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. INTL L. & POL'Y 333,
334 (2007); Tyra Ruth Saechao, Note, Natural Disasters and the Responsibility To
Protect: From Chaos to Clarity, 32 BROOK. J. INTL 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.

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