Returning sovereignty to the people.

• Author: Ludsin, Hallie
• Position: III. Resisting The Military: The Anti-Musharraf Movement D. Who Decides? through V. Conclusion, with footnotes, p. 135-170

4. Who Decides?

   The question of who decides whether and how much sovereignty is lost is likely to be a source of contention for those considering the concept of sovereignty in the people as espoused here. The question reflects two fears. The first is that this conception of sovereignty in the people will allow states to freely intervene in each other's domestic politics, wholly undermining the overall purpose of sovereignty. The purpose of this concept is to provide governments with the rationale for overriding sovereignty claims when they have the political will to challenge human rights violations; it is not intended to change international relations practices. The vast majority of options for intervention are nonmilitary, which means they do not breach territorial integrity or constitute "acts of aggression" in the context of the UN Charter and the Rome Statute of the ICC. (188) They range from public censure; to limiting or cutting aid, trade, or diplomatic ties; to political or economic sanctions; to investigations and prosecutions of abuses. (189) These nonmilitary measures, when applied bilaterally or against the actions of people or entities under the jurisdiction of the intervening state, also constitute acts of sovereignty by that state because it chooses how to conduct its international relations. (190) Whether to censure a country, to permit a diplomatic mission to work within its jurisdiction, to conduct trade or give aid, or to impose sanctions on citizens or legal persons within its territory for transacting with a disfavored state all fall well within the sovereign powers of a state. (191)

   The fact that decisions on nonmilitary intervention are likely matters of government policy suggests that it is unnecessary to look at them as a breach of sovereignty of the targeted countries. Abusive governments would deny this suggestion, which makes a theory to counter the attempt to shield human rights violations behind sovereignty important. Further, developing countries have raised serious concerns with economic sanctions because they can cause severe harm, and as a result, act as a particularly potent form of coercive power. (192) The UN General Assembly adopted a resolution to urge states party to mandate that only UN agencies have the power to impose economic sanctions. (193) The theory of sovereignty in the people addresses concerns about the harm caused by intervention, including through economic sanctions, by requiring states to test whether the effects of their intervention are likely to be proportionate to the harm from the rights violations and whether the intervention is likely to do more harm than good. It takes a different approach to alleviating the fears of developing countries.

   The more difficult question of who decides whether sovereign rights are lost arises when there is the possibility of aggressive action by an intervening state. These aggressive actions range from dropping aid within the territory of another state without its consent, to funding armed groups and agitators, to engaging in military activities in another state's territory. The question of who should decide whether aggressive or military intervention is appropriate under the concept of sovereignty in the people is part of an existing, highly contentious debate on whether these actions can be unilateral, multilateral, or must be undertaken only with the consent of the UN Security Council. (194) The debate implicates this conception of sovereignty in the people; however, it is beyond the scope of this Article to determine who should be permitted to order an aggressive intervention into another state. Rather, the concept simply explains why, in certain circumstances, sovereign rights do not bar this intervention.

   The second fear that this Article's conception of sovereignty in the people raises with respect to who will decide whether and to what extent sovereign rights are lost is whether this concept will permit stronger countries to interfere with weaker countries for their own benefit. (195) Justifiable intervention can easily be invoked by more powerful states in their self-interest, while weaker nations are more likely to be on the receiving end of condemnation and intervention, unable to influence the human rights practices of stronger states. (196) This concern also raises the specter of selective enforcement of human rights or selective intervention. Rather than applying human rights standards uniformly, factors such as race, ethnicity, religion, and location of the abusive government also could play a role in the decision whether to intervene to stop human rights abuses.

   While the fear of selective enforcement of sovereignty in the people is legitimate, it should not be permitted to serve as a pretext for avoiding criticisms of human rights violations or for negating the concept of sovereignty in the people. The problem of selective enforcement is not an inherent problem in the concept, but rather a reflection of current politics. In fact, state-centric conceptions of sovereignty that allow governments to hide their abuses from international scrutiny deserve at least partial blame for inconsistent responses to human rights violations. (197) Selective enforcement undermines the purpose of sovereignty in the people; however, as one commentator discussed with respect to the responsibility to protect, "the quest for the universal and uniform application of a new principle should not lead to its abandonment, especially when it can save hapless individuals from a grim plight." (198)

5. Libya: Nascent Support for a Substantive Sovereignty in the People

   There is little doubt that an autocratic government inherently violates the concept of sovereignty in the people. A dictatorship that does not permit free and fair elections and violates most human rights cannot qualify for sovereign rights. This is a basic premise of this Article. What bears discussing here is how the international community effectively applied the concept of sovereignty in the people to the Libyan protest movement that erupted as part of the Arab Spring when adopting UN Security Council Resolutions 1970 and 1973. As Part III.E.1 explains, the process leading up to international intervention in Libya to prevent Muammar Qadaffi's forces from slaughtering civilians recognized that Qaddafi's legitimacy depended on the support of the people; the Security Council was willing to consider action in response to the call of the people. Part III.E.2 then asserts that international intervention was expressly justified on the basis that Qaddafi had violated his duties to the people as required by the responsibility to protect. Taking this reasoning together, international intervention in Libya lends nascent support for the basic tenets of a substance-infused concept of sovereignty in the people and shows its potential force.

   1. Background

   Libya's Arab Spring began on February 15, 2011, with protests in the city of Benghazi that spread quickly through eastern Libya and Tripoli. (199) Qaddafi reacted to the protests by killing and arresting demonstrators. (200) Thousands continued to protest despite the government's harsh response that within the first four days left approximately 233 dead and many injured. (201) By February 18, the demonstrations turned into a full-fledged rebellion, with protestors pushing security forces out of parts of Benghazi and the city of Bayda. (202) Qaddafi responded in a speech on February 22 by calling for "house by house" searches for the "cockroaches" opposing the regime, (203) which was interpreted as "giv[ing] the green light" to loyalists to kill protestors and opponents. (204)

   In response to the government's violent crackdown, on February 21, 2011, Libya's Deputy Ambassador to the United Nations, Ibrahim Dabbashi, declared that he was breaking from the Qaddafi government but would continue to represent the Libyan people in his official capacity. Dabbashi expressly stated that he was not resigning: (205) "The Libyan mission will be in the service of the Libyan people rather than in service of the Libyan regime or of one person." (206) Similarly, Ali Adjali, Libya's Ambassador to the United States, stated: "I'm (not) resigning Moammar Gadhafi's government, but I am with the people. I am representing the people in the street, the people who've been killed, the people who've been destroyed. Their life is in danger." (207) Qaddafi pulled their diplomatic credentials, but the United Nations granted the Libyan UN mission "courtesy passes allowing unlimited access to U.N. headquarters." (208)

   Acting as a UN diplomatic representative, on February 21 Dabbashi sent a letter to the UN Security Council requesting an urgent meeting to address the safety of Libyan civilians, (209) and in particular seeking the installation of a no-fly zone to prevent Qaddafi from attacking civilians and protection for Libya's oil installations. (210) Based on this request, the Security Council met the next day and denounced Qaddafi's violent crackdown, calling on him to fulfill his "responsibility to protect" Libya's citizens. (211)

   The Security Council met again on February 25 to discuss a draft resolution in response to unfolding government suppression in Libya. The Security Council adopted Resolution 1970 on February 26, which referred the events in Libya for an investigation by the ICC, established an arms embargo, and instituted an asset freeze and travel ban on certain members of the Qaddafi government. (212) During discussions, the Libyan Ambassador to the United Nations, Abdurrahman Mohamed Shalgham, initially a committed Qaddafi supporter even as Dabbashi and other Libyan diplomats broke with the official government, denounced Libya's dictator and made an impassioned plea for intervention to prevent further bloodshed. (213) He also submitted a letter to the Security Council in support of a resolution allowing for international intervention...