Bounding the Sovereign: Humanitarianism and the Decline of Sovereign Immunity

Abstract

State sovereignty is at root a set of rules about institutional boundaries that divide political and territorial space. Institutional boundaries permit actors to organize the world around them into categories and groups and to establish arenas of authority or jurisdiction. In this paper, I suggest that the boundaries of external and internal sovereignty have become more permeable over the course of the past 150 years as a result of the blurring of the boundaries of international humanitarian and human rights law. The changes in institutional boundaries demarcating human rights and humanitarian law have reconfigured state authority to organize domestic and interstate affairs. I argue that these changes have made the boundary of state sovereignty more permeable in two ways. First, they have reduced the legitimate scope of all state's internal sovereignty. On the one hand, states appear to be increasingly subjecting themselves to a reduced sphere of exclusive sovereign authority and to greater international accountability. On the other, states have expanded their claims to domestically adjudicate cases that have traditionally been beyond the boundary of sovereign immunity. Second, the change in boundaries of international humanitarian and human rights law has given individual human beings the legal authority to confront states. As a result, individuals have much greater ability to access national and international courts to seek redress for acts committed by state officials. This shift allows new actors to take on rights and responsibility once the sole domain of states, and subsequently to limit the authority of states domestically as well as globally. These changes and their consequences are explored through historical analyses of the humanitarian and human rights regimes and the recent political struggles over the Pinochet case and the International Criminal Court.