Combating Hate Speech in Africa the Case of Rwanda, Kenya, and Cameroon
Department: Law
No of Pages: 60
Project Code: LL2
References: Yes
Cost: 5,000XAF Cameroonian
: $15 for International students
Abstract
The
principles of state sovereignty and non-interference rest at the very heart of
International law and springs from the 1648 Westphalian treaty. Westphalian
sovereignty is the principle of international law that each nation state has
sovereignty over its territory and domestic affairs to the exclusion of all
external powers.
This
is founded on the principle of non-interference in another country‟s domestic
affairs and that each state irrespective of its size is equal in International
law. This study shall rely principally on the doctrinal research methodology by
systematic and thematic analysis of existing data on sovereignty and
non-interference.
The
interpretation of sovereignty as narrowly as the non-intervention principle has
placed sovereignty against the possibility of intervening for the protection of
Human rights. The Rwanda genocide, mass atrocity crimes and crimes against
humanity that characterized the state of Rwanda and Srebrenica amongst others
raised the need for action by the International community to protect not only
states, but also people.
This thesis attempts therefore, to find a bridge between these two seemingly opposing interests -protecting the state for a strong international order and protecting the people to save lives.
Responsibility to protect is based on the
notion of a primary responsibility with each and every state to protect its
population, and a secondary responsibility with the international community to
assist a state, which is unwilling or unable to protect its people.
This
thesis concludes that responsibility to protect is part of sovereignty, as a
duty of a state, corresponding to the right of non-intervention. If the reign
fails to protect its people, or is itself abusing its people, the right of
non-intervention becomes void.
CHAPTER ONE
GENERAL INTRODUCTION
1.1 BACKGROUND TO THE
STUDY
The
principles of state sovereignty and non-interference remain at the very heart
of international law and can be traced as far back as the treaties of Munster
and Osnabruck signed in 1648, commonly referred to as the treaty of Westphalia.
1
State sovereignty or Westphalia sovereignty is the principle of international
law that each nation-state has sovereignty over its territory and domestic
affairs to the exclusion of all external powers.
This
is founded on the principle of non-interference in another country‟s domestic
affairs and that each state, irrespective of its size, is equal in
international law sequel on the sacrosanct principle of recognition, either de
facto or de jure. After European influence spread across the globe, these
principles of state sovereignty and non-interference became ideals central to
international law2.
1
Mattern Johnnes, Concepts of State Sovereignty, and International Law; With
Special Reference to the Juristic Conception of the State. Baltimore. The
Lawbook Exchange, Ltd (1926), pg. 200
2
Henry Kissinger. World order. Reflections on the character of nations and the
course of History, Penguin Books Limited (U.S). (2014), Pg. 29
The
principle of sovereignty underlines the contemporary international system of
states. The origin of this system is often traced in scholarly and popular
literature to the Peace of Westphalia signed in 1648, to end the thirty years
war.
Looking
at the historical context of the Peace Treaty, the main purpose does not seem
to be the equality of sovereign states, but weather restraining the influence
from the Roman Empire. After reading the treaty, it becomes evident that the
concept of sovereignty is rather decolonization from the Empire, than an
international system of sovereign equality and non-interference. 2
The
states system dates from the peace of Westphalia.3 The core elements of that
sovereignty based system were codified in the Montevideo Convention on the
Rights and Duties of States 1933. The attributes of statehood include effective
government, territory and people.
Sovereignty
is thus the fundamental principle on which contemporary world order rests,
affirmed by the International Court of Justice (ICJ) and expressed in the UN
Charter Article 2(1). Externally, sovereignty means the legal identity of the
state in international law and equality of status with all other states and the
right to be the sole legal personality to international relations on behalf of
a people.
States
were bound to honor agreements and respect the independence and integrity of
other countries and had to try and resolve differences by peaceful methods.
Sovereignty therefore originated historically in the European search for a
secular basis of state authority in the sixteenth and seventeenth centuries.
4
It embodies the notion that in every system of government there must be some
absolute power of final decision, which was the very essence of the Peace of
Westphalia. The principle of non-interference is the most important embodiment
of the notion that states are autonomous entities and its ancestry also can be
traced back to Westphalia.5
The
orthodox or traditional view of the Westphalian system is that the Peace of
Westphalia was an agreement to respect the principle of territorial integrity.
In the Westphalian system, the national interests and goals of states and later
nation-states 3 were widely assumed to go beyond those of any citizen or
ruler6.
States
became the primary institutional agents in an interstate system of relation.
The Peace of Westphalia is said to have added attempts to impose supranational
authority on European states.
The
Westphalian doctrine of states as independent agents was bolstered by the rise
in the 19th century thought of nationalism, under which legitimate states were
assumed to correspond to nation-groups of people united by language and
culture.
The Westphalian system reached its peak in the late 19th century. Although practical considerations still led powerful state to seek to influence the affairs of others, forcible intervention by one country in the domestic affairs of another was less frequent between 1850 and 1900 than in most previous and subsequent periods7.
The
Peace of Westphalia is important in modern international relations theory and
is often defined as the beginning of the international system with which the
discipline deals8.
However
recent scholarships suggest that the Westphalian treaties actually had little
to do with the principles of sovereignty, non-intervention and the legal
equality of states with which the treaties are often associated.
For
instance, Osiander writes that “the treaties confirm neither France‟s nor
Sweden‟s sovereignty nor anybody else‟s, least of all do they contain anything
about sovereignty as a principle”9.
In
the same line with the modern views on the Westphalian system, and in a
symposium on the continuing political relevance of the Peace of Westphalian,
Javier Solana, NATO secretary General said that “humanity and democracy are two
principles essentially irrelevant to the original Westphalian order” and levied
a criticism that the Westphalian system had its 4 limits.
For
one, the principle of sovereignty, if relied on also produced the basis for
rivalry not community of states, exclusion and not integration.10
10
Solana, Javier (November 12, 1998) Speech on” Securing Peace in Europe” to the
North Atlantic Treaty Organisation (NATO)
However, despite these criticisms and debunk of the Westphalian sovereignty on the basis of its strict non-interference tendencies, it behooves to reckon that the paradigms of sovereignty and non-interference in International law saw the light of day with the Peace Treaty in 1648.
Leo
Gross hailed the Peace of Westphalia as the majestic portal leading from the
old world into the new. Gross strongly held the Peace Treaty as the nascence of
International law, creating a new system characterized by the coexistence of a
multiplicity of states, each sovereign within its territory, equal to one
another and free from any external earthly encumbrances, and this was the
essence, the rational, more or less the mainstream view of the Peace of
Westphalia.11
1.2 STATEMENT OF THE
RESEARCH PROBLEM
The
betone nature of state sovereignty and non-interference in international law
has provoked a huge response within the international community.
The
appreciation of the concepts of sovereignty and non-interference provokes an
avalanche of problems amongst legal scholars. Following the end of the thirty
years war ending with the Peace of Westphalia, the international community was
said to be on motion towards contemporary International law.
Sovereignty
is one of the oldest notions of modern International law and is mainly debated
during times of crisis or conflict. The exact meaning seems difficult to grasp,
even more so as many scholars insist on knowing the „true sovereignty.
The
issues of globalization and the complexity of international life, has left a
significant imprint on the concept of state sovereignty.13 Most often than not
this concept of state sovereignty and non-interference, is seen as an emblem
and symbol of the all-powerful states, hiding under the canopy of sovereignty
to commit mass atrocity crimes.
With
such in mind, the question that springs up is, can there be true sovereignty
and can the principle of non-interference if upheld promote Human right values
and international peace?. There is therefore the need to revisit the definition
of these concepts so to accommodate the key values of international order and
respect for Human rights.
A
dichotomy of sovereignty and protection was emphasized and posed a seemingly
insolvable problem for the entire International community. If for instance an
intervention for protection of human rights was a violation of sovereignty, and
sovereignty was the stronger of the two, how would the international community
be able to protect human lives in cases of genocide?
As
most scholars like Hugo Grotius, used the phrases „Westphalian sovereignty‟ or
„traditional sovereignty‟, it is evident that sovereignty was also seen as
something historic and constant over time.14 Sovereignty was seen as a static
non-intervention principle, which protected the state but not the people.
The
interpretation of sovereignty as narrowly as the non-intervention principle
during the 1990s, placed sovereignty against the possibility of intervening for
the protection of Human rights. 6 Respect for the political and territorial
sovereignty of other nations is a fundamental feature of the international
system and the key to maintaining a system in which the nation-state is the
primary actor in global affairs.
Underpinning
this concept of sovereignty is the basic rule that nation-states must refrain
from intervening in the domestic affairs of another state; however, there is a
problem with this accession, most often than not bigger states violate the
sovereignty and territorial integrity of smaller states with impunity such as
US in Nicaragua 1981. There is therefore the need to address such problems so
as to fully appreciate the notion of sovereignty.
1.3 RESEARCH QUESTIONS
In
this study, we shall attempt to provide answers to these questions, which
constitute the very basis for this research. These questions include inter
alia;
- Can true sovereignty be upheld?
- What are the problems associated with defining the term sovereignty?
- Is the protection of the state more important than its citizens?
- Can the principle of non-interference promote world order?
1.4 OBJECTIVES OF THE
STUDY
1.4.1 General objective
The
overall purpose of this study is to analyse the concepts of sovereignty and
non-interference in International law and to reconcile the notions of
sovereignty, non-interference and responsibility to protect.
1.4.2 Specific objectives
- To examine the concepts of sovereignty and non-interference in international law.
- To explore the problems associated with arriving at the true meaning of sovereignty
- To establish a case for the protection of human rights over the protection of the state.
- To evaluate the extent of respect for the sovereignty and non-interference principles.
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