State Sovereignty vs. International Human Rights

Core thesis of Alain Pellet (2000) regarding state sovereignty

Sovereignty is not an unlimited power or a shield for gross human rights violations.

Definition of sovereignty under international law

A State's possession of the totality of international rights and duties recognized by law.

"Reserved domain" (domaine réservé) pre-1945

The sphere of State activity not regulated by international law.

Primary mechanism restricting state sovereignty over human rights post-1945

The UN Charter and global/regional human rights conventions.

"Simply binding" rules of human rights

Rules that bind States but do not rise to the level of peremptory norms.

Examples of "simply binding" human rights rules

Freedom of speech, right to a fair trial, and right to privacy.

Jus Cogens (Peremptory Norm)

A fundamental principle of international law from which no derogation is permitted.

Examples of jus cogens norms

Prohibitions against slavery, genocide, and apartheid.

Non-reciprocity in human rights treaties

States share a common humanitarian interest rather than individual reciprocal interests.

"State crime" under the ILC draft articles

An internationally wrongful act breaching an obligation essential to safeguarding fundamental international interests.

Duty of non-recognition regarding State crimes

All States must refuse to recognize the situation created by the crime as lawful.

Actio Popularis

A legal action taken by any party in the name of the public interest.

"Piercing the State veil" for State crimes

State officials lose jurisdictional immunity and face international penal responsibility.

The two exceptions to the prohibition of armed force in international law

Self-defense and UN Security Council authorization under Chapter VII.

Legal dilemma of the 1999 NATO intervention in Kosovo

It lacked UN Security Council authorization and was not a case of self-defense.

Diplomatic Protection

A State's right to take action on behalf of its national injured by another State.

Devoir d'ingérence

The duty to intervene in humanitarian crises without host State consent.

The "Bodin Fallacy" according to Delbrück

The misconception that sovereignty means unlimited, arbitrary power unbound by any law.

Delbrück's view on the role of the sovereign state in human rights

The state machinery is indispensable for enforcing and realizing human rights.

Danger of private or grassroots enforcement of human rights

It can lead to biased, chaotic, or violent outcomes that violate rights.

Delbrück's two primary categories of international human rights enforcement

Political mechanisms (UN organs) and quasi-judicial procedures (treaty-monitoring committees).

Conditioning international participation (Delbrück)

Limiting a State's participation in international bodies based on its human rights record.

Delbrück's historical examples of international exclusion for rights violations

Apartheid South Africa, Rhodesia, Transkei, and military-junta Greece.

Primary difference in focus between Pellet and Delbrück

Pellet focuses on legal hierarchies; Delbrück focuses on state machinery as the primary enforcer.