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Silencing the Sirens: Sovereignty and the Challenges to Implementing International Law

June 10, 2015, New York City — On June 4th, Elisabeth Wickeri, J.D., Executive Director of the Leitner Center for International Law and Justice at Fordham Law School, helmed a two-part lecture on human rights and international humanitarian law for the 45th International Diploma in Humanitarian Assistance class. The discussion sought to provide the students with a comprehensive survey of the various legal frameworks under which many aid professionals operate in the field, isolating central themes and tensions within the international legal system and addressing the realities of implementation and enforcement.

Of particular importance to this topic is the complication that state sovereignty poses to treaty adherence — the balancing act between national interests and international conventions; the subsequent challenge of state reservations to international conventions; and the presence of “non-state” actors in theaters of conflict. Throughout the lecture, many students expressed concern over the efficacy of international law and voiced clear frustration over the apparent lack of its local enforcement.

Wickeri began her lecture by considering the development and evolution of the concept of human rights. Temporarily stripping the concept of its modern legal signification, Wickeri first considered human rights not as a law, but as a feeling — a feeling produced by an image or an encounter, a feeling that something is wrong, that “something is being violated.” It wouldn’t be until the revolutionary period of the late 18th century and the developments in the later half of the Enlightenment that “individual rights” emerge as a “legally-articulable” matter, Wickeri explained.

“The movement towards the modern articulation of human rights” (cosmopolitan-oriented and providing greater inclusivity than previous Enlightenment models) quickens in the 20th century, domestically, as a result of developments in the United States’ labour and women’s rights movements and, internationally, in the proceedings following the Second World War. The UN Charter, the Universal Declaration of Human Rights, subsequent treaties, declarations by the international community (not legally binding), and the establishment of international courts all demonstrate this movement towards a more definite international legal structure.

Human rights law contains five key components: Universality, equality and non-discrimination, indivisibility, inalienability, and obligation instituted by and attached to the laws. As Wickeri described, these components are “universal legal guarantees protecting individuals and groups against actions by the government and other actors that interfere with freedom and dignity.” But human rights and human rights law are not the same. “The laws are that which protect my rights,” Wickeri explained; “the human rights laws are that which set those basic standards, and human rights laws are that which human rights activists, human rights lawyers, and human rights defenders are trying to change in many circumstances.” Human rights law, for instance, did not protect LGBT individuals until very recently, a fact that demonstrates the sometimes limited extent of the law’s inclusivity. The rights of these individuals, on account of their being human, had never been absent; the law had simply yet to be adapted. The upshot of such legal adaptation is that human rights law stands as an uncompleted project.

“International law, (on the other hand), exists as it did in 1945 (with certain changes and amendments),” explained Wickeri. This persistence creates challenges. “The world has changed — the international community has changed,” Wickeri began. Think of the United Nations as a man looking to buy a suit, she advised the students. In the years of its youth — the period following the Second World War — the UN was a slim man and chose the suit — the framework for international law — most appropriate at that time. This was an era when conflict involved interactions among clearly defined parties across clearly defined borders. Complications to the global geopolitical landscape, such as the emergence of non-state entities (companies and corporations, separatists, and terrorist factions) could not have been foreseeable.

The result is that while the field of conflict expanded and grew in complexity, the legal structures remained relatively the same; the young man is now old — and fat — and his suit no longer fits. “We can’t do much to change that suit,” conceded Wickeri, and yet the international environment seems to require the service of a tailor.

One of the challenges is that these initial international laws were first conceived to deal with states. “The notion of sovereignty is still what underpins international law today,” noted Wickeri, and what creates perhaps the most significant barrier to the implementation and enforcement of those laws. States possess the right to exclude or modify certain provisions to international treaties — the so-called ‘optional protocols’ to which states may hold legal ‘reservation.’ So although particular treaties may be ratified, certain components of such treaties may be amended or even excluded.

The UN Convention on the Rights of the Child is a treaty to which 194 countries and every member state of the UN is party, except the United States and Somalia who have refused to ratify it altogether. This is a fact so baffling and seemingly nonsensical that a student, upon hearing professor Wickeri explain it, simply blurted out, “Why?” The difficulty comes in the United States’ aversion to international law of any variety, its unwillingness to subjugate domestic law to any foreign structure and its “fears about having an international body regulating or legislating what (it) does.” However, Wickeri was quick to point out that the actual process by which the US would have to heed international authority — submitting reports to appointed international committees and so on — fails to “rise to the level of the fears” that certain members of Congress may have instigated.

The ability to hold legal reservation — to exclude or modify certain provisions of international treaties — creates problems, and it’s not just the US that tends to default to its own sovereignty and the rules explicated under its own domestic legal structure. “It’s a truly troubling facet of human rights law that countries do try to get out of their obligations,” Wickeri admitted. Countries that have or are continually “trying to define themselves out of torture” is a notable example of the reprehensibility of such international legal aversion — one of which the US is particularly guilty. “We want to bind ourselves [to these laws],” Wickeri clarified. We want these laws to be difficult to amend. The siren’s song to abandon the course set by international law is a tantalizing call, but the law requires universality. “This is the sail that we have bound ourselves to,” alluded Wickeri, “and the United States and other countries are desperately trying to get the sailors to pull the wool out of their ears.” This cannot happen.

Why does the international community even grant states the power of reservation? Reservation is without doubt a “potential limitation of the international legal standard” — a standard that should supersede domestic laws. But if this mechanism of reservation was not in place, it would prove difficult to even bring states to the negotiation table, let alone incentivize them to ratify conventions. In many ways, reservation is needed.

If the students’ audible frustration to such a reality was any indication, however, it would seem the law’s limitations prove ‘unsatisfying’ — to say the least. Many of the students’ questions concerned enforceability, not legal policy. This focus is understandable. If anyone in the world of international relations is privy to the lapses of human rights laws, it is the humanitarian aid workers on the ground — the very students sitting in the classroom. Their concern for implementation reflects the position they occupy as aid workers in conflict zones; it is a concern they feel is either not adequately addressed or simply ignored by those enacting legal frameworks and driving international policy.

Wickeri shared the students’ frustration. The conventions are not ideal and the failures and limitations of enforcement may be frustrating, but the conventions seek to “protect all the areas we want protected.” That answer is of course unsatisfying, conceded Wickeri, but “international law is not the only tool. [ . . . ] I think that the best advances forward are made when organizations, advocates, and other groups use these [domestic and international] mechanisms in conjunction with each other.” How to best balance the international and domestic mechanisms becomes perhaps the golden question of international law, and the failure of implementing the former should not force states into complete abandonment and default to the latter.

“Domestic violence laws are a great corollary to international law,” Wickeri proposed, “where, of course we want [laws], of course we pursue them vigorously and we want to strengthen them and the mechanism to enforce them, but domestic violence is one of the hardest things to actually prosecute. Does that mean we give up those laws and ignore them and say ‘well, these laws are useless’? Of course not. But it also means that they are not the only answer; there are things like public education campaigns and media outcry and advocacy that always have to go with any enforceability standard.” The same applies for international law.

And it’s not just in human rights law that state sovereignty challenges and complicates international imperatives. International humanitarian law, the branch of international law that applies to armed conflict, faces similar obstacles. Rather than the default to state sovereignty, it is instead in the absence of recognized sovereignty where international humanitarian law faces a case of the suit being too small to fit — the initial legal considerations no longer appropriate for contemporary warfare. Non-state actors like Al-Qaeda and the Taliban are not recognized as sovereign entities and are thus not party to international treaties such as the Geneva Conventions. “This is a huge problem with the regulation of warfare,” Wickeri explained. “They are only bound [to the Geneva Conventions] in so far as they are dealing with each other in the hostilities. If country A is a party to the Geneva Conventions and country B is not party to the Conventions, unless country B agrees to abide by the provision of the Conventions, party A doesn’t have to either.”

“In the name of human rights,” noted Wickeri, countries like the United States have been, nonetheless, pressured to abide by the Conventions regardless of whether non-state actors (like the Taliban) are actually party to them. “There are difficulties in ensuring that this is actually done, principally because of sovereignty,” she reiterated. A state, already hesitant to bind itself to international law, will be certainly less apt to do so when the other party is subject to no restrictions itself.

Geoffrey S. Corn, the former senior law of war expert for the Army’s Office of the Judge Advocate General, details this reality in a New York Times article on the actions of Seal Team 6 in Afghanistan and the difficulty in prosecuting the unit’s potential war crimes (civilian killings in this instance). Corn insists that “emphasizing these lines and rules becomes even more important when you’re fighting a lawless, remorseless enemy. That is when the instinct for revenge is going to be strong. And war is not about revenge.” It may be one thing for a state to make reservations to international conventions before ratifying, but it is quite another to exempt oneself from legal responsibility altogether — a case in which the suit being too small for an old man becomes one of an emperor without any clothes at all.

“Everything about human rights and humanitarian law is about piercing sovereignty, limiting sovereignty, controlling or binding sovereignty in some way,” Wickeri concluded. This understanding becomes especially important in non-international conflict where states feel little incentive to abide by international rules: “Why should I limit what I can do within my own territorial ground when no one else is involved? I ought to be able to try and control conflict in whatever way I chose to, rather than prescribing to some international principle.” This very sentiment, Wickeri noted, is “the same reason why human rights law is [also] difficult to implement.”

Human rights law “can be a powerful tool, but in times of conflict it’s quite weak.” Unfortunately, as the students very well know, it is precisely in times of conflict when international law is most requisite, and when ideals and rights-based philosophical frameworks matter very little unless they can be implemented and enforced.

Lecture given by Elisabeth Wickeri, J.D., Executive Director of the Leitner Center for International Law and Justice at Fordham Law School, to the IDHA 45 class at Fordham University, New York, June 2015

Brief written by Joshua Paul St. Clair, IIHA Summer 2015 Intern

This article was originally published on the previous IIHA Blog.


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