Human Rights Claims vs. the State: Is Sovereignty Really Eroding?


It is often argued that the increase in agreements, specialized courts, and litigation protecting human rights or responding to past abuses of human rights has begun to erode sovereignty. Contrary to traditional principles of non-interference in internal affairs, it is argued, genuine protection of human rights involves an invasion of the sovereign preserve of the state. While many examples might be adduced in support of this claim, ranging from the ad hoc criminal tribunals for the former Yugoslavia and Rwanda to the European Court of Human Rights, this article examines two types of transnational procedures: civil accountability through the use of the Alien Tort Claims Act in the US, and criminal accountability through the exercise of universal jurisdiction in a number of European countries. This article suggests that even in situations where courts of one country are in essence sitting in judgment upon actions taken by state officials in other countries, significant protections of sovereignty remain. Specifically, state and official immunity remain significant obstacles to pursuit of key rights abusers. These immunities, recently re-affirmed by the International Court of Justice in the DRC v. Belgium case, are also routinely respected by national courts.


International Law

Date of this Version

December 2005