HR 128, Sovereignty and Human Rights
By Fitsum Alemu, Attorney at Law
April 19, 2018
Black Law Dictionary defines Sovereignty as
The power to do everything in a state without accountability,- to make laws, to execute and to apply them, to impose and collect taxes and levy contribution, to make war and peace, to form treaties of alliances or commerce with foreign nations, and the like.
The concept of sovereignty was first raised by Aristotle. In the 17th century, thinkers like Bodt and Hobbes redefined the concept. Their conception influenced several countries in framing their constitution and foreign policies. Not known in the world for their legal or philosophical thinking, but Negus Menilik and Etege Taitu, without reading Aristotle, Bodt, Hobbes or alike, clearly understood what sovereignty means when they walked out from Wuchale. On the contrary, we also had the government of Emperor Haileselassie which understood the fine lines of sovereignty and human rights and sued, together with Liberia, the Republic of South Africa due to her treatment of the Namibian people which she governed as per the mandate of the League of Nations. At that time the atrocities and human rights abuses against Namibians by the government of South Africa had worsened. The Republic of South Africa of course objected stating that these two countries had no standing because Nambia was its own sovereign territory. Even though the court agreed with the Republic of South Africa, the United Nations listened and later terminated the mandate of South Africa.
During the establishment of the United Nation the issue of sovereignty was one of the top agenda. It was put on Article 2 (4) of the Charter which reads:
“Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”
Article 2 (7) of the Charter reads:
“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”
On the other hand, in its preamble, the UN wanted to send a clear and unequivocal message that it was found to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women. Article 55(c) of the Charter also obligates a state to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
The charter nevertheless successfully resolves the conflict it creates between human rights and national sovereignty. There is still an ongoing debate over whether human rights exceed sovereignty. Those in favor believe that from the perspective of morality and justice, human rights exceed sovereignty. They argue that declaring that sovereignty is supreme and that sovereignty exceeds human rights is no different from giving the green light to ruthless governments, like the TPLF-EPRDF regime. Those who oppose raise a genuine argument by saying that this principle might be abused and used as an excuse for powerful nations to violate weaker nations.
I recognize there are areas that are and remain to be in the domain of the government of a sovereign country, like the use of its natural resources, printing of money, type of official language, system of government, conducting of trade and foreign policy, national defense, etc. But with regard to human rights, and especially after the Second World War, I believe, member countries have already compromised their sovereignty. Countries have periodic reporting obligations. The United Nations has Human Rights Committee, committees against torture, against all forms of discrimination and has special investigators called Rapporeturs. Moreover, it has also established International Criminal Court and other courts dealing with the genocide in Rwanda, Kosovo, Yugoslavia and Sera Leone. These organs of the UN investigate human rights abuses and passed judgments. Serious judgments. In addition, some countries, including Ethiopia, have signed and ratified the Universal Declaration of Human Rights and other international treaties on human rights. The U.N charter and these treaties recognize that human rights are God-given rights (Natural Rights). Therefore, human rights exceed sovereignty. That means governments are not to be exempted from controls and limitations. Especially, today, when notable figures as Slobodan Milosevic, Augusto Pinochet, Fujimori, Charles Taylor and alike were indicted, charged and expelled, even from their own country, we cannot simply argue sovereignty.
In our day, the sovereignty of states is no longer based on the right of governments, kings, sheikhs, presidents or prime ministers to govern. The sovereignty of states means the sovereignty of people, not of leaders. That means the governing party must be elected by transparent and democratic means. And then according to Stanley Hoffmann, “The State that claims sovereignty deserves respect only as long as it protects the basic rights of its subjects.” That is what John Lock said 400 years ago. According to him, the right to "life, liberty, and estate" are natural rights. For Locke, the protection and promotion of individuals’ natural rights was the sole justification for the creation of government. Any invasion of these rights should be void and a legislature which attempts to do so forfeits its power. Basically, Locke argued that the purpose of a sovereign state is the protection of individuals' basic natural rights. That is what the preamble of the Constitution of Ethiopia also says: to build a sovereign and democratic society, it requires full respect of fundamental individual rights.
We have seen that when state governments failed to protect human rights, other governments and fellow human beings stepped in to protect natural rights. And since Kosovo, it has become an international norm that when governments fail to protect human rights, the international community can intervene and exercise an extraterritorial duty to protect people at risk.
Nevertheless, I believe, human rights should not be used as a pretext for other ventures, including invasion of a country without U.N approval. However, countries failure to respect human rights can be used as a reason to suspend aid, breaking of diplomatic relations, refusing international cooperation, expelling from international organization, denying trade benefit and also of visa to state’s representatives. With HRes 128, the people of the United States are trying to exercise their sovereign rights. [i]They are putting precedence with regard to other African countries too. With its representative, the United States is trying to speak in a simple and clear language. It says: I have a sovereign right to condemn the human rights situation and excessive use of force; and impose sanction on individuals, including travel ban and freezing of assets of individuals who participated in gross human rights violations pursuant to Global Magnitsky Human Rights Act.[ii] If you continue arresting, torturing, and killing of innocent people; if you do not let them speak up their mind, have their say in their affairs; if you don’t give them proper court hearing, then those who participate in the atrocities could not put their feet on my door and their money shall be frozen. That is it. These are the conditions for the bilateral contract. The government Ethiopia misunderstood its purpose. It should have given proper protection to life, liberty, property, freedom of speech, assembly and so on. Instead, it has hired expensive lobbyists for $50, 000, accused supporters as traitors and argues that HRes 128 is another Wuchale. Every sound-minded person knows that Wuchale and HRes 128 are unrelated. For starters Wuchale talked about conducting a foreign policy, which as I have conceded, is in the domain of a sovereign state. But human rights, as above argued, are natural rights given by God. Any human being or group of human beings could stand up to protect fellow human beings. At this DNA age and globalized economy, self-defense and regime-defense sandwiched in sovereignty could no more be sold. It is off the market.
To conclude, United Nations has struggled with the issue of balancing the respect of sovereignty and the protection of human rights. By signing international, regional or bilateral agreements, countries, including Ethiopia, have accepted limits on their internal public order based on a shared commitment to human rights and democracy. Flagrant and gross human rights violations endanger that commitment. If states respect their duties, there is no need to interfere to protect human rights. However, in this globalized economic system an individual state and the United Nations have a right and obligation to interfere in a manner allowed by the law to protect human beings from being arrested, tortured, maimed or killed in violation of universally accepted principles. The U.S. Congress lived up to its obligation by passing HRes128. Instead of spending the country’s limited resources on paid lobbyists, calling names and putting on the air and on the internet frivolous arguments, the government of Ethiopia be better off working on improving the human rights situation in Oromia, Tigray, Gambela, Ogaden and Amhara and Southern provinces.
 S. Hoffmann The politics and ethics of military intervention, Survival, 37:4, 1995-96, p.35.
[i] HRes 128, passed on April 10, 2018.
[ii] HRes128 9(D)
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