessarily threatening the actual life of anindividual --

although in many instances it might, such as in a case where people were

deprived of food -- precludes the individuals from using his or herright to

live. Further expanding this right would include the right to whatMichael

Walzer calls a "common life" -- in other words the right toself-determination,


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the ability to decide how you will lead your life politically, socially,

culturally, etc. There are, of course, limits to this, especially when

one

groups "common life" infringes on another groups "common life." Thisprobably

comes closest to the true meaning of the nation-state -- a group ofpeople who

have certain things in common socially, culturally, and linguisticallyand who

have established a "common life" together. Territorially boundariesmight

(contingently) be put around this group to protect the inhabitantsfreely

chosen, noninfringing way of life.[51] What is important here is that ifa

government violated any of these rights -- and therefore was notcarrying out

its social function -- it could be declared illegitimate and the peoplecould

call in their loan of sovereignty.

Philip Allott provides a similar view:

If you claim to have a legal power, if you seek to act on the basis of alegal

power, you acknowledge the legal system which creates the power andwhich

confers it on you, and you acknowledge that the power is in principlelimited,

and you acknowledge the specific limits of the power.[52]

Thus, those who are acting within the realm of the socially constructedstate

must accept the purposes of that entity in order to be able to claimlegitimacy

for their actions.

A constructivist reading of human rights thus tells us that these rightscan be

derived from the social purpose of the institution against which theyare

arrayed -- the state. A positivist approach, on the other hand, tells us


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what

rights people have as a result of state practice rather than statepurpose. A

positivist approach is useful as a complement to a constructivistapproach in

two regards. First, most people looking at the issue of human rights --at least

most state elites -- do not employ constructivist analysis. Rather, theylook at

what conventions have been signed, what declarations have been agreedto, and

what treaties are in force when looking at the application of human

rights law.

Second, turning to these various sources of human rights law allows usto get a

better sense of how human rights might be enumerated and how they mightbe

ensured in practice.

A first step in examining the relationship between positive human rightslaw and

sovereignty might be to enumerate what the major conventions agreed to

by states

are. The core around which human rights law is formed is the Universal

Declaration of Human Rights (UDHR) adopted by the United Nations in1948. It

describes itself as "a common standard of achievement for all peoplesand

nations" and is not binding in the same manner as formal treaties(although all

members of the UN supposedly accept its contents). However, W. MichaelReisman

notes that it is "now accepted as declaratory of customary international

law."[53] Further, Delupis notes that the UDHR is perceived as having

"considerable authority."[54] There are many other agreements anddeclarations

within and outside the UN framework which further expand the rights ofpeople

and duties of states. Within the UN, these include the InternationalCovenant on


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Economic, Social, and Cultural Rights; the International Covenant onCivil and

Political Rights; the International Convention on the Elimination of all

Forms

of Racial Discrimination; the Convention on the Elimination of All Formsof

Discrimination against Women; the Convention against Torture and OtherCruel,

Inhuman or Degrading Treatment or Punishment; the InternationalConvention on

the Suppression and Punishment of the Crime of Apartheid; and theConvention on

the Prevention and Punishment of the Crime of Genocide. There are alsovarious

regional frameworks which provide for the protection of human rights,including

those in Europe, Africa and the Americas.

Most recently, the 171 states at the World Conference on Human Rights

reaffirmed, in the Vienna Declaration, the universality of human rights.

Further, the declaration recognized that "the promotion and protectionof all

human rights is a legitimate concern of the internationalcommunity."[55]

The above agreements provide for various degrees of bindingness andremedies.

And certain human rights have achieved the status of jus cogens, orprinciples

from which there can be no derogation. This includes prohibitions

against

genocide, torture, and slavery. In other words, even though the UnitedStates

did not accept the Genocide Convention until 1989 it was still preventedfrom

engaging in such activity and it was generally recognized within the USthat

genocide was not legal under international law. Delupis goes evenfurther:

I submit that a number of rules contained in the Universal Declarationof Human


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Rights are peremptory norms from which derogation, either by legislationor

treaty is not permitted. Furthermore, a number of rules laid down in the

conventions on genocide and slavery also have this character and bindthird

states by virtue of forming part of the general principles ofinternational

law.... the Universal Declaration, which does not itself constitute abinding

document, lays down rules which, irrespective of whether they areembodied in a

binding document or not, are binding as customary international law. Nostate

can rightly believe after the Nrnberg trials that international law,in the

absence of treaties, contains no rules which forbid atrocities andgenocide.[56]

Thus, human rights principles -- as well as other principles within

international law -- can be binding on states without specific assent onthe

part of states. As Jackson notes, "[l]egal positivism offers no escapefrom

civilized standards."[57]

The implications of this are clear. If states can be thus bound, part oftheir

sovereignty has been eroded. States are restricted from engaging incertain

activities within their territorial boundaries and, further, as Article

21 (3)

of the UDHR states, they are beholden to their populations: "The will ofthe

people shall be the basis of the authority of government." In addition,Article

22 says:

Everyone, as a member of society, has the right to social security andis

entitled to realization, through national effort and international

cooperation


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and in accordance with the organization and resources of each State, ofthe

economic, social and cultural rights indispensable for his [or her]dignity and

the free development of his [or her] personality. (italics added)

This article also specifically relates to the earlier argument regardingrights

deriving from participation in a socially constructed entity, in thiscase

society, with a social purpose. In any case, with the recognition ofcustomary

restraints within international law and jus cogens principles, "[i]n

international law, the sovereign [has] finally been dethroned."[58]

If the sovereign has been dethroned, who or what has taken its place, ifindeed

anything has? This will be the subject of the last part of this article.

However, we can provide a partial answer to this question now. AsReisman points

out:

Although the venerable term sovereignty continues to be used ininternational

legal practice, its referent in modern international law is quitedifferent.

International law still protects sovereignty, but -- not surprisingly --it is

the peoples sovereignty rather than the sovereigns sovereignty.[59]

This is still problematic, and will be considered in the context of

self-determination below. However, these statements help us tounderstand,

first, that individuals and "peoples" are subjects of international lawin a way

they were not when sovereignty was first conceived, and second, thatstates,

while still significant subjects of international law, have lost some oftheir

standing.

The last point to be made here is that the dividing line betweeninternational


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law and domestic law is becoming increasingly blurred.[60] And, as thisline

erodes, the principle of non-intervention which has been the link

between the

internal and external dimensions of sovereignty correspondingly weakens.The

international community which recognizes human rights has a right toviolate

this principle. As former UN Secretary-General Javier Perez de Cuellarhas

pointed out:

The case for not impinging on the sovereignty, territorial integrity and

political independence of States is by itself indubitably strong. But itwould

only be weakened if it were to carry the implication that sovereignty...

includes the right of mass slaughter or of launching systematiccampaigns of

decimation or forced exodus of civilian populations in the name ofcontrolling

civil strife or insurrection.

*****

It must first of all be recognized just how revolutionary an idea thisis....

Indeed, does it not call into question one of the cardinal principles of

international law, namely, the obligation of non-interference in theinternal

affairs of states?[61]

Further, not only is there a right to violate formerly inviolableborders, there

is a responsibility, for, as Walzer points out: "If rights dont requireus to

intervene... then it is difficult to see why they should be calledrights."[62]

The task, then, is to figure out what all of this means for the conceptof

sovereignty.


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The New Sovereignty

The previous pages have provided an overview of a few of the ways inwhich

sovereignty has been chipped away, both from the outside, astechnological

changes increased the permeability of borders, and from within, as humanrights

are recognized as trumping the right of states to engage in manyactivities

which violate these rights. In a similar fashion, we can conceive of any

reconceptualization of sovereignty as moving both downward (inward) fromthe

state incorporating both human and "peoples" rights and upward (outward)from

the state as we look for ways to respond to the need to protect theserights

within a global framework as well as respond to the increasinglypermeability of

borders.

Such a reconceptualization also joins a debate about what kind of form

sovereignty may be permitted to take. Weiss and Chopra point out thatthere are

two ways sovereignty can be conceived. First, there is a legalinterpretation:

Under international law, there are not degrees of sovereignty; it eitherexists

or it does not. The narrow standard of traditional sovereignty forms a

threshold: once nations achieve a kind of critical mass, they arecatapulted to

a transcendent status through recognition by other members of the clubof

sovereign states. Legal sovereignty cannot be partially redefined or

refined.[63]

The second is a political interpretation. Sovereigntys limits aredetermined

subjectively and its meaning is contextual. It allow for degrees of

sovereignty;


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"it is possible to be more or less sovereign."[64] The former is tooconfining;

it is tied to an old order, rather than allowing for the changingcircumstances

of the emerging global order. Thus the second, more fluid, form ofsovereignty

formulation must be used because it recognizes changing circumstances,new

global and subnational actors, and new and variable contexts.

Moving downward requires looking at two different aspects: people andpeoples.

The first relates to individuals and their rights as humans, and the

second

relates to collectivities of people -- ethnic groups and nationalities-- and

their rights as collectivities. Beginning with the first aspect, we have

established that individuals have certain rights as humans and, further,these

rights are beyond the state. The state may hold these rights in trust,but

cannot violate these rights for raison detat. Ultimately, the peopleare

sovereign rather than an identifiable "sovereign" -- whether a person(such as a

monarch) or a government.[65] This is the concept of "popularsovereignty" --

the state must be beholden to the people. As the UDHR states, the basisof

authority is the will of the people. It determines a states legitimacy:

"Political legitimacy arises from the peoples will -- it does notdescend

deductively from the Westphalian principles of state sovereignty."[66]Of

course, determining the will of the people is problematic. To a largeextent

(although possibly not in every circumstance) we are led to variousconceptions

of democracy to determine this will.[67] Regardless, the state isnothing more


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than the sum of its parts.

So far we have two different building blocks of sovereignty. First,individuals

have human rights, the violation of which calls into question a states

sovereignty. Second, the authority of a states sovereignty is derivedfrom the

popular sovereignty of the people. If either of these are violated wemight call

the legitimacy of a state into question. In other words, there are two

constitutive principles of state legitimacy -- human rights and popular

sovereignty. A third, less identifiable, constitutive principle relatesto the

concept of "peoples" and their relationship with the state. This can bethought

of either in terms of a dichotomy between the "nation-state" where"nation" and

"state" are one and multinational states, or within a framework whichrecognizes

the multinational character of most states. The former says there mustbe a

on-to-one correlation between nation and state for a "people" to have

self-determination. In this regard it is too atomistic and rigid,assuming there

is an identifiable endpoint for self-determination and thus for the full

realization of cultural expression and human rights. The latter, on theother

hand, recognizes that most states -- both peaceful and democratic, and

strife-torn and authoritarian -- are multinational and thatself-determination

does not, in all cases, necessarily mean a separate independent state.Rather,

it might be tied more to process and autonomy.

The concept of self-determination, however, has stagnated at a pointwhich

actually impedes self-determination. During the period of decolonizationafter

World War II, nationalism was tied to state-building which, in turn, was


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seen as

a necessary component of the decolonization process. The colonies weregiven

independence which meant sovereignty. Furthermore, such sovereignty wasseen as

a necessary for self-determination and ensuring that the former colonialmasters

did not reassert their domination. There was really nothing else whichthe

colonial populations could conceive of as ensuring their independence.Over the

few decades since decolonization began, self-determination has come to

be

synonymous with maintaining state forms within colonial borders. Thus,

"territorial integrity has all but replaced nationalself-determination as

the watch-word of the post-colonial era."[68] The most illuminatingexample is

in Africa. The 1963 Charter of the Organization of African Unity (OAU)

recognizes the equal sovereignty of all of its members and requires

nonintervention and respect of borders.[69] Further, in 1981 the Africanheads

of state adopted the Banjul Charter on Human and Peoples Rights. AsJackson

notes, "peoples are the populations of states (or colonies) consideredas a

collectivity whose rights are exercised by governments."[70] The term"peoples"

has been divorced from ethnic or cultural meanings and has come to

denote the

population within a state no matter how diverse in terms of ethnicity,culture,

or nationality, thus perverting the concept of self-determination and,at the

same time, condemning populations to human rights abuse within so-called

"quasi-states":

Independent rulers depend on borders more than colonial governors and as

a rule


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devote more effort and resources to controlling them. Furthermore, asalready

noted, ex-colonial frontiers deny self-determination to nationalities inmany

parts of the Third World where cultural borders and state boundaries areat

odds.

*****

In short, decolonization ironically was not only a liberation movementbut also

an enclosure movement: it confined populations within ex-colonialfrontiers and

subjected them to indigenous governments which often were not onlyuntried and

inexperienced but also unable or unwilling to operate in accordance with

humanitarian standards.[71]

Thus is the legacy of self-determination during decolonization. In fact,the

only two instances where self-determination has been seen as overriding

established sovereign arrangements are in Israel whereself-determination for

Palestinians[72] are now just gaining a measure of autonomy, and inSouth Africa

where the process of self-determination for the Blacks has just beencompleted

with the first non-racial elections.[73] Both of these instances are inthe

process of being dramatically altered in favor of self-determination.

And yet, the governments of many of these former colonies, as well assome in

the non-colonial world, have not been able to keep a handle on suchmovements:

"Governments are losing control of the minds of their citizens.Suppressed

nationalisms, including passionate regionalisms, are assertingthemselves

everywhere. Suppressed religions are reasserting themselves."[74]

Turkey, Iran,


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Iraq, Spain, the constituent parts of the former Yugoslavia and SovietUnion,

India, the United Kingdom, Ethiopia, Somalia, and Canada are only a fewof the

countries which are experiencing one form or another of ethnonational

discontent.[75] These movements are threats to both the temporal andspatial

aspects of state sovereignty. Temporally, state sovereignty assumes,especially

within the context of decolonization, that state borders, once set, willnot be

altered at some later point. This is certainly the assumption of African

states.

Spatially, they threaten both the internal and external borders ofestablished

states. Internally, ethnonational conflict in Yugoslavia has led to its

partitioning into a few different states, although the actual bordersand

constitution of these states is still in limbo. Similarly, in the formerSoviet

Union, fifteen states have emerged where before there was one, and

conflict

within these countries threatens further break-ups. These two examplesare

instances where the end of the Cold War made such ethnonationalassertions

possible. In addition, transborder ethnonational conflict and associated

irredentist claims threaten the external borders of a number of states.For

example, the Kurds are a group fighting for self-determination which, ifgiven

their own Kurdish state, might alter the borders of Iran, Iraq, andTurkey.

These challenges from within lead us to one of the main questions the

international community will have to face in the years ahead: does

self-determination imply a right to statehood, and if so, what criteriashould

be used, and if not, what other accommodations can be used to deal withsuch


34/60


claims?

As alluded to above, the right to self-determination is ambiguous. Onthe one

hand, as Lapidoth notes, "The right of peoples to self-determinationseems to be

generally accepted."[76] What this actually means, however, is notclear. Many

declarations and conventions have recognized this right.[77] Yet, asnoted

above, this has, to a large extent, been confined to the right for thoseunder

colonial control to be free of such control within the context of theirown

states defined by colonial borders, and state practice since then hasreified

those borders against other claims for self-determination.[78] Thus,

self-determination of "peoples" -- defined as anybody living within theborders

of a former colonial entity -- requires the denial of ethnicself-determination,

especially in Africa, as a separate state.[79]

Yet, this formulation is unduly arbitrary in that it does not recognizethat

current forms of ethnic and cultural domination within current statescan be

just as severe as those which legitimated decolonization. On the otherhand, the

unfettered right to self-determination as secession could wreak havoc,lead to

hundreds of more states, and may also have negative consequences forother

ethnic minorities. Thus, while all people and "peoples" have the rightto

self-determination this can and should only sometimes lead to theestablishment

of an independent state. Other forms of self-determination must beenvisioned

and explored, for as Erika Schlager notes, self-determination should be

thought


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of more as an ongoing process rather than as a definite end result.[80]

This process might be encapsulated within various autonomousrelationships.

Autonomy is what many groups are agitating for right now, and it doesnot

necessarily mean independence: "Rather, achieving autonomy means beingfree to

select the ways in which interdependence with other individuals, groups,

provinces, states, and international organizations is established."[81]For

example, although there are some pushing for outright secession for

Quebec, its

status right now and probably in the future is a semi-autonomousprovince within

a federal Canada. It has the right to legislate on certain culturalmatters,

including language,[82] while still maintaining ties with Canada.Lapidoth notes

that the term souveraint-association, which was the subject of the1980

referendum in Quebec, "was intended to imply political sovereigntycoupled with

association in areas of common interest."[83]

Another way of dealing with some of the more extreme problems of ethnicconflict

and the dissolution of sovereign authority might be some sort ofinternational

trusteeship. Independent states were supposed to be a remedy for such

arrangements during decolonization.[84] However, there may be someinstances

where at least temporary UN trusteeship may be appropriate. For example,there

have been calls for the United Nations to take over administration ofSomalia --

in which there is no identifiable sovereign control -- for someunspecified

amount of time in order to end the fighting, deal with the severehumanitarian

conditions, and try to get the country to some degree of stability.


36/60


Certain

administrative activities were carried out by the UN in Cambodia aselections

were prepared for and authority reconstructed in that country. And, itrecently

supervised elections in Haiti and Nicaragua.[85] Another possibilityattempts to

address one small part of the conflict between Israel and its neighbors.Three

major religions -- Judaism, Islam, and Christianity -- recognizeJerusalem as a

site of major religious significance, and it had been the focus of

violent

conflict between Israel and Islam and less violent conflict betweenIsrael and

various Christian groups. Making Jerusalem an international city withall three

groups having a say in its administration might alleviate some of theconflict

endemic over the issue.

Both of these types of arrangements -- autonomy and trusteeship or

internationalization -- are incompatible with identifying sovereigntysolely

with a central authority in an independent state, and thus underminemonolithic

conceptions of sovereignty. Yet, the idea of autonomy and itsrelationship to

self-determination helps us to get a handle on the third building blockof

sovereignty -- that of the relationship between "peoples" andsovereignty.

The next step is to determine how we might move upward from the state in

ensuring that our various conceptions of human and peoples rights areupheld

and how to deal with the increasing permeability of borders. In otherwords,

what kinds of authority might be relocated to supranationalorganizations?

The trend with regard to humanitarian issues has been somewhat


37/60


contradictory.

However, developments over the last few decades have indicated both theneed,

and an increasing willingness, to deal with humanitarian issues. Theneed, which

almost always comes before the willingness, arises both from the statusof

individuals as possessing human rights which are being violated withinstate

boundaries as well as the increasing internationalization ofhumanitarian

crises. Overall, a wide variety of rights have been generally

recognized. In

addition, wars, natural disasters, oppression, and maldistribution ofresources

have all created situations in which grave humanitarian situations havespilled

over borders. The most vivid and far-reaching instances are when war andfamine

induce refugees to pour across borders by the thousands and millionsseeking

food and protection from the violence. The problem is how to preventthis from

happening in the first place, and how to deal with it when it does.

The sovereignty claimed by states and the corresponding unwillingness ofthe

international community to infringe upon this sovereignty have been themajor

impediments[86] to dealing with some of these issues in an effectivemanner.

Yet, a couple of recent examples will also demonstrate the contrary. In1991,

aid was extended to the Kurds in northern Iraq with the UN SecurityCouncils

blessing and in violation of Iraqs sovereignty.[87] In Somalia, the USwas

authorized to protect food convoys, and staged a televised "invasion" ofthe

country as it started its operations.[88] Several months later the UN

took over


38/60


operations.

Examining in detail what institutional changes may need to be taken tobe able

to respond more adequately to humanitarian crises is beyond the scope ofthis

paper. Instead, I would like to look at how we should think about suchchanges.

Providing for a general principle for humanitarian relief on the part ofthe

international community requires a conceptual shift in our thinkingabout the

relationship between the individual and the global community. We have

seen that

the relationship between the individual and the national community --the state

-- is one where individuals are constitutive of state authority. Yet,even

within this framework, the place of the individual in the world as awhole is

still murky. The space outside national boundaries is perceived assomehow

different from the space enclosed by constructed, yet ephemeral,boundaries. Is

this necessarily the case? Of course not. Those in power over thecenturies have

created an illusion of an "inside" and an "outside." Inside the state,there is

a feeling of belonging (usually) and a feeling that "were all in ittogether,"

and there are limits (at least within certain societies) to what might

be done.

Outside, there is not the same feeling of comradeship, and the limits onstate

action are not the same.

Yet, this dichotomy can be seen as the contingency it is in twodifferent ways.

First, Benedict Anderson writes that national communities are "imagined

communities" which are "both inherently limited and sovereign." Thenation "is

imagined because the members of even the smallest nation will never know


39/60


most of

their fellow-members, meet them, or even hear of them, yet in the mindsof each

lives the image of their communion."[89] These communities, however muchpower

they may have in the minds of their citizens, are ideas, constructedwithin the

minds of those citizens. There is nothing "natural" about them, althoughthey

may seem as such. And, in fact, national communities are just one of anumber of

communities we each recognize as having some sort of claim to our

loyalties. We

may say "my country right or wrong," but we also may feel similarfeelings about

our state or province, our region, our city, our neighborhood, or even

non-territorially-bound entities. Some of these might even be moreimportant

than our particular country. So why not also go the other way? A feelingof

being European exists along with nationalist sentiment within the

particular

countries that comprise Europe. And Europe is just as much a creation asis

France or Germany. It should not, then, be too great a step to alsoimagine the

entire earth as an encompassing community. In fact, one could make thecase that

this would be much more natural than Kenya or Costa Rica. We still wouldnot be

familiar with most of the people within this imagined community; rather,the

scale would just be different. Further, this would not be our onlyallegiance;

we could still keep our other allegiances to our nation, our province,our city.

What would change is that those who are now citizens could also beconsidered as

humans. We would have "dethroned the statist paradigm"[90] where people

are


40/60


defined in relation to their state rather than in relation to eachother.

We can take one other step in this constructivist view of community.Above,

human rights were tied to the social purpose of the state. Similarly, wecan

investigate the social purposes of international institutions. These

institutions are created by states in order to deal with interdependenceand

permeable borders. States, as established above, have as their socialpurpose

providing a decent environment for the individuals within the borders of

the

state to live. Since international institutions are created by entitieswith a

social purpose, they must also be tied in with that social purpose.Thus,

individuals can be tied to international institutions and to each otherwithin a

framework which recognizes them as humans as well as citizens. They arecitizens

within a global community as well as within national (and other)communities,

and this means that the global community has certain responsibilities toits

citizens, regardless of the (imagined) state in which they reside.

As with our previous discussion of human rights, we can also examinethis issue

from a positivist approach, determining how state practice might alsolead us to

the same conclusion that the global community has obligations to itscitizens

and thus the authority to ignore national boundaries. The followingdiscussion

will note contradictory statements and actions with regard to the rightof the

international community to ignore state borders in defending humanrights. Yet,

activities and resolutions by the United Nations (made up of state

actors) point


41/60


to a trend of a right on the part of the international community toviolate

sovereignty in order to protect human rights. The actions have notalways been

put in such explicit terms, but the outcomes have, indeed, beenviolations of

sovereignty for humanitarian purposes.

As a starting point, we can turn to the various declarations,agreements, and

conventions discussed above which enumerate a wide range of rights. Theyprovide

a positive basis for the investigation of the responsibilities and

rights of the

international community with regard to such human rights. Statedeclarations on

the subject are contradictory. For example, Myanmars (a major humanrights

abusing state) Foreign Minister, U Ohn Gyaw, stated before the UNGeneral

Assembly that: "A clear line must be drawn between internationallybinding

human rights norms and the modality of their implementation, which isthe

primary responsibility of the Member State."[91] The Foreign Ministerfrom

Indonesia (another major abuser of human rights), Ali Alatas, told theGeneral

Assembly that:

Basic human rights and fundamental freedoms are unquestionably ofuniversal

validity.... However, it is also commonly agreed that theirimplementation in

the national context should remain the competence and responsibility ofeach

Government, while taking into account the complex variety of problems,of

diverse value systems and of different economic, social and culturalrealities

prevailing in each country.

This national competence not only derives from the principle of


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sovereignty, but

is also a logical consequence of the inherent right of nations to theirnational

and cultural identity and to determine their own social an economicsystems.[92]

Many other countries, including China, Uganda, and India[93] (alsoviolators of

human rights to varying degrees) have also voiced opposition to grantingthe

international community as a whole the right to violate statesovereignty in

order to protect human rights.[94]

Other state representatives have argued the opposite. The ForeignMinister from

Italy, Gianni de Michelis, told the General Assembly in 1991:

Intervention that is primarily aimed at securing protection of humanrights and

respect for basic principles of peaceful coexistence is a prerogative ofthe

international community, which must have the power to suspendsovereignty

whenever it is exercised in a criminal manner.[95]

Regarding the demarcation of the line between those matters which areseen as

"essentially domestic" and thus beyond the purview of the UN (usuallyseen as

everything but military security issues) and non-domestic matters, thePresident

of the Security Council stated in January 1992 that: "The non-military

sources

of instability in the economic, social, humanitarian and ecologicalfields have

become threats to peace and security."[96]

This attitude was evident (to a certain extent) in the aforementionedactions

supported by the Security Council on behalf of the Kurds in NorthernIraq.

Security Council resolution 688 was the framework in which the aid and

protection activities were taken out. It insisted "that Iraq allow


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immediate

access by international humanitarian organizations to all those in needof

assistance in all parts of Iraq and to make available all necessaryfacilities

and operations."[97] Supporters of the resolution stated thatresolution 688

was not a violation of sovereignty; rather it upheld sovereignty andprotected

human rights at the same time. As Weiss and Chopra point out: "They[supporters

of 688] did, however, link human rights with international peace and

security.

Failure to protect Kurds would threaten the security and sovereignty of

neighboring countries, which in turn would similarly threaten Iraqfurther."[98]

Rather than identifying human rights by itself as legitimizing suchactivities,

human rights was tied to the recognition of interdependence andpermeability of

borders. Further, although it was not portrayed as a violation of

sovereignty,

this is, in fact, what it was. The international community engaged inactivity

which went against the wishes of the identifiable central authority --Saddam

Hussein -- within the country. Following the lines of an earlierargument made

above, Husseins legitimacy and claim to such authority may have alsobeen

called into question by the gross violations of human rights perpetratedby his

regime. Thus, either Husseins sovereign authority was violated or that

authority was not valid in the first place. In either case, theprinciple of

sovereignty was undermined.

Resolution 688 can also be seen as part of an expanding right tohumanitarian

aid. The General Assembly adopted resolution 43-131 in December 1988"which


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formally recognized the rights of civilians to international aid and therole of

nongovernmental organizations in natural and [human-made] disasters." It

also

adopted resolution 45-100 in 1990 which "reaffirmed these rights andprovided

specific access corridors of "tranquillity" for humanitarian aidworkers."[99]

In addition, France has taken the position that no permission isrequired to

provide aid.[100]

Further, aid activities were undertaken in Ethiopia during the 1984/85famine

and later in direct contradiction of the government of Ethiopiaswishes. The

Cross Border Operation (CBO) delivered aid into the northern parts ofEthiopia,

specifically Eritrea and Tigre provinces, during the famine and civilwar. These

two provinces were, to a great extent, under the control of two rebel

organizations and their relief wings worked with nongovernmental aid

organizations in transporting relief aid from neighboring Sudan. Whilethe

actual operations were undertaken by private groups, they were suppliedby

individual states. These activities violated Ethiopias sovereignty inthat the

central government, headed by Col. Mengistu Haile Mariam, was trying touse the

denial of food aid as a weapon in its war against the insurgents. Andvarious

states, by covertly supporting these activities, were also supportingthis

violation of sovereignty for humanitarian purposes.[101]

In addition, even those who maintained that the state level was moreappropriate

for upholding human rights (a view which essentially denies theuniversal

applicability of human rights norms) also recognized the validity of


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human

rights standards, creating a contradiction. This contradiction can bereconciled

by recognizing that standards which are recognized as valid mustconstrain the

activity of those it is aimed at and that the body or forum in whichthese

binding standards or norms were created must have a right to upholdthese norms

or they are worthless:

Law constrains or it is a travesty to call it law. Law enters decisivelyinto

the willing of its subjects or it is a travesty to call it law. Lawtranscends

the power of the powerful [states] and transforms the situation of theweak or

it is a travesty to call it law. A legal system which does its best tomake

sense of murder, theft, exploitation, oppression, abuse of power, andinjustice,

perpetrated by public authorities in the public interest, is a

perversion of a

legal system.[102]

We thus have state rhetoric upholding the essentially universalapplicability of

human rights norms, along with somewhat more contradictory statepractice which

in all, I submit, upholds the right of the international community tooverride

state sovereignty in the defense of these norms. In addition, the verypurpose

of these norms should also render problematic the purely national asopposed to

international implementation of such norms. Further, we have theprevious

analysis which places individuals within a global community with asocial

purpose of providing for the security of such individuals. Together,they should

provide a basis for global action to protect human rights. And this,


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along with

the above building blocks of sovereignty from below the state level,provides us

with the foundation for a reconceptualization of sovereignty: The New

Sovereignty.

At this point, one might question why, with the previous critique ofsovereignty

and the acceptance, at least partially, of a postmodern critique, is it

necessary to keep any notion of sovereignty whatsoever? After all, since

sovereignty is a social creation, can we not just get rid of sovereignty

once

and for all and come up with something else? What I would like tosuggest is

that recognizing the artificiality and contingency of our sociallycreated

realities does not mean that we cannot reappropriate the positivefeatures of

our social artifacts and put them to good use. We can overcome modernist

failures "associated with artificial and constraining boundaries onimagination

and community," and "reinvent reality in more holistic, lesshierarchical

imagery."[103] We can take sovereignty, banish the constrainingboundaries

within which supreme power has been formulated and practiced to the ashheap of

history, and then take the remaining notions of reconstructed authority

and put

them back together in a concept which is less centralized and whichtakes

seriously the needs and rights of those who create and are the objectsof

sovereignty -- people.

Sovereignty, as both authority and capability to carry out authority,cannot be

located in any one place -- i.e. the state. A concept which attempts to

recognize that there are, in fact, numerous levels of community which


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all have a

claim on the allegiances of their shared members must accept this basicpoint.

To begin, then, we saw that there are three different building blocks of

sovereignty below the level of the state. These were human rights,popular

sovereignty, and a more nebulous concept of self-determination andpeoples

rights. Upholding human rights must be the goal of any community whichseeks to

lay a valid claim to authority. Further, that claim must be grounded in

the will

of the people -- or popular sovereignty -- although the means ofdetermining the

will of the people is still somewhat problematic. In addition, withinany entity

with a claim to authority there must be mechanisms by which variousgroups are

able to determine their way of life within certain parameters. In otherwords,

when necessary, there must be provided various forms of autonomy (orpartial

sovereignty) from a central authority. Thus, already we have identifieda number

of different levels of sources of sovereignty as well as sovereigntyitself

(authority and capability).

In addition, states have turned over some of their sovereignty(willingly and

unwillingly) to levels above the state. The European Union, however

contradictory its development is right now, is a case in point at theregional

level. Globally, various organizations and institutions, most notablythe United

Nations, have various authorities over their constituent parts --states.

Sovereignty has also been taken from states by various nonterritorialactors.

For example, states, however much they try to regain it, have lost much


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control

over their economies to currency traders and TNCs, as well as to otherstates.

Finally, states no longer have the authority to deal with their citizensas they

please in the eyes of the international community. In other words, the

subnational building blocks of sovereignty are recognized and shored upby a

still developing concept of individuals as humans rather than citizensof

states, and as citizens of an emerging (and still nebulous andundefined) global

community.

Thus, rather than identifying sovereignty with one level of socialintegration

-- the state -- we can point to levels of sovereignty. This, in and ofitself,

turns traditional formulations of sovereignty on their heads. But thisis only

the beginning. Besides levels of sovereignty, we can integrate variouslevels

into multiple sovereignties where various authorities may overlap.

In addition, as noted above, another variation on sovereignty may be

particularly useful or necessary in dealing with various internalconflicts. A

notion of partial sovereignty can be identified with autonomy. Providingvarious

minority groups within particular states the option of a framework ofautonomy

in certain areas can help to defuse violent and not so violentseparatism. This

will not always be appropriate, of course, but where it is, it is yetanother

encroachment on monolithic sovereignty.

I have also indicated how one form of what might by called globalsovereignty

could be used -- that of trusteeship for a certain period of time whilea

country reconstructed itself after a war or other major disruption. In


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addition,

however, the concept of global sovereignty can have a broader meaningwhere the

global community has the authority -- through the UN -- to ensure thathuman

rights norms, as well as other standards necessary for the well-being of

individuals and the world as a whole, are upheld.

The previous discussion leads us to a couple of final observations. Thestate as

a sovereign entity is not going to disappear anytime soon. However, itwill be

only one of a number of levels of partially and multiply sovereignorganization.

It will not be the only entity which can lay claim to authority over its

citizens. Thus, as we come to recognize that we are living in whatRosenau calls

an era of "post-international politics,"[104] we must also realize thatwe are

not, as Francis Fukuyama has postulated, at "the end of history," where

one form

of economic, social, and governmental form has triumphed over all othersand

what remains to be worked are minor details.[105] Rather, we are likelyin for a

long period of time where issues regarding the loci of power andauthority will

be up in the air and not amenable to any final solution or formulationand will

be under constant questioning and challenge by various sectors. We areentering

what might be called the Age of Ambiguity, where our postmodern,postindustrial,

postinternational viewpoints lead us to the conclusion that our socialrelations

today and into the future will be characterized by a discomforting --yet full

of potential -- ambiguity.

Footnotes


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[1]This paper is a significantly shortened version of a chapter from my

dissertation which is entitled The New Sovereignty: The ChangingHumanitarian

Agenda in the Emerging Global Order.

[2]Richard Falk, Explorations at the End of Time, (Philadelphia: Temple

University Press, 1992): 5.

[3]Philip Allott, Eunomia: New Order for a New World, (New York: Oxford

University Press, 1990): 4-13.

[4]Quentin Skinner, quoted in Nicholas Greenwood Onuf, "Sovereignty:Outline of

a Conceptual History," Alternatives, 16 (4 1991): 428.

[5]Joseph Camilleri and Jim Falk, The End of Sovereignty?: The Politicsof a

Shrinking and Fragmenting World, (Brookfield, VT: Ashgate PublishingCompany,

1992): 48-53, 62-3.

[6]For a more in-depth analysis of the development of the concept ofsovereignty

see Onuf and F. H. Hinsley, Sovereignty, (New York: Cambridge UniversityPress,

1986).

[7]Ibid., p. 2 (italics in original).

[8]Ibid., p. 53.

[9]Ibid., p. 11.

[10]Alexander Wendt, "Anarchy Is What States Make of It: The SocialConstruction

of Power Politics," International Organization, 46 (Spring 1992): 413.

[11]Walter Truett Anderson, Reality Isnt What It Used To Be: Theatrical

Politics, Ready-to-Wear Religion, Global Myths, Primitive Chic, andOther

Wonders of the Postmodern World, (San Francisco: HarperSanFrancisco,1990): 39.

[12]Ibid.

[13]James Der Derian, "The Boundaries of Knowledge and Power inInternational


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Relations," in James Der Derian and Michael J. Shapiro,

International/Intertextual Relations: Postmodern Readings of WorldPolitics,

(Lexington, MA: Lexington Books, 1989): 4.

[14]Allott, p. 302.

[15]Camilleri and Falk, p. 11.

[16]Anderson, p. 25.

[17]Richard K. Ashley, "Untying the Sovereign State: A Double Reading ofthe

Anarchy Problematique," Millennium: Journal of International Studies

(hereafter

referred to as Millennium) 17 (Summer 1988): p. 230.

[18]Allott, pp. 378-9.

[19]Camilleri and Falk, p. 39.

[20]For further discussions and critiques of postmodernism andinternational

relations see: Ashley; Camilleri and Falk, chapter 3; Der Derian andShapiro;

Falk 1992; Pauline Rosenau, "Once Again Into the Fray: InternationalRelations

Confronts the Humanities," Millennium, 19 (1 1990): 83-

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