Relative Normativity: Challenging the Sovereignty Norm Through Human Rights Litigation William J

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Relative Normativity: Challenging the Sovereignty Norm Through Human Rights Litigation William J Hastings International and Comparative Law Review Volume 25 Article 1 Number 3 Summer 2002 1-1-2002 Relative Normativity: Challenging the Sovereignty Norm through Human Rights Litigation William J. Aceves Follow this and additional works at: https://repository.uchastings.edu/ hastings_international_comparative_law_review Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation William J. Aceves, Relative Normativity: Challenging the Sovereignty Norm through Human Rights Litigation, 25 Hastings Int'l & Comp. L. Rev. 261 (2002). Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol25/iss3/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings International and Comparative Law Review by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Relative Normativity: Challenging the Sovereignty Norm Through Human Rights Litigation BY WILLIAM J. ACEVES* Introduction Sovereignty has long been considered the grundnorm of international law.' The sovereignty norm affirms the territorial integrity of the state and the rule of non-intervention. While many scholars have traced its development to the Peace of Westphalia, the sovereignty norm did not enter the lexicon of international law until the 18th Century, with the writings of Emerich de Vattel Since then, the stature of the sovereignty norm has increased. In 1945, its primacy in international law was affirmed through codification in Article 2(4) of the United Nations Charter: "All Members shall * William J. Aceves is Professor of Law at California Western School of Law. This Essay is based on remarks prepared by the author for the Symposium on International Law and the Changing Face of Sovereignty convened at the University of California, Hastings College of the Law. 1. See ROBERT H. JACKSON, QUASI-STATES: SOVEREIGNTY, INTERNATIONAL RELATIONS AND THE THIRD WORLD 6 (1990). See generally HURST HANNUM, AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION: THE ACCOMMODATION OF CONFLICTING RIGHTS (1996); STATE SOVEREIGNTY AS SOCIAL CONSTRUCT (Thomas J. Biersteker & Cynthia Weber eds., 1996); MICHAEL R. FOWLER & JULIE MARIE BUNCK, LAW, POWER, AND THE SOVEREIGN STATE: THE EVOLUTION AND APPLICATION OF THE CONCEPT OF SOVEREIGNTY (1995). 2. Four versions of sovereignty have been identified: international legal sovereignty, Westphalian sovereignty, domestic sovereignty, and interdependence sovereignty. Stephen Krasner defines Westphalian sovereignty as a form of political organization "based on the exclusion of external actors from authority structures within a given territory." See generally STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY 3-4 (1999). 3. EMERICH DE VATIEL, THE LAW OF NATIONS (1844). See generally DANIEL PHILPOTT, REVOLUTIONS IN SOVEREIGNTY: How IDEAS SHAPED MODERN INTERNATIONAL RELATIONS (2001). Hastings Int'l & Comp. L. Rev. [Vol.25:261 refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. ."' The International Court of Justice ("ICJ"), which is the principal judicial organ of the United Nations, has acknowledged the importance of the sovereignty norm on numerous occasions. While the sovereignty norm remains at the core of international law, it sits on a precarious perch. Since 1945, two developments in human rights law have challenged its dominion. First, the international community has recognized the existence of other norms that now compete with the sovereignty norm for primacy These norms include, inter alia, the right to be free from torture and other cruel, inhuman or degrading treatment, the right to life and the prohibition against arbitrary deprivation of life, and the prohibition against genocide.8 Each of these norms has attained jus cogens status as non-derogable obligations that bind all states. Second, diverse institutions - including national courts and international tribunals - have applied these human rights norms to challenge the sovereignty norm.9 They have done so by imposing civil and criminal liability on government officials who commit serious human rights abuses.'" In short, the impact of human rights law on sovereignty has been to 4. U.N. CHARTER art. 2, para. 4. 5. See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27). 6. Indeed, some scholars have argued that the sovereignty norm has been challenged since its creation. See PROBLEMATIC SOVEREIGNTY: CONTESTED RULES AND POLITICAL POSSIBILITIES (Stephen D. Krasner ed., 2001). 7. See M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligation Erga Omnes, 59 LAW & CONTEMP. PROBS. 63 (1996); LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW: HISTORICAL DEVELOPMENT, CRITERIA, PRESENT STATUS (1988). 8. See generally John A. Perkins, The Changing Foundations of International Law: From State Consent to State Responsibility, 15 B.U. INT'L L.J. 433 (1997); Elizabeth E. Ruddick, Note, The Continuing Constrainton Sovereignty: International Law, International Protection, and the Internally Displaced, 77 B.U. L. REV. 429 (1997). 9. See William J. Aceves, Liberalism and InternationalLegal Scholarship: The Pinochet Case and the Move Toward a Universal System of Transnational Law Litigation,41 HARV. INT'L L.J. 129 (2000). 10. In these cases, jurisdiction is generally established through the principle of universal jurisdiction. See generally M. Cherif Bassiouni, Universal Jurisdictionfor International Crimes: Historical Perspectives and Contemporary Practice, 42 VA. J. INT'L L. 81 (2001); Symposium, Universal Jurisdiction: Myths, Realities, and Prospects, 35 NEW ENG. L. REV. 227 (2001); Christopher C. Joyner, Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability, 59 LAW & CONTEMP. PROBS. 153 (1996). 2002] Relative Normativity: Challenging the Sovereignty Norm highlight what Prosper Weil referred to as the relative normativity of international norms." The emergence of these normative and institutional challenges to the sovereignty norm is evident in recent human rights litigation. In Filartiga v. Pena-Irala, the Second Circuit Court of Appeals acknowledged the universal prohibition against torture and the potential civil liability of perpetrators in U.S. courts." In Regina v. Bow Street Metropolitan Stipendiary Magistrate,ex parte Pinochet,the British House of Lords held that traditional principles of immunity could not protect a former head of state from prosecution in the face of torture claims.'3 In both cases, national tribunals held government officials accountable for serious human rights abuses. This Essay examines how human rights litigation has challenged the sovereignty norm. Part II reviews the development of normative and institutional challenges to the sovereignty norm. Part III then considers how these normative and institutional challenges are manifest in human rights litigation. Specifically, it examines the development of Filartiga-style civil litigation and Pinochet-style criminal litigation and their role in challenging the sovereignty norm. A graduated normative hierarchy has now developed in international law. While Prosper Weil expressed concern about the development of relative normativity, recent history recognizes the wisdom of a graduated normative hierarchy. 4 Sovereignty matters - it maintains the stability of the international system and promotes peaceful relations between states. But human rights also matter. When the sovereignty norm is used to mask human rights abuses, its rationale is undermined and it no longer merits a hallowed place in 11. Prosper Weil, Towards Relative Normativity in InternationalLaw?, 77 AM. J. INT'L L. 413 (1983). 12. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 13. Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), 2 All E.R. 97 (H.L. 1999) (Amnesty International and others intervening). 14. For critiques of relative normativity, see generally Teraya Koji, Emerging Hierarchy in InternationalHuman Rights and Beyond: From the Perspective of Non- derogableRights, 12 EUR. J. INT'L L. 917 (2001); Joseph Weiler & Andreas L. Paulus, The Structure of Change in InternationalLaw or Is There a Hierarchy of Norms in International Law, 8 EUR. J. INT'L L. 545 (1997); John Tasioulas, In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case, 16 OXFORD J. LEGAL STUD. 85 (1996); Ulrich Fastenrath, Relative Normativity in International Law, 4 EUR. J. INT'L L. 305 (1993); Ronald St. J. Macdonald, FundamentalNorms in ContemporaryInternational Law, 25 CAN. Y.B. INT'L L. 144 (1987); Theodor Meron, On a Hierarchyof InternationalHuman Rights, 80 AM. J. INT'L L. 1 (1986). Hastings Int'l & Comp. L. Rev. [Voi.25:261 the hierarchy of international norms." 1. The Development of Relative Normativity Since 1945, two developments have challenged the primacy of the sovereignty norm. First, a diverse set of human rights norms has developed. Some of these norms are non-derogable in nature and liability attaches to anyone who violates them. Second, a diverse set of institutions has emerged to apply these norms. A. Normative Developments It is not surprising that the sovereignty norm - respect for territorial sovereignty and the principle
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