Sovereignty and human rights

Human Rights Horizons: The Pursuit of Justice in a Globalizing World by Richard Falk; Routledge, London, 2000; pages x + 270, 45.

PROFESSOR RICHARD FALK of Princeton University needs no introduction to students of international law. For almost four decades, his works have been essential reading. Equally well known are his efforts to strengthen the juridical framework of human rights emanating from the United Nations Charter. In a set of papers published in 1980 he explored "how to promote human rights works in a world order system dominated, but not yet monopolised, by the realities of state sovereignty". He noted the carefully calibrated position on human rights developed by the Carter administration, stressed the need to avoid the human rights agenda being manipulated by "elites with vested interests of one kind or another", ruled out the possibility of rapid success or even steady progress, but nevertheless emphasised the need for perseverance in an era of increasing global awareness. This volume carries the enquiry further, and notes that "the sovereign state is changing course" in response to a transformed global setting but is not doing so uniformly since "states are very differently situated and endowed, and have at their disposal a wide range of adjustment strategies and capabilities". The challenge now, therefore, is to see (a) how the cause of human rights can be advanced "in this tendency towards deterritorialisation of political authority and identity" and (b) in what manner the economistic character of policy-making in a globalised economy can give a human face to such decisions and thus extend the reach of human rights to cover group rights, take into account cultural pluralism, and thereby promote "humane governance".

Falk points out that in the post-Cold War period the grounds of contention relating to human rights have shifted "from ideology to culture" and remain the subject of acrimonious debate. Hence the politics of human rights should not be confused with a regime of effective implementation. It is the latter which poses the real challenge for the future.

For this purpose the book, in a three-part survey, examines the existing and emerging theoretical framework, highlights some substantive challenges and dilemmas, and assesses the prospects in the 21st century of putting in place "a humanitarian morality to underpin global security". The effort, clearly, is to embark upon a fundamental rethink of the paradigm.

The first part of the book, therefore, is devoted to developing a conceptual frame of reference to demonstrate that "achieving a human rights culture and realising global justice are intertwined and mutually reinforcing goals" and thus constitute "a framework of humane governance" (page 10). This quest for justice, though an essential ingredient of Western political philosophy from Plato to Rawls, is hampered by the statist logic of the modern state as also by its commitment to market forces, and has resulted in the accommodation of "human wrongs" in the functioning of the state. Despite this, new impulses at work on the globa1scene have induced "the surprising emergence of human rights as a prominent issue on the global agenda of the major political actors" (page 35). Consequently, invoking human rights standards has replaced the earlier practice of moralising on statecraft and has thus changed the discourse of international relations. This has gone hand-in-hand with an elaboration of the normative structure and an enhancement of the role of human rights within the U.N. system with a specific focus on the strengthening of the humanitarian law of war and crimes against humanity. The growth of human rights activism of the global civil society has furthered these trends.

Paradoxically, however, "internalising the enforcement process" remains extremely uneven and many countries particularly the liberal democracies treat human rights only as instruments of foreign policy and demonstrate by their selectivity the validity of the observation that "intervention on behalf of human rights resembles the Mississippi River: it only flows from North to South" (page 60). Falk therefore commends the British initiative of a Democratic Audit to monitor and evaluate acts, domestic laws, administrative acts and judicial decisions by reference to international human rights standards and through a process in which each society internalises these norms by undertaking this audit through popular participation: "The challenge of implementation needs to be understood as a new priority of domestic policy, and not, as has often been the case, an ornament of foreign policy" (page 66).

Any discussion of international norms of behaviour by states inevitably brings in the question of sovereignty. Falk devotes a closely argued chapter to it, drawing attention to the now widely acknowledged "gap between its formal dimensions and the empirical realities", a gap that has widened in recent decades "because of the rise of human rights as a parallel doctrine embodied in international law". Hence the need to undertake the difficult but necessary task of a reconceptualisation of sovereignty, to see it as "a two-way street, one endowed with rights but also with responsibilities". This leads Falk to suggest a concept of "normative sovereignty as a counterpoint to the traditions of territorial sovereignty" (pages 74-75). Such a concept would incorporate the universally accepted framework of human rights as also the European Community's procedure of implementing them (with the assistance of an external procedure of assessment); the inclusion of norms of criminal liability of individuals, and their prosecution through an international tribunal, would further strengthen the system. The author does not favour military intervention to implement human rights; a better course would be to draft a Universal Declaration of Human Responsibilities as an indispensable companion to the Universal Declaration on Human Rights.

A paradigm shift of such dimensions would bring in its wake substantive dilemmas and Falk devotes a good part of the book to discussing some of them: self-determination, humanitarian intervention, group rights, the geopolitics of exclusion with reference to Islam, and genocidal politics in an era of globalisation. Of these, self-determination has the longest pedigree; it emerged in the aftermath of the First World War and was advocated by Woodrow Wilson on the one hand and by Lenin on the other. "The history of self-determination is a history of the making of nations and the breaking of states," wrote Alfred Cobban in 1945 in his classic work on the subject; the Versailles Settlement, however, used the concept selectively: "The statesmen who assembled in Paris had fewer illusions. They had used the appeal of self-determination as an instrument of war, not necessarily hypocritically; but not many were anxious to apply it when it conflicted with the interests of their own states in drawing up the terms of peace." After the Second World War, the U.N. Charter referred to self-determination, but almost in passing as a "principle" rather than as a "right".

The real momentum to the idea was therefore accorded by the de-colonisation process and by its expression in the U.N. General Assembly Resolution 1514 of December 16, 1960, which in turn was strengthened in 1966 by the two international Covenants and in 1970 by the Declaration on Friendly Relations. The bottomline, which Falk cites with approval, was uttered by Judge Hardy Dillard of the International Court of Justice in a Separate Opinion in 1975 in the Western Sahara case: "It is for the people to determine the destiny of the territory and not the territory the destiny of the people."

This notwithstanding, the view soon developed that the exercise of self-determination should not lead to the disruption of existing state boundaries. The resulting dilemma is acknowledged by Falk, who nevertheless refuses to take a purely legalistic view of the matter and advocates "a politically effective way to recapture the genie of self-determination by way of establishing new legal guidelines that reflect recent patterns of international practice and opinion". He notes that in the post-1989 period "the striking feature of recent practice is both its extension of the right of self-determination beyond earlier conceptions and the variability of arrangements satisfying particular claims for self-determination" (pages 112-113).

WHAT then is the way out? The experience of the 1990s relating to the former Soviet Union and Yugoslavia highlights the absence of objective criteria and the predominance of political and strategic considerations; the same could be said of claims in other parts of the world. The dilemma of a choice between chaos and injustice is perhaps very real. For this reason, Falk commends the Liechtenstein Proposal of 1994 (which led to the establishment of a Research Programme on self-determination at Princeton University in 1995), which "validates the right of self-determination but associates its normal application with self-administration. As such it allows symbolic flexibility while avoiding state-shattering substantial application" (page 104). This too has its pitfalls; the professor concedes: "There are no fully satisfactory solutions."

Another challenge to orthodoxy relates to group claims. Traditionally, the focus has been on rights of individuals within the framework of the nation-state. However, in many states the existential reality is one of multi-nationality even if the legal reality suggests a unified nationality conferred by the sovereign centre of state power and, in some of these, "absorbed groups" undergoing acute discrimination or persecution may exist. The conceptual question therefore is how to relate the nation-state in the various contexts of group claims. The League of Nations endeavoured, and failed, to address effectively the question of minorities. The political climate in the U.N., particularly in the Cold War phase, relegated the problem to the outer margins of concern. "As a result, the reality of minority grievances was hidden, or at least suppressed, beneath the mirage of strong, unified, states." Here again the end of the Cold War brought about a qualitative change.

In December 1992, the U.N. General Assembly adopted a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, stressing that the U.N. "has an important role to play regarding the protection of minorities". This was reiterated by the World Conference on Human Rights in its Vienna Declaration of June 25, 1993. Falk feels that the role of the U.N. in regard to group rights has been helpful even though it has been "indirect and atmospheric, altering the climate within which these issues are perceived and resolved". The global awareness of group claims thus generated deters states from committing excesses against minority groups and encourages other actors with protective roles in their resolve. It also creates opportunities "to develop a range of policy instruments for the realisation of affirmative group rights, and schemes for devolution, autonomy, self-government, federalism, and self-administration" (page 142). Will the U.N. continue to evolve in this direction? Will it make the transition from preventive to affirmative action with regard to group claims?

The question of humanitarian intervention "to protect humanity from governmental failure", particularly in cases of genocide, is discussed realistically with reference to the experience of Bosnia and Rwanda. The determining impulse in the case of Bosnia is summed up in a footnote: "European affinities were divided among the parties based on ethnic, religious, and historical considerations; support to the Bosnian Muslim leadership was never easy for Europe to swallow, given the tensions between Islam and the West, which remained an influential subtext throughout" (page 259).

With regard to Rwanda and Burundi, indifference characterised the response of the global actors since no strategic interests were at stake. In any case, the record shows that effective intervention is "always interest-based, never value-driven". Hence, better results would be obtained if transnational social forces committed to world-order values induce governments to act: "To rely solely on governmental actors to carry out an anti-genocide campaign, whether in Bosnia or in general, is to misunderstand the pattern of international relations over the course of the last two hundred years." Falk could well have written this after the recent pogroms, which amounted to genocide, in Gujarat, where neither the facts nor definitional clarity were in question. Despite this gray record of the sovereign state, Falk fees that the modern state has "unexplored normative potential" which can be tapped by "morally sensitive and forward-looking political forces". He develops this argument in the context of Ken Booth's seminal Keele University lecture of 1994 (International Affairs 71-1-[1995] pages 103-126) which used the concept of human wrong to urge the need to exercise "the moral muscle" and thereby develop a new political discourse appropriate for the cosmopolitan, multicultural, world of the 21st century. Such a global society would need to accommodate civilisational identities, address their reasonable grievances, and make normative adjustments so that all segments of the world community participate to the fullest extent and thus overcome perceptions of false universalism emanating from Western hegemony.

Falk has written a thought-provoking book. He questions orthodoxy but does so in practical terms by addressing the complexities and contradictions of the present-day world. He pursues global justice by balancing competing claims: peace versus justice, economic growth versus social equity, the claims of the present generation versus the claims of future generations, traditional consensus versus the rights of the marginalised, and traditional geopolitics versus normative world-order values. He urges that human morality should underpin global security and that the impulse for this new morality should emanate from non-state actors.

Realists would consider the argument to be naive and argue that the potential to change, and the potential of change from below, is exaggerated. Falk would perhaps respond in the words of Ken Booth: "But who knows what might be the effect of 350 years of skilled cosmopolitanism under conditions of globalisation? To my mind, the true naivety at the end of the twentieth century is to believe that human society can continue to live indefinitely the way it is".

M.H. Ansari is a former Vice-Chancellor of Aligarh Muslim University, and a former Permanent Representative of India to the United Nations.