Universal Jurisdiction vs National Sovereignty - the Cases of Argentina and Chile*

By Bartolomei, María Luisa | Ibero-americana, July 1, 2007 | Go to article overview

Universal Jurisdiction vs National Sovereignty - the Cases of Argentina and Chile*


Bartolomei, María Luisa, Ibero-americana


I. INTRODUCTION

One of the major problems in the implementation of International Law on Human Rights from its beginning has been the contradiction between the principle of national sovereignty and the idea of universality. This is also mirrored in the concept of "universal jurisdiction". As I write, this contradiction is clearer than ever before, because of a growing globalization process. This process is eroding both the monopoly of the state and the state system itself at the different levels, from the economic and political level through to the social, legal and at the cultural level (Santos 2007: 5-11; Bartolomei 2000).

The human rights regime over the last fifty years has been inspired by this idea of "universal rights", although enforcement has only been recognized by states, as the principal political actors. Many human rights experts believe that if human rights are to be fully implemented, today, political subjects other than states (international or non-governmental organization) must be granted a broader mandate (Archibugi, Held and Köhler, 1998:4; Bianchi, 1997; Bartolomei, 2000 and 1999).

According to some authors, the most important legacies for the new millennium are the accentuation of the processes of globalization, the end of the Cold War and the affirmation of democracy as the legitimate system of government. At the same time, the globalization of economic, social, cultural and legal life involves a diversity of subjects and fields, where interaction generates multiple effects. Coupled to these, new groups of actors grow more intensive each day, through the actions of companies, network activities and individuals, including social movements, governments and international organizations (Archibugi, Held and Köhler, 1998:1-2; Castells, 1999).

In spite of the process of globalization and it effects on the daily lives of people, political institutions are continually being constructed and, at the same time, work on a narrower geographic scale, that is to say, the territorial state. However, traditional forms of the national state are not secure anymore. The sovereignty and autonomy of states are now being challenged and limitations posed in a number of ways:

"International law, international organizations, diplomacy, the interests of the big multinationals, the emergence of a transnational civil society, no less than the distribution of military strength across the planet, ensure that states can take fewer and fewer decisions without extensive consultation, collaboration and negotiation with other states and agencies" (Archibugi, Held and Köhler, 1998: 3).

As a number of scholars affirm, we are now living in a world where state borders are increasingly becoming obsolete. International borders are becoming so penetrable that they no longer fulfill their historical role as barriers to the movement of goods, ideas and people, and as markers of the extent and power of the state (Held 2004: 119-136). The decay in the strength and significance of international borders is linked to a redesigning of the nation- state as the pre-eminent political construction of modernity (Wilson and Donnan, 1998:1-25; Castells, 1999:243-307).

The increasing powerlessness of the nation-state, for instance, is aptly described by Castells in the era of globalization, "... the growing challenge to states' sovereignty around the world seems to originate from the inability of the modern nation-state to navigate uncharted, stormy waters between the power of global networks and the challenge of singular identities" (Castells, 1999:243-44).

As a consequence of this, a number of questions need to be reconsidered. First, who for instance will uphold human rights in a world that has left behind a powerful national state? second, in relation to economic, social and cultural rights, how does the weakening of state capacity affect the protection of rights in peripheral and semi-peripheral states? …

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