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. …