The conundrum of balancing state sovereignty with international obligations

At the last moment, close to midnight on August 31, the Office of the United Nations High Commissioner for Human Rights (OHCHR) released a report on the human rights situation in China. The Office was under enormous pressure by human rights groups to release the report before the High Commissioner left office on that day. The Chinese government, meanwhile, put enormous pressure on the Office not to release the report or to release it with major revisions. The document accused China of human rights violations that “may constitute international crimes, in particular crimes against humanity,” in its treatment of Uyghurs and other Muslim groups in the Xinjiang region.

Michelle Bachelet travelled to China in late May 2022. She was the first High Commissioner to visit China in 17 years. Bachelet saw the visit as “an opportunity to hold direct discussions—with China’s most senior leaders—on human rights…with a view to supporting China in fulfilling its obligations under international human rights law.”

"The controversy over the report and its delay is an excellent case study of the tension between state sovereignty and universal norms."

Even before she went to China, Bachelet was criticized for her China agenda. Over 220 regional groups expressed concerns that the trip risked “walking into a propaganda minefield laid out by the Chinese Communist Party.” Bachelet and her Office were torn between the political power of China and what they saw as grave human rights violations. Bachelet said China and about 40 other countries had asked her not to publish the report. In explaining the delay in the report’s release, Bachelet said she “wanted to take the greatest care to deal with the responses and inputs received from the [Chinese] government…” As pressure mounted during her last week in office, Bachelet insisted, “We’re trying very hard to do what I promised.”

While it is easy to show how China has used its power to influence international institutions in Geneva, such as the World Trade Organization and the World Health Organization, it is obvious that the delay in publishing the report further calls into question the role of the United Nations in promoting human rights.

The controversy over the report and its delay is an excellent case study of the tension between state sovereignty and universal norms. Professor Richard Falk, in his book The Endangered Planet, points to the contradiction between the “logic of the state system and the logic of the UN Charter.” The logic of the state system harkens back to the Peace of Westphalia where each state was allowed sovereignty to choose its rules and regulations within its borders. The logic of the UN Charter begins with the Preamble to the Charter which starts, “We the Peoples.”

Falk’s argument, developed in 1971, is that major crises facing the world, such as nuclear war and ecology, need global solutions. The state system, based on individual state sovereignty, is limited in its ability to cope with global problems. The state system, Falk argued, is archaic. State sovereignty, formally established in 1648 after the Thirty Years’ War, has eroded because of technology, nuclear weapons, and environmental issues. Alternative organizational bases beyond the state system, Falk wrote, are needed to solve global problems. China prioritizes national sovereignty over international institutions. “[China] will emphasize ‘constructive dialogue,’ [as in] states between themselves should engage in constructive dialogue and make polite suggestions, but they should not be finger-pointing, they should not be laying blame,” Frédéric Mégret, co-director of the Center for Human Rights and Legal Pluralism at McGill University, was quoted as saying.

"Multilateralism is proving inadequate to deal with major global issues, with no obvious alternative in sight."

Michelle Bachelet was in a conundrum as to how far she could criticize China. On the one hand, she favored dialogue. On the other hand, she knew the situation “may constitute international crimes.” While her Office’s report does contain sharp criticism of China—which the Western press has emphasized—the report’s delay and last-minute publication show how state sovereignty and nationalistic politics continue to exert enormous influence over international norms, obligations and institutions.

Multilateralism is proving inadequate to deal with major global issues, with no obvious alternative in sight. Donald Trump’s cry of “Make America Great Again” reflected increased nationalism among great powers like the United States, China and Russia. The planet may be endangered, but there is no organizational structure for the moment to deal with its pressing problems.

Lots of reports mention “grave breaches” and “serious violations” but have little effect. The United Nations has been incapable of promoting peace and security in the Russia-Ukraine conflict. A Geneva journalist correctly summarized the long delay in the China report’s release; “As for Beijing’s ability to exert a major influence on the UN and its human rights system, the Office of the High Commissioner has long resisted, but today the dike has been breached.”

Bachelet and her Office tried to placate China by delaying the report while trying to satisfy human rights groups by publishing a critical report on human rights in the Xinjiang region. The Office of the High Commissioner has been weakened by the delay. It remains to be seen if the report’s criticisms will have any effect on China’s policies. Trying to have it both ways in contradictory situations is never an optimal solution.

-DW