The arguments of the previous section, combined with O’Neill’s exhortation to look for agents of justice in challenging situations, suggest that, instead of treating state sovereignty as a good to be overridden only in emergency cir- cumstances, we take a closer look at both the institutional assumptions and the moral arguments used to support a policy of nonintervention. In this section, I examine May’s and Altman and Wellman’s arguments in favor of nonin- tervention, and I argue that they have not clearly shown that a presumption in favor of state sovereignty is more defensible than a stronger internation- alist position, which assigns (with some pragmatic limitations) international jurisdiction over human rights violations generally.
A. May’s Domestic Stability Argument
May’s account of justifying international criminal trials rightly begins with the observation that there is no world state. As a first step in his argument for the presumption in favor of state sovereignty, this observation shows that May does not take for granted that the international community can protect human rights at all, much less better than the average sovereign state. May (also rightly) goes on to argue: “In contemporary international law, enforce- ment mechanisms do not necessarily depend on there being a world ‘king’
or president. We do not need a world monarch or other world sovereign, but only sufficient agreement among the States to provide enforcement for the rulings of such international organizations as the International Criminal Court (ICC).”30Concluding that such “pockets of sovereignty” are sufficient to establish “valid, binding law,” May argues that there is sufficient international enforcement capability to justify international criminal trials for crimes against humanity in some circumstances.
Despite starting down this road toward justifying “pockets of sovereignty” at the international level, May’s view makes nonintervention in states’ domestic activities the default norm, which can be overcome only by human rights violations that count as “harms to humanity.” One obvious moral cost to such a policy is that it tolerates rights violations below the threshold level where
29This paragraph draws from Kristen Hessler, “Resolving Interpretive Conflicts in International Human Rights Law,”13Journal of Political Philosophy(2005),46–7.
State Sovereignty as an Obstacle to International Criminal Law 51 international jurisdiction is triggered. However, this cost is justified, according to May, by the benefits of protecting state boundaries from interventions, as part of a kind of contract with governments: “Since States are constituted to aim at the social order and to maintain harmonious dealings among the citizens of the State, a kind of moral presumption is given to States: As long as they are conforming to this normative aim, they should not be interfered with by other States. Social stability requires exclusive legal control over a population.”31
The meaning of sovereignty most closely connected to social stability is the notion of exclusive legal control within a state – that is, that for any domestic decision, the “sovereign” is unchallenged within the state, leaving no doubt as to who is in control. For a theorist convinced by a broadly Hobbesian view of the importance of concentrating domestic power in a single source, any external influence upon the domestic power structure, invited or not, will threaten the political stability of the state.32 However, as David Luban and others have argued against May, domestic social stability does not, in fact, appear to depend on assigning exclusive legal authority, even if it is limited in scope and alienable, to states.33These theorists point to federal units such as the United States, and now to some extent the European Union, that have developed vertically nonexclusive forms of sovereignty, or with sovereign power divided among different branches of government, and that nonetheless enjoy social stability. In this case, then, May’s assumptions about the exercise of sovereignty (problematically) underpin his recommendation of a (defeasible) policy of nonintervention.
We can see May’s normative recommendations as implications of his insti- tutional assumptions more clearly if we consider an alternative institutional view that has different implications. According to Anne-Marie Slaughter:
A new world order is emerging . . . The state is not disappearing, it is disag- gregating into its separate, functionally distinct parts. These parts – courts, regulatory agencies, executives, and even legislatures – are networking with their counterparts abroad, creating a dense web of relations that constitutes a new, transgovernmental order.34
As an example of such a transgovernmental order, Slaughter argues that the establishment of the Organization of the Supreme Courts of the Americas in 1995 shows that judiciaries in liberal states see themselves as “quasi- autonomous” within the state, and as engaged with judges from other countries in a common enterprise of promoting the rule of law within their respective
30May (2005),17. 31May (2005),10.
32Krasner (1999),11. 33Luban (2006).
34Anne-Marie Slaughter, “The Real New World Order,”76Foreign Affairs(1997),184.
52 Kristen Hessler countries. There are also many cases in which national courts have cited international law and the decisions of other national courts in their own con- troversial decisions. Famously, in its1995decision finding the death penalty unconstitutional in South Africa, the Supreme Court of South Africa cited decisions from national courts in “Hungary, India, Tanzania, Canada, and Germany, and the European Court of Human Rights.”35According to Slaugh- ter, transgovernmental networks like this one can serve as a vehicle for helping to democratize currently nondemocratic states. As she describes it, “Transgov- ernmental ties can strengthen institutions [in nondemocratic states] in ways that will help them resist political domination, corruption, and incompetence and build democratic institutions in their countries, step by step.”36As is prob- ably clear, Slaughter thinks that such cross-border influences can be a good thing for reforming sovereignty. She maintains that “[d]isaggregating the state permits the disaggregation of sovereignty as well, ensuring that specific state institutions derive strength and status from participation in a transgovernmen- tal order.”37On Slaughter’s view, a broad prohibition on cross-border interven- tions not only would not be morally defensible – it would not even make sense.
My point in this section is not that Slaughter’s theory about transgovern- mental networks is correct. Rather, I mean to point out two things: first, that there are important connections between one’s assumptions about the institutional structures of the international system, on one hand, and the asso- ciated evaluation of different kinds of cross-border interventions, on the other;
and second, that consequently some justification is required for adopting the particular institutional framework that informs one’s normative recommen- dations. We should beware of importing, without independent justification, conceptual baggage from the Westphalian worldview into our arguments about how our current international system might better protect human rights.
B. Altman and Wellman’s Argument from Principle
Altman and Wellman offer both principled and pragmatic reasons for granting sovereign states the defeasible right to exclude external actors. I consider the principled argument in this section, and the pragmatic argument in the next section.
Altman and Wellman write:
The argument from principle hinges on the idea that any state that ade- quately protects the basic rights of its constituents has a right to order its collective affairs as it chooses. In our view, it would be impermissible for
35Slaughter (1997),187. 36Ibid.
37Ibid.
State Sovereignty as an Obstacle to International Criminal Law 53 some international agency to compel Canada to spend a higher proportion of its tax revenues on its criminal justice system, even assuming that such a shift in revenues would result in fewer crimes that violated basic rights.
This impermissibility rests on the right of self-determination enjoyed by legit- imate states. Thus any state that adequately performs the requisite political functions possesses a right to choose how its tax dollars are allocated.”38 This view is strikingly like May’s contractualist account of sovereignty for legitimate states. Indeed, Altman and Wellman also echo May’s basic account of what a state would have to do to forfeit its right to self-determination: “a state adequately protects basic rights when it neither perpetrates nor permits widespread or systematic violations of those rights.”39
What they leave out is May’s adherence to the principle that social stability requires exclusive legal control over a population. Although I have argued that this principle is problematic, Altman and Wellman do not replace it with anything more attractive – or, indeed, with anything at all. Therefore, my primary argument against their “principled” view is that it begs the question at issue: Why should we accept that self-determination is the right of barely legitimate states, whose governments might perpetrate or allow extensive, but not quite “widespread or systematic,” human rights violations?
Conceptions associated with the traditional Westphalian sovereignty seem to be at work in Altman and Wellman’s arguments, in particular in their reluctance to consider assigning more authority to international institutions.
First, Altman and Wellman do not even gesture at any specifics about Canada, the principles that require self-sufficiency for a political community to decide without outside interference how to spend its tax dollars, or the nature of “some international agency” in support of their assertion that such an agency could not legitimately tell Canada to increase its spending on criminal justice. This omission is striking because there already exist international agencies, such as the European Court of Human Rights (ECHR), that issue such directives to state governments. Although Canada in particular is not party to such a strong supranational court, it is possible that some future, robust instantiation of the Inter-American Court of Human Rights (IACHR) could legitimately issue such a directive (at least, if the ECHR’s directives are legitimate, and if the IACHR develops along similar lines).
Second, consider Altman and Wellman’s analogy between state sovereignty and parental authority:
If a parent is either horribly abusive or woefully negligent, third parties have a moral right, and perhaps even a duty, to interfere on the child’s behalf. A
38Altman and Wellman (2004),47. 39Ibid.
54 Kristen Hessler parent has no right against third-party interference if he is starving, beating, or sexually abusing his child or otherwise violating his child’s basic rights.
A third party has the moral right to intervene in these circumstances, and it is not necessary to establish that the parent’s mistreatment of his children is harmful to people outside of the family to have a nonpaternalistic justification for intervention.40
All this is true, and it is also a helpful explanation of why purely domestic human rights violations can be a sufficient reason to override state sovereignty.
However, this example is striking because of its moral minimalism. Generally, we accept not only that third parties have the right, and even a duty, to interfere with families within which the basic rights of children are being violated, but also that society has the right to legislate certain aspects of a child’s upbringing (e.g., making some form of education mandatory, where the state is the judge of whether the parents’ chosen form of education is acceptable, or forbidding parents from letting their children work for wages). Altman and Wellman might argue that the right to be educated and the right not to spend one’s childhood in a factory are basic children’s rights. The larger point, however, is that these rights do not exist in an institutional vacuum; rather, they are made effective by a government bureaucracy with the effective authority to keep track of the children whose rights it is supposed to protect. Thus, it seems as though this analogy, fully fleshed out, best supports not a broad right to nonintervention for minimally just states, but rather the standing jurisdiction of international institutions over even domestic rights violations, to ensure that they do not reach emergency proportions in the first place.
Obviously, the most salient objection to such an arrangement is that interna- tional institutions currently lack the capabilities to exercise such jurisdiction.
This consideration, however, is properly adduced in the course of a pragmatic argument, which I consider in the next section.
C. Altman and Wellman’s Pragmatic Arguments
Altman and Wellman’s pragmatic reasons are more persuasive, but they also fall short of justifying a presumption in favor of a sovereign state’s claim to self-determination:
[T]here is a strong pragmatic argument for insisting that international juris- diction should not include every instance in which a criminal act violates a basic human right. This pragmatic argument hinges on two ideas. First, a sys- tem of international criminal law should be well designed to minimize rights
40Altman and Wellman (2004),45.
State Sovereignty as an Obstacle to International Criminal Law 55 violations and maximize the prospects of effectively prosecuting whatever violations do take place. Second, states presumptively provide more efficient forums for prosecuting crimes within their territory than do international institutions. In light of these twin ideas, a system of international prosecu- tions should focus on crimes committed in states that either perpetrate or permit widespread or systematic violations, leaving the criminal justice sys- tems of other states free from outside intervention.41
This argument appears to assume that granting jurisdiction to international institutions would be incompatible with state-level prosecutions; otherwise, the efficiency concerns that they mention would not support limiting interna- tionaljurisdictionover human rights violations that take place within a state’s borders, but rather limiting theexerciseof such jurisdiction in deference to state authorities where this turned out to be most efficient. There are existing mod- els for such deference, including in the international sphere, as in the ECHR’s
“margin of appreciation doctrine,” which gives states some discretion in imple- menting human rights law, on the assumption that “a state knows its domestic situation better than the Court could know it;”42or in the ICC’s principle of complementarity, according to which the ICC cannot exercise jurisdiction over a crime unless “the state of primary jurisdiction has proven itself, in the judgment of the Court, ‘unwilling or unable’ to carry out a good faith investi- gation and, when investigation warrants, prosecution of a relevant case.”43
Moreover, although efficiency is an important concern, the pragmatic rea- sons that need to be considered in any argument about allocating authority over crimes against humanity to states or international institutions are many and varied. Abandoning a presumption that even minimally just states may block international investigation and prosecution of their citizens need not presuppose answers to questions about whether criminal prosecution is prefer- able to, or compatible with, reconciliation, nor about the relative merits of international or domestic proceedings, conducted locally or remotely. Rather, we should consider how the allocation of authority for prosecuting or pun- ishing crimes against humanity would impact human rights in the long term.
Primary but nonexclusive jurisdiction could continue to rest with states, but for reasons other than an alleged sovereign right to exclude external actors, such as how best to achieve the goals of deterrence, anti-impunity or retribu- tion, and reconciliation. States generally might be in a better epistemological
41Altman and Wellman (2004),48.
42Burleigh Wilkins, “International Human Rights and National Discretion,”6Journal of Ethics (2002),374.
43Jamie Mayerfeld, “Who Shall Be Judge?: The United States, the International Criminal Court, and the Global Enforcement of Human Rights,”25Human Rights Quarterly(2003),98.
56 Kristen Hessler position to investigate and prosecute human rights violations that have taken place on their territory, for example, or have better incentives to find an appro- priate balance between combating impunity and achieving peace. However, recognizing the right of the international community to intervene to investi- gate or prosecute human rights violations, not only when states have forfeited their legitimacy, might function as an international protection for the human rights guarantees found within a state, thereby possibly serving as an additional deterrent to potential violators and an additional incentive to states to refuse to allow violators simply to escape prosecution.