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Whose Sovereignty? Empire Versus International Law

  • Jean L. Cohen

Abstract

This article focuses on the impact of globalization on international law and the discourse of sovereignty. It challenges the claim that we have entered into a new world order characterized by transnational governance and decentered global law, which have replaced “traditional” international law and rendered the concepts of state sovereignty and international society anachronistic. We are indeed in the presence of something new. But if we drop the concept of sovereignty and buy into the idea that transnational governance has upstaged international treaty organizations, we will misconstrue the nature of contemporary international society and the political choices facing us. In the contemporary context where there is a powerful imperial project afoot (on the part of the United States) that seeks to develop a useful version of global (cosmopolitan) right to justify its self-interested interventions, proposals to abandon the default position of sovereignty and its corollary, the principle of nonintervention in international law, are both premature and dangerous. Instead, we should rethink the normative dimensions of the concept of sovereignty in light of the new principle of sovereign equality articulated in the UN Charter, and show how it can complement cosmopolitan principles such as human rights and collective security. The task is to strengthen, not abandon, international law and supranational institutions, and to foster a global rule of law that protects both the sovereign equality of states, based on a revised conception of sovereignty, and human rights.

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1 Schmitt, Carl, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. Ulmen, G. L. (New York,: Telos Press, 2003).

2 See Teubner, Günther, ‘“Global Bukowina’: Legal Pluralism in the World Society,” in Teubner, Günther, ed., GlobalLaw Without a State (Brookfield, Vt.: Dartmouth Publishing Group, 1997), pp. 315 and passim; Teubner, Günther, “Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory?” in Joerges, Christian, Sand, Inger-Johanne, and Teubner, Günther, eds. Transnational Governance and Constitutionalism (Portland, Ore.: Hart Publishing, 2004), pp. 329; Abbott, Kenneth W., Keohane, Robert O., Moravcsik, Andrew, Slaughter, Anne-Marie, and Snidal, Duncan, “The Concept of Legalization,” in Keohane, Robert O., Power and Governance in a Partially Globalized World (New York: Routledge, 2002), pp. 132–51; Rosenau, James N. et al. , Along the Domestic-Foreign Frontier: Exploring Governance in a Turbulent World (New York: Cambridge University Press, 1997); and Rosenau, James N., “Governance and Democracy in a Globalizing World,” in Archibugi, Daniele, Held, David, and Kohler, Martin, eds. Re-Imagining Political Community: Studies in Cosmopolitan Democracy (Palo Alto: Stanford University Press, 1998), pp. 2858.

3 See Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004), pp. 301–13, for an argument that consensus should replace state consent as the principle of legitimacy in the international system.

4 See Schmitt, The Nomos of the Earth, pp. 336–51, for the concept of nomos. In short, a nomos is the concrete territorial and political organization of the world order, invested with symbolic meaning, that undergirds the formal rules of international law. For a critique of his essentialist understanding of this concept, see Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (New York: Cambridge University Press, 2004), pp. 415–24.

5 Teubner, , “‘Global Bukowina’: Legal Pluralism in World Society”; and Neil Walker, “The Idea of” Constitutional Pluralism,” Modern Law Review 65, no.3 (2002), P. 317.

6 Goldstein, Judith, Kahler, Miles, Keohane, Robert O., and Slaughter, Anne-Marie, “Introduction: Legalization and World Politics,” in Goldstein, et al., eds. Legalization and World Politics (Cambridge,: MIT Press, 2001), pp. 115.

7 One battle is between traditional sovereigntists and cosmopolitans. Another debate exists within cosmopolitanism between centered versus decentered models. For more centered models of legal and political cosmopolitanism, see Held, David, Democracy and the Global Order (Stanford: Stanford University Press, 1995); and Archibugi, Daniele, “Cosmopolitan Democracy,” in Archibugi, Daniele, ed., Debating Cosmopolitics (New York: Verso, 2003), pp. 116.

8 Hardt, Michael and Negri, Antonio, Empire (Cambridge,: Harvard University Press, 2000). See also Ethics & International Affairs 17, no. 2 (2003), “The Revival of Empire,” pp. 34–98; and Michael Ignatieff, “The Burden,”New York Times Magazine, January 5,2003, p. 22.

9 EIA's “The Revival of Empire” is more nuanced than this characterization. There is, of course, a debate over whether the United States is an empire, whether it can be a successful empire, when the empire began, and whether recent activity, including the invasions of Afghanistan and Iraq, are signs of its demise. See also Emmanuel Todd, C. Jon Delogu, and Lind, Michael, After the Empire: The Breakdown of the American Order (New York: Columbia University Press, 2003). My interest is the fate of the discourse of state sovereignty in these claims and counterclaims.

10 Of course, international law can also be instrumen-talized by the powerful. But the principle of sovereign equality and its correlate, nonintervention, provides a powerful normative presumption against unwarranted aggression. Abandoning it would be a mistake. I also provide noninstrumental, normative arguments in favor of the discourse of sovereignty and public international law.

11 On the influence of Schmitt on contemporary realism via his influence on Hans Morgenthau, see Kosken-niemi, The Gentle Civilizer of Nations, pp. 413–509. See also Kissinger, Henry, Diplomacy (New York: Simon & Schuster, 1994). Kissinger is also, in my view, clearly influenced by Schmitt. I include Hardt and Negri among the contemporary left followers of Schmitt.

12 Schmitt, Carl, The Concept of the Political, trans. Schwab, George (Chicago,: University of Chicago Press, 1996), p. 54.

13 For this concept, see Kirchheimer, Otto, Political Justice: The Use of Legal Procedure for Political Ends (Princeton: Princeton University Press, 1961).

14 Nor do we have to accept his claim that legal limits on the right to go to war and sovereignty are incompatible. And we certainly should not embrace his wholesale rejection of legal formalism or adopt his substantive conception of “law” as merely the ratification of a concrete order.

15 The clearest statement of this position is that of Walzer, Michael, Just and Unjust Wars (New York: Basic Books, 1977), esp. pp. 51–117; and Walzer, Michael, Arguing about War (New Haven: Yale University Press, 2004).

16 See Walzer, , Arguing about War, pp. 6785; and Teson, Fernando R., Humanitarian Intervention: An Inquiry into Law and Morality, 2nd ed. (Dobbs Ferry, N.Y.: Transnational Publishers, 1997).

17 See, e.g., Ignatieff, Michael, “Human Rights as Politics,” in Gutmann, Amy, ed., Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2003), p. 42, for the suggestion that the default position on sovereignty in the international order be abandoned.

18 On the human right to security, seeICISS, The Responsibility to Protect (Canada: IDRC, 2001). On the human right to protection, see Michael Walzer, “Au-delà de ľintervention humanitaire: les droits de ľhomme dans la société globale,”Esprit 9 (August/September 2004), pp. 66–67; and my reply, Jean L. Cohen, “Loi internationale ou intervention unilatérale?”Esprit 9 (August/September 2004), pp. 80–88. On the principle of civilian inviolability, see Anne-Marie Slaughter and William Burke-White, “An International Constitutional Moment,”Harvard International Law Journal 43, no. 1 (2002). On popular sovereignty as a human right that trumps state sovereignty, see W Michael Reisman, “Sovereignty and Human Rights in Contemporary International Law,”American Journal of International Law 84, no. 4 (1990), pp. 866–76.

19 See Buchanan, , Justice, Legitimacy, and Self-Determination, and Allen Buchanan, “Reforming the International Law of Humanitarian Intervention,” in Holzgrefe and Keohane, eds., Humanitarian Intervention, pp. 130–73. I strongly disagree with their position. For a counterargument with which I do agree, see Michael Byers and Simon Chesterman, “Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law,” in Holzgrefe and Keohane, eds., Humanitarian Intervention, pp. 177–203.

20 See the work of Anne-Marie Slaughter, esp. her book, recent, A New World Order (Princeton: Princeton University Press, 2004).

21 Ibid., p. 15.

22 Ibid., p. 63.

23 Ibid., p. 38.

24 Ibid., pp. 36–64.

25 Ibid., p. 21.

26 See ibid., pp. 36–127, for a full listing of such networks.

27 See Abbott, et al., “ The Concept of Legalization ,” pp. 132 – 48.

28 See Martti Koskenniemi, The Gentle Civilizer of Nations, p. 488, for a brilliant critique of the rejection of formalism in the combined work of Keohane and Slaughter.

29 Slaughter, , A New World Order , p. 267.

30 Slaughter and Burke-White, “An International Constitutional Moment,” p. 8.

31 Ibid.

32 Ibid. These theorists construe the Kosovo intervention (which was not authorized by the UN) as a “constitutional moment,” which articulated a new Grundnorm for the new world order that has replaced the legal principle of sovereignty. It is worth pointing out that this use of Kelsen's term, Grundnorm, goes against everything he stood for. Slaughter and Burke-White misconstrue the formal transcendental concept of a Grundnorm, which in Kelsen's theory serves as the necessary presupposition for the validity and autonomy of the legal order, as a substantive material norm-“civilian inviolability”-which they derive and generalize from recent U.S. (NATO) policy in Kosovo. Here we have an example of “symbolic constitutionalism,” the abuse of legal theory. The “principle of civilian inviolability” that now allegedly permits humanitarian intervention without UNSC authorization and is presented as a constitutional moment is really only the dressing up of policy as law. This is precisely what Kelsen fought against. No such constitutional moment has occurred in opinio juris.

33 Slaughter, , A New World Order, pp. 30, 216–60.

34 Andreas Fischer-Lescano, “Constitutional Rights-Constitutional Fights: Human Rights and the Global Legal System” (unpublished); Fischer-Lescano, “Afghanistan and Global Constitutionalism: New Heaven of the Empire or Autopoiesis of Global Law?” (unpublished); and Fassbender, Bardo, “The United Nations Charter as Constitution of the International Community,” Columbia Journal of Transnational Law 36 (1998), pp. 529615.

35 See Teubner, , ‘“Global Bukowina’: Legal Pluralism in the World Society.”

36 Ibid.

37 See Teubner, “Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory?”

38 See Slaughter, Anne-Marie, “A Global Community of Courts,” Harvard International Law Journal 44 (Winter 2003), pp. 191219.

40 Fischer-Lescano, “Constitutional Rights-Constitutional Fights,” p. 12.

41 See Petersmann, Ernst-Ulrich, “Constitutionalism and International Adjudication: How to Constitution-alize the U.N. Dispute Settlement System?” New York University Journal of International Law & Politics 31 (1999), P. 753.

42 See Schmitt, , The Nomos of the Earth, pp. 140210.

43 See Brown, Chris, Sovereignty, Rights and Justice: International Political Theory Today (Cambridge: Polity Press, 2002), p. 145.

44 Chapter I, Article 2 of the UN Charter states, “The Organization is based on the principle of sovereign equality of all its Members”; available at http://www.un.org/aboutun/charter.

45 For the concept of international society, see Bull, Hedley, The Anarchical Society (New York: Columbia University Press, 2002), pp. 194.

46 See Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty, trans. Schwab, George (Cambridge: MIT Press, 1986).

47 See Laughlin, Martin, “Ten Tenets of Sovereignty,” in Walker, Neil, ed., Sovereignty in Transition (Oxford: Hart Publishing, 2004), pp. 5587.

48 Ibid.

49 Ibid.

50 See Neil Walker, “Late Sovereignty in the European Union,” in Walker, ed., Sovereignty in Transition, pp. 3–32; and Neil Walker, “The Idea of Constitutional Pluralism,”Modern Law Review 65, no. 3 (2002), pp. 317–59.

51 See Walker, “Late Sovereignty.”

52 The example of the EU is most instructive. Strong claims to state sovereignty coexist with strong claims to supremacy of EU law over union matters. This is a productive paradox involving division and the increase of power.

53 See the debate in Holzgrefe and Keohane, eds., Humanitarian Intervention, over whether a new norm of unilateral humanitarian intervention has in fact emerged and whether legal reform should occur to make it hard law.

54 On the productivity of legal paradoxes, see Fletcher, G. P., “Paradoxes in Legal Thought,” Columbia Law Review 85 (1985), pp. 1263–92; and Luhmann, Niklas, “The Third Question: The Creative Use of Paradoxes in Law and Legal History,” Journal of Law and Society 15, no. 2 (1988), pp. 153–65.

55 See Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. Rehg, William (Cambridge: MIT Press, 1996), p. 84118.

56 Habermas, Jürgen, “Interpreting the Fall of the Monument ,” trans. Pensky, Max, German Law Journal 4, no. 7 (July 1, 2003).

57 See Cohen, Jean L., “Changing Paradigms of Citizenship and the Exclusiveness of the Demos,” International Sociology 14, no. 3 (1999), pp. 245–68.

58 Schmitt, , The Nomos of the Earth, pp. 354–55.

59 Hardt, and Negri, , Empire, pp . xii, xiv.

60 See the discussion of Laughlin, “Ten Tenets of Sovereignty,” pp. 55–87.

61 See, e.g., Slaughter and Burke-White, “An International Constitutional Moment”; and Ignatieff, “The Burden.”

62 Schmitt, , The Nomos of the Earth , p. 167.

63 See the OAS Charter; available at http://www.oas.org/juridico/english/charter.html.

64 I am referring to Allen Buchanan and Robert O. Keohane, “The Preventive Use of Force: A Cosmopolitan Institutional Proposal,”Ethics & International Affairs 18, no. 1 (2004), pp. 1–22.

65 See Koskenniemi, Martti, “The Lady Doth Protest Too Much: Kosovo and the Turn to Ethics in International Law,” Modern Law Review 65, no. 2 (2002); and Teitel, Ruti G., “Humanity's Law: Rule of Law for the New Global Politics,” Cornell International Law Journal 35 (2002), p. 355.

66 In Buchanan and Keohane, “The Preventive Use of Force,” the authors offer a very long list that includes not only genocide, ethnic cleansing, and torture but also the “more damaging forms of discrimination” and the “right to the means of subsistence.” They support interventions by “coalitions of democratic states” without the detour of the UNSC. Others, like Michael Reis-man, support intervention in favor of a right to popular sovereignty that “trumps state sovereignty.” Still other lists, like that of Michael Walzer, are more minimal. Moral philosophy cannot adjudicate among these different lists of “fundamental” human rights. See my “Loi Internationale ou intervention unilatérale?”

67 See the three-volume work of Muller, Joachim, ed., Reforming the United Nations: New Initiatives and Past Efforts (The Hague: Martinus Nijhoff, 1997).

68 See, e.g., ICISS, The Responsibility to Protect.

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Whose Sovereignty? Empire Versus International Law

  • Jean L. Cohen

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