1、出处： Reisman W M. Sovereignty and human rights in contemporary international lawJ. American Journal of International Law, 1990: 866-876. 中文 3015,1887 单词 SOVEREIGNTY AND HUMAN RIGHTS IN CONTEMPORARY INTERNATIONAL LAW Reisman W M I. Since Aristotle, the term sovereignty has had a long and varied histor
2、y during which it has been given different meanings, hues and tones, depending on the context and the objectives of those using the word.1 Bodin and Hobbes shaped the term to serve their perception of an urgent need for internal order. Their conception influenced several centuries of international p
3、olitics and law2 and also became a convenient supplementary secular slogan for the various absolute monarchies of the time. Sovereignty often came to be an attribute of a powerful individual, whose legitimacy over territory (which was often described as his domain and even identified with him) reste
4、d on a purportedly direct or delegated divine or historic authority but certainly not, Hobbess covenant of the multitude3 notwithstanding, on the consent of the people. The public law of Europe, the system of international law established by the assorted monarchs of the continent to serve their comm
5、on purposes, reflected and reinforced this conception by insulating from legal scrutiny and competence a broad category of events that were later enshrined as matters solely within the domestic jurisdiction. 4 If another political power entered the territory of the sovereign (whatever the reason) wi
6、thout his permission, his sovereignty was violated. In such matters, the sovereigns will was the only one that was legally relevant. With the words We the People,5 the American Revolution inaugurated the concept of the popular will as the theoretical and operational source of political authority. On
7、 its heels, the French Revolution and the advent of subsequent democratic governments confirmed the concept. Political legitimacy henceforth was to derive from popular support； governmental authority was based on the consent of the people in the territory in which a government purported to exercise
8、power. At first only for those states in the vanguard of modern politics, later for more and more states, the sovereignty of the sovereign became the sovereignty of the people: popular sovereignty. It took the formal international legal system time to register these profound changes. Another century
9、 beset by imperialism, colonialism and fascism was to pass, but by the end of the Second World War, popular sovereignty was firmly rooted as one of the fundamental postulates of political legitimacy. Article 1 of the UN Charter established as one of the purposes of the United Nations, to develop fri
10、endly relations between states, not on any terms, but based on respect for the principles of equal rights and self-determination of peoples. Unlike certain other grand statements of international law, the concept of popular sovereignty was not to remain mere pious aspiration. The international lawma
11、king system proceeded to prescribe criteria for appraising the conformity of internal governance with international standards of democracy.8 Thanks to a happy historical conjunction, modern communications technology has made it possible to verify that conformity rapidly and economically and to broad
12、cast it widely. International and regional organizational monitors now use the new technology in critical national elections so as to ensure that they are free and fair.9 The results of such elections serve as evidence of popular sovereignty and become the basis for international endorsement of the
13、elected government.10 In functional terms, this process constitutes a new type of inclusive international recognition. Decisions to withhold recognition where the will of the people has been demonstrably ignored or suppressed have increasingly led to the next stage, the institution of international
14、programs designed to permit or facilitate the realization of the popular will.11 II. Although the venerable term sovereignty continues to be used in international legal practice, its referent in modern international law is quite different. International law still protects sovereignty, but?not surpri
15、singly?it is the peoples sovereignty rather than the sovereigns sovereignty. Under the old concept, even scrutiny of international human rights without the permission of the sovereign could arguably constitute a violation of sovereignty by its invasion of the sovereigns domaine reserve. The United N
16、ations Charter replicates the domestic jurisdiction-international concern dichotomy, but no serious scholar still supports the contention that internal human rights are essentially within the domestic jurisdiction of any state and hence insulated from international law. This contemporary change in c
17、ontent of the term sovereignty also changes the cast of characters who can violate that sovereignty. Of course, popular sovereignty is violated when an outside force invades and imposes its will on the people. One thinks of the invasion of Afghanistan in 1979 or of Kuwait in 1990.12 But what happens
18、 to sovereignty, in its modern sense, when it is not an outsider but some homegrown specialist in violence who seizes and purports to wield the authority of the government against the wishes of the people, by naked power, by putsch or by coup, by the usurpation of an election or by those systematic
19、corruptions of the electoral process in which almost 100 percent of the electorate purportedly votes for the incumbents list (often the only choice)? Is such a seizer of power entitled to invoke the international legal term national sovereignty to establish or reinforce his own position in internati
20、onal politics? Under the old international law, the internal usurper was so entitled, for the standard was de facto control: the only test was the effective power of the claimant. In the Tinoco case,13 Costa Rica sought to defend itself by claiming a violation of its popular sovereignty. Tinoco, the
21、 erstwhile Minister of War, had seized power in violation of the Constitution. Therefore, the subsequent restorationist Costa Rican Government contended, his actions could not be deemed to have bound Costa Rica. But Chief Justice Taft decided that by virtue of his effective control, Tinoco had repre
22、sented the legitimate government as long as he enjoyed that control. The Tinoco decision was consistent with the law of its time. Were it applied strictly now, it would be anachronistic, for it stands in stark contradiction to the new constitutive, human rights-based conception of popular sovereignt
23、y. To be sure, there were policy reasons for Tinoco, which may still have some cogency, but the important point is that there was then no countervailing constitutive policy of international human rights and its conception of popular sovereignty. Caudillos and their like appear to be susceptible to a
24、 megalomania that identifies their corporeal selves with the symbols of the nation and the state. They invoke a sovereignty so grandiose and capricious . it might be supposed to be a deliberate caricature, save for the intensity of the sentiments that are mobilized around the symbol itself.14 Happil
25、y, the international legal system in which declamations such as letat, cest moi were coherent has long since been consigned to historys scrap heap. In our era, such pronouncements become, at least for audiences at a safe remove, the stuff of refined comedy. They would be occasions for general hilarity, even in the countries where they are still staged, were it not for the endless misery that the dictators who grant themselves sovereignty always inflict upon the human beings trapped within the boundaries of the territory the dictators have confused with themselves. III.
