Returning Sovereignty to the People

• Author: Hallie Ludsin
• Position: Research Director at the South Asia Human Rights Documentation Centre in New Delhi, India

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Returning Sovereignty to the

People

Hallie Ludsin*

ABSTRACT

Governments across the world regularly invoke sovereignty

to demand that the international community “mind its own

business” while they commit human rights abuses. They

proclaim that the sovereign right to be free from international

intervention in domestic affairs permits them unfettered

discretion within their territory. This Article seeks to challenge

those proclamations by resort to sovereignty in the people, a

time-honored principle that is typically more rhetorical than

substantive. Relying on classical interpretations of sovereignty,

this Article infuses substance into the concept of sovereignty in

the people to recognize that a government is entitled to sovereign

rights only as the legitimate representative of the people and

only as long as it fulfills its duties to them. The Article then

examines the conditions that must be met for a government to

claim sovereign rights, as well as how and by whom access to

these rights should be determined. Taken to its logical

conclusion, sovereignty in the people establishes that (1)

sovereign rights can be lost when governments commit less than

the most egregious human rights abuses, which differentiates

this from the responsibility to protect; and (2) any form of

government is at risk of losing these rights, including

democracies.

* Hallie Ludsin is the Research Director at the South Asia Human Rights

Documentation Centre in New Delhi, India. This Article was originally written for the

Centre for Policy Alternatives in Colombo, Sri Lanka, where the author served as a

legal consultant. Thank you to Rohan Edrisinha, Asanga Welikala, Ravi Nair, Marius

Pieterse, Kiran Kothari, and Ravi Nessman for their insightful comments on this

Article.

98 vanderbilt journal of transnational law [vol. 46:97

TABLE OF CONTENTS

I. INTRODUCTION .............................................................. 98

II. UNDERSTANDING SOVEREIGNTY .................................... 100

A. Challenges to Traditional Notions of

Sovereignty .......................................................... 103

B. Reconceiving Sovereignty ................................... 110

III. SOVEREIGNTY IN THE PEOPLE ....................................... 113

A. Identifying the Sovereign ................................... 113

B. Retaining Sovereign Rights ................................ 119

1. Legitimacy .................................................... 120

2. Sovereign Duties .......................................... 122

3. The Question of Cultural Relativism .......... 128

C. How Much Sovereignty Is Lost? ......................... 131

D. Who Decides? ....................................................... 135

E. Libya: Nascent Support for a Substantive

Sovereignty in the People .................................... 138

1. Background .................................................. 138

2. Legitimacy .................................................... 142

3. Failure to Fulfill Duties ............................... 144

IV. THE PEOPLE ................................................................... 145

A. Who Are the People? ............................................ 146

B. Can a Democratic Government Lose Its

Sovereign Rights? ............................................... 150

1. Illiberal Democracies ................................... 151

2. Democracies in Conflict ............................... 159

3. Liberal Democracies .................................... 164

V. CONCLUSION .................................................................. 167

I. INTRODUCTION

Governments often invoke a claim of sovereignty to avoid

international scrutiny of their human rights abuses. They angrily

denounce conditions on international relations intended to influence

them to stop their violations as breaches of sovereignty. Rather than

change their behavior, they proclaim that their sovereignty serves as

an impenetrable barrier permitting them unfettered discretion within

their territory. Most credible institutions, politicians, academics, and

policymakers do not believe that sovereignty leads to this

unregulated discretion, yet these proclamations serve as strong

rhetoric that the international community should “mind its own

business,” other than in the most egregious cases. This Article seeks

2013] returning sovereignty to the people 99

to challenge this rhetoric by resorting to a different type of

sovereignty—sovereignty in the people.

Constitutions throughout the world declare that sovereignty lies

with the people, yet the declaration often grants no real rights and

does nothing to check the power of governments to control, rather

than represent, the people. Infused with substance, however,

“sovereignty in the people” could act as a powerful tool to promote

accountability and minority rights. Taken to its logical conclusion, the

concept establishes that (1) governments can lose sovereign authority

even when they commit less than the most egregious human rights

abuses, and (2) any form of government is at risk of losing this

authority, including democracies—two notions that are likely to be

highly contentious.1

Part II of this Article provides the background necessary for

understanding the meaning of sovereignty. It examines sovereignty

as a mechanism for organizing domestic and international politics to

protect and enhance the security and common good of the people and

considers the challenges to and development of the concept. Relying

on classical interpretations of sovereignty and its historical

development, Part III articulates a substance-infused concept of

sovereignty in the people that identifies the people as the true

sovereign and recognizes that the government is entitled to exercise

the rights of sovereignty only as the representative of the people. In

addition to describing the theory, Part III examines how the

1. The focus of the bulk of the literature on humanitarian intervention is on

the question of whether military intervention for gross violations of human rights

violates traditional notions of sovereignty. Peter A. Jenkins, The Economic Community

of West African States and the Regional Use of Force, 35 DENV. J. INT’L L. & POL'Y 333,

334 (2007); Tyra Ruth Saechao, Note, Natural Disasters and the Responsibility To

Protect: From Chaos to Clarity, 32 BROOK. J. INT’L L. 663, 672 (2007). The fact that the

literature rarely delves past the scenario of military intervention for mass atrocities

when questioning whether to “violate” sovereignty suggests that sovereignty remains

intact for violations that are less than “massive” or “egregious.”

The international community and debates about humanitarian action typically

equate the need to stop human rights violations with the need to ensure democracy

within a society. See Kenneth Anderson, Humanitarian Inviolability in Crisis: The

Meaning of Impartiality and Neutrality for U.N. and NGO Agencies Following the

2003–2004 Afghanistan and Iraq Conflicts, 17 HARV. HUM. RTS. J. 41, 42–43 (2004)

(discussing the difficulty of balancing the neutrality of human rights workers with the

non-neutral act of government building). This reflects what seems to be an assumption

that democracies do not commit human rights violations worthy of international

intervention. See Maxwell O. Chibundu, Political Ideology as a Religion: The Idolatry of

Democracy, 6 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 117, 143 (2006) (describing

the emergence of “[a] dogma . . . that democratic societies irrefutably are just societies

in much the same way that religionists deem their cohorts to be good”); Eric A. Posner,

International Law: A Welfarist Approach, 73 U. CHI. L. REV. 487, 504 (2006) (explicitly

setting up his argument with the premise that the democratic states he is discussing

look after the welfare of their people). This assumption is unfair to members of

democratic societies living under a tyranny of the majority, a point discussed fully in

Part IV.