COMBATING HATE SPEECH IN AFRICA THE CASE OF RWANDA, KENYA, CAMEROON

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COMBATING HATE SPEECH IN AFRICA THE CASE OF RWANDA, KENYA, CAMEROON.

Abstract

The principles of state sovereignty and non-interference rest at the very heart of International law and springs from the 1648 Westphalian treaty. Westphalian sovereignty is the principle of international law that each nation state has sovereignty over its territory and domestic affairs to the exclusion of all external powers. This is founded on the principle of non-interference in another country‟s domestic affairs and that each state irrespective of its size is equal in International law. This study shall rely principally on the doctrinal research methodology by systematic and thematic analysis of existing data on sovereignty and non-interference. The interpretation of sovereignty as narrowly as the non-intervention principle has placed sovereignty against the possibility of intervening for the protection of Human rights. The Rwanda genocide, mass atrocity crimes and crimes against humanity that characterized the state of Rwanda and Srebrenica amongst others raised the need for action by the International community to protect not only states, but also people. This thesis attempts therefore, to find a bridge between these two seemingly opposing interests -protecting the state for a strong international order and protecting the people to save lives. Responsibility to protect is based on the notion of a primary responsibility with each and every state to protect its population, and a secondary responsibility with the international community to assist a state, which is unwilling or unable to protect its people. This thesis concludes that responsibility to protect is part of sovereignty, as a duty of a state, corresponding to the right of non-intervention. If the reign fails to protect its people, or is itself abusing its people, the right of non-intervention becomes void.

CHAPTER ONE

INTRODUCTION

1.1 BACKGROUND TO THE STUDY

The principles of state sovereignty and non-interference remain at the very heart of international law and can be traced as far back as the treaties of Munster and Osnabruck signed in 1648, commonly referred to as the treaty of Westphalia.1 State sovereignty or Westphalia sovereignty is the principle of international law that each nation-state has sovereignty over its territory and domestic affairs to the exclusion of all external powers. This is founded on the principle of non-interference in another country‟s domestic affairs and that each state, irrespective of its size, is equal in international law sequel on the sacrosanct principle of recognition, either de facto or de jure. After European influence spread across the globe, these principles of state sovereignty and non-interference became ideals central to international law2.

of this system is often traced in scholarly and popular literature to the Peace of Westphalia signed in 1648, to end the thirty years war. Looking at the historical context of the Peace Treaty, the main purpose does not seem to be the equality of sovereign states, but weather restraining the influence from the Roman Empire. After reading the treaty, it becomes evident that the concept of sovereignty is rather decolonization from the Empire, than an international system of sovereign equality and non-interference.

The states system dates from the peace of Westphalia.3 The core elements of that sovereignty based system were codified in the Montevideo Convention on the Rights and Duties of States 1933. The attributes of statehood include effective government, territory and people. Sovereignty is thus the fundamental principle on which contemporary world order rests, affirmed by the International Court of Justice (ICJ) and expressed in the UN Charter Article 2(1). Externally, sovereignty means the legal identity of the state in international law and equality of status with all other states and the right to be the sole legal personality to international relations on behalf of a people.

The juridical equality of states can exist alongside extreme disparities in size, wealth, power and status. States were sovereign and equal, and therefore no one state could presume to judge whether another‟s cause was just or not. States were bound to honor agreements and respect the independence and integrity of other countries and had to try and resolve differences by peaceful methods. Sovereignty therefore originated historically in the European search for a secular basis of state authority in the sixteenth and seventeenth centuries.4 It embodies the notion that in every system of government there must be some absolute power of final decision, which was the very essence of the Peace of Westphalia. The principle of non-interference is the most important embodiment of the notion that states are autonomous entities and its ancestry also can be traced back to Westphalia.

The orthodox or traditional view of the Westphalian system is that the Peace of Westphalia was an agreement to respect the principle of territorial integrity. In the Westphalian system, the national interests and goals of states and later nation-states were widely assumed to go beyond those of any citizen or ruler. States became the primary institutional agents in an interstate system of relation. The Peace of Westphalia is said to have added attempts to impose supranational authority on European states. The Westphalian doctrine of states as independent agents was bolstered by the rise in the 19th century thought of nationalism, under which legitimate states were assumed to correspond to nation-groups of people united by language and culture.

The Westphalian system reached its peak in the late 19th century. Although practical considerations still led powerful state to seek to influence the affairs of others, forcible intervention by one country in the domestic affairs of another was less frequent between 1850 and 1900 than in most previous and subsequent periods7. The Peace of Westphalia is important in modern international relations theory and is often defined as the beginning of the international system with which the discipline deals8.

However recent scholarships suggest that the Westphalian treaties actually had little to do with the principles of sovereignty, non-intervention and the legal equality of states with which the treaties are often associated. For instance, Osiander writes that “the treaties confirm neither France‟s nor Sweden‟s sovereignty nor anybody else‟s, least of all do they contain anything about sovereignty as a principle”. In the same line with the modern views on the Westphalian system, and in a symposium on the continuing political relevance of the Peace of Westphalian, Javier Solana, NATO secretary General said that “humanity and democracy are two principles essentially irrelevant to the original Westphalian order” and levied a criticism that the Westphalian system had its limits. For one, the principle of sovereignty, if relied on also produced the basis for rivalry not community of states, exclusion and not integration.

However, despite these criticisms and debunk of the Westphalian sovereignty on the basis of its strict non-interference tendencies, it behooves to reckon that the paradigms of sovereignty and non-interference in International law saw the light of day with the Peace Treaty in 1648. Leo Gross hailed the Peace of Westphalia as the majestic portal leading from the old world into the new. Gross strongly held the Peace Treaty as the nascence of International law, creating a new system characterized by the coexistence of a multiplicity of states, each sovereign within its territory, equal to one another and free from any external earthly encumbrances, and this was the essence, the rational, more or less the mainstream view of the Peace of Westphalia.

1.2 Statement Of The Research Problem

The betone nature of state sovereignty and non-interference in international law has provoked a huge response within the international community. The appreciation of the concepts of sovereignty and non-interference provokes an avalanche of problems amongst legal scholars. Following the end of the thirty years war ending with the Peace of Westphalia, the international community was said to be on motion towards contemporary International law. Sovereignty is one of the oldest notions of modern International law and is mainly debated during times of crisis or conflict. The exact meaning seems difficult to grasp, even more so as many scholars insist on knowing the „true sovereignty‟. In Bruno Simma‟s commentaries to the UN Charter, Fassbender notes that “one who cannot acknowledge the untamed side of sovereignty cannot fully understand it”.

The issues of globalization and the complexity of international life, has left a significant imprint on the concept of state sovereignty.13 Most often than not this concept of state sovereignty and non-interference, is seen as an emblem and symbol of the all-powerful states, hiding under the canopy of sovereignty to commit mass atrocity crimes. With such in mind, the question that springs up is, can there be true sovereignty and can the principle of non-interference if upheld promote Human right values and international peace? There is therefore the need to revisit the definition of these concepts so to accommodate the key values of international order and respect for Human rights. A dichotomy of sovereignty and protection was emphasized and posed a seemingly insolvable problem for the entire International community. If for instance an intervention for protection of human rights was a violation of sovereignty, and sovereignty was the stronger of the two, how would the international community be able to protect human lives in cases of genocide? As most scholars like Hugo Grotius, used the phrases „Westphalian sovereignty‟ or „traditional sovereignty‟, it is evident that sovereignty was also seen as something historic and constant over time.14 Sovereignty was seen as a static non-intervention principle, which protected the state but not the people. The interpretation of sovereignty as narrowly as the non-intervention principle during the 1990s, placed sovereignty against the possibility of intervening for the protection of Human rights.

Respect for the political and territorial sovereignty of other nations is a fundamental feature of the international system and the key to maintaining a system in which the nation-state is the primary actor in global affairs. Underpinning this concept of sovereignty is the basic rule that nation-states must refrain from intervening in the domestic affairs of another state; however, there is a problem with this accession, most often than not bigger states violate the sovereignty and territorial integrity of smaller states with impunity such as US in Nicaragua 1981. There is therefore the need to address such problems so as to fully appreciate the notion of sovereignty.

1.3 Research Questions

In this study, we shall attempt to provide answers to these questions which constitute the very basis for this research. These questions include inter alia;