A Common Flaw: The Retention of State Sovereignty in the Articles of Confederation and the Charter of the United Nations
Charles J. Crimmins
Table of Contents
I. Introduction 1
II. Retention of state sovereignty 1
A. State sovereignty under the Articles 1
B. State sovereignty under the Charter 2
III. Importance of individual liberties 4
A. Individual liberties as an underpinning of the Articles 4
B. Individual liberties (human rights) as an important theme in the Charter 5
IV. The retention of state sovereignty’s effect on individual liberties 6
A. State sovereignty’s infringement on individual liberties under the Articles 6
B. State sovereignty’s infringement on human rights under the Charter 9
V. Sovereignty’s core and its division 15
A. Imperium in Imperio 15
B. Sovereignty derived from the individual; direct sovereignty, sovereignty through “tracks,” and dual sovereignty 17
VI. Sovereignty and the United Nations; Locke, Blackstone, and “tracks” 19
Charles J. Crimmins
International Organizations
Professor Alemante Selassie
December 2008
i
I. Introduction
This paper aims to highlight the striking similarities between the United States Articles of Confederation (Articles) and the Charter of the United Nations (Charter). A fundamental flaw in both documents is the retention of state sovereignty. Although the documents purport to protect individual liberties, they create systems where states retain sovereignty at the expense of individual liberties; the protection of individual liberties in the documents relies on the good faith[1] of states rather than relying on an overarching duty derived from the individual sovereignty of each citizen.
This assessment explores the Articles and Charter in five parts. Section I highlights the documents’ retention of state sovereignty. Section II focuses on the importance of individual liberties (or human rights) in the documents. Section III explains state sovereignty’s infringement on individual liberties (or human rights) under the documents. Section IV examines sovereignty’s core and alternative theories for its division. Section V looks at the future of sovereignty under the Charter.
II. Retention of state sovereignty
A. State sovereignty under the Articles
Article II of the Articles is clear: “Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”[2]
Curiously, the explicit retention of state sovereignty was absent from the first draft of the Articles and Thomas Burke – representative from North Carolina to the Continental Congress – insisted on its explicit inclusion in the final draft.[3] The colonies were not far removed from the Revolutionary War and the majority subscribed to the thesis of the Declaration of Independence: government is inherently tyrannical. Proponents of states’ rights argued that power should be allocated to the governmental unit closest to the people.[4] If individual sovereignty was to be forfeited, it would not travel far from home.
The addition of Article II to the final draft of the Articles illustrates the drafters’ intent to form a weak Congress.[5] In the absence of Article II, the rights of states still preexisted the Articles and would act as a check on federal power.[6] In other words, Article II was not necessary. Its inclusion illustrates the drafters’ desire that states’ rights should do more; states’ rights should cut down federal powers.[7] The omission of Article II in the first draft did not signal the drafters’ intent to cede sovereignty.[8] Representatives believed state sovereignty was inherently supreme and could not be trumped.
B. State sovereignty under the Charter
United Nations (UN) member states retain sovereignty under the Charter. Article 2 of the Charter lists the central principles of the UN. The first principal listed, Article 2(1) reads, “The organization is based on the principle of the sovereign equality of all its Members.”[9] Article 3 defines membership in the UN: “The original Members of the United Nations shall be the states . . .”[10] Article 2 calls for the sovereign equality of members and Article 3 defines members as states. Read together, Articles 2(1) and 3 do not cede state sovereignty.
Articles 2(4) and 2(7) are even more protectionist. Article 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”[11] Article 2(7):
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.[12]
The principals of domestic jurisdiction constitute “the basis of the entire legal system of the United Nations.”[13]
Putting the Charter in historical context also highlights the intent of the drafters to enshrine state sovereignty. In August through October of 1944, leaders from China, the United States, the United Kingdom, and the Soviet Union met at Dumbarton Oaks to propose ideas for the maintenance of international peace.[14] In 1945, representatives from fifty states met in San Francisco to draw up the Charter and several compromises were made.[15] The meetings, compromises, and drafting were on the heels of two world wars, and foremost on the mind of the most influential drafters was the German trampling of state sovereignty.[16]
III. Importance of individual liberties
A. Individual liberties as an underpinning of the Articles
Colonists’ frustration during the revolutionary period stemmed from the Crown’s usurpation of individual liberties. The Articles were drafted and ratified before the end of the American Revolution; therefore, the aims of the Articles were consistent with colonial, revolutionary sentiments. On July 23, 1774, about six months after the Boston Tea Party, Thomas Jefferson wrote a letter to the Parish of St. Anne recommending a day of fasting to “implore the divine interposition on behalf of an injured and oppressed people.”[17] The community responded three days later by passing a resolution that protested the infringement on the natural and legal rights of its people.[18] This Lockean Liberalism – stressing that an individual’s rights are God given – was later exhibited in the Declaration of Independence.[19]
This sentiment is also expressed by what is omitted from the Articles; congressional enforcement powers. An amendment to allow Congress to enter states and seize military deserters was put before the drafters of the Articles.[20] Although it initially passed, Thomas Burke’s strong dissent garnered the support of the majority of representatives and overthrew the amendment.[21] He argued that giving Congress the power to seize citizens “endangered the liberty of every man in America.”[22] Coercive measures should only be taken by states because “to them alone did he give his consent.”[23]
B. Individual liberties (human rights) as an important theme in the Charter
Although the Charter does not list the promotion of individual liberties as its primary purpose,[24] individual liberties are still important. In the guise of the Charter, individual liberties are known as “human rights”[25] and the term is mentioned seven times.[26] Also illustrating the importance of individual liberties in the Charter is its inclusion of the language “standards of life,”[27] “self-determination,”[28] “fundamental freedoms,”[29] and “promotion of economic and social advancement.”[30]
The impetus for the inclusion of human rights in the Charter was the result of political pressure from Non Governmental Organizations (NGOs) and Latin American states.[31] Global outrage over the Holocaust fueled the effort of NGOs – including well funded Jewish and Christian NGOs – to insist on the inclusion of human rights provisions in the Charter.[32] In March 1945 President Franklin D. Roosevelt encouraged Jacob Blaustein of the American Jewish Committee: “Go to San Francisco. Work to get those human rights provisions into the Charter so that unspeakable crimes like those by the Nazis will never again be countenanced by world society.”[33]
Many Latin American states had recently added human rights to their own constitutions and their representatives were eager to include them in the Charter.[34] Germany and its allies trampled not only state sovereignty but individual sovereignty as well; the Charter needed to protect both.
IV. The retention of state sovereignty’s effect on individual liberties
A. State sovereignty’s infringement on individual liberties under the Articles
Despite Thomas Burke’s well-founded intentions,[35] the retention of state sovereignty under the Articles quickly led to the abatement of individual liberties. First, the Articles provided no mechanism against the state infringement on individual liberties of the citizens of foreign states. Second, the Articles provided no mechanism to punish states for infringing on the individual liberties of minorities. By relying on the states’ good faith adherence the Articles, the system encouraged states to favor certain citizens which, in turn, led to the infringement on individual liberties on a grand scale.
As illustrated above,[36] the Articles were premised on every individual’s “State of Liberty”[37] – as enunciated by John Locke.[38] Locke’s theory continues by qualifying an individual’s “State of Liberty” by noting that it is not accompanied by a “State of License.”[39] The balancing of an individual’s liberties against the hindrance of the liberties of others was government’s task – this was Locke’s “Law of Nature.”[40] He wrote, “And that all Men may be refrained from invading others’ Rights, and the Law of Nature be observed . . . whereby every one has a right to punish the transgressors of that Law to such a Degree, as may hinder its violation.”[41] The Articles were a reflection of the attitude that the state government was the best vehicle to balance conflicting individual liberties; but, state government, alone, was not the best vehicle because the states were interconnected and there was no mechanism to punish states balancing in favor of the majority.
Under the Articles, states had little reason to adhere to rules they did not believe to be in the best interest of their state. States were pitted against each other to the detriment of all states. Locke’s transgressors were not punished; it was best to favor your state’s interest for fear that other states would do the same. James Madison explained the omission of any mechanism to punish states as stemming from, “a mistaken confidence that the justice, the good faith, the honor, the sound policy of the several legislative assemblies would render superfluous any appeal to the ordinary motives by which the laws secure the obedience of individuals.”[42]
Individual liberties of minorities were not protected by the Articles. All civilized societies are composed of different interests and factions, but in a small republican form of government the majority ultimately mandates the law.[43] Madison asks, “Whenever therefore an apparent interest or common passion unites a majority what is to refrain them from unjust violations of the rights and interests of the minority, or of individuals?”[44] Madison’s solution to the Articles dilemma is the ceding of state sovereignty; “an extensive Republic meliorates the administration of a small Republic.”[45] He reasons that a small republic “is not sufficiently neutral to the parts composing it.”[46] The states were too small a body to be neutral, and states’ retention of sovereignty under the Articles meant that there was no remedy for state infringement on individual rights protected under the Articles.
Article IV of the Articles prohibited the discrimination of individuals from foreign states: “The people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively.” Yet Virginia, Maryland, and New York all had laws restricting foreign vessels (vessels from outside their state) to certain ports.[47] These laws were in clear violation of the Articles, but Congress had no power to strike them down. Under the Articles state sovereignty was sacred – the protection of individual liberties was fictional.
States, faced with dilemmas pitting their allegiance to the Articles against the immediate interests of their citizens, chose to disregard the Articles. The secondary importance of the Articles should not be a surprise; states reasoned that they retained sovereignty under the Articles and their sovereignty was derived solely from their own citizens and not the citizens of other states. States refrained from voluntary compliance because they believed other states – faced with a similar decision – would not voluntarily comply either.[48] This atmosphere of distrust led to the decrease of individual liberties of all citizens under the Articles.
B. State sovereignty’s infringement on human rights under the Charter
Respect for state sovereignty under the Charter manifests itself in ways that are detrimental to human rights. The Charter’s principal of the sovereign equality and Articles 2(4) and 2(7) clearly limit the UN from protecting against the infringement on human rights in a domestic setting.
Although human rights are an important theme in the Charter, they are secondary to the Charter’s goal of maintaining international security. Despite the success of NGOs and Latin American governments in San Francisco to convince the drafters to include human rights provisions, the Charter still included much of the power politics and respect for state sovereignty called for by the big powers at Dumbarton Oaks.[49]
The Charter is based on the principle of the “sovereign equality” of states.[50] “Sovereign equality” in the Charter is a vestige of states that declared their own sovereignty at the expense of the Pope and Emperor.[51] By basing their own authority on principles of sovereign equality, states were not able to deny the same right to states in the same predicament.[52] Having already assumed victory by the time of Dumbarton Oaks, the rhetoric that powerful states used to champion the war effort – focusing on individual liberties and human rights – subsided[53] and solutions focused on “real politics” as embodied in the writings of Hans Morgenthau.[54] The Soviets threatened to walk out of negotiations because a draft of the Charter allowed the General Assembly to discuss any matter “within the scope of International Relations” (Soviets felt that the clause cut against the notion of sovereign equality but compromised by allowing the General Assembly to discuss any matter “within the scope of the Charter”).[55] The final drafting was clear and matched the sentiments of the Hague Court that found, fewer than twenty years earlier, “Sovereignty in the relation between States signifies independence in regard to a position of the globe and its right to exercise therein.”[56] This coexistence of state sovereignty harms human rights because it is based on a subjective right defined by borders and not based on a right focused on the public good.[57]