Returning sovereignty to the people.

• Author: Ludsin, Hallie
• Position: I. Introduction through III. Resisting The Military: The Anti-Musharraf Movement C. How Much Sovereignty Is Lost? p. 97-134

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.

TABLE OF CONTENTS I. INTRODUCTION IX. UNDERSTANDING SOVEREIGNTY A. Challenges to Traditional Notions of Sovereignty B. Reconceiving Sovereignty III. SOVEREIGNTY IN THE PEOPLE A. Identifying the Sovereign B. Retaining Sovereign Rights 1. Legitimacy 2. Sovereign Duties 3. The Question of Cultural Relativism C. How Much Sovereignty Is Lost? D. Who Decides? E. Libya: Nascent Support for a Substantive Sovereignty in the People 1. Background 2. Legitimacy 3. Failure to Fulfill Duties IV. THE PEOPLE A. Who Are the People? B. Can a Democratic Government Lose Its Sovereign Rights? 1. Illiberal Democracies 2. Democracies in Conflict 3. Liberal Democracies V. CONCLUSION 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 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 international community's response to Libya's Arab Spring, particularly the lead up to UN Security Council Resolutions 1970 and 1973, lends nascent support to the content-infused concept of "sovereignty in the people" advocated here.

Throughout Parts II and III, this Article assumes that "the people" constitute a united and homogeneous political community within the territory of a state. Part IV challenges this assumption by examining who comprises the people and how their will and common good should be determined in heterogeneous societies. It relies on examples from Afghanistan, Sri Lanka, India, and France to show how the people and democracies can run afoul of the requirements for receiving sovereign rights.

Importantly, this Article's conception of sovereignty in the people does not change the overall structure of international intervention in the affairs of states. Rather, it justifies current practice in response to human rights atrocities that trigger the responsibility to protect, while providing a coherent conceptual framework for countering the "mind your own business" attitudes of governments committing less than the most egregious human rights violations.

2. UNDERSTANDING SOVEREIGNTY

   One of the most difficult aspects of a discussion about sovereignty is defining the term. The difficulty lies in the fact that the concept has been evolving over hundreds of years and has been appropriated at different times for purposes not necessarily consistent with current usage. (2) The term has been used, for example, to claim unlimited control over a territory and people, to describe the independence of a country, to proclaim the self-determination of a people, to describe the legitimacy of a government, to express recognition of a state, and to claim government competencies. (3) As one scholar explains, "Because the idea of sovereignty has evolved profoundly over history, it is surely quixotic to search for a definition that captures every usage since the thirteenth century." (4)

   Instead of trying to define the term, this Article examines sovereignty as a mechanism for organizing domestic and international politics to protect and enhance the security and common good of the individuals who form a political community. (5) The concept of sovereignty developed to avoid the chaos and violence of individuals asserting their own interests, often violently and at the expense of others. (6) As is discussed more thoroughly in Part III.A below, these individuals united as a political community to create a sovereign representative capable of organizing the interests and needs of a population in order to avoid the violence. The international rules of sovereignty developed for much the same reason--to prevent a disorganized international system from permitting leaders or rulers to promote their interests by attacking territory under the control of another authority. (7) Examining sovereignty as a set of organizational rules comports with its conceptual development.

   Four rules of international law are associated with a claim of sovereignty, which can be made only by states. (8) States rely on these rules as their defensive shield against interference in their domestic politics, including against criticism of their human rights abuses. The rules protect two different types of sovereignty--internal and external. Internal sovereignty permits the sovereign authority, conceived of as the government, to act freely within the territory of its state. (9) Under the first rule of sovereignty, any actions or activities that do not cross state borders fall within the state's exclusive jurisdiction. (10) External sovereignty, which is protected by the second rule, prohibits the interference of one state in the matters of another sovereign state when that interference threatens the territory or the integrity of the second state. (11) It "assert[s] that there is no final and absolute authority above and beyond the sovereign state." (12) External sovereignty forbids cross-border attacks, considering it interference with the integrity of that state. (13)

   External sovereignty also serves as the basis for the third and fourth rules of sovereignty. It demands a right to sovereign equality between states, since no country can claim supremacy over or use its power against another under international law. (14) It also establishes the rule that a state must consent to be bound by international legal obligations, since no other body or government has authority to bind it. (15) These rules of international law pertaining to sovereignty are viewed as the rights of sovereignty for purposes of this Article, as they speak to protecting one state from the actions of another through law.

   Under international law, a political community is granted the rights of sovereignty only once it achieves international recognition as a state. (16) It can achieve this recognition only if it meets the four criteria for statehood. Statehood requires: (1) a territory with definable borders, (2) a cohesive political community within the territory, (17) (3) political leadership that has control over the territory, (18) and (4) leadership capable of conducting international relations. (19) Once a territory achieves statehood, it can only be lost in the rarest of circumstances. (20)

   As Part II.A describes, traditionally the government was considered the sovereign that benefited from sovereign rights. Challenges to traditional notions of sovereignty and to the identity of the sovereign, however, make achievement of statehood an insufficient criterion for determining when and to whom sovereign rights vest. The remainder of Part II explains these challenges, and provides the context for Part III's explanation of...