Eugene Meyer Professor of Political Science and Philosophy
Yale University Not for Circulation and Publication @Seyla Benhabib
The status of international law and of transnational legal agreements and treaties with respect to the sovereignty claims of liberal democracies has become a highly contentious theoretical and political issue. On September 18, 2008 The New York Times carried an article by Adam Liptak entitled “U.S. Court, a Longtime Beacon, is Now Guiding Fewer Nations.”1 Liptak detailed how in the last decade citations of decisions of the U.S. Supreme Court had declined, while the influence of the European Court of Human Rights and the Canadian Supreme Court had grown. This evidence was all the more surprising since so many of these courts and their leading constitutional documents – such as The Indian Constitution of 1949; the Canadian Charter of Rights and Freedoms of 1982; the New Zealand Bill of Rights of 1990 and the South African Constitution of 1996-- all drew on American constitutional principles at their inception.
At stake is not only the esteem in which the U.S. Supreme Court is held world-wide, but the standing of international and foreign law itself in U.S. courts. In his highly controversial decision that struck down the death penalty for juvenile delinquents, Justice Anthony M. Kennedy cited the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, among other documents.2 In his dissenting opinion, Justice Antonin Scalia, thundered: “The basic premise of the court’s argument – that American law should conform to the laws of the rest of the world – ought to be rejected out of hand.” Seeing this as an all or nothing equation, Justice Scalia drove to a reductio ad absurdum: “The Court should either profess its willingness to reconsider all these matters in the light of views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision making, but sophistry.”3 (Emphasis in the original)
This controversy concerns not only the heft and weight of foreign courts in influencing the decisions of Supreme Court justices, but broader issues such as: what is the proper epistemology of judicial decision-making? Why should judges not learn from other colleagues who have considered similar problems in their own jurisdictions? Isn’t legal epistemology enriched by looking across the border and even the ocean? Citing a foreign ruling does not convert it into a binding precedent, does it?
Not only Justice Antonin Scalia, but Chief Justice John G. Roberts Jr. as well, oppose this liberal-minded problem-solving approach to judicial decision-making that would learn and borrow from other courts and international documents is. Justice Robert considers the citing of foreign law to be not an innocent exercise in decision-making, but a compromise or dilution of sovereignty. Liptak quotes Justice Roberts from his 2005 confirmation hearings: “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no senate accountable to the people confirmed that judge. And yet he is playing a role in shaping the law that binds the people in this country.”4 By blurring the distinction between “citing an opinion” and “creating a precedent,” Justice Roberts raises the specter of the weakening of democratic sovereignty and judicial accountability.5 What indeed is the status of foreign and international law in a world of increasing interdependence? Do they dilute sovereignty? What is the source of the anxieties and fears invoked by so many in these debates about the problematic relation of transnational legal norms and democratic sovereignty?6
Let me distinguish between foreign, international and transnational law from the standpoint of a political theorist rather than that of a legal scholar: By ‘foreign law’ I will broadly understand special obligations, privileges and encumbrances which emerge among states as a consequence of bilateral or multilateral treaties. Thus, tax agreements, commercial contracts and the like among countries pertaining to individuals or corporations would be prime examples.
By ‘international law’ I understand public legal conventions pertaining to the world community at large, some of which may be formulated in written form, such as the Universal Declaration of Human Rights, and others of which, such as norms of jus cogens, are unwritten but pertain to customary international law. Jus cogens norms mean that any treaties among nations and international agreements which engage in gross human rights violations by advocating genocide, ethnic cleansing, slavery, mass murder are eo ipso invalid.
In defining ‘transnational law’ I follow Harold Koh’s processual focus on “transnational legal process.” He writes: “… the theory and practice of how public and private actors including nation-states, international organizations, multinational enterprises, nongovernmental organizations, and private individuals, interact in a variety of public and private, domestic and international fora to make, interpret and enforce rules of transnational law… transnational law is both dynamic –mutating from public to private, from domestic to international and back again – and constitutive, in the sense of operating to reconstitute national interests.”7
Duly executed foreign and international law is binding upon lawmakers, as the U.S. Constitution itself states in Article VI on the status of treaties.8 In this respect, there is no contradiction between the will of democratic legislatures and the force of international law and treaties. Entering into such agreements or declining to do so is a crucial aspect of sovereignty itself. Yet unlike some jurisdictions in which foreign and international law become part of domestic law, in the U.S. treaties are not self-executing and require congressional ratification.
What about the status then of multilateral treaties concerning human rights in particular? I will raise this question not with specific reference to the U.S. case alone, but against the background of larger transformations in international law.9
I approach these questions as a political philosopher and not as a legal scholar. I want to look at the alleged conflict between one class of international legal norms in particular, namely those pertaining to human rights, broadly understood, and sovereignty, and I want to argue that in fact the alleged conflict between such norms and democratic sovereignty derives from an inadequate understanding of how international and transnational norms function. Such norms enhance rather than undermine popular sovereignty.
Since these transformations are altering norms of state sovereignty as well as impacting the actual capacity of states to exercise sovereignty, it is important at the outset to distinguish between state sovereignty and popular sovereignty. The concept of ‘sovereignty’ ambiguously refers to two moments in the foundation of the modern state, and the history of modern political thought in the West since Thomas Hobbes can plausibly be told as a negotiation of these poles: First, sovereignty means the capacity of a public body, in this case the modern nation-state, to act as the final and indivisible seat of authority with the jurisdiction to wield not only ‘monopoly over the means of violence,’ to recall Max Weber’s famous phrase, but also to distribute justice and manage the economy.
Sovereignty also means, particularly since the French Revolution, popular sovereignty, that is, the idea of the people as subjects and objects of the law, or as makers as well as obeyers of the law. Popular sovereignty involves representative institutions, the separation of powers, and the guarantee not only of liberty and equality, but of the “equal value of the liberty of each.” Etienne Balibar has expressed the interdependence between state sovereignty and popular sovereignty thus: “… state sovereignty has simultaneously “protected” itself from and “founded” itself upon popular sovereignty to the extent that the political state has been transformed into a “social-state”… passing through the progressive institution of a “representation of social forces” by the mechanism of universal suffrage and the institutions of social citizenship…”10
My question is: how does the new configuration of state sovereignty influence popular sovereignty? Which political options become possible? Which are blocked? I will argue that cosmopolitan norms enhance the project of popular sovereignty while prying open the black box of state sovereignty. They challenge the prerogative of the state to be the highest authority dispensing justice over all that is living and dead within certain territorial boundaries. In becoming party to many human rights treaties, states themselves “bind” their own decisions.
The argument presented in this paper bears upon but does not lead to a definitive position regarding the global justice debate in contemporary political philosophy. One aspect of that debate, largely between Rawlsians such as Thomas Nagel and more cosmopolitan theorists such as Thomas Pogge as well as Joshua Cohen, concerns the picture of the world order from which we proceed.11 I agree with cosmopolitans that the world-picture of the “law of nations” is inadequate, but I also concede that this point alone cannot determine the nature and extent of obligations of justice among nations and individuals in the world community. But legal developments matter, and we need to correct the picture of national autarchy on the basis of which Rawls, at least, wrote The Law of Nations. I will outline the normative implications of my argument in the concluding sections of this paper.
From International to Cosmopolitan Norms
It is now widely accepted that since the UN Declaration of Human Rights in 1948, we have entered a phase in the evolution of global civil society which is characterized by a transition from international to cosmopolitan norms of justice. While norms of international law emerge through treaty obligations to which states and their representatives are signatories, cosmopolitan norms accrue to individuals considered as moral and legal persons in a world-wide civil society. Even if cosmopolitan norms also originate through treaty-like obligations, such as the UN Charter, and even if the various human rights covenants can be considered for their member states, their peculiarity is that they bind states and their representatives, sometimes against the will of the signatories themselves. This is the uniqueness of the many human rights agreements concluded since WWII. I want to describe this process as ‘multilateral covenantalism.’
Let me list here briefly the numerous human rights declarations which have been signed by a majority of the world’s states since the 1948 Universal Declaration on Human Rights (UDHR):12 the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, adopted by Resolution 260 (III) A of the UN General Assembly on December 9 1948 (Chapter II); the 1951 Convention on Refugees (which entered into force in 1954);13 the International Convention on Civil and Political Rights (ICCPR; signed in 1966 and entered into force in 1976, with 152 countries are parties to it)14; and the International Covenant on Economic, Social and Cultural Rights (ICESCR; entered into force the same year and with similar number of signatories),15 and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW; signed in 1979 and entered into force in 1981).16 These are some of the best known among many other treaties and conventions.
But what does all this really mean? What possible significance do these multilateral human covenants have if states continuously and brazenly violate them? Are these not mere words at worst or aspirational ideals at best that have little traction in limiting state conduct? Can these treaties be considered law at all?
Empire and Cosmopolitanism
In contemporary thought, terms such as ‘globalization’ and ‘empire’ are often used to capture these transformations in the international domain. Yet these terms are greatly misleading, in that they fail to address the distinctiveness of cosmopolitan norms. Defenders of economic globalization, such as Thomas Friedman (at least in his earlier work, The World is Flat), reduce cosmopolitan norms to a thin version of the human rights to life, liberty, equality, and property that are supposed to accompany the spread of free markets and trading practices. In this respect, neo-liberal theorists of globalization join hands with neo-Marxist theorists of ‘empire,’ most notably, Tony Negri and Michael Hardt. As is well-known, Hardt and Negri distinguish between imperialism and empire in order to capture the novel logic of the international order. While imperialism refers to a predatory, extractive and exploitative order through which a sovereign power imposes its will upon others, ‘empire’ refers to an anonymous network of rules, regulations, and structures which entrap one in the system of global capitalism. Empire is a hegemon without a center. Global capitalism requires the protection of the rights of the individual to freely exchange goods and services in the market place; above all; global capitalism demands that contracts be upheld (pacta sunt servanda), that they be predictable and capable of execution. Empire, then, is the ever-expanding power of global capital to bring farther and farther reaches of the world into its grip. 17
A more interesting version of the empire thesis has been recently provided by James Tully, who names such cosmopolitan rights discourse “the Trojan horse” of a neo-imperial order extending throughout the globe. “The two cosmopolitan rights,” writes James Tully, harking back to the development of cosmopolitan discourse in the 18th century, namely “of the trading company to trade and the voluntary organizations to convert – also fit together in the same way as with the nation state. The participatory right to converse with and try to convert the natives complements the primary right of commerce …From the perspective of non-Western civilizations and of diverse citizenship, the two cosmopolitan rights appear as the Trojan horse of western imperialism.”18
But let us pause here: the contours of the precise relationship between the global commercial transactions and the law remains yet to be determined. Alec Stone Sweet in his article, “The new Lex Mercatoria and Transnational Governance,” provides a sobering view: the medieval “law merchant,” which appeared between the eleventh and twelfth centuries, “was operated by traders and their agents.”19 It was based on good faith; reciprocity; non-discrimination between foreigners and locals, and conflict-resolution favoring equity settlements (Ibid.) “The new Lex Mercatoria also employs general principles of contract, mediation and arbitration along equity lines, and means of curating reputations,”20 but it does so with a new legal system “replete with its own ‘a-national’ law of contract and system of private ‘courts’.”21 Lex Mercatoria is parasitic upon state authority, in that it uses the state for the purposes of enforcement, “while otherwise working to reduce the reach of sovereign control over transnational business.” (Ibid.) Stone Sweet is not as alarmed as others are about the erosion of state sovereignty implied by this process, seeing rather the emergence of instruments such as UNIDROIT Principles of International Commercial Contracts as norms that could become a comprehensive code for international commerce. Reminding his readers that the American Law Institute in 1932 first produced a Restatement of the Law of Contracts and drafted the Uniform Commercial Code, Stone Sweet argues that “the bulk of the law governing contracts and interstate trade was harmonized, without federalization.”22According to Stone Sweet the relationship between lex Mercatoria and the state, therefore, is one of deep interdependence: while lex mercatoria is giving rise to arbitration procedures which circumvent national courts, it is only states that can enforce the results of such arbitration; and arbitrators are increasingly working according to precedent, giving reasons etc. What we are witnessing, says Stone Sweet, is the emergence of an alternative model of transnational governance, and this “decentralized transnational ‘governance’ will now begin to take on the features of ‘government.’”23
On this model, sovereignty is not being eroded as much as it is being voluntarily ‘outsourced’ to new institutions. The neo-liberal advocates of global capitalism and Marxist critics of globalization each miss the extent to which this system is decentered and fragmented and escapes the control of any kind of single center of power which can be deemed hegemonic over it. But conservatives are not wrong in worrying that a new system of governance without consent is emerging. The ‘decentralized transnational governance’ of the new lex mercatoria is created by elites and judicial officials who are responsible and responsive to each other; but the extent of their responsiveness to the peoples in the countries from which these transactions emanate is murky at best.
Another version of the argument that the spread of cosmopolitan norms heralds a project of hegemony has been advanced by Kim Sheppele and Jean Cohen. 24 According to this analysis, it is the creation of an international emergency situation primarily through the actions of the UN Security Council which must be heeded. “… [The] seemingly arbitrary redefinition of domestic rights violations as a threat to international peace and security, and the selective imposition of debilitating sanctions, military invasions, and authoritarian occupation administrations by the SC or by states acting unilaterally (‘coalition of the willing’), framed as ‘enforcement’ of the values of the international community, gave some of us pause. This discursive framework opened a Pandora’s box, the import of which is becoming clear only now, in the third post 9/11 phase of the transformation of public international law.”25 The Security Council is usurping law-making capacities, and in legislating against terrorism, in favor of humanitarian emergencies, and post-peace-keeping regimes and the like, it is violating privacy as well as sovereignty rights. The member states of the UN can neither oppose these measures, nor can they amend them, since the amendment rules place the UN Security Council out of their reach by endowing its members with special veto rights. The connection between these actions of the SC and cosmopolitan norms of human rights is that, formulae such as “the obligation” or “the responsibility” to protect, which have been increasingly endorsed by the Secretary General of the UN and which are logical consequences of viewing every individual as a being entitled to rights within the global civil society, become slippery slopes towards the creation of an international emergency situation, prodded by the actions of UN SC. As Mahmood Mamdani puts it in biting terms: “ The new humanitarian order, officially adopted at the UN’s 2005 World Summit, claims responsibility for the protection of vulnerable populations…Whereas the language of sovereignty is profoundly political, that of humanitarian intervention is profoundly anti-political …. The international humanitarian order, in contrast, does not acknowledge citizenship. Instead it turns citizens into wards.”26
There is a great deal in these objections that should be taken seriously and that ought to give one pause: both neo-liberal theorists of the “the world is flat” school and critics of neo-imperial capitalist hegemony recapitulate a well-known Marxist critique which views the discourse of human rights as the ideological veneer enabling the spread of free-commodity relations.27 Certainly, there is a historical as well as conceptual link between the universalization of market forces and the rise of the view of the individual as a self-determining and free being, capable of disposing over her goods and actions. But human rights norms are not norms of person, property and contract alone and they cannot be reduced to norms protecting free-market transactions. Human rights norms such as freedom of speech, association, assembly, entitlements to socio-economic equality are also citizens’ rights, subtending and enabling collective action and resistance to the very processes of rapacious capitalist development. Many of the international human rights covenants contain, in fact, provisions against the exploitative spread of market freedoms in that they protect union and associational rights; rights of free speech; equal pay for equal work; workers’ health, social security and retirements benefits. Global capitalism which creates special free-trade zones is often directly in violation of these human rights covenants.28
The charge that the defense of these cosmopolitan rights has unwittingly given rise to a “responsibility to protect” and hence to an international emergency regime is more complicated: A very good example of this slippery slope from the responsibility to protect to the duty to intervene, by military force if necessary, occurred during the great typhoon that hit Myanmar- Burma in Spring 2008. Bernard Kouchner, the former President of Medecins Sans Frontiers, foreign minister of France, argued that the nations of the world had a duty to intervene even against the will of the secretive Myanmar military junta. Robert Kaplan, the conservative thinker, concurred and suggested that the US Navy could move up the river delta to Myanmar and that once it did so, the mission of humanitarian aid to the victims of the cyclone, could easily morph into one of “nation-building.” Only this time, one would be self-conscious about this task and apply the Crate and Barrel principle outright: “if you break it, you own it”!29
I do not wish to deny, therefore, the many ambivalencies, contradictions and treacherous double meanings of the current world situation, which often transforms cosmopolitan intents into hegemonic nightmares. However, I do wish to claim that some of these general assertions and criticisms derive from a faulty understanding of multilateral convenantalism, in that they view the new international legal order as if it were a smooth “command structure” emanating from a hegemonic source – whether this be global capitalism, the modern nation-state as complicit in the spread of global capitalism or the Security Council itself. In all these diagnoses little attention is paid to the social dissemination of human rights norms throughout member states and to the legal, social, cultural and political institutions through which this takes place. But I want to argue the distinguishing feature of the period we are in cannot be captured through the bon mots of ‘globalization’ and ‘empire’; rather, we are facing the rise of an international human rights regime and the spread of cosmopolitan norms, while the relationship between state sovereignty and such norms is becoming more contentious and conflictual. I will argue that these human rights instruments can empower democracies by creating new vocabularies for claim-making for citizens in signatory states as well as opening new channels of mobilization for civil society actors who then become part of transnational networks of rights activism and hegemonic resistance.
The public law documents of our world -- the UDHR, the various international human rights covenants, and the Geneva Conventions of 1951 Relating to the Status of Refugees and their Protocol of 1967 -- are distillations of collective struggles as well as of collective learning. It may be too utopian to name them steps toward a “world constitution,” but they are more than mere treaties among states. They are global public law documents which are altering the terrain of the international domain. They are constituent elements of a global and not merely international civil society. In this global civil society, individuals are rights-bearing not only in virtue of their citizenship within states but in virtue of their humanity. Although states remain the most powerful actors, the range of their legitimate and lawful activity is increasingly limited. We need to rethink the law of peoples against the background of this newly emergent and fragile global civil society, which is always being threatened by war, violence, and military intervention.
In recent works such as TheRights of Others. Aliens, Citizens and Residents (2004) and Another Cosmopolitanism (2006),30 I have argued that understanding cosmopolitanism in terms of the legal and moral status of the individual in the world civil society goes back to Kant’s concept of “Weltbuergerrecht,” as expounded in “Perpetual Peace.” (1797) I will not be concerned with this genealogy in this essay nor with the philosophical problems of the justification of human rights except very briefly to set out the terms of my argument. I have done so elsewhere.31 Rather, I want to suggest a model of ‘democratic iterations’ for analyzing the relationship between cosmopolitan norms and the will of democratic majorities.