Twilight of Sovereignty or the Emergence of Cosmopolitan Norms? Rethinking Citizenship in Volatile Times

Abstract

This essay examines recent debates concerning the emergence of cosmopolitan norms such as those pertaining to universal human rights, crimes against humanity as well as refugee, immigrant and asylum status. What some see as the spread of a new human rights regime and a new world order others denounce as the “spread of empire” or characterize as “law without a state”. In contrast, by focusing on the relationship of global capitalism to deterritorialized law this essay distinguishes between the spread of human rights norms and deterritorialized legal regimes. Although both cosmopolitan norms and deterritorialized law challenge the nation-state and threaten to escape control by democratic legislatures, it argues that cosmopolitan norms enhance popular sovereignty while many other forms of global law undermine it. It concludes by pleading for a vision of “republican federalism” and “democratic iterations”, which would enhance popular sovereignty by establishing interconnections across the local, the national and the global.

Notes

¹ The most prominent of these are: the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention of the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child.

² For a more extensive treatment of Arendt's concept, see Benhabib (2004a, Chapter 2), Benhabib (2004b), and Brunkhorst (1999, pp. 52–84).

³ The genesis of cosmopolitan norms goes back to the experiences of the two World Wars, European colonialism and anti-colonial struggles, the Armenian genocide in the late stages of the Ottoman Empire and the Holocaust. It is wrong to confuse “lex mercatoria”, which is also global law, with the development of cosmopolitan human rights norms. For an account of the development of international law, see Koskenniemi (2002). See also the accounts of trials against members of the “Union and Progress Party” in the Ottoman Empire, who were responsible for the Armenian genocide (Akcam, 1996); for the Nueremberg trials, compare Marrus (1997); and for Ralph Lemkin and his efforts to pass the Genocide Convention, compare Power (2003). See also Burnkhorst's (2002) impassioned defense of “strong human rights”.

⁴ For a masterful account, which is also a sustained critique of Schmitt, see Koskenniemi (2002, pp. 98–179). Compare the statement of the Belgian legal historian Ernest Nys: “A state uses the territories that constitute its private domain as it wishes; it sells them, it rents them out, it attaches such conditions to the concessions it grants as it sees warranted … in none of this does it owe an explanation to other States”. From “L'Etat Independent du Congo et les dispositions de l'acte generale”, quoted in Koskenniemi (2002, p. 161).

⁵ Schmitt's elogue to the “Jus Publicum Europaeum” (the public law of Europe) emphasizes that this system “neutralizes” war by moving away from the medieval notion of “just war”. In this transformation the enemy is no longer viewed as “inimicus” but a “justi hostes” (categories which also return in Schmitt's concept of the “political”). This “neutralized” concept of war is also called “the non-discriminatory concept of war” (der nicht-diskriminierende Kriegsbegriff). “All inter-state wars upon European soil, which are carried out through the militarily organized armies of states recognized by European law of nations (Voelkerrecht), are just in the sense of the European law of nations of this inter-statal period” (Schmitt, 1997, p. 115, emphasis in the text). Schmitt here conflates “justice” and “legality”, not out of some logical error, but because he rejects all normative standards in judging wars.

⁶ Burke, cited in Arendt (1951, p. 183). See also Hannah Arendt's (1951, p. 132) powerful treatment: “The only grandeur of imperialism lies in the nation's losing battle against it”.

⁷ Particularly interesting is the collusion between the economic interests of patent holders, such as big pharmaceuticals Merck, Pfeizer, and Roche, which in 2001 asked the WTO to investigate Brazil which had permitted the domestic production of generic drugs via copying patented medicines. Brazil defended itself by pointing out that the AIDS epidemic had taken 150,000 lives since 1981 and that with preventive measures annual infections could be reduced to less than 5,000. This case, entailing a clear human rights claim to health and public protection from epidemic disease, in turn led to a major renegotiation of the terms of TRIPS (Trade Related Intellectual Property Rights) and to further negotiations between WHO and WTO about the preventive and non-commercial use of patented drugs and led all the way to a resolution of the UN Commission on Human Rights in 2000 protecting the preventive use of generic drugs whenever possible to help combat the spread of disease and epidemics. At the Doha meetings in 2002, a Declaration on the TRIPS agreement and Public Health was issued, which affirmed the safeguards provided in TRIPS with regards to rights of states to issue such measures as compulsory licensing to cope with health crises in their respective countries. Company representatives in general preferred methods of differential pricing but accepted that they must accept the decision of states to deal with their own health problems. Since the DOHA round in 2002, however, trends have apparently gone in the direction of bilateral rather than multilateral agreements. See the publication “Intellectual Property Rights”, Results of a Stakeholder Dialogue between the World Business Council for Sustainable Development and the Wissenschaftszentrum Berlin fuer Sozialfoschung (reprint April 2004). Contact: [email protected]

⁸ Although first translated into English in 2001, the Italian version of Empire was written in the period between the Persian Gulf War of 1991 and the Yugoslav Civil War of 1994. Its view of US power is more benevolent than the subsequent work by Michael Hardt and Antonio Negri (2004), Multitude. War and Democracy in the Age of Empire.

⁹ The last chapter of Hardt and Negri's Multitude is called “May the force be with you” (see pp. 341–348); on carnival, compare “The various forms of carnival and mimicry that are so common today at globalization protests might be considered another form of weaponry. Simply having millions of people in the streets for a demonstration is a kind of weapon, as is also, in a rather different way, the pressure of illegal migrations … A one-week global biopolitical strike would block any war” (Hardt & Negri, 2004, p. 347).

¹⁰ Just as in Michel Foucault's theory of power, the subjects of power are interpellated by it, in other words, constituted in part through the network of power rather than preceding it, in Hardt and Negri's analysis as well, states and other world institutions disappear as agents and sites of resistance that have prior constitution. I disagree with this theory of power. One can stipulate the existence of very distinct and structured institutions and patterns of resistance to power without presupposing a metaphysical primordiality of either the state or of the subject. The reach of empire is neither as ubiquitous nor as omniscient as Hardt and Negri would like us to think.

¹¹ See Held (2004), Kuper (2004), Slaughter (2004). There is something all too cheery and optimistic in these proposals which downplay the danger of dissociating constitutionalism from democracy and from citizens' will and reason, by transferring it to an expertocracy, even if as good willing an expertocracy as the judges and practitioners of international law.

¹² Global civil society, as defended here, should not be confused with the appeal to voluntarism and private associations, so characteristic of the neo-liberals, who aim at curtailing state power. I endorse the public provision of public goods in a system of nested interdependencies of public authorities. Global civil society is a space of global civic activism and the counterpart to the model of “republican federalism” which I develop below.

¹³ Since I have introduced the concept of “democratic iterations” (Benhabib, 2004a, Chapter 5), I have been asked to clarify (1) the relationship between practical discourses of justification and democratic iterations and (2) whether democratic iterations can also be regressive and non-meaning enhancing. Democratic iterations are processes of legitimation and not justification. They stand in the same relationship to normative discourses of justification as theories of democracy stand to John Rawls's Theory of Justice (1971); that is, the former are concerned with legitimacy, the second with justice; second, yes, “jurispathic” democratic iterations, which block the enhancement of meaning and the augmentation of rights claims, are possible. See Benhabib (2006).

¹⁴ For the concept of the “jurisgenerative”, see Cover (1983).

¹⁵ See Juergen Habermas' (1989) early formulation, “Ist der Herzschlag der Revolution zum Stillstand gekommen?”

¹⁶ On the idea of a threshold of justification, see Benhabib (2004a, pp. 15–21).