Solidarity in a Disaggregated World: universal jurisdiction and the evolution of sovereignty.

• Author: Nyst, Carly

1. INTRODUCTION 36 II. THE DEVELOPMENT OF UNIVERSAL JURISDICTION 39 1. FROM PIRATES TO PINOCHET 39 2. UNIVERSAL JURISDICTION TODAY: RETREAT OR RESURGENCE? 43 III. INTERNATIONAL LAWYERS IN A DISAGGREGATED WORLD 47 1. CONCEPTUALIZING SOVEREIGNTY: FROM EROSION TO EVOLUTION 47 2. THE DISAGGREGATION OF STATE AND TRANSNATIONAL ADVOCACY NETWORKS 49 3. INTERNATIONAL LAWYERS AS NORM ENTREPRENEURS 52 4. THE DISAGGREGATION OF SOVEREIGNTY 55 IV. FROM SOVEREIGNTY TO SOLIDARITY 56 V. CONCLUSION 59 A country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult! Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth, and the value of a single human being.

   -- Judge Dan Haywood, played by Spencer Tracy, delivering the Court's verdict in Judgment at Nuremberg (1961)

1. Introduction

   The norm of state sovereignty has enjoyed a lengthy, albeit precarious, tenure as the grundnorm of the international system. (1) Since the Peace of Westphalia in 1648, the protections flowing from claims of state sovereignty have been the jealous preserve of states, serving to insulate both sinister and benevolent rulers alike. While challenges to traditional conceptions of sovereignty have always existed alongside claims to its pre-eminence, the invocation of sovereignty by states and sovereignty's constitutive nature in the international system have become increasingly contested notions. (2)

   One of the more considerable challenges to the primacy of the sovereignty norm has been the development and entrenchment of international law. Despite the arguments of predominantly realist theorists to the contrary, (3) this paper proceeds on the assumption that international law today both regulates and constitutes interstate relationships. (4) Such relationships are more than crude systemic interactions--they are part of a distinctive social practice, in which actors' identities both shape, and are shaped by, international legal norms. (5) This process is indicative of the existence of an international society, (6) whereby actors "conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions." (7) The twentieth century saw the fortification of international law as a key institution, and the latter half of the century witnessed the emergence of international law's most important, yet controversial, embodiments--human rights and duties--and individual criminal responsibility for their violation. Unlike earlier conceptions of international law, human rights and international criminal law go further than regulating the relations between states--they engage the rights and duties of individuals. They undermine what Hedley Bull labels "[t]he basic compact of coexistence between states, expressed in the exchange of recognition of sovereign jurisdictions ... a conspiracy of silence entered into by governments about the rights and duties of their respective citizens." (8) The norms of human rights and international criminal law exist in defiance of the norm of state sovereignty. (9)

   A number of offences under international criminal law purport to attract universal jurisdiction, the principle by which every state has jurisdiction over an offence recognized as being of universal concern, regardless of the situs of the offence and the nationalities of the offender and the offended. (10) The doctrine is as heavily contested as it is widely advocated, and its successful invocations (most notably, the attempt to extradite former Chilean president Augusto Pinochet from the United Kingdom to stand trial in Spain) have been as spectacular as those that have failed, including multiple aborted attempts to try high-ranking members of the Bush administration in courts throughout Europe. Ten years after the House of Lords' decision in Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte (No. 3)(Ex Parte Pinochet), lawyers, academics, and states continue to engage in heated debate about the legal foundation of the doctrine, its legitimate usage, and its potential exploitation. (11) Even as increasing numbers call for its abandonment, attempts by lawyers to commence prosecutions founded in the doctrine proliferate. (12)

   The doctrine of universal jurisdiction poses substantial conceptual and practical challenges to widely held notions of sovereignty in international relations. This article seeks to place the doctrine in the context of debates about the changing nature of the norm of sovereignty. The article is comprised of three sections. First, the history of the doctrine of universal jurisdiction will be surveyed in order to ascertain the extent of its establishment within states. Particular attention will be given to the way in which universal jurisdiction illustrates the tensions between order and justice, in the sense addressed by Hedley Bull. (13) Second, this study will look at the changing contours of the norm of sovereignty. Anne-Marie Slaughter's disaggregation thesis will be analyzed and applied to the networks of international lawyers who are driving universal jurisdiction. (14) The article will propose that Slaughter's disaggregation thesis provides an appropriate lens though which to analyze the role of international lawyers, working as transnational advocacy networks, in promoting normative change. Finally, this study will seek to join the solidarist-pluralist debate within the English School, by questioning whether the continued application of universal jurisdiction through the pursuits of international lawyers is sufficient evidence to support a contention that international society is moving towards greater solidarity.

   This study seeks to conduct a nuanced, albeit brief, examination of the doctrine of universal jurisdiction, the norms with which it engages, the way in which such norms evolve, and the implications for international society. It will contend that the continued existence of universal jurisdiction constitutes compelling evidence that the fundamental concepts underpinning the doctrine--human rights and individual criminal responsibility--have become constitutive of modern sovereignty. It is further argued that universal jurisdiction is a clear example of the way in which non-state actors can fundamentally alter the principles and dynamics of international society and the norms by which it is constituted. Finally, this article will propose that the doctrine of universal jurisdiction provides an appropriate platform upon which to analyze the pluralist-solidarity debate in international relations.

2. The Development of Universal Jurisdiction

   1. From Pirates to Pinochet

      The House of Lords' watershed decision in Ex Parte Pinochetthat "crimes prohibited by international law attract universal jurisdiction under customary international law" subject to certain conditions, prompted a great deal of cautious optimism among proponents of human rights and international criminal responsibility. (15) Advocates, activists, and academics dedicated to advancing such causes saw the decision as "a real step forward in international human rights law," which constituted "a quite remarkable challenge to the norms of the Westphalia System." (16) To the extent that this "was a moment when international law seemed to plunge forward rather than advance at its more usual lumbering pace," (17) many observed it as the fulfilment of a project that began at Nuremberg, one directed at pulling back the "curtain of sovereignty" to hold individuals accountable for their actions. (18) Yet restraint was the order of the day. There was a sense not only that universal jurisdiction stood "poised to become an integral, albeit supplemental, component of the emerging international justice system" (19) but also that it was still in its nascent stages, ripe for exploitation and abuse. (20) Nevertheless, the effective invocation of the doctrine of universal jurisdiction in Ex Parte Pinochet represented a monumental breakthrough.

      According to Madeline Morris, this breakthrough has been constructed by international lawyers in the pursuit of "a vaulting ambition," hastily created by overlooking facts or drawing exaggerated and flawed analogies. (21) Others, too, have analyzed at length the arguably flawed foundations of the doctrine, drawing from this analysis their criticism of its current application. Commentators point to the misinterpretation and misappropriation of work by Grotius and Vattel, whom Luc Reydams notes in fact "wanted to make sovereignty a workable organised principle" and "would cringe at the contemporary interpretation of [their] words." (22) The conceptual divergences between Grotius and Vattel are relevant: while both observed the existence of a moral community of mankind, only Grotius believed that community should be given priority over the community of states. (23) This difference undermines appeals to the well-established authority of the doctrine, that "universal jurisdiction was legal lore, it had always existed 'out there'--scattered in the writings of ... legal-philosophers." (24) In fact, the development of the doctrine was influenced by these understandings--or misunderstandings--of writings on natural law. The categorization by Vattel of pirates as hostis humani generis (the enemies of all humanity), who were thus excluded from the principle that "the justice of each nation ought in general to be confined to the punishment of crimes committed in its own territories," was transposed onto those committing war crimes, crimes against humanity, and genocide. (25) This transposition disregarded Vattel's own position in opposing the application of universal jurisdiction outside the context of piracy, (26) and employed shaky analogous reasoning between piracy and international crimes, the...