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State Accountability to Sovereignty of the Human Person

Published online by Cambridge University Press:  02 December 2020

Abdullahi Ahmed An-Na‘im
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This project seeks to develop ways of holding governments accountable for their failure to satisfy the requirements of conflict management, political stability, economic growth, and social welfare. Since offending governments tend to resist external sources of protection and assistance for an oppressed population by pleading national sovereignty, and major international actors are less likely to act unless driven by strategic or ideological reasons, the project aims at “expounding on the normative principles of responsible sovereignty, international mechanisms and strategies for their enforcement, and empirical evidence about the performance of governments as measured by the stipulates of sovereignty.” Asserting “human dignity as an overarching goal to which all peoples and societies aspire and are committed, whatever the variations of their cultural perspectives on the institutional details of the concept” the project perceives this concept as “operationally or functionally translated into a quest for recognition and respect for human beings, both as individuals and as members of identifiable groups. Human dignity demands, in the minimum, equal treatment with full rights and duties of citizenship.”

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International Journal of Legal Information , Volume 48 , Issue 2 , Summer 2020 , pp. 51 - 71

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Footnotes

1

©Abdullahi An-Na'im 2020. The author, originally from Sudan, is Charles Howard Candler Professor of Law at Emory University School of Law in Atlanta, Georgia, USA. He is associated professor in the Emory College of Arts and Sciences, and senior fellow of the Center for the Study of Law and Religion at Emory Law. Professor An Na'im is an internationally recognized scholar of Islam and human rights and human rights in cross-cultural perspectives. His personal website containing detailed information of his work, including his publications, ongoing projects, video interviews, and a blog can be found at https://scholarblogs.emory.edu/aannaim/.

References

2 Deng, Francis M., Kimaro, Sadikeil, Lyons, Terrence, Rothchild, Donald, and Zartman, I. William, Sovereignty as Responsibility: Conflict Management in Africa (Washington DC: The Brookings Institution, 1996)Google Scholar, especially chapter 1.

3 Deng, “Sovereignty, Responsibility and Accountability: An African Challenge,” pp. 2–3.

4 Ibid., pp. 4 and 5.

5 Claiming, for example, that “the erosion of sovereignty with the development of democratic values and institutions internally and with international accountability on the basis of human rights and humanitarian standards”; and asserting that “It is becoming increasingly recognized that it is the will of the people, democratically invested in the leaders they elect freely or otherwise accept as their representatives that entitles authorities to value and uphold the sovereignty of a nation.” Ibid., pp. 7 and 8.

6 Ibid., pp. 9 and 10.

7 For a critique of coercive enforcement in international relations, and an alternative model of compliance see, generally, Chayes, Abram and Chayes, Antonia Handler, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press, 1995)Google Scholar.

8 I am not suggesting that human dignity and rights should be the sole bases of sovereignty, though other possible bases, it seems to me, can be seen as prerequisite for, or conductive to, the realization of these fundamental concerns.

9 The focus on Africa in this article is only to illustrate a globally necessary approach for all human societies to contribute to the formulation and implementation of international standards of sovereign accountability.

10 References to European or Eurocentric conceptions in this article include North American as manifestations of the reproduction and extension of European culture, economy, political philosophy, and practice through the successful and total “displacement” of indigenous populations, in contrast to colonization in the African, Asian, and Latin American sense.

11 American Historical Review, December 1994, p. 1475. “The term ‘Subaltern,’ drawn from Antonio Gramscci's writings, refers to subordination in terms of class, casts, gender, race, language, and culture and was used to signify the centrality of dominant/dominated relationships in history.” Ibid., p. 1477.

12 Dipesh Chakrabarty, “Postconloniality and the Artifice of History: Who Speaks for ‘Indian’ Pasts,” Representations, 37 (Winter 1992), p. 1.

13 Prakash, “Subaltern Studies as Postcolonial Criticism,” pp. 1477–78, quoting Ranajit Guha, editor of the first six volumes of Subaltern Studies.

14 Ibid., p. 1486.

15 Ibid., p. 1488.

16 Ibid., pp. 1484–85.

17 Ibid., pp. 1482 and 1485.

18 Ibid., quoting from Dipesh Chakrabarty, “Trafficking in History and Theory: Subaltern Studies,” in K.K. Ruthven, ed., Beyond the Disciplines: The New Humanities (Canberra, 1992), p. 107.

19 Frederick Cooper, “Conflict and Connection: Rethinking Colonial African History,” American Historical Review, December 1994, p. 1517.

20 For example, “the inability of colonial regimes to establish and maintain ‘dominance’ amid the uneven effects of capitalism led them to deploy the ‘universalistic’ conceptions of social engineering developed in Europe, only to find that their own hopes for the success of such technologies required giving up the beliefs about Africa on which a sense of ‘dominance’ depended.” Ibid., p. 1532.

21 Ibid., p. 1545.

22 As Mikhail Bakhtin said: “To be means to communicate… To be means to be for another, and through the other for oneself. A person has no sovereign internal territory, he is wholly and always on the boundary; looking inside himself, he looks into the eyes of another or with the eyes of the other.” “Toward a Reworking of the Dostoevsky Book,” in Problems of Dostoevsky's Poetics, 1963 edition, edited and translated by Caryle Emerson (Minneapolis: University of Minnesota Press, 1984) Appendix 2, pp. 283–302. The same is true of communities, I suggest, to the extent that one can speak of collective self definition or identity, since it is individual members of community who experience and articulate consciousness of self identity in relation to the “collective other.”

23 On this process and its possible implications see, generally, Abdullahi A. An-Na'im and Francis M. Deng, editors, Human Rights in Africa: Cross-Cultural Perspectives (Washington DC: The Brookings Institution, 1990).

24 See generally F.H. Hinsley, Sovereignty (New York: Cambridge University Press, 1986).

25 To speak of a state's constitutional order does not mean that it has a written constitution, or assumes a certain quality of conformity with the principles of modern constitutionalism and protection of fundamental rights. In this functional minimal sense, every state has a constitutional order at any given point in time, though judgment can be reserved about its legitimacy and efficacy.

26 See, for example, Joseph Camilleri and Jim Falk, The End of Sovereignty?: The Politics of a Shrinking and Fragmenting World (Brookfield, VT: Ashgate Publishing Company, 1992): 48–53, 62–3.

27 Postmodernism indicates a realization that the reality we experience is socially constructed; a repudiation of the Enlightenment faith in the ability of science and reason to comprehend some objective reality. It “denies the capacity of language, mind, or spirit to establish standards in an objective manner.” Richard Falk, Explorations at the End of Time (Philadelphia: Temple University Press, 1992), p. 5. A Post-modernist perspective is suspicious of metanarratives, broad interpretations which claim to describe truth and reality or tend to marginalize other perspectives. I welcome this trend for its potential of inclusion of non-Western perspectives, and rejection of claims of conceptual hegemony by Eurocentric metanarratives.

28 Ibid., p. 2

29 Ibid., p. 11.

30 Walter Truett Anderson, Reality Isn't What It Used to Be (San Francisco: Harper San Francisco, 1990), p. 39.

31 Camilleri and Falk, The End of Sovereignty, p. 11.

32 See, generally, Pauline Rosenau, Postmodernism and the Social Sciences: Insights, Inroads, and Intrusions (Princeton University Press, 1992); and Anthony Gidden, The Consequences of Modernity (Stanford University Press, 1990).

33 Thomas G. Weiss and Jarat Chopra, “Sovereignty Under Sedge: From Intervention to Humanitarian Space,” paper presented at the Conference on National Sovereignty and Collective Intervention, Dartmouth College, May 18–20, 1992, p. 18.

34 Mark W. Zacher, “The Decaying Pillars of the Westphalian Temple: Implications for International Order and Governance,” in James N. Rosenau and Ernst-Otto Czempiel, eds. Governance Without Government (Cambridge University Press, 1992), p. 60.

35 Walter B. Wriston, The Twilight of Sovereignty: How the Information Revolution Is Transforming Our World (New York: Charles Scribner's Sons, 1992), pp. 8–9.

36 Jessica Tuchman Mathews, “Redefining Security,” Foreign Affairs, vol. 68 (Spring 1989), p. 168.

37 Joseph Camilleri, “Rethinking Sovereignty in a Shrinking, Fragmented World,” in R.B.J. Walker and Saul Mendlovitz, editors., Contending Sovereignties: Redefining Political Community (Boulder, CO: L. Rienner Publishers, 1990), p. 35–36. As to the effect of recent trends in ethnonationalism and self determination, consider the fact that 197 country delegations participated in the 1996 Summer Olympics in Atlanta, GA, compared to 172 four years earlier.

38 In addition to this expanding number of states, there are around 800 “effective nationalism” and some 8000 “potential nationalism,” which correspond to an estimated 8000 languages around the world. Ernest Gellner, Nations and Nationalism (Cornell University Press, 1983), pp. 44–45. This recent trend stands in sharp contrast to the dramatic decrease in the number of European states during the formative era of modern sovereign statehood, as indicated in footnote 23 below.

39 Robert H. Jackson and Carl G. Rosberg, “Sovereignty and Underdevelopment: Juridical Statehood in the African Crisis,” The Journal of Modern African Studies, vol. 24 (1986), pp. 1–31.

40 Ibid., p. 2

41 Ibid., p. 4. Under those competitive conditions, the number of states decreased from over 200 in 1648 to less than 50 in 1900.

42 Ibid., pp. 5–6.

43 Ibid., p. 26.

44 Ibid., p. 11. Eritrea, the only successful case of secession/independence from an African state confirms this general rule, since it came about with the consent of the new regime in Ethiopia, as the “sovereign government being challenged,” after the collapse of the Mengistu regime in 1991.

45 Robert H. Jackson and Carl G. Rosberg, “Pax African and Its Problems,” in Richard E. Bissell and M.S. Radu, eds., Africa in the Post-Decolonization Ear (New Brunswick, NJ: Transaction Books, 1984), p. 176.

46 For example, they criticize juridical statehood for guaranteeing the rights of sovereign rulers, whomever they may be, against foreign intervention, regardless of their internal governing actions or omissions. “In more than a few countries, sovereign rights have been purchased at the expense of human rights.” Jackson and Rosberg, “Sovereignty and Underdevelopment,” p. 27.

47 “Few if any compelling international pressures on governments to engage in state building - to unite voluntarily to create more promising jurisdictions, to poor scare resources, to rationalize and economize governing practices - in order to avoid losing juridical statehood. On the contrary, in so far as it will not cost them their sovereignty and the significant privileges and pre-requites which go with it, they are at liberty to neglect development.” ibid., p. 28.

48 My objection to their analysis include their uncritical view of external aid, and the implication that [Western] donors could (should) control national decision-making in at least some African countries. ibid., pp. 24–25. This view apparently contradicts the general thrust of their argument in favor of empirical sovereignty for African states.

49 Ibid., pp. 12–18.

50 According to the 1960 United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples “Inadequacy of political, economic, social or educational preparation should never serve as a pretext for delaying independence.” What this meant in practice was that “by the late 1950s, under increasing international moral and political pressures, the juridical right of self-determination has been separated from the empirical capacity for self-government in deconlisation…. Nominal sovereignty and normative international law replaced substantive sovereignty and positive international law in the relations between states.” ibid., p. 9.

51 Ibid., p. 16.

52 By the international human rights system I mean the complex and dynamic set of norms, institutions, mechanisms, and processes concerned with the promotion and protection of human rights at the inter-governmental level through the United Nations and regional organizations. Human rights movement refers to the wide variety of non-governmental organizations, groups, and individual activists and scholars concerned with the protection and promotion of internationally recognized human rights. The objectives and operation of the system and movement clearly overlap and interact, and are increasingly becoming interdependent, but it is useful to maintain the distinction between the two.

53 See, for example, the ILO Declaration of Philadelphia, May 10, 1944; second clause in the Preamble of the Charter of the United Nations, 1945; Rule 60 of the UN Standards Minimum Rules for the Treatment of Prisoners, 1955; Article 1 of the Universal Declaration of Human Rights, 1948; Article 10 of the International Covenant on Civil and Political Rights and Article 13 of the International Covenant on Economic, Social and Cultural Rights, both of 1966; the UN Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind. It is also found in a growing number of national constitutions. Article 1 of the German Federal Constitution of 1949 is probably a pioneer in this regard, but several recent African constitutions have used the term.

54 Oscar Schachter, “Editorial Comment: Human Dignity as a Normative Concept,” American Journal of International Law, vol. 77, no. 4 (1983), p. 849.

55 Ibid.

56 Ibid., pp. 851–52.

57 Ibid., p. 853.

58 Ibid., pp. 853–54.

59 Rhoda E. Howard, Human Rights and the Search for Community (Boulder, CO: Westview Press, 1995), chapter 4.

60 Ibid., p. 79.

61 Ibid., p. 80.

62 Ibid., citing Orlando Patterson, Slavery and Social Death, A Comparative Study (Cambridge, MA: Harvard University Press,1982), p. 63.

63 Ibid., p. 79. See also p. 82.

64 As to be expected, however, these “new human rights” raise serious conceptual and practical difficulties for traditional liberal approaches to human rights. On the right to development, for example, see Henry J. Steiner and Philip Alston, editors, International Human Rights in Context: Law, Politics, Morals (Oxford: Claredon Press, 1996), pp. 1110–1146.

65 Howard, Human Rights and the Search for Community, pp. 89 and 90.

66 Ibid., p. 104.

67 Contrast Howard's views with those of her fellow Canadian scholar McDonald, Michael, “Should Communities Have Rights? Reflections on Liberal Individualism,” in An-Na'im, Abdullahi A., editor, Human Rights in Cross-cultural Perspective: Quest for Consensus (Philadelphia: University of Pennsylvania Press, 1992), pp. 133–161Google Scholar.

68 Mohd. Ahmed Khan v. Shah Bano Begum and others. All India Reports, 1985, Supreme Court, p. 945. For comments on the case its human rights implications and the political controversy that followed see An-Na'im, Abdullahi A., “Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights,” in Welch, Claude E. Jr. and Leary, Virginia A., editors, Asian Perspectives on Human Rights (Boulder, CO: Westview Press, 1990, pp. 43–46Google Scholar; and Rubin, Barnett R., “India,” in Donnelly, Jack and Howard, Rhoda, editors, International Handbook of Human Rights (New York: Greenwood Press, 1987), p. 154Google Scholar.

69 My emphasis. I was told this part of the story by Professor Upendra Baxi, the prominent Indian scholar and human rights activist, who was present at that meeting.

70 See, for example, the Executive Board of the American Anthropological Association, “Statement on Human Rights,” American Anthropologist, vol. 49 (1947), p. 539.