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Sovereignty and Human Rights in Contemporary International Law

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman
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American Journal of International Law , Volume 84 , Issue 4 , October 1990 , pp. 866 - 876
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Copyright © American Society of International Law 1990

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References

1 See [Installment] 10 Encyclopedia of Public International Law 397, 399 (R. Bernhardt ed. 1989) (discussion of historical evolution of term “sovereignty” from Aristotle to present).

2 Id. at 401–02.

3 T. Hobbes, Leviathan (M. Oakeshott ed. 1946).

4 Under Article 15(8) of the Covenant of the League of Nations, if the Council found a dispute between any two parties “to arise out of a matter which by international law is solely within the domestic jurisdiction of that party,” the Council would refrain from making any recommendation as to its settlement. See League of Nations Covenant Art. 15, para. 8, reprinted in 13 AJIL 128, 134 (Supp. 1919).

5 U.S. Const., Preamble.

6 Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810, at 71 (1948).

7 See, e.g., Central American Treaty of Peace (Treaty of Washington), Additional Convention to the General Treaty, Art. I, 2 Foreign Relations of the United States 1907, at 696, 696, reprinted in 2 AJIL 229, 229-30 (Supp. 1908):

The Governments of the High Contracting Parties shall not recognize any other Government which may come into power in any of the five Republics as a consequence of a coup d’etat, or of a revolution against the recognized Government, so long as the freely elected representatives of the people thereof have not constitutionally reorganized the country.

8 See, for example, United Nations Declaration on the Elimination of All Forms of Racial Discrimination, GA Res. 1904 (XVIII) (Nov. 20, 1963); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966,660 UNTS 195; International Convention on the Suppression and Punishment of the Crime of Apartheid, GA Res. 3068 (XXVIII) (Nov. 30, 1973); Convention against Discrimination in Education, Dec. 14, 1960, 429 UNTS 32; Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, June 29, 1951, 165 UNTS 303; Convention on the Elimination of All Forms of Discrimination against Women, GA Res. 34/180 (Dec. 18, 1979); Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, GA Res. 36/55 (Nov. 25, 1981); Convention concerning Forced or Compulsory Labour, June 28, 1930, 39 UNTS 55; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 3452 (XXX) (Dec. 9, 1975); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46 (Dec. 10, 1984); Code of Conduct for Law Enforcement Officials, GA Res. 34/169 (Dec. 17, 1979); and Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res. 40/34 (Nov. 29, 1985); as well as the numerous conventions on social welfare, marriage and the family and cultural rights. See also Resolutions Adopted by the General Assembly During its 20th Session, 20 UN GAOR Supp. (No. 14) at 53–65, UN Doc. A/6014 (1965) (series of resolutions adopted on non-self-governing territories).

9 For example, in the recently concluded Namibia elections, the ballot counting and tabulation were overseen by 1,700 electoral supervisors, part of a United Nations Transition Assistance Group (UNTAG). See UN CHRON., March 1990, at 42. Similarly, a UN observation mission for the verification of elections in Nicaragua (ONUVEN) was set up there in December 1989 to observe and monitor the 1990 elections. Id. at 64.

10 After the November 1989 elections in Namibia, the UN Security Council congratulated the people of Namibia and affirmed the election results; the Special Committee on Decolonization declared on December 4 that the Namibian elections had been held “in conformity with established UN standards of decolonization”; and Special Representative Ahtisaari declared that the electoral process had “at each stage been free and fair.” See id. at 41–43.

11 After Rhodesia’s unilateral declaration of independence in 1965, the international community overwhelmingly denounced the action and refused to recognize Rhodesia as one independent state. See generally The Situation in Southern Rhodesia: Resolutions Adopted by the General Assembly and the Security Council of the United Nations, reprinted in 60 AJIL 921 (1966). For commentary, see McDougal & Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 AJIL 1 (1968).

With respect to Namibia, the United Nations consistently refused to recognize South Africa’s occupation of Namibia. See, e.g., Marín-Bosch, How Nations Vote in the General Assembly of the United Nations, 41 Int’l Org. 705, 705–06 (1987) (pointing out that Namibia was the subject of more resolutions than all other past decolonization issues combined). Indeed, by Resolution 2145 (XXI) of October 27, 1966, the General Assembly placed Namibia under the direct responsibility of the United Nations so as to enable Namibians to exercise their right of self-determination. It also established the UN Council for Namibia (by Resolution 2248 (S-V) of May 19, 1967) with the objective, inter alia, of obtaining the withdrawal of South Africa from Namibia. See Report of the United Nations Council for Namibia, 39 UN GAOR Supp. (No. 24) at 1, UN Doc. A/39/24 (1984). Other international programs eventually led to the independence of Namibia on March 21,1990.

The South African situation has also gained the attention of the international community in the past few decades. See, e.g., the Policies of Apartheid of the Government of the Republic of South Africa, GA Res. 3151 (XXVIII), 28 UN GAOR Supp. (No. 30) at 33, UN Doc. A/9030 (1973); GA Res. 39/72, 39 UN GAOR Supp. (No. 51) at 40, UN Doc. A/39/51 (1985); International Convention on the Suppression and Punishment of the Crime of Apartheid, GA Res. 3068 (XXVIII), 28 UN GAOR Supp. (No. 30), supra, at 75. Talks are currently under way to work out a form of representative government for a future South Africa. See Waldmeir, ANC May End Armed Struggle, Fin. Times (London), May 5, 1990, at 1, col. 7.

12 On the invasion of Afghanistan by the Soviet Union and the applicable norms of armed conflict, see generally Reisman & Silk, Which Law Applies to the Afghan Conflict?, 82 AJIL 459 (1988).

13 Tinoco case (Great Brit. v. Costa Rica), 1 R. Int’l Arb. Awards 369 (1923), reprinted in 18 AJIL 147(1924).

14 McDougal, Lasswell & Reisman, The World Constitutive Process of Authoritative Decision, in M. S. McDougal & W. M. Reisman, International Law Essays 197 (1981).

15 See Stone, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450(1972); Tribe, Ways Not to Think about Plastic Trees: New Foundations for Environmental Lata, 83 Yale L.J. 1315(1974). Fora cogent critique on this point, cf. Schwartz, The Rights of Nature and the Death of God, Pub. Interest, NO. 97, 1989, at 3.

16 See M. S. McDougal & F. Feliciano, Law and Minimum World Public Order, ch. 3 (1961).

17 See supra note 11.

18 See Reisman, Harnessing International Law to Restrain and Recapture Indigenous Spoliations, 83 AJIL 56 (1989).

19 Towne v. Eisner, 245 U.S. 372, 376 (1918).

20 South-West Africa—Voting Procedure, 1955 ICJ Rep. 67, 77 (Advisory Opinion of June 7).

21 M. S.McDougal, H.Lasswell & J. Miller, The Interpretation of Agreements and World Public Order, ch. 4 (1967).

22 UN Doc. S/PV.2899, at 3–5 (Dec. 20, 1989). I treat this statement as made in good faith. It is not inappropriate to note, however, that those who invoke this argument frequently reserve for their governments a right of intervention for various revolutionary purposes, e.g., wars of national liberation. See, in this regard, Reisman, Old Wine in New Bottles: The Reagan and Brezhnev Doctrines in Contemporary International Law and Practice, 13 Yale J. Int’l L. 171 (1988).

23 UN Doc. S/PV.2899, supra note 22, at 4.

24 One of the more ironic aspects of the Panama affair was that all indications before and after the U.S. invasion were that while the vast majority of the Panamanian people viewed it as a liberation, the other goyernments of the region voted in the OAS to condemn it asa violation of Panamanian sovereignty. According to most news reports, the U.S. military action in Panama was met with overwhelming approval by the Panamanian people. See, e.g., After Noriega, Economist, Jan. 16, 1990, at 37.

25 UN Doc. S/PV.2902, at 7 (Dec. 23, 1989).

26 D’Amato, The Invasion of Panama Was a Lawful Response to Tyranny, 84 AJIL 516, 518 (1990).

27 UN Doc. S/PV. 2902, supra note 25, at 8.

28 Lewis, Haiti Wants U.N. to Monitor Vote, N.Y. Times, July 22, 1990, at 10, col. 6.

29 Id.

30 Id.

31 See, e.g., Reisman & Silk, supra note 12, at 466–79 (discussion of factual situation in Afghanistan leading to “invitation” of Soviet armed forces by Afghan “government”).