State Sovereignty and Human Rights — Irreconcilable Tensions
Both ‘state sovereignty’ and ‘human rights’ are highly contested concepts; their very definitions are contested, as well as their comparative importance and inviolability. This essay briefly discusses some of the meanings of human rights and state sovereignty, before drawing on the example of the Australian-run detention centre on Papua New Guinea’s Manus Island to illustrate several of the tensions between these concepts. This essay then briefly explores alternative versions of sovereignty, that may have the potential to be more compatible with human rights than state sovereignty.
The term ‘human rights’ can be interpreted to mean vastly different things to different people and groups. The natural law school of thought surrounding human rights suggests that all humans share some significant characteristics — a “human nature” — and that there are therefore some things that are valuable for, and some things that are harmful for, every human being. Humans therefore have the right to the things that are universally valuable, and the right to avoid things that are universally harmful (Donnelly 2007, pp. 282–283; Perry 1997, p. 462, 479; Dembour 2010, pp. 2–3).
However, it is disputed whether one truly is in possession of human rights if supposed human rights are so often and blatantly violated, or if there is no formal or legal recognition of such rights. The deliberative school of thought around human rights conceives of human rights as ‘political values that liberal societies choose to adopt’, for instance, through agreement to the Universal Declaration of Human Rights, and ratification of various international human rights treaties (Dembour 2010, p. 3). ‘Human rights’ then only exist insofar as they are agreed upon and codified by international and domestic law.
For the purposes of this essay, ‘human rights’ shall most closely fit the deliberative school of thought and refer to the set of norms and regulations set out in the global human rights frameworks — namely, the Universal Declaration of Human Rights and associated international treaties and covenants — that guide and govern the ways in which humans should be treated.
Nation-states are situated within the global human rights framework as the bodies responsible for providing and protecting the human rights of people who are citizens of, or situated within, certain territories (Yaffe 2014, para. 1; Karp & Mills 2015, p. 3). Article 15 of the Universal Declaration of Human Rights (1948) states that ‘(1) Everyone has the right to a nationality; (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. This means that all humans may therefore have access to a nation-state to protect their human rights (United Nations 1948; Weissbrodt & Collins 2006, p. 246). However, this also means that when the right to a nationality is taken away, recourse to claim all other rights is also put in jeopardy (Weissbrodt & Collins 2006, p. 246; Yaffe 2014, para. 1–2). This is a significant flaw in the international human rights framework: when a state cannot or will not protect the rights of its citizens, or when people have no state at all to protect their rights, then there is no clearly defined “fall-back” option. States are reluctant to take on the task of protecting the rights — including the right to a nationality — of people who are not already citizens (Parekh 2014, pp. 645–646; Krause 2008, pp. 331–334; Yaffe 2014, para. 1–2; Qualliotine 2015, paras. 1, 5).
State sovereignty, in short, is the idea that each nation-state should not interfere in the affairs of another nation-state, and in turn should be free from interference by other nation-states; that states have ‘supreme authority and independence’ (Delbruck 1982 pp. 567–568). In the aftermath of the two world wars the UN Charter ‘strengthened the existing international system based on the sovereign equality of the states’ so as to protect states from unwanted violent intervention from antagonistic external forces, and by extension protect the human rights of citizens (Conlon 2004, pp. 75–81).
However, state sovereignty can also greatly hinder global enforcement and implementation of human rights: ‘sovereign states not only are creating the international norms for the protection of human rights, but also are determining the process of their implementation — or nonimplementation — according to their sovereign will’ (Delbruck 1982, pp. 567–568). Effectively, respecting state sovereignty means that any tangible human rights enforcement mechanism must come from states’ own domestic legal system, meaning in turn that in cases where a state ignores — or itself carries out — human rights abuses, the principle of state sovereignty comes into conflict with any possibility for resolution (Hallal 2014, para. 1–3).
On the other side of this tension, as the language of ‘human rights’ implies that all people regardless of nationality should be granted rights, human rights discourse has the potential to undermine governments’ traditional claims to the inviolability of state sovereignty (Posner 2014, para. 4). When human rights are framed as more inviolable than state sovereignty, the human rights regime can claim humanitarian grounds to impinge on state sovereignty and put the state’s treatment of its citizens under external scrutiny (Cole 2005, p. 473). Popovski argues that discourse surrounding the balance between state sovereignty and human rights is shifting in favour of increasing permissiveness towards cross-border action to protect human rights. In practice, however, this supposed primacy of human rights over state sovereignty is rarely applied — the Security Council rarely can come to agreement that humanitarian intervention is justified or necessary (Popovski 2004, pp. 17–18).
Manus Island Detention Centre, State Sovereignty and Human Rights
The example of the Australian-run Manus Island Detention Centre serves to illustrate several of the tensions between state sovereignty and human rights.
‘Offshore processing’ of people coming to Australia by boat to seek asylum was first implemented in 2001 soon after the Tampa incident, under the Howard Coalition government (Marr & Doherty 2011; Fraenkel 2016, p. 279; Wallis & Dalsgaard 2016, p. 301). The Labor Government under Rudd ended the policy of offshore processing in 2008, however on 19 July 2013 then-Prime Minister Rudd signed the Regional Resettlement Arrangement between Australia and Papua New Guinea (RRA), laying out that people will be processed on PNG while Australia will bear the full cost (Fraenkel 2016, p. 279; Wallis & Dalsgaard 2016, p. 302).
‘Offshore processing’ has been framed by several Australian governments as a measure to protect state sovereignty. John Howard famously stated in his 2001 election speech that ‘national security is about…having an uncompromising view about the fundamental right of this country to protect its borders…We will decide who comes to this country and the circumstances in which they come’ (Howard 2001). Here, state sovereignty is positioned as inviolable — the Australian state will do, and is entitled to do, whatever is necessary to protect the sovereignty of its borders.
Reporting from human rights bodies on the conditions within the centre indicate that those incarcerated in the Australian-run Manus Island detention centre are subject to multiple human rights violations. The indefinite detention of people in the centre in itself violates several human rights — such as the right to seek asylum, the right to a fair process in the determination of asylum claims, and the right to not be arbitrarily detained (Amnesty International Australia 2013, pp. 37–40, 48, 83–94; United Nations 1948). While incarcerated in the centre, people are subject to further human rights abuses, including but not limited to: the right to non-refoulement, the right to be free from torture and cruel, inhuman or degrading treatment or punishment, the right to freedom of movement, the right to an adequate standard of living, and the right to health care (Amnesty International Australia 2013, pp. 52–57, 83–94; United Nations Office of the High Commissioner 1966; United Nations 1948; SBS 2016; Daniel & Anderson 2017).
Here, appeals to the inviolable sovereignty of the Australian state comes into opposition with, and seemingly takes primacy over, human rights. The ‘right’ of the Australian state to ‘protect its borders’ is used to justify the regime of offshore detention that constitutes and facilitates human rights abuses.
On the 26th of April, 2016, the Supreme Court of PNG found the Manus Island detention centre to be a violation of the Bill of Rights in the PNG Constitution and ordered that ‘the Australian and Papua New Guinea governments shall forthwith take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees at the relocation centre on Manus Island’ (Fraenkel 2016, p. 183; Tully 2016, p. 84). However, this determination of the PNG court has no binding effect on Australia and Australia’s border protection policies have not changed (Tully 2016, p. 85).
In continuing to run offshore detention camps that have been held by PNG authorities to be unconstitutional, Australia is violating the sovereignty of PNG. Local people on Manus Island have not been consulted about the placement of hundreds of people on Manus by Australia without any adequate planning (Tlozek 2016, para.16–19; Butler 2016). This represents at best a violation of local autonomy, and at worst — taking into account the several violent clashes and PNG military intervention that this poorly planned settlement of people by Australia has caused — a violation of local people’s right to security (Kelly 2017; SBS 2016).
The human rights abuses caused by the continued operations of the Manus Island detention centre are facilitated by Australia’s violation of PNG state sovereignty. Perhaps the argument could therefore be made that if Australia respected PNG sovereignty, the specific human rights abuses being carried out as a result of the operations of the Manus Island Detention Centre would not occur, and therefore that respect for state sovereignty protects human rights.
However, a more apt explanation in this case is that state sovereignty is asserted to be inviolable and of utmost importance by dominant global powers such as Australia, the UK and the US when convenient — such as to protect their own borders and sovereignty — and violated by those same powers when convenient — such as to set up offshore camps like the Manus Island and Nauru detention centres. Human rights are similarly held up as universal and inviolable when convenient for global powers wishing to override the principle of state sovereignty, as in the case of ‘humanitarian’ intervention in 2001 in Afghanistan and 2003 in Iraq, but as demonstrated above in the case of the Manus Island detention centre, routinely violated in favour of ‘border protection’ when convenient (Ayub & Kouvo 2008, p. 641; Human Rights Watch 2004, para. 3; Canvas 2013, para. 2).
Alternative Conceptions of Sovereignty
Tilly conceptualises state-making as a ‘quintissential protection [racket] with the advantage of legitimacy’ (1985, p. 169). The primacy of the state as the provider and the protector of human rights certainly supports this analogy. Effectively, under current global order, humans are bound to be loyal citizens of their nation-state, because if they are not then they are at risk of being made stateless, thus at risk of indefinitely losing protection for all other human rights (Qualliotine 2015, para. 1, 5; Yaffe 2014, para. 1). The tendency for powerful states to be granted legitimacy despite clear willingness to violate human rights and to violate the sovereignty of other states where beneficial for them calls into question the appropriateness of the ongoing situation of the nation-state, with sovereign control over its borders and citizens, as the organising block for global order.
Popovski optimistically argues that sovereignty is being reconceptualised such that it ‘no longer antagonizes but rather incorporates the concept of human rights’, and that ‘the sovereignty of the State means the sovereignty of people, not of leaders’ (2004, p. 17). The idea that sovereignty should belong to the people and not to the leaders, if it were put into practice, has potential to overcome some of the tensions so apparent between notions of state sovereignty and human rights. However, this does not fully overcome the issue that stateless people are not afforded adequate avenues for the protection of their human rights under a system in which the nation-state is granted primacy as the provider and protector of human rights.
Examples exist of types of sovereignty that are not state sovereignty: bottom-up, grassroots, democracy from below. These conceptualisations of sovereignty do not rely on exclusions, borders or the nation-state. The Local Coordination Committees (LCC) of Syria are just one example of such grassroots, decentralised, bottom-up, democratic forms of governance that present as an alternative to a centralised state (Shadid 2011; Carnegie 2012). The LCC is comprised of mostly young people from a multitude of class, ethnic and religious backgrounds from Syria and elsewhere, and provides trusted documentation of developments and human rights violations in Syria, as well as providing for legal help, medical assistance and humanitarian aid (Shadid 2011, para. 9, 13–15; Carnegie 2012, para. 3–8). Admittedly set across the backdrop of severe political upheaval, the decentralised, democratic, grassroots decision-making structures of LCC could serve as a model for an alternative type of sovereignty to be respected, and to be a building block for human rights protections. Similarly, the autonomous region of Rojava in Northern Syria is modeling a form of democratic autonomy structured around communes, which challenges the centralised nation-state (Ali 2016; Cemgil 2016, pp. 420–421).
The tensions between human rights — the idea that all people regardless of nationality, religion, gender or any other factor should be granted certain protections — and state sovereignty — the idea that the nation-state has authority and independence — are too great to be fully resolved.
Nation-states exploit the tensions between state sovereignty and human rights by claiming the inviolability of the one when it is beneficial for them to violate the other. Australia claims the inviolability of its state sovereignty as justification for human rights abuses of those it detains in the Manus Island detention centre, however supports US ‘humanitarian’ intervention in Iraq and Afghanistan, citing the inviolability of human rights as rationale for violating the sovereignty of the states being invaded. Under the current global order, the nation-state is the body charged with providing and protecting people’s rights through implementation of domestic laws. This model is flawed both because the nation-state does this imperfectly and yet is largely self-regulating due to claims to sovereignty, and because it does not adequately account for the human rights of stateless people. Alternative models of sovereignty, including but not limited to, ideas of decentralised, bottom-up committees and communes, such as those recently and currently modelled in Syria, may be better placed than state sovereignty to reconcile with human rights.
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