Richard Falk, professor of international law and practice at Princeton University, discusses the complicated relationship between national sovereignty and human rights in an article that raises important questions about the degree to which democracy should be promoted around the world. As Professor Falk indicates, the choices are by no means easy or clear.

The international protection of human rights is difficult to separate from the ebb and flow of great power relations. Human rights, and its war-like step-child, "humanitarian intervention," are both core elements of post-Cold War geopolitics. As such, both the projections of power on behalf of severe human rights abuses and the refusal to take action in the face of humanitarian catastrophes suggest how deeply human rights is embedded in contemporary geopolitics. The extreme instances of refusals to act are illustrated by reference to Rwanda (1994) where strategic interests were perceived to be minimal, and Chechnya (1999-2000) where the costs and risks of action were perceived to be too great.

Often, the counter to the internationalization of human rights is the doctrine of sovereignty, which on its face seems to preclude the implementation by external coercion of human rights standards. States that were colonies until recently, as well as countries that experienced frequent interventions, tend to be particularly eager to insist that implementation of human rights must occur in a manner that is consistent with strict notions of sovereignty. The U.N. Charter by its affirmation in Article 2(7) that the organization is prohibited from intervening in matters that are essentially within the domestic jurisdiction of member states, seems also to be reassuring members that the United Nations will not challenge internal state/society relations, no matter what degree of chaos or abuse occurs, at least so long as no threat to international peace and security is present.

The Increasing Importance of the Human Rights Ethos

At the same time, the emergence of a serious human rights process at regional and global levels would seem to be the most impressive ethical achievement of the past century. The fundamental idea that governments must act within certain prescribed limits -- that even political and military leaders might be held accountable for their actions if they amount to crimes against humanity and severe patterns of human rights abuse -- represents revolutionary developments. These emergent international standards, and their implementation, are definitely challenging the idea that sovereignty provides governments with insulation against accountability provided that their actions are confined to territorial limits, and that their leaders have an immunity respected throughout the world. The pursuit of such notable figures as Yugoslav President Slobodan Milosevic and former Chilean President Augusto Pinochet, suggests that those responsible for inflicting horror on citizens have no longer any secure place to hide in the world. The related effort to establish a permanent international criminal court, in accordance with the Rome Treaty of 1998, seeks to give institutional solidity to this extension of accountability.

Perhaps most notably, the significance of human rights is a consequence of pressures mounted by activists in civil society. The rise of international human rights nongovernmental organizations (NGOs) expressed new modes of transnational political action, relying on networks, norms, information and media access as instruments of persuasion, to challenge entrenched oppressive state power. At times, these challenges converged with geopolitical pressures as was the case in relation to support for human rights in former Soviet bloc countries, and currently in China. Cold War ideology and the promotion of human rights converged, especially in the 1980s. As Noam Chomsky and others have pointed out, they also often diverged, with geopolitical priorities producing pro-authoritarian interventions at the expense of human rights. This was especially the case in relation to Third World countries, particularly throughout Latin America during the Cold War era, featuring such recurrent interventions as in Guatemala (1954), Dominican Republic (1965), Chile (1973), and Nicaragua and El Salvador (1980s). A similar pattern of Western support for authoritarian rule was evident in relation to Africa and Asia as well.

The main point is that sovereignty and human rights are linked in complex, contradictory ways. Sovereignty can serve as a shield and pretext to enable a government to engage in abusive behavior toward its own citizenry. At the same time, however, it can also protect a progressive government that is committed to promoting the economic, social and cultural well-being of its people against a geopolitically motivated intervention that seeks to exert pressure on a weaker state. Because of this dual nature of sovereignty, with its many variations, the issues raised about the relations between sovereignty and human rights in any particular case should always be considered in their broader context. At this stage of development in international society, sovereignty may work for or against human rights depending upon the circumstances.

The Evolution of the Human Rights Movement

The preliminary puzzle is why sovereign states would participate in the creation of a legal framework that by its very nature is subversive of territorial supremacy, which was the hallmark of Westphalian era (1648) world order. In the period after World War II starting with the Universal Declaration of Human Rights and the Genocide Convention, this dynamic of subversion was initiated. It can be best explained by two mutually reinforcing sets of considerations: First of all, an awareness of the historical circumstances surrounding the exposure of atrocities by Nazi Germany generated pressures to create conditions that would work against the repetition of such behavior in the future. The fact that what the Nazi regime did to its own citizenry had generated such a passive response on the part of Western liberal democracies was part of this awareness, giving rise to the pledge of "never again." Such a resolve was associated with the foundational idea that there were limits on what a government could do in its relations with the people living within its boundaries. In one sense, the elaboration of fundamental human rights amounted to a specification of these universal limits on territorial supremacy, thereby exhibiting post-1945 Western guilt combined with reformist and idealist values that had provided the ideological rationale for the recently concluded war.

There was also present, however, a second set of considerations of a neutralizing character. The world of 1945 remained a state-centric world with very different ideas about how to organize state/society relations. It was also a world characterized by grossly varied material circumstances. Such unevenness may have been just below the surface of political consciousness in the immediate aftermath of World War II, but it was latent even during the war. Subsequently, the Cold War with its East/West axis and the anti-colonial struggle with its North/South tensions highlighted the lack of consensus in international society.

As a result, from the very outset, the possibility of human rights implementation was problematical. There was no enforcement mechanism associated with the formulation of a human rights framework. Real power was still distributed at the level of the state. In effect, the emergence of human rights was politically possible only because there existed at the time an understanding that there would be no mechanisms of implementation brought into being. Even authoritarian states had no trouble subscribing to the norms laid down since there was virtually no chance they would be maintained. In this sense, the subversion of sovereignty was more apparent than real.

And yet, with the passage of time, this understanding shifted: The subversion in several key settings became real as well as apparent. Several factors explain this unanticipated course of events. The emergence of effective transnational NGOs dedicated to the promotion and implementation of human rights introduced a new set of non-state political actors onto the global stage. With the norms of human rights having been legitimated by governments, the claims for implementation by these NGOs were difficult to discount altogether, especially when joined with grassroots opposition to oppressive rule and to an awareness of abuse made manifest by a gradually more attentive global media. Sovereignty was indeed being penetrated in the sense that selectively, at least, the shield against external accountability was being evaded to some extent. As suggested earlier, the effectiveness of this penetration was enhanced to the extent that it converged with ongoing ideological struggles: The West joined with NGOs to exert pressures on Soviet bloc countries, especially after the Helsinki Accords of 1975, while the Third World made use of the United Nations General Assembly and its own Non-Aligned Movement to lend political weight to the promotion of the right of self-determination as validating struggles against colonial rule. This latter process culminated in the Anti-Apartheid Campaign that managed to build such a strong normative climate in favor of human rights that in the 1980s it overcame the inclinations of conservative leaders such as Ronald Reagan and Margaret Thatcher, who were guardians of the strategic economic and political interests of the United States and the United Kingdom which seemed to favor preserving the status quo. In these high-profile instances of the collapse of the Soviet bloc (and the ending of the Cold War), the triumph of decolonization, and the defeat of apartheid in South Africa, the advocacy of human rights on an international level contributed to a historically important, and generally welcome, set of substantive outcomes, none of which were anticipated by earlier realist calculations.

The Scope of the Human Rights Movement

Against this background, the conceptual issues emerge more clearly and pertain to both poles of inquiry, affecting our sense of sovereignty as well as our understanding of human rights. With respect to sovereignty, there are two crucial ambiguities: The prevailing view of sovereignty is as a status and condition of governance relating to the idea of territorial supremacy, which places the forced implementation of international human rights on a collision course with sovereignty. But if sovereignty is understood as inhering in the people, the idea of popular sovereignty that has been historically associated with the French Revolution, then in many situations the realization of human rights is precisely the political project being espoused by "the sovereign" (i.e., the people). Even if sovereignty is associated with the state as a representative of the people, particularly a democratic state, then it is still possible to conceive of sovereignty as a bundle of rights and duties that can be modified by the lawmaking powers of the state, thereby creating the possibility that the acceptance of human rights, even with the prospect of some external accountability, is a fulfillment of sovereignty under contemporary conditions. Such a viewpoint seems especially applicable within the framework of the regional protection of human rights within Europe by way of the Court of Human Rights, and to a lesser extent, within the Inter-American Court of Human Rights. In effect, the acceptance of external accountability for human rights occurs within a setting in which democratic states seek to safeguard a democratic and liberal future even against anti-democratic and anti-liberal forces within their own country. That is, sovereignty relinquishes a measure of territorial control in exchange for greater assurance that a desirable regional and national political climate can be maintained in the future. For instance, surely, as an expression of sovereignty, it might be acceptable to forego the domestic option of selecting fascist rule. The response to the inclusion of Jorg Haider's Freedom Party in the governing Austrian coalition tested the relative strength of these two contrasting conceptions of sovereignty. On the one side, are those who suggested that the outcome of an Austrian election and inter-party bargaining process was a matter for Austria alone to determine, essentially without limits. On the other side, is the view that the governments of the EU have accepted limits on their internal public order based on a shared commitment to human rights and democracy, and that the Haider presence in government would endanger that commitment.

There is an equally important debate concerning the scope and character of human rights. If one approaches the issue of scope from the perspective of international law texts, then there is no doubt about the inclusion of the right of self-determination and the range of economic, social and cultural rights in the Covenant devoted to this subject matter. Yet if one considers the transnational politics of human rights, it has been overwhelmingly preoccupied with civil and political rights, and with a narrow band of such rights. Only recently has this narrow operative conception of human rights been put under scrutiny.

The U.S. and Human Rights

A final conceptual confusion is associated with the manner in which the U.S. government has positioned itself with respect to human rights. The U.S. government more than any other has associated its foreign policy with a commitment to human rights, a position that reached its climax in the early years of the Carter presidency. Only the U.S. government publishes an annual survey of the human rights records (narrowly conceived) of countries receiving foreign economic assistance, an internal legal obligation imposed on the executive branch by Congress. At the same time, the United States has been slow to accept formally the binding obligations of several major human rights treaties, invoking difficulties arising from its federal structure, from the historic suspicions of its Southern states, and from its insistence that the stability and quality of its democratic political order needs no reinforcement from without. But in the background, beyond doubt, is the more territorial view of sovereignty that makes the United States government and its citizenry less enthusiastic about any external process of assessment. This issue arose recently, for example, when a rather low-profile inquiry into the practice of capital punishment in the United States conducted by the U.N. Human Rights Commission provoked a storm of resentment from some quarters.

There is, finally, a question of how the United Nations has shifted the balance between a respect for sovereignty and the protection of human rights. The last several secretaries general of the U.N. have all advocated a more intrusive approach, eroding the domestic jurisdiction limitation on U.N. authority. The issue is most sharply posed by severe patterns of abuse that generate calls for U.N. sponsored "humanitarian intervention." Recent instances of Rwanda, Bosnia, Kosovo and Chechnya illustrate both the impulse to intervene and the geopolitical limitations on intervention. Among the factors that need to be taken into account are the following: capacity to address the situation at acceptable levels of risk to the intervener; the degree of commitment to the well-being of the victims associated with the relationship between the intervener and the society in question; and the kinds and depth of interests at stake. From such a perspective, it is easy to grasp the low degree of political will associated with Rwanda (no interests) and Chechnya (too high risks), and the high degree connected with Bosnia, and even more so with Kosovo (the European neighborhood, the fear of wider Balkan War, the mobilization of public opinion, the viability of NATO after the Cold War).

Conclusion

It is evident that the spectrum of accepted meanings associated with both sovereignty and human rights establishes a domain of ambiguity that enables political actors with contradictory values and goals to invoke either or both poles for their instrumental purposes. It is important to be aware of such tendencies in international relations without losing sight of three dominant empirical trends: first of all, the international and transnational emergence of human rights in multiple forms as an increasingly important issue area; secondly, the dynamics of de- territorialization of political life, thereby eroding the reliability of boundaries; thirdly, the greater capabilities of states in the post-colonial era to uphold territorial security in the face of interventionary diplomacy (State sovereignty is currently a reality for most countries, including those in the Third World.).

Part of the confusion associated with the intertwined discourses addressing sovereignty and human rights arises from a failure to distinguish symbolic from substantive or functional politics. Sovereignty is symbolically very much associated with the assertion of the "self" connected with self-determination, and the politics of identity as practiced within the confines of the sovereign state. Such a symbolic attachment is not at odds with various engagements with external actors on the basis of shared values and common interests, which is an exercise of sovereignty although it may result in restricting the discretion of the state. Similarly with human rights. Their symbolic affirmation may be associated with an ideological orientation, while substantively, the implementation of human rights may threaten entrenched social, economic, political and culture structures of privilege and domination.

For all these reasons, it is particularly important to deconstruct the sovereignty/human rights debate in relation to who, whom, for what, that is, identifying claims, actors, interests and values in context. Complexity will remain, but at least there will be less of a tendency to conduct the debate in a manipulative manner that obscures the real play of forces, and makes it virtually impossible to assess the consequences of alternative courses of action.

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The views expressed in this article are those of the author and do not necessarily reflect the official position of the U.S. government.

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