Are we becoming more internationalized? In other words: Have the “human rights” — cough — of individuals supplanted sovereign interests?
1. Willingness to recognize “trend” seems dangerous. True, we’ve moved in a direction more committed to protecting individuals’ rights with int’l agreements. But look at American history: Our very first national document, the Decl. of Independence, serves the express purpose of explaining that after so many “abuses and usurpations” we were tired of staying under GB’s thumb. The framers of our Constitution took our human rights into their hands and implored the rest of the world to recognize that suddenly-responsible position.
As information barriers, etc., fall of course the world at large moves towards Global Community. What counts is less the question of worldview and much more the degree to which we the present sovereign recognize that global public opinion’s de facto public opinion jurisdiction over us.
The most interesting opposition — and, indeed, the most interesting approach to the question of individual v. sovereign in the “world court” comes from the very heart of America’s approach to governance. In Federalist 51 James Madison argued that the “preservation of liberty” requires both separation of gov’t’l powers and a gov’t structured in layers. This permits factions to jostle freely, public choice attaches to ambition, etc.
So, inasmuch as an appeal to the international community to recognize a fledgling nation as sovereign can be called International Law, int’l law has always been primarily concerned with individuals’ human rights.
Trend questions also take root in a comparison to American law, the law of our sovereign and the frame thru which we approach any question of int’l law. Where thousands, millions of individuals clamor for rights recognition, the only way to protect all involved and the structure of gov’t itself is to construct a series of layered sub-sovereigns. Enter Federalism, stage right.
Then the question becomes: Where do individual human rights and sovereign interests diverge? There are lots of obvious examples, perhaps the most obvious of which is where jus ad bellum gives way to jus in bello. When does it become appropriate to enter war (or commit warlike acts, i.e., to compromise the absolute human rights proscription against harming another human being), and what governs behavior once we’ve bent those absolute terms?
Human rights language then protects the interests of individuals, but the proponent of that language, the protector of those individuals, is the sovereign. And an entirely different set of rules permits that sovereign to protect itself from threats of its undoing than permits individuals to protect their more discrete interests.
2. That said, perhaps there is a trend. Just like American Const’l interp sometimes seems like a tug of war on Federalism principles, so too do int’l agreements carry some of that thrust and parry interpretive instinct. In some areas sovereignty stays critical — like executive agreements, or NATO acts/funding — but in other areas it’s almost beside the point. Convention on Rights of the Child? Seriously? Yes, we’ll join you, Somalia, and sit this one out.
The problem with codifying int’l customary law is the same as attempting to legislate over Torts. Legislation freezes the pipes through which organic case law flows. So to some degree the attempt to codify merely institutes opportunities for bad habits, stretched lexicons, etc. It makes sense that the “world court” would want to nail this sucker down, but that becomes rather pointless when nobody acts like anything binding has happened anyway.
Anyway. More later, just exploring a bit.