Cosmopolitan Justice and its Discontents

Cecilia Bailliet, Katja Franko Aas

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136741371
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Cosmopolitan Justice and its Discontents pursues a reflection upon the institutional orders designed to ensure respect for the rule of law, human rights, and social justice. The majority of literature on cosmopolitanism tends to be oriented in sociology, political science or philosophy, and is largely positive. This book aims to fill the lacuna with respect to critical and legal perspectives in this field. In particular, it highlights the importance of international economic law and its institutions when evaluating the evolution of cosmopolitan norms. In addition, it provides critical and multidisciplinary perspectives on Cosmopolitan Justice and Sovereignty; Institutions, Civil Society and Accountability; and Social Exclusion, Migration, and Global Markets. This book will be of considerable interest to academics and students concerned with international public and private law, international criminal law, international economic law, human rights, migration, criminology, political science, and philosophy.

Part I

Chapter 1

Cosmopolitan sovereignty

Sam Adelman

Cosmopolitan sovereignty, the only type of global sovereignty on offer, claims the garments of value (freedom, dignity, emancipation) but is realised in the ubiquitous violence of economic competition, war as police action and empty but ever-present legality. Law as validity without significance is the main form of the social bond.

Costas Douzinas¹

1.1 THE ‘NEW’ COSMOPOLITANISM

Cosmopolitanism is resurgent. In its new incarnation it ‘is a way of thinking that declares its opposition to all forms of ethnic nationalism and religious fundamentalism as well as to the economic imperatives of global capitalism. It perceives the integrity of contemporary political life as threatened both by the globalization of markets and by regressive forms of revolt against globalization, and aims to reconstruct political life on the basis of an enlightened vision of peaceful relations between nation states, human rights shared by all world citizens, and a global legal order buttressed by a global civil society’ (Fine, 2003: 452). The cosmopolitan vision (Beck, 2006) is of an unbounded, virtually deterritorialized common moral community in which the principle of sovereignty is subordinated to that of humanity.²

For cosmopolitan thinkers like Beck and Habermas, the European Union is a cosmopolitan laboratory in which the means of securing peace under the rule of law are being developed in a continent historically riven by violence through the construction of a post-sovereign community that presents the world with a vision of its cosmopolitan future. Notwithstanding its myriad democratic deficits, for Giddens this model of cosmopolitan democracy is ‘the most important and promising experiment in transnational governance’.³ ‘Europe’ is an idea, ideal and ideology as much as a physical space, the harbinger of Kant’s dream of perpetual peace. If so, it has been a long time coming for it was in 1795 that Kant asserted that ‘The peoples of the earth have entered in varying degrees into a universal community, and it is developed to the point where a violation of laws in one part of the world is felt everywhere. The idea of a cosmopolitan law is therefore not fantastic and overstrained; it is a necessary complement to the unwritten code of political and international law, transforming it into a universal law of humanity’ (Kant, 1991: 107–8).⁴ Cosmopolitan law would be tantamount to a new social contract that would facilitate internationally what Hobbes’ covenant had secured internally: the forging of law and order from anarchy and chaos. As Kant was aware, however, since the dawn of modernity, sovereignty has been the rock on which cosmopolitanism has always been in danger of foundering. Since the possibility of potentially despotic world state could not be countenanced, the predilection towards violence of nation-states could best be controlled, he argued, through the construction of a league of republican states (with paradoxically coercive powers) in which individual freedoms had already been achieved and which would respect the categorical imperative of hospitality as the basis for world citizenship. Unfortunately, the history of the League of Nations and the UN has revealed the unwillingness of sovereign states to cede sovereignty, and thus exposed the limitations in his prescription that the new cosmopolitanism seeks to overcome. This recalcitrance has not deterred cosmopolitan dreamers from the time of the Stoics, from whom the concept originated (Douzinas, 2007: ch. 7).

The concept received a shot in the arm at the end of the Cold War, when circumstances appeared so propitious that Fukuyama (1992) notoriously proclaimed the triumph of liberal democracy and capitalism at the end of history. Now, it was hoped, the provisions in the International Bill of Rights would decisively shift the organizing principle of the international from sovereignty to human rights. For Beck and Habermas, cosmopolitanism is less an ideal than an inevitability arising from inexorable pressures towards interdependence and interconnectedness in the global age. Beck argues that successful states will be those which abandon the national outlook and the sovereign prerogatives that characterized the Westphalian system during modernity,⁵ while Habermas:

presents cosmopolitanism as the logical culmination of the principles of right on which enlightenment was founded. The underlying argument is that the universal principles of right and law, though once swamped by the particularistic self assertion of one nation against another, are ‘best suited to the identity of world citizens, not to that of citizens of a particular state that has to maintain itself against other states’. For Habermas, there is a sense in which the rational necessity of cosmopolitanism is not up for discussion, and a democratic community cannot opt out of the project of realising constitutional principles at the national, transnational and global levels.

(Fine 2007: 58, citing Habermas 2006: 133; emphasis in original)⁶

In fact, the implosion of the Soviet Union and Yugoslavia unleashed a tide of nationalism and ethnic conflict.⁷ In Kosovo, the delivery of liberal democracy and the rule of law came from on high, packaged in bombs, in a militarized humanitarian intervention of dubious legality that set the tone for what followed in Iraq, Chechnya, and elsewhere. Fundamentalisms flourished, with Islamism finding its doppelgänger in neo-conservatism, and neo-liberalism imposing the violence of the market. Since 2001, it is sovereignty – a principle more universally adhered to than human rights – that has been resurgent. Ostensibly the means of promoting democracy and human rights, the ‘war on terror’ privileged realism, unilateralism, pre-emptive regime change and celebrated might. Regime change may have brought about a change in the tone of US foreign policy in 2009, but the new president had no qualms in insisting that ‘State sovereignty must be a cornerstone of international order.’⁸ In his speech in Cairo in July 2009, Obama sounded like a model cosmopolitan in calling for an international order in which sovereignty and human rights are both protected. The question this chapter addresses is whether this is possible.

The paradox of neo-conservatism is that the ‘coalitions of the willing’ sought to redraft international law in pursuit of its own cosmopolitan vision. ‘At the technical juridico-political level, the foundations of the “new” international law are being laid through a complex mosaic of the individual and collective right to “pre-emptive” self-defence, justifications for the use of United Nations unsanctioned use of force for the violent achievement of “regime change,” and the equally violent disregard for the hitherto relatively settled norms of international humanitarian law’ (Baxi, 2005: 35). This involved a systematic attempt to make transnational institutions, the building blocks on which the new cosmopolitanism is supposedly being constructed, more supine in the teeth of sovereign rationality. It is difficult to imagine a less cosmopolitan body than the UN Security Council⁹ but this is perhaps appropriate in the dystopia in which ‘Global capitalism has denuded the world of meaning and humanitarian violence has drained the moral universe of value. Human rights and cosmopolitanism contribute to this loss’ (Douzinas, 2007b: 293).

Habermas has sought to rehabilitate Kant’s vision in terms appropriate to the twenty-first century by synchronizing the legitimacy of the constitutional nationstate with the authority of cosmopolitan law and institutions through constitutional patriotism (Habermas, 2001). ‘Constitutional patriotism refers both to a shared attachment towards universalistic principles and to the actualisation of these principles in the form of particular national institutions. It is this “both–and” quality that allows constitutional patriotism to nurture a disposition of attachment to one’s country and be compatible with the transformed self-consciousness of world citizens’ (Fine, 2007: 42; emphases in original). He sees the EU as a novel form of political community that performs in the post-national era the role of the nation-state in modernity. In doing so, he has been confronted by a problem common to cosmopolitan arguments, namely the democratic and legitimacy deficits that arise from the lack of accountability of meta-national institutions (Kymlicka, 2001; Fine, 2007). The problem is compounded by the fact that rights are overwhelmingly contingent upon membership, i.e. citizenship of states whose sovereignty rests on what Weber acutely described as a monopoly of legitimate violence. On the one horn of the dilemma confronting cosmopolitanism is whether the effective enforcement of global citizenship requires a global state with a similar monopoly. On the other is the possibility that retention of this monopoly by nation-states will hole the project below the waterline.

1.2 HUMAN RIGHTS

In a juridico-political order that remains overwhelmingly sovereign-centric, states are the guarantors of the rights that they have so persistently violated. The paradox of universal human rights is that in order to be protected at all they must be constitutionalized or legislated as civic or citizen rights under sovereign jurisdiction. Apart from the European human rights regime, the erosion of the sovereign monopoly of law caused by the growing lawmaking powers of non-state actors has hardly dented the capacity of sovereign states to determine the parameters and enforcement of human rights law. It might be argued that the ICC is still in its infancy and universal jurisdiction is emergent but inchoate but the cosmopolitan faith in the capacity of transnational institutions has thus far been misplaced, not least because of the extent to which they remain mediated by sovereign rationality. This is equally true of the EU even if member states have split, shared, pooled or otherwise diluted their sovereignty to a greater degree than elsewhere. Far from disappearing, sovereignty is adapting to meet the changed circumstances wrought by globalization.¹⁰

Despite the erosion of sovereign immunity and impunity through the gradual emergence of universal jurisdiction and the establishment of tribunals from Nuremberg to the ICC, human rights continue to defer to sovereignty and will do so as long as their promises and possibilities are overdetermined by the sovereign rationality they are designed to control. Unless and until this is achieved they will, to paraphrase Marx, be human rights in but not for themselves. This interpretation assumes that they are capable of constituting a genuine alternative organizing principle but only if they break the bonds of sovereign rationality. However, the...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• List of Contributors
• Acknowledgements
• Introduction
• Part I
• Cosmopolitan sovereignty
• Does a world state really lead to a graveyard of freedom?1
• Part II
• Guilty landscapes Collective guilt and international criminal law
• Exposing checks and balances in war powers A soldier's tale of cosmopolitan federalism
• Part III
• EU constitutionalization in Turkey Exchanging visions and values on tolerance and diversity
• All the people in all the world A cosmopolitan perspective on migration and torture
• A borderless world? Cosmopolitanism, boundaries and frontiers
• Part IV
• The cosmopolitanism of transnational economic law
• Cosmopolitan competition The case of international investment
• Cosmopolitianism in practice? The case of the Norwegian Government Pension Fund
• Epilogue Frictions of hospitality and the possibilities of cosmopolitan justice in everyday life
• Index