State Sovereignty and International Jurisdiction: A Pluralist Perspective on Transnational Human Rights Litigation
(2021) 10th Annual Cambridge International Law Conference — Location: Cambridge University
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- Authors
Brachotte, Sandrine 
- Abstract
- The paper is based on the consideration of the ever-growing global interconnectedness (as recently highlighted by the COVID-19), which requires more international cooperation. It proposes a reflection on the articulation between this cooperation and national sovereignty, which remains one of the foundational principles of Modern law. The paper further focuses on one of the areas where this coupling appears of paramount importance, i.e., international jurisdiction. To do so, the author follows the many scholars pleading for a re-examination of traditional legal concepts in light of the paradigm of legal pluralism, which opposes the monist conception of law that only considers state law as law. Rather, legal pluralists acknowledge that not only states, but also other, often transnational, actors, do hold a normative authority (e.g., Berman, Delma-Marty, Krisch, Muir Watt, Teubner). In this perspective, it can be noted that non-state actors’ normative authority can be at odds with that of states, and hence threatens their sovereignty, not only individually at the domestic level, but also collectively, at the supra or international level. Therefore, the author suggests to re-evaluate the theorization of international jurisdiction and comity, as well as the conception of state sovereignty underlying these notions, through pluralist lenses. To this end, she applies the pragmatic approach, which has been identified as one of the most suitable methodological tools to adapt law to the unprecedented phenomena of our globalised world (Frydman). This method consists in drawing theory on a given legal issue from the multidisciplinary and multidimensional study of an existing phenomenon. If this phenomenon involves a court’ case, the latter is then analysed beyond the strict court’s decision and selection of facts (Baer). More specifically, the paper studies a case involving the Alien Tort Statute (ATS) within transnational human rights litigation seeking the condemnation of a U.S. Evangelical politician’s “anti-gay propaganda” in Uganda, namely SMUG v Lively (No. 17-1593 (1st Cir. 2018)). In the case, U.S. courts denied jurisdiction to the Ugandan and American NGOs acting as plaintiffs, arguing that the propaganda mostly took place in Uganda, and not in the U.S, and that international comity requires extra caution in granting jurisdiction, given the plaintiff's accusation of Ugandan representatives of complicity with the Defendant. The paper proposes a pluralist reading of this case, by considering the normativities underlying the parties’ transnational actions, as well as the broader geopolitical context of the dispute. This analysis shows that what is at stake there is first and foremost a conflict between Evangelical and human rights’ global, value-based agenda, where each party plays its global card on a states-made, postcolonial, chessboard. In this regard, states’ territorial views of their respective sovereignty appear to undermine states’ sovereignty altogether. As a result, the paper argues for the inappropriateness of territoriality as a criterion to define national courts’ jurisdiction over cases that involve a direct normative competition between several states and transnational actors. Other criteria, such as state interests, or state responsibility, appear more relevant. They indeed involve a state positioning towards the global stakes at hand.
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Citations
Brachotte, S. (2021). State Sovereignty and International Jurisdiction: A Pluralist Perspective on Transnational Human Rights Litigation. 10th Annual Cambridge International Law Conference, Cambridge University. https://hdl.handle.net/2078.5/239143