Returning Sovereignty to the People
Ludsin, Hallie, Vanderbilt Journal of Transnational Law
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
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.
II. 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 the meaning of sovereignty in the people and for determining when a government achieves sovereign authority and can claim sovereign rights.
A. Challenges to Traditional Notions of Sovereignty
The traditional concept of sovereignty holds that the state is sovereign. The rights of sovereignty belong to the state, acting through its government, and are absolute. (21) This concept derives from the Treaty of Westphalia, signed in 1648 to end a thirty-year war that devastated much of continental Europe. (22) European rulers sought to establish international peace by creating boundaries for state power vis-a-vis another state. (23) The traditional concept contains no requirement that the government be legitimate in the eyes of the people or conform to human rights standards. (24) Nor is the form of government relevant to determining sovereignty. (25) Whoever has the power to control the population, territory, and borders has the right to claim sovereignty and sovereign rights.
At least initially, the advent of the United Nations did little to change this traditional concept of sovereignty. The United Nations seeks to achieve an identical purpose to the Treaty of Westphalia--to avoid war by organizing the international community. (26) Article 2 of the UN Charter enshrines three of the rules of Westphalian sovereignty:
The Organization and its Members ... shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
3. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.... (27)
The United Nations also maintains a consent-based system of international law as it requires members to accede to the international treaties that form the backbone of international law. (28) However, the UN Charter does provide for one key limitation to sovereignty. The remaining text of Article 2(7) permits international intervention in the affairs of a sovereign state when there is "any threat to the peace, breach of the peace, or act of aggression" that threatens international peace and security. (29) If a state defies the rules of sovereignty, then it loses its sovereign rights.
Developments over the last half century, however, have led many to challenge traditional notions of sovereignty, some going so far as to proclaim them obsolete. (30) These developments typically fall within three categories: (1) global interdependence, (2) continuing strife, and (3) human rights and humanitarian concerns. The global-interdependence category captures challenges to traditional notions of sovereignty related to the growth of international law and the increasing influence of globalization on international relations. (31) As Abram Chayes and Antonia Handler Chayes describe, "[M]odern states are bound in a tightly woven fabric of international agreements, organizations, and institutions that shape their relations with each other and penetrate deeply into their internal economics and politics." (32) States increasingly have been ceding aspects of their sovereignty to international organizations, such as the United Nations and the World Trade Organization, and to regional bodies, such as the African Union and the European Union. (33) According to the treaties establishing these bodies, member states commit themselves to abide by rules established by the outside authority. (34) These organizations essentially serve as a superior authority over states in agreed-upon matters.
While membership in these international and regional governmental bodies remains consent-based, the international community of states also recognizes the existence of customary and jus cogens norms of international law that restrain government behavior regardless of express consent. (35) The concept of customary international law developed before the creation of the United Nations, dating back at least as far as 1847. (36) Customary law is determined by "a general and consistent practice of States followed by them out of a sense of legal obligation, or opinio juris." (37) It serves as a limit on state sovereignty, but arguably maintains the element of consent since it is based on state practice. (38)
The increasing interdependence of the international community of states through international governmental organizations and international law has led many to argue that sovereignty no longer exists in its traditional sense:
[W]here the defining features of the international system are connection rather than separation, interaction rather than isolation, and institutions rather than free space, sovereignty as autonomy makes no sense. The new sovereignty is status, membership, "connection to the rest of the world and the political ability to be an actor within it." (39)
The counterargument is simply that these international networks and laws follow the existing rules of sovereignty by retaining the requirement of consent, even if only implied. Until international organizations, institutions, and laws are treated as a superior authority to states regardless of consent, traditional notions of sovereignty remain largely intact.
Globalization also strongly challenges traditional notions of sovereignty in large part because states are finding it difficult to control the flow of information, resources, and even problems across their borders. Globalization has been "defined as the intensification of worldwide social relations which link distant localities in such a way that local happenings are shaped by events occurring many miles away and vice versa." (40) The internet, international companies, and cheaper and more efficient travel and transport, among many other factors, link different parts of the globe with each other. Proponents believe globalization offers increased financial opportunities, cultural exchanges, and often cheaper production of goods. (41) Critics perceive globalization as threatening as the increased social connections have spread once-localized diseases; created international terrorist networks; and, for some, permitted Western "cultural domination" of local cultures. (42) A positive or a negative depending on the commentator, globalization has weakened traditional notions of sovereignty: "[G]lobalization, with the concomitant advance of information technology and international commerce, is pushing toward a borderless world, which makes it impossible for states to operate unfettered powers of sovereignty." (43)
Globalization also makes it easier to justify intervention by one state in the affairs of another as more and more seemingly domestic actions have a global impact. Information about the internal affairs of a state is broadcast globally and often immediately. International outrage can serve as a check on governmental behavior locally. (44) In rare instances of particularly egregious human rights violations, now publicized, the international community may even be required to act to protect a population under the doctrine of responsibility to protect, a point that will be picked up shortly.
In other instances, globalization unites diverse states behind common causes. States are willing to concede some sovereignty to address challenges and dangers that affect more than one country or that shrink the boundaries between them. (45) For example, poor environmental practices in a state that increase air and water pollution are likely to affect neighboring states, making domestic actions a matter of international concern. Activities once considered sovereign can now be reviewed by neighboring countries as their impact is no longer perceived as purely domestic. International terrorism and crime have the same effect.
Continuing strife, largely internal, offers the next set of challenges to traditional notions of sovereignty. The phenomena of weak states, wars, and terrorism strongly affect a state's claim of sovereignty. Weak states often lose control over some or all of its population or territory, two elements necessary for claiming statehood, although they retain their sovereign status. (46) As John Alan Cohan explains:
A state may have sovereignty in the legal sense of having control over its borders and of being recognized in international relations, but may be unable to control its domestic affairs due to erosion of political support from within, due to civil war, insurrection, secessionist movements, or corruption. If things get bad enough, as where the sovereign wages an unjust or illegal war, international respect for that state's sovereignty could deteriorate, and other states may find it necessary to intervene, either militarily or in less drastic ways, and thereby usurp the autonomy that characterizes traditional sovereignty. (47)
Globalization makes it impossible for continuing strife, even internal strife, to remain hidden from the rest of the world and for other states to turn a blind eye. Terrorism has a similar consequence because the damage to human life or attacks that cross borders provide incentives for other states to intervene. (48)
The final category of challenges to traditional notions of sovereignty--human rights and humanitarian concerns--is closely linked to challenges caused by continuing strife. Increasingly, the international community of states is recognizing the importance of human rights and is refusing to simply watch as they are violated. (49) As Louis Henkin explains: "By state consent, by the growth of systematic 'customary' (non-conventional) norms, international law developed a comprehensive law of individual human rights holding states responsible for how they treated persons subject to their jurisdiction." (50) The international community now expects states to live up to "universal" standards and norms, many of which are "codified" in human rights treaties, or face the possibility of intervention. (51)
Humanitarian intervention on behalf of populations suffering from war, including civil war, has been on the increase since the early 1990s. (52) The United Nations, blocks of states, and even individual states are intervening to protect populations vulnerable to particularly egregious violations of human rights during a conflict. Intervention often includes military action and efforts to change the existing government. (53) The shift favoring intervention over sovereignty claims resulted in large part from atrocities and genocide committed in the 1990s; (54) atrocities that spurred then-Secretary-General of the United Nations, Kofi Annan, to ask, "If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica, to gross and systematic violations of human rights ...?" (55)
Canada responded to Annan's question by establishing the International Commission on Intervention and State Sovereignty (ICISS) to reexamine sovereignty in light of human rights and humanitarian concerns. (56) The ICISS developed the doctrine of responsibility to protect, which was adopted unanimously by the member states of the United Nations at the 2005 World Summit. (57) Responsibility to protect places a duty on national governments to protect their citizens from genocide, war crimes, crimes against humanity, and ethnic cleansing. (58) Protection includes an obligation to prevent these atrocities, stop them if they occur, and then rebuild the affected society. (59) If national governments fail in their duties, the international community then has a responsibility to intervene on behalf of the population. (60) The doctrine is particularly important in that it does not simply permit intervention in those circumstances, but requires it. It authoritatively alters traditional notions of sovereignty, albeit through the consent of member states. Development of notions of sovereignty to accommodate the human rights and humanitarian challenges are particularly relevant to determining the meaning of sovereignty in the people and is discussed more fully below.
There is little question that the rights of sovereignty are narrowing. Each of the challenges described above is changing the contours of sovereign rights, making it more difficult for governments to hide bad behavior behind a shield of sovereignty. As a former Secretary-General of the United Nations explained, "The time of absolute and exclusive sovereignty ... has passed; its theory was never matched by reality." (61)
For some, these changes suggest that the doctrine of sovereignty is unnecessary, irrelevant, or obsolete. (62) These views ignore some of the practical benefits of sovereignty, which include that sovereignty rules and the rights they create retain order and stability within the international community. (63) Sovereignty also provides an outlet for self-determination, particularly for populations that suffer under foreign domination. (64) Most importantly, however, claims that sovereignty is unnecessary, irrelevant, or obsolete overlook the fact that pragmatically it remains the foundation of the international legal system. (65)
B. Reconceiving Sovereignty
Reflecting these numerous challenges to sovereignty and the narrowing of the concept, new definitions of and nuances to sovereignty have been proposed. The literature is rife with new ways to describe sovereignty, attaching words that modify or limit sovereignty to reflect apparent changes to the traditional doctrine. (66) Kathleen Claussen and Timothy Nichol provide a helpful framework for understanding the new definitions or reconceptions of sovereignty. They divide the modifying or limiting terms into three categories of "qualifiers": (1) collectivity qualifiers, (2) divisibility qualifiers, and (3) contingency qualifiers. (67)
Collectivity qualifiers, such as "pooled" or "collective," cover new conceptions of sovereignty based on the growing number of regional and international governmental organizations to which states cede aspects of their sovereignty. (68) These qualifiers recognize that the state is not always supreme within the international community, although the system of supranational organizations remains based on consent. They respond to the challenges to sovereignty created by global interdependence.
Divisibility qualifiers separate out the different functions of sovereignty to permit allocation of parts of sovereignty to state or nonstate actors that together create full sovereignty. (69) These qualifiers include: "disaggregated sovereignty, late sovereignty, earned sovereignty, imperial sovereignty, pluralistic sovereignty, constrained sovereignty, phased sovereignty, limited sovereignty and partial sovereignty." (70) They serve a similar function to collectivity qualifiers. Both highlight that the state rarely retains full sovereignty in the traditional sense; rather, aspects of sovereignty devolve to others through consent (71) or, at times, by force. (72) These qualifiers reflect challenges to sovereignty from global interdependence, continuing strife, and human rights and humanitarian concerns.
The last category, contingency qualifiers, reflects the belief that states must meet certain conditions before they can claim sovereignty, in addition to the four requirements for statehood described above. (73) Examples of contingency qualifiers include contingent sovereignty, conditional sovereignty, and relational sovereignty. The types of conditions placed on sovereignty vary by theorist and range from requiring a democratic form of government to abiding by UN human rights obligations. (74) At a minimum, they require states to meet certain human rights and humanitarian law requirements or be stripped of sovereign rights. (75)
Missing from the Claussen and Nichols categories are qualifiers that reflect a change in understanding over the identity of the sovereign. Historically, sovereignty rested with a religious or clan leader or a monarchical figure, (76) whereas now there is an expectation that the people constitute the true sovereigns. (77) In the past, the leader or ruler was the source of law and therefore above it, (78) whereas currently the people act as the source of law, which limits the government. Identity qualifier terms such as "popular sovereignty" and "democratic sovereignty" exemplify this change, reflecting the belief that the state represents the people rather than serves as the sovereign. (79) These qualifiers indicate the shift in focus in international law from solely protecting the interests of states to recognition of the importance of human rights regardless of state boundaries. (80)
While the thesis of this Article does not rely on attaching particular words to the term sovereignty to limit or modify its meaning, two of the categories described above play an important role in understanding the meaning of sovereignty in the people. As the next Part examines in depth, the principles underlying identity and contingency qualifiers are closely linked and together explain why governments cannot simply employ sovereignty to avoid intervention into their domestic behavior.
III. SOVEREIGNTY IN THE PEOPLE
Governments that use sovereignty to hide from criticism and to prevent international intervention (81) to stop human rights abuses wrongly assume that they are the sovereigns entitled to the rights of sovereignty and that these rights are absolute. Relying on the justifications for contingency and identity qualifiers, Part III challenges this assumption by giving content to the concept of sovereignty in the people. Part III.A identifies the people as the sovereign and the government as their representative. Under this formulation, the government's access to sovereign rights is not inherent, but instead is contingent on it fulfilling its duties as representative of the sovereign. Part III.B describes the duties that a government must fulfill before it can claim sovereign rights on behalf of the people. Part III.C then tackles what happens when governments fail to respect the identity of the sovereign and meet those conditions. Who determines whether a government is meeting its duties is addressed in Part III.D. Part III.E concludes with a description of how the lead-up to international support for the rebellion in Libya during the Arab Spring lends nascent support to the concept of sovereignty in the people proposed here.
A. Identifying the Sovereign
The phrase sovereignty in the people captures the true identity of the sovereign vested with the rights of sovereignty. While traditionally the international community treated the state (or the government acting on its behalf) as the sovereign, domestic and international law supports the shift of sovereignty to the people. From the most liberal democracies to the most autocratic states, most constitutions proclaim that the people are sovereign. (82) The concept often appears in the titles of states, such as "The People's Republic of," or in provisions expressly stating that sovereignty lies in the people.
Sovereignty in the people also likely forms part of customary international law. The Universal Declaration of Human Rights (UDHR) states in Article 21(3) that: "The will of the people shall be the basis of the authority of government." (83) As a declaration, the UDHR is nonbinding; however, many academics and practitioners believe that its provisions constitute customary international law. (84) To the extent this assertion is true, all governments then must abide by sovereignty in the people regardless of whether their domestic law or constitutions expressly adopt the concept.
Sovereignty in the people also receives support as a principle of customary international law to the extent sovereignty is treated as synonymous with self-determination, (85) which is an accepted principle of customary international law. (86) At its most basic, self-determination means the right to govern oneself; (87) sovereignty in the people then would grant the people the right to govern themselves. More broadly, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights define self-determination as the right of peoples to "freely determine their political status and freely pursue their economic, social and cultural development." (88)
If the people are sovereign, then the benefits of sovereignty belong to them. The people then can choose how to exercise that sovereignty. In practice, they transfer their rights as sovereign to representatives that serve as the government. (89) The government then conducts the state's domestic and international affairs and receives the benefits of sovereignty as the people's representative. (90) Governments, however, do not inherently deserve the rights and protections of sovereignty; rather, they receive them only if the people choose to grant them. Governments then must act based on the will and common good of their constituencies. Any government that controls the state against the wishes of the people does not receive sovereign authority. It may have the power to enforce its will against the people, but the illegitimate government is not entitled to sovereign rights.
The theoretical underpinnings of this understanding of sovereignty in the people derive from centuries-old thinkers such as John Locke and Jean-Jacques Rousseau. Locke theorized about sovereignty in the people, or popular sovereignty, in his Second Treatise of Civil Government (1690). (91) He started by describing the formation of a political community to counter the violence that can occur when individuals pursue their interests without regard for others and without a superior body to protect them. (92) To protect against that chaos, individuals consent to a social contract in which they agree to follow the laws of a government that will act based on the common good of the community. (93) Individuals agree to turn over their natural rights as individuals to a government to better protect their interests. The majority of the political community determines the common good the government protects. (94)
Locke expected the government, now holding sovereign authority, to regulate relationships between individuals and protect their rights to life, liberty, and property. (95) He described these as natural rights that transcend claims of sovereignty. (96) The government is not permitted to deprive individuals of any of these rights; (97) if it does, the people have a right to revolt against the government or to secede from the territory under its control. (98) Through the social contract, the people give the government the authority to act for their common good; if the government uses its authority to violate natural rights, the authority is revoked. (99)
Rousseau developed the concept of sovereignty in the people along similar lines. (100) Like Locke, Rousseau believed that individuals reach a social contract for their self-preservation. (101) They place their natural rights in government hands to protect their interests and the common good; these rights are returned to the people if the government violates the social contract. (102) Rousseau believed that individuals must relinquish some of their natural liberty, which is determined by their individual strength to pursue their own interests, when forming a political community. (103) However, he considered the rights individuals receive in return, including the right to justice, to be greater than those surrendered. (104) The will of the people as a collective determines these greater rights, which are intended to be shared equally. (105) According to Rousseau, when the government uses its strength to override the will of the people, it becomes the master, not the sovereign. (106)
Under Rousseau's theory, the people vest their sovereign authority in a legislature that is chosen by the people. (107) As the people's representative, the legislature has the absolute authority of the traditional concept of sovereignty. (108) Rousseau did not foresee any potential conflict of interest between the people and the legislature:
The sovereign legislature thus was identified by Rousseau with the general will of the people. As such, the legislature could never enact a law which it could not break, and since the subordinates of state authority are also constituent parts of the volonte generale [general will], those subjects and the general will can never have conflicting interests. (109)
Both theorists saw the social contract as a mechanism for organizing the domestic affairs of the political community--an agreement between individuals to establish a government that must abide by the will of the majority and act on the basis of the common good of that community. (110) Individuals relinquish their rights to the government for their protection and the government receives sovereign authority. Individuals, however, always retain the power to revoke the social contract when the government violates those rights. As with traditional rules of international relations in which states must consent to limit their sovereignty, domestic relations depend on the consent of the sovereign individuals to limit their sovereignty. The works of Locke and Rousseau greatly influenced the French and American revolutions and are credited with establishing the basis for democracy and human rights. (111) These two philosophers and the movements that followed them began to shift the title of sovereign to the people. (112)
Relying on Locke and Rousseau's concept of a social contract and supported by constitutional and international legal guarantees of sovereignty in the people, governments do not have the power to act independently of their people. They serve as the representatives of the people, not the state, which is merely a territorial unit in which a political community lives. As representatives of the people, the government is tasked with protecting the political community from domestic and international threats to its security and the common good. (113) As Part III.A describes, a government can claim sovereign rights only when it achieves its purpose. As Part III.B explores, dependent on the people for its authority, a government no longer can simply invoke the rights of sovereignty against international criticism and action when abusing human rights.
B. Retaining Sovereign Rights
When the people grant sovereign authority to a government, the authority the government receives depends on its efforts to achieve the security and common good of the people. (114) To retain its authority to represent the people and therefore claim sovereign rights, the government must meet two requirements: (1) it must hold domestic legitimacy; (115) and (2) it must fulfill duties necessary for abiding by the will of the people and acting in accordance with the common good. (116) The first condition, described more fully in Part III.B.1, ensures that the people have authorized the government as the sovereign representative. The power of the government to gain control over a population must not be confused with the consent of the people to relinquish their sovereign power to the government.
The second condition, described more fully in Part III.B.2, serves multiple purposes. According to the ICISS, recognizing government responsibility to the people has three important impacts:
First, it implies that the state authorities are responsible for the functions of protecting the safety and lives of citizens and promotion of their welfare. Secondly, it suggests that the national political authorities are responsible to the citizens internally and to the international community.... And thirdly, it means that the agents of state are responsible for their actions; that is to say, they are accountable for their acts of commission and omission. (117)
Conditioning entitlement to sovereign rights on the fulfillment of duties to the people ensures governmental accountability to the sovereign people.
If a government fails to achieve either or both of these conditions of sovereignty, then it loses some or all of its right to claim sovereign authority and the rights of sovereignty. When a government claims sovereignty to shield its behavior, the international community first must ask on whose behalf that claim is made. International intervention on behalf of the people ultimately bolsters sovereignty since the people constitute the true sovereigns. (118) Refusal to intervene, to the advantage of the government and disadvantage of the people, undermines sovereignty by allowing the power of the government to override the will and common good of the true sovereign.
Two different types of legitimacy inform the determination of a government's entitlement to claim sovereign rights--internal and external. Internal legitimacy concerns whether a government receives domestic support, as the people's representative, for its actions. (119) External legitimacy describes whether the international community of states recognizes a government as legitimate, which in turn determines whether it will respect the government's sovereignty. (120) Sovereignty in the people, as argued here, demands that a government maintain internal legitimacy in order to claim sovereign authority. If the government fails to achieve internal legitimacy, the international community should deny external legitimacy and refuse sovereign rights to that government. (121)
The concept of internal legitimacy flows from sovereignty in the people. Since the American and French revolutions, when sovereignty in the people was institutionalized, the legitimacy of a government has depended on whether the people have supported it. (122) Determining legitimacy in practice proves far more complicated, as there is no accepted formula for measuring popular support. As Jean d'Aspremont describes:
The highly controversial character of governments' legitimacy stems from the subjectivity of its evaluation. Indeed, there are no objective criteria to determine governments' legitimacy. That means that each state enjoys a comfortable leeway when asked to recognize the power of an entity that claims to be another state's representative in their bilateral intercourse. Each state evaluates foreign governments' legitimacy through the criteria that it chooses. (123)
The international community seems to rely most heavily on a test of periodic, free and fair elections to determine a government's legitimacy. (124) The UDHR and the ICCPR treat those elections as a universal right. (125) For many scholars, only democratic governments can achieve legitimacy and therefore benefit from sovereign rights. (126) Testing legitimacy by whether a government is elected raises the issue of what democracy consists of. Does democracy require nothing more than free and fair elections to change a government, which is procedural democracy? (127) For some, the answer is yes. As one commentator proclaimed: "[I]n circumstances in which free elections are internationally supervised and the results are internationally endorsed as free and fair and the people's choice is clear, the world community does not need to speculate on what constitutes popular sovereignty in that country." (128) Others argue that democracy requires more. It also requires democracy in the exercise of government functions. This type of democracy, known as substantive democracy, demands a basic respect for human rights and equality, as well as tolerance in political decision making once the elections are complete. (129) Representative governments must make their decisions democratically, formulating the common good to include the interests of all members of the political community, rather than permitting the majority alone to make those decisions. (130) Substantive democracy ensures both that the government is chosen based on the will of the people, the procedural aspect, and that it acts in accordance with the will and common good of all the people, the substantive aspect. (131)
This Article adopts substantive democracy as the appropriate litmus test for determining legitimacy as it most broadly reflects the meaning of sovereignty in the people. Free and fair elections, alone, are not enough to ensure that the government will act according to the people's will or their vision of the common good. A far wider range of human rights must be protected to achieve these goals, which is accounted for in the concept of substantive democracy. Part III.B.2 describes the rights that must be protected and enforced to fulfill substantive democracy and therefore achieve domestic legitimacy. It also discusses additional duties that go beyond those required for representative governmental decision making, which are necessary for ensuring sovereignty in the people.
2. Sovereign Duties
Meeting the criteria for legitimacy is not enough for a government to claim sovereign rights. A government may claim them only once it has met its responsibilities to the people. These duties are not merely domestic but also create international responsibilities, since international recognition of sovereign rights of a government should depend on them. (132) As Cohan describes, "In the era of international human rights, it seems the international community has become a party to the social contract between citizens and their government." (133)
The duties required of governments to retain sovereign authority overlap with the substantive requirements for democracy and legitimacy, (134) but potentially also include wider responsibilities to the people. (135) Even if they are identical, it remains important to distinguish the requirements of legitimacy from sovereign duties. It ensures that the international community will look beyond free and fair elections to determine whether the government is protecting the people's will and common good beyond the electoral process. Without separate requirements, illiberal democracies in which governments are elected but do not adopt democratic decision making could inappropriately benefit from sovereign rights as the elected representatives of the people.
The next question is how to determine what duties should be required for governments to claim sovereign rights. At a minimum, governments have a duty to protect the human rights of their citizens: "[S]ince the social purpose of the state is to enable its citizens to live, then it makes sense to recognize that social purpose as a right for each person. The state may hold these rights in trust, but cannot violate these rights for raison d'etat." (136) Proponents of conditional sovereignty consistently require governments to adhere to basic or fundamental human rights, but they rarely define those rights. (137) This is likely because the determination of basic or fundamental rights is subjective and controversial. Many academics and practitioners argue that human rights are interdependent and indivisible, making it impossible to establish a hierarchy of rights. (138) Others fear that a hierarchy of rights will preference rights based on particular, rather than universal, political experiences or favor a dominant political culture. (139)
While ideally the duties of the sovereign include protecting and promoting all human rights, it is unrealistic and not necessarily appropriate to deny sovereign rights when not all human rights are met. No government is likely to achieve the ideal, and it seems unfair to refuse sovereign rights to governments substantially following the will and fulfilling the common good of the people. That conclusion leads back to the dilemma of essentially determining a hierarchy of rights. Establishing objective criteria for ascertaining fundamental rights and corresponding duties is extremely difficult. This Article offers some guidance as to which rights a government must enforce to benefit from sovereign rights; they derive from the meaning of sovereignty in the people and from the rights the international community has already recognized as fundamental. The rights listed here, however, are not fully inclusive of those that create sovereign duties; instead, they provide a preliminary basis for determining them.
At a minimum, legitimacy requires access to democratic rights. From a procedural perspective, in addition to the right to vote in periodic, free and fair elections, the people must be given rights that allow them to make informed decisions when choosing their representatives, including freedom of association, expression, and press. Substantive democracy further requires governments to ensure representative decision making, once elected, to accomplish true self-determination; thus the right to equality must be viewed as a core democratic right. (140) Where there are minority groups historically disadvantaged within the state, equality may demand minority protections or affirmative action measures to ensure that all of the population has an equal opportunity to participate in the determination of the government and its policies. (141) Legitimacy also turns on the government's accountability to the people, which establishes a right to accountability.
International law provides further guidance in the decision over which rights must be met by the government in order for it to fulfill its sovereign duties. Customary international law, nonderogable rights, jus cogens, responsibility to protect, and international criminal law offer a partial list of the fundamental rights. These sources of law reflect the consensus of the international community as to which rights must be guaranteed in practice regardless of consent and can already be enforced by the international community regardless of sovereignty claims. However, they cannot serve as the only sources, as the international law system currently protects the power of governments to determine what they are willing to abide by, which undermines the concept of sovereignty in the people.
Determining which human rights have achieved customary international law status is no less daunting of a task than determining which rights are fundamental or basic. Customary international law derives "from a general and consistent practice of states followed by them from a sense of legal obligation." (142) Determining consistent and general state practice is complex since all countries violate human rights (although the extent of violations varies) while promising to abide by them. (143) Hurst Hannum published a fairly comprehensive examination of the scope of acceptance of the UDHR as customary international law in the mid-1990s. According to his research, equality rights, including equal treatment under the law and nondiscrimination protected in Articles 1, 2, 6 and 7, have achieved customary law status. (144) Article 3's protection of the right to life constitutes customary law, as does the prohibition against extrajudicial murder and enforced disappearances. (145) The prohibitions on slavery and on cruel, degrading, and inhuman treatment and punishment in Articles 4 and 5 have achieved customary law status. (146) Rules regarding the treatment of the criminally accused, particularly the right to be free from torture, the right to be free from arbitrary arrest and detention, and the right to a fair trial (protected in Articles 9, 10 and 11, respectively) also qualify as customary law. This list is not necessarily comprehensive, but rather establishes a minimum of which rights in the UDHR have achieved customary law status as of when Hannum conducted his research. There may be other rights that over the last seventeen years have achieved the status of customary international law, not to mention rights listed in other international declarations, treaties, and conventions.
Nonderogable rights provide another source of human rights that governments may have a duty to protect in order to receive the benefit of sovereign rights. These rights cannot be abrogated for any reason, including during a state of emergency, war, or any threat to the state. (147) The fact that an existential threat to the state does not permit violations of these rights indicates their fundamental nature. (148) There are two sources of nonderogable rights: customary international law and treaty law. Within customary international law, jus cogens norms are considered binding and nonderogable. (149) These rights have special status as a higher type of law; their violation is considered impermissible in all cases. Prohibitions on slavery, torture, and genocide fall within this category. (150) Violations of jus cogens norms create obligations erga omnes that require the international community of states to take action to prevent or stop their violation. (151) This obligation comports with the concept of sovereignty in the people espoused in this Article.
Within treaty law, Article 4 of the ICCPR declares the following rights nonderogable: (1) the right to life; (2) the prohibition of genocide; (3) the prohibition of torture, cruel, inhuman, and degrading treatment and punishment; (4) the prohibition of slavery; (5) the prohibition on imprisonment for failing to meet a contractual obligation; (6) the prohibition of punishment for an act that was not a crime at the time of its commission; (7) the right of every person to be recognized as a person before the law; and (8) the right to freedom of thought, conscience, and religion. (152) Many of these rights already have been listed as customary international law, a few rising to the level of jus cogens norms.
The doctrine of responsibility to protect, which was adopted unanimously by the UN General Assembly, provides another source of duties a government owes its constituency in order to benefit from sovereign rights. The doctrine establishes that each state has a duty to prevent war crimes, crimes against humanity, genocide, and ethnic cleansing; if any state fails to fulfill this duty, it becomes the responsibility of the international community. (153) The crimes that arise from violation of this duty are defined primarily in the four Geneva Conventions and the Rome Statute of the International Criminal Court (ICC). (154) The Rome Statute serves as a source of duties independent of the responsibility to protect. The crimes listed within it are universal, which means they can be prosecuted by any state against the leadership of another state or by the ICC against signatories to the Rome Statute. (155)
Notably missing from this list of fundamental human rights so far are socioeconomic rights. Despite vigorous arguments in favor of establishing socioeconomic rights as customary law, (156) these rights often provoke controversy. They tend to be broad rights that when enforced could violate the separation of powers between the courts and legislature and cost significant amounts of money to implement. (157) Some scholars view them merely as benefits or aspirations rather than rights. (158) Despite this debate, some socioeconomic rights are so fundamental to survival and therefore to the exercise of self-determination or the people's will, that their protection and promotion must be considered a duty that governments must discharge to invoke sovereign rights. (159) Included among the duties are access to basic healthcare, food, water, shelter and education. (160)
To prevent poorer countries from losing their claim to sovereign rights for no other reason than they lack the resources to fulfill these duties--which would be grossly unfair to the people--violations of socioeconomic rights must be intended to oppress some or all of the people or must be done with little regard to the severe harm these violations will cause them. For example, a government that has insufficient food to feed its population during a famine does not violate its duty to the people; if the same government, however, refuses aid that could alleviate starvation, it would not be entitled to sovereign rights. A government that denies girls and women education would similarly violate its duty to the people, whereas a government with insufficient resources to guarantee access to education to its entire population would not. The question is whether the government deliberately undertook a policy to violate these rights to the severe detriment of the people.
National constitutions provide the final source of obligations a government owes its constituency before claiming sovereign rights. A constitution may provide the best insight into the will and common good of the people or the rights they consider most fundamental. (161) It could also reflect the will of an authoritarian government, making some state constitutions less appropriate sources. Regardless, if a government bases its claim of legitimacy on the power it receives from a constitution, then it inherently recognizes that it is subject to the limitations and responsibilities written into that constitution. (162)
The list of fundamental human rights catalogued here outline the bare minimum a government has a duty to protect in order to attain sovereign rights. The list is very conservative, as it predominantly reflects international agreement on fundamental rights. It in no way should be treated as fully inclusive of all rights and duties owed to the people; instead, it offers a starting point for developing sovereign duties.
3. The Question of Cultural Relativism
The primary challenge to this list of duties required for a government to claim sovereign rights is likely to be that it risks cultural imperialism by relying on international law. Critics of international human rights law often argue that it amounts to little more than a paternalistic attempt to foist Western values on cultures that prioritize or interpret rights differently. (163) They argue that the choice of rights protected under international law and deemed universal depends on Western cultural preferences, values, and socioeconomic conditions. Instead, these critics believe that prioritization of human rights should depend on context, particularly the culture and history of the people claiming those rights. If each culture prioritizes and interprets rights differently, then there is no one set of human rights considered fundamental. (164)
This position adopts cultural relativism, which is often invoked by countries that preference communitarian values and group rights over individual rights to promote community harmony. (185) They believe that individuals owe a duty of care to the community and should not simply receive individual entitlements. (166) For these relativists, promoting individual rights over communitarian or group rights could undermine the social fabric of society. (167)
The concern with relying on cultural and communitarian values to form the duties of governments is that they may impose a view of the common good and pretend a collective will of the people rather than reflect a true consensus. Cultures and religions are not monolithic; nor are they free of the power struggles for influence that exist within any community of people. (168) Because not all individuals have equal power within a group, not all members have the opportunity to determine the group's values. (169) Using communitarian values to prevent individuals from exercising their individual rights results in the same paternalism cultural relativists claim pervades the concept of universal human rights. (170) In contrast, the individual rights that form the basis of governmental duties are intended to create the best opportunity for individuals to exercise their autonomy, which in turns lets them express themselves as individuals and as part of a group. (171)
The concept of sovereignty in the people does not reject group or communitarian rights; instead, it demands that the government govern according to the will and common good of all the people or risk losing its sovereign rights. Group rights can promote self-determination by protecting the benefits members gain from their community (172) and, as briefly mentioned in Part III.B.2, may be necessary to ensure full democratic participation of minority groups. (173) The caveat, however, is that group rights are inappropriate when used against group members or against minority groups to restrict autonomy, equality, and other fundamental rights.
Another point countering a potential claim of cultural relativism in the list of duties for governments is that the rights chosen protect the values of "justice, equality, and fairness" (174)--values found in all cultures and religions. (175) As with sovereignty, governments often resort to cultural relativism to shield themselves from criticism of human rights abuses. (176) Claims of cultural relativism need to be parsed to determine whether they are a crude attempt to justify human rights violations or whether any of the rights identified as fundamental in this Article in fact undermine the values of any culture or religion.
Cultural relativism is also invoked by underdeveloped societies that challenge universal human rights on the basis they exclude socioeconomic rights. (177) These critics argue that developed countries, which have a less urgent need for socioeconomic rights, dominate the debate over which rights qualify as fundamental, (178) although survival and a decent quality of life are of greatest concern to most people. (179) As described above, sovereignty in the people, as conceived of here, requires governments to guarantee socioeconomic rights to qualify for sovereign rights, which dispenses with this aspect of cultural relativism.
C. How Much Sovereignty Is Lost?
A government that fails to achieve legitimacy and to meet its duties to the people loses some or all of its authority to act on their behalf. Sovereignty itself is not lost, since that belongs to the people. Nor does the territory lose its claim to statehood since, at least in most cases, it will continue to meet the four criteria for recognition as a state. Instead, the government loses its entitlement to claim the sovereign rights that derive from serving as the legitimate representative of the people within a state, particularly the right to be free from interference in domestic affairs.
The first question this conception of conditional sovereignty raises is to what extent sovereign rights are lost by a violation of duties? (180) The answer depends on the severity of the violations. The loss of sovereign rights should be proportionate to the degree to which governments violate these duties and the harm the violations cause. A dictatorial regime that already fails the legitimacy test and that commits gross violations of human rights loses all of its sovereign rights. A representative government that violates its duties to the people on a much smaller scale retains sovereign authority in most areas and therefore most of its sovereign rights, but not the right to demand noninterference in relation to those specific violations.
The proportionality requirement for determining the amount of sovereign rights lost as a result of violating sovereign duties is identical to the proportionality requirement for determining the appropriate level of intervention. As the harm to the people grows in severity, so does the amount of permissible intervention. The international community can "intervene" through criticism; conditions on aid, trade, and diplomatic relations; political and economic sanctions; international investigations; prosecution; political and financial support to opposition or insurgent groups; and, as a last resort, military action. (181) A factor in the proportionality test for determining appropriate intervention is whether the proposed intervention will cause more harm than good. For example, cutting off international aid or limiting trade for lesser abuses of human rights could cause disproportionate harm to the people and increase their disadvantages and suffering. The more severe the harm, the less likely intervention will have a disproportionately negative impact on the population compared to the human rights abuses. Testing whether the loss of sovereignty and corresponding intervention is proportional to the severity of the human rights abuses corresponds with current international practice that, for example, permits military intervention only when a threat to international peace exists or in the face of human rights atrocities. (182) The understanding of sovereignty in the people described in this Article explains, or for some justifies, that practice rather than supplants it.
More complex is the question of what threshold the violations must pass before a government loses some or all of its sovereign authority and corresponding rights. No government is perfect and every government will commit injustices, so the threshold must be reasonable or else no government will be entitled to claim sovereign rights, no matter how much it represents the will and common good of the people. At a minimum, the violation of duties toward the people must be systemic before any portion of sovereign rights is lost. It seems unfair to the people as a whole to have its government lose its sovereign entitlements over more isolated incidents. (183)
In addition, the state must lack effective domestic accountability to correct government failures and to hold political leaders and institutions responsible for any violations of duties to the people. Accountability requires meaningful action in a relatively short period of time and with relative ease and predictability. (184) If real accountability exists, systemic violations of duties will be corrected domestically and without the need for international intervention. This requirement recognizes that the government holds the primary responsibility for meeting its sovereign duties and that international intervention is appropriate only when the government shirks its responsibility to the people. (185)
The next element of the threshold test for loss of sovereign rights is the severity of harm. Loss of sovereign rights will be overly harsh in the face of minor harm; only significant harm will justify these consequences. (186) The proportionality test that determines the amount of sovereignty lost and the appropriate level of intervention will take care of this aspect of the threshold test. If the breach of duties does not warrant international intervention under the proportionality test, then the severity of harm does not pass the threshold test for intervention. So far, however, violations of the duties listed above are likely to cause severe harm to some or all of the people, which means nearly any systemic violation of duties will pass the threshold test. To the extent the list of duties is developed to include protections of other human rights, the test for severity of harm may be more than rhetorical.
While severity of harm plays a role in determining whether intervention is appropriate, this understanding of sovereignty in the people should not be confused with the doctrine of responsibility to protect. Sovereign rights can be lost for abuses that do not reach the level of harm that triggers the international community's duty to protect the people of another state. The duties that must be fulfilled by a government to achieve the benefits of sovereignty are far more comprehensive than the duties placed on a government by the responsibility to protect. The difference is that the international community will not be obligated to intervene in the face of other violations of duties, but instead have the discretion to do so without violating sovereignty in the people.
Finally, even if all of these other tests are met, another question that must be asked is whether the people whose rights are being violated wish for intervention. Given the severity of harm that results from the violations of duties necessary for retaining sovereign rights, to some extent it can be assumed intervention will be welcome. When that assumption is demonstrably false, then the international community may need to refrain from intervention to avoid acting out of paternalism. (187)
In conclusion, a government loses its sovereign rights when it fails to achieve legitimacy and violates the duties necessary to serve as the people's representative. The threshold for determining whether a state loses some or all of its sovereign rights is whether (1) the violations of duties are systemic, (2) the state lacks domestic accountability for the violations, and (3) the violations cause significant harm. The determination of the last element could depend in part on whether intervention or loss of sovereignty will do more harm than good to the people and whether the people wish for intervention. The loss of sovereign rights may be restricted to only partial areas of government control or cover all claims to sovereign rights. The amount of sovereignty lost and the amount of permissible intervention should be proportionate to the harm caused by the violation of the conditions for retaining sovereign authority.…
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Publication information: Article title: Returning Sovereignty to the People. Contributors: Ludsin, Hallie - Author. Journal title: Vanderbilt Journal of Transnational Law. Volume: 46. Issue: 1 Publication date: January 2013. Page number: 97+. © 1999 Vanderbilt University, School of Law. COPYRIGHT 2013 Gale Group.