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“PEOPLE POWER” AND THE PROBLEM OF SOVEREIGNTY IN INTERNATIONAL LAW

ELIZABETH A. WILSON*

TABLE OF CONTENTS INTRODUCTION ...... 551 I. NONVIOLENT CIVIL RESISTANCE MOVEMENTS: AN OVERVIEW ..... 554 II. THE KING’S TWO BODIES (OF LAW) ...... 562 A. Internal and External Sovereignty ...... 562 B. Nonintervention and Effective Control ...... 565 III. PROPOSALS FOR RECONCEPTUALIZING EXTERNAL SOVEREIGNTY: PATERNALISTIC, NOT POPULAR ...... 570 A. Right to ...... 571 B. The Responsibility to Protect ...... 574 C. The Outcomes of Paternalistic Interventions ...... 577 IV. THEORIZING PEOPLE POWER ...... 581 A. Front-End People Power ...... 581 B. Back-End People Power ...... 583 V. TOWARDS DEVELOPING A LEGAL REGIME FOR SITUATIONS INVOLVING NONVIOLENT CONFLICT ...... 587 CONCLUSION ...... 592

INTRODUCTION It is settled that the doctrine affording immunity to foreign state officials for human rights violations derives from the doctrine of state sovereign immunity, although the contours of the two doctrines are no longer identical. Until the underlying doctrine of sovereign immunity is dislodged or definitively reformulated, it will continue to seem that holding officials accountable for their human rights violations abrogates some privilege that they are entitled to by right, rattling the cosmic international legal order. Reformulating sovereign immunity is of course much easier said than done. The question of whether human rights violations waive

Copyright © 2016 Elizabeth A. Wilson* Visiting Scholar, Rutgers Law School-Newark.

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552 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW Vol 26:551 state sovereign immunity has been extensively debated.1 So, one must be very humble in thinking that there is anything new to say. State sovereign immunity in turn derives from the concept of sovereignty in international law. The point of departure for this Article is the assumption that sovereign immunity in international law cannot be reformulated until sovereignty itself is reformulated. This is no easy task because sovereignty has no single, accepted definition. But one particular feature of sovereignty in international law stands out—namely, that the state is reified and treated as a thing-in-itself, with its own will and interests, above and apart from the will and interests of its citizens. The state in international law is defined by the principles of equality and nonintervention,2 which means, inter alia, that international law formally takes no account of the modes of internal political governance in member states as a condition of inclusion in the international order. are accorded the same sovereign status as the most participatory of , so long as those dictatorships agree (at least nominally) to respect the principles of the U.N. Charter. “Popular sovereignty” is not a condition for recognizing sovereignty in international law.3 This Article challenges this reification of the state by suggesting an avenue for bringing popular sovereignty to bear on the concept of

1. As Christian Tams has observed, “few other questions have prompted as much intense debate in the literature” as the question of the extent to which the “rules of immunity apply in respect of grave violations of international law.” Christian Tams, Let the Games Continue: Immunity for War Crimes Before the Italian Constitutional Court, EJIL: TALK! (Oct. 24, 2014), http://www.ejiltalk.org/let-the- games-continue-immunity-for-war-crimes-before-the-italian-supreme-court/. He adds that since “the number of plausible arguments and approaches is finite (jus cogens, implied waiver, etc.),” there has been a great deal of “duplication and repetition” in the debate. Id. 2. Ju