JURIST Guest Columnist Michael Kelly of Creighton University School of Law says that the International Court of Justice ruling in Congo v. Uganda is a victory for sovereignty doctrine coming just as recent reversals for involuntary sovereignty waiver theory point towards revitalization of the classic legal doctrine governing the law of nations…

The International Court of Justice (ICJ) ruled on December 19th that sovereignty still matters. In a multi-layered opinion, the ICJ held that Uganda violated Congo’s sovereignty by invading it, occupying territory in Ituri, and providing military, financial, and logistical support to anti-Kabila Congolese rebels within the country between 1998 and 2002. The Court identified the specific provisions of international law violated in this case as “the principle of non-use of force in international relations and the principle of non-intervention.”

The Court also held that Uganda was responsible for the looting of resource-rich eastern Congo (gold, diamonds and silver) and for human rights abuses carried out by Ugandan armed forces (killings, torture and training child soldiers) during this period of conflict that claimed 4 million lives, and that Uganda was required to pay reparations to Congo. However, the Court also held that Congo was responsible for attacks by Congolese armed forces on the Ugandan embassy and its diplomatic staff in Kinshasa and Ndjili Airport, and that Congo was required to pay reparations to Uganda for its conduct in violation of the Vienna Convention on Diplomatic Relations.

While the human rights and anti-looting aspects of the World Court’s decision are important in their own right as restatements of international law in this area, it is the Court’s endorsement of sovereignty’s continued vitality in international law that comes at a most critical time. Sovereignty is the foundation of the international legal system and, at least conceptually, is the fountainhead from which rights and duties like non-intervention, diplomatic immunity, and state equality spring. Sovereignty’s fusion with the state system harkens back to the 1648 Peace of Westphalia and those derivative Westphalian principles enjoy currency in various provisions of the Charter of the United Nations.

During the latter 20th century, sovereignty began to seriously erode on several tracks with the gradual rise of new international law doctrines permitting non-U.N. authorized humanitarian intervention in the internal affairs of states and prosecution of former heads of state for crimes against humanity, war crimes and genocide. The rise of multilateral trading regimes like the WTO, NAFTA and within the European Union even witnessed the voluntary waiver of sovereignty in exchange for the benefits of free trade. But the post-9/11 impetus toward involuntary sovereignty waiver is the dynamic that the ICJ appears to be rejecting in Democratic Republic of Congo v. Uganda.

Although it had been kicked around in the abstract for some years, the theory of involuntary sovereignty waiver found articulation in U.S. government policy when it was given life by Secretary of State Colin Powell’s Director of Policy Planning, Richard N. Haass, in a policy speech at Georgetown University on January 14, 2003. Haass proposed that states effectively waive their sovereign rights against non-U.N. authorized intervention in their internal affairs by other states in three instances: when they commit genocide within their borders, pursue weapons of mass destruction, or harbor terrorists.

Leading up to the invasion of Iraq later that year, acceptance of the U.S. government’s new policy appeared to give Washington a trifecta of rationales allowing the invasion of Iraq to go forward, coupled with a resurrection of the old pre-emptive strike doctrine as a means to effectuate this new policy. Unable to secure the Security Council’s authorization to intervene, the Bush Administration desperately needed to wedge open international law and insert new policy prerogatives and doctrines to justify what, according to the Charter, would be a technically illegal war.

The world’s resistance to this redirection of international law (including the resistance of many U.S. allies) perhaps foreshadowed the ICJ’s opinion in Congo v. Uganda upholding sovereignty principles and buttressing against further erosion of border inviolability and non-intervention rules. Dr. Haass is now president of the Council on Foreign Relations, and has, since returning to private life, made his qualms about invading Iraq well-known, which leads me to believe that his realist foreign policy theory might have been hijacked by neo-conservatives for use in Iraq. Indeed, the central core of his policy outline provides perfect justification for moving neo-conservative foreign policy objectives down the field:

“In all three of the situations . . . — stopping genocide, fighting terrorism, and preventing the spread of weapons of mass destruction — the principle remains the same: With rights come obligations. Sovereignty is not absolute. It is conditional. When states violate minimum standards by committing, permitting, or threatening intolerable acts against their own people or other nations, then some of the privileges of sovereignty are forfeited.”

That said, due to the winnowing of neo-conservative voices within the second Bush Administration (perhaps due in turn to the massive failure of the Iraq occupation), Haass’ theory may have died along with their influence. That, in turn, could be the practical end of involuntary sovereignty waiver theory instead of the more formal pronouncement by the World Court.

Michael J. Kelly is Associate Professor of Law at Creighton University School of Law in Omaha, Nebraska. He is author of the forthcoming article "Pulling at the Threads of Westphalia: Involuntary Sovereignty Waiver, Revolutionary International Legal Theory or Return to Rule by the Great Powers?," 10 UCLA Journal of International Law & Foreign Affairs (Fall 2005), and the book Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & the Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang Publishers 2005) with a foreword by Desmond Tutu.
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