On the Alleged Conflict betweenDemocracy and International Law

Seyla Benhabib*

-r-t is December 12, 1960. Israeli secretagents have captured Adolf Eichmann,

A and the Israeli government has declaredits intention to put Eichmann on trial. Karl

Jaspers writes to Hannah Arendt: "The Eich-

mann trial is unsettling .. . because I am

afraid Israel may come away from it looking

bad no matter how objective the conduct of

the trial.... Its significance is not in its being

a legal trial but in its establishing of histori-

cal facts and serving as a reminder of those

facts for humanity."' For the next severalmonths and eventually years an exchange

ensues between Hannah Arendt and her

teacher and mentor, Karl Jaspers, about the

legality or illegality of the Eichmann trial,about institutional jurisdiction, and about

the philosophical foundations of interna-

tional law and in particular of "crimes

against humanity."Arendt replies that she is not as pessimistic

as Jaspers is about "the legal basis of the

trial.' 2 Israel can argue that Eichmann had

been indicted in the first trial in Nurembergand escaped arrest. In capturing Eichmann,Israel was capturing an outlaw-a hostis

humani generis (an enemy of the humanrace)-who had been condemned of "crimesagainst humanity." He should have appearedbefore the Nuremberg court, but since there

was no successor court to carry out its mis-

sion, Arendt thinks that Israeli courts have a

plausible basis for assuming jurisdiction.

According to Hannah Arendt, genocide is

the one crime that truly deserves the label

"crime against humanity." "Had the court inJerusalem" she writes, "understood that

there were distinctions between discrimina-tion, expulsion, and genocide, it would havebecome clear that the supreme crime it was

confronted with, the physical extermination

of the Jewish people, was a crime againsthumanity, perpetrated upon the body of the

Jewish people...."3If, however, there are crimes that can be

perpetrated against humanity itself, then the

individual human being is considered not

only as a being worthy of moral respect but

as having a legal status as well that ought tobe protected by international law. The distin-guishing feature of this legal status is that itwould take precedence over all existing legal

orders and it would bind them.4 Crimes

against humanity are different from other

This article is based in part on my Tanner Lectures,

delivered at the University of California at Berkeley in

March 2004. They will appear as Seyla Benhabib, "Rec-

onciling Universalism and Republican Self-Determina-tion," in The Tanner Lectures Yearbook (Salt Lake City:Utah University Press, forthcoming). A separate publi-

cation with commentaries by Bonnie Honig, Will Kym-licka, and Jeremy Waldron is in preparation with

Oxford University Press.I Lotte Kohler and Hans Saner, eds., HannahArendt-Karl Jaspers Correspondence: 1926-1969, trans.

Robert and Rita Kimber (New York: Harcourt Brace

Jovanovich, 1992), pp. 409-10.2 Ibid., p. 414.3 Hannah Arendt, Eichmann in Jerusalem: A Report on

the Banality of Evil (NewYork: Penguin Books, 1963; rev.

ed., 1994), p. 269.4 Kohler and Saner, eds., Hannah Arendt-Karl Jaspers

Correspondence, p. 414.

85

crimes, which can only exist when there is aknown and promulgated law that has beenviolated. But which are the laws that crimesagainst humanityviolate, particularly if, as inthe case of Eichmann and the Nazi genocideof the Jews, a state and its established legalsystem sanctify genocide, and even order it tobe committed? A crime, as distinct from amoral injury, cannot be defined independ-ently of posited law and a positive legal order.

Arendt is aware that on account of philo-sophical perplexities, there will be a ten-dency to think of crimes against humanityas "crimes against humanness" or "humane-ness'" as if what was intended was a moralinjury that violated some kind of sharedmoral code. The Nuremberg Charter's defi-nition of "crimes against humanity" (Ver-brechen gegen dieMenschheit) was translatedinto German as "Verbrechen gegen die Men-schlichkeie' (crimes against humaneness),"as if," she observes, "the Nazis had simplybeen lacking in human kindness, certainlythe understatement of the century."5

Although Jaspers is willing to acceptArendt's distinction between crimes againsthumanity versus humaneness, he points outthat since international law and natural laware not "law in the same sense that underliesnormal court proceedings" 6 it would bemost appropriate for Israel to transfer thecompetency to judge Eichmann either to theUN, to the International Court at The Hague,or to courts provided for by the UN Charter.

Neither Arendt nor Jaspers harbors anyillusions that the UN General Assemblywould rise up to this task.7 The postscript toEichmann in Jerusalem ends on an unex-pected and surprising note: "It is quite con-ceivable that certain political responsibilitiesamong nations might some day be adjudi-cated in an international court; what isinconceivable is that such a court would bea criminal tribunal which pronounces on

the guilt or innocence of individuals '8

Why does Arendt deny that an Interna-tional Criminal Court is conceivable? Doesshe mean that it is unlikely to come intoexistence, or rather that, even if it were tocome into existence, it would be withoutauthority? Her position is all the more baf-fling since her very insistence upon thejuridical as opposed to the merely moraldimension of crimes against humanity sug-gests the need for a standing internationalbody that would possess the jurisdiction totry such crimes committed by individuals.

COSMOPOLITAN NORMSOF JUSTICE

The Eichmann trial, much like the Nurem-berg trials before it, captured some of the per-plexities of the emerging norms ofinternational and, eventually, cosmopolitanjustice. It is my thesis that since the UN Dec-laration of Human Rights in 1948, we haveentered a phase in the evolution of global civilsociety that is characterized by a transitionfrom international to cosmopolitan norms ofjustice. While norms of international justicefrequently emerge through treaty obligationsto which states and their representatives aresignatories, cosmopolitan norms of justiceaccrue to individuals as moral and legal per-sons in a worldwide civil society. Even if cos-mopolitan norms also originate throughtreatylike obligations, such as the UN Chartercan be considered to be for the signatorystates, their peculiarity is that they endowindividuals with certain rights and claims,

5 Arendt, Eichmann in Jerusalem, p. 275; and Kohler andSaner, eds., Hannalh Arendt-Karl Jaspers Correspon-dence, pp. 423, 431.

6Kohler and Saner, eds., Hannah Arendt-Karl JaspersCorrespondence; p. 424.7 Arendt, Eichmann in Jermsalem, p. 270.8 Ibid., p. 298.

Seyla Benhabib86

and often against the will of the states that are

themselves signatories. This is the uniqueness

of the many human rights agreements signed

since World War II. They signal an eventualtransition from international law based on

treaties among states to cosmopolitan lawunderstood as public law that binds andbends the will of sovereign nations.9

The rise of multiple human rights regimescauses both the collusion and confluence ofinternational and domestic law. By an "inter-national human rights regime" I understanda set of interrelated and overlapping global

and regional regimes that encompass humanrights treaties as well as customary interna-

tional law or international soft law.' 0 The

consequence is a complex system of interde-pendence that gives the lie to Carl Schmitt's

dictum that "there is no sovereign to force thesovereign."'1 As Gerald Neuman observes,"National constitutions vary greatly in their

provisions regarding the relationship betweeninternational and domestic law. Some aremore or less dualist, treating internationalnorms as part of a distinct legal system....Others are more or less monist, treating inter-national law and domestic law as a single legalsystem, often giving some category of inter-national norms legal supremacy over domes-

tic legislation?' 2 The transformation ofhuman rights codes'3 into generalizable

norms that ought to govern the behavior of

9 See Anne-Marie Slaughter's lucid statement, in "LeadingThrough Law," Wilson Quarterly (Autumn 2003),pp. 42 43: "International law today is undergoing pro-found changes that will make it far more effective than ithas been in the past. By definition international law is abody of rules that regulates relations among states, notindividuals. Yet over the course of the 21st century, it willincreasingly confer rights and responsibilities directly onindividuals. The most obvious example of this shift can beseen in the explosive growth of international criminal law?"

10 Such examples would include the UN treaty bodiesunder the International Covenant on Civil and PoliticalRights; the International Covenant on Economic, Socialand Cultural Rights; the International Convention on

the Elimination of All Forms of Racial Discrimination;the Convention on the Elimination of All Forms of Dis-crimination Against Women; the Convention AgainstTorture and Other Cruel, Inhuman or Degrading Treat-ment or Punishment; and the Convention on the Rightsof the Child. The establishment of the European Unionhas been accompanied by a Charter of FundamentalRights and by the formation of a European Court of Jus-tice. The European Convention for the Protection ofHuman Rights and Fundamental Freedoms, whichencompasses states that are not EU members as well,permits the claims of citizens of adhering states to beheard by the European Court of Human Rights. Paralleldevelopments can be seen on the American continentthrough the establishment of the Inter-American Sys-tem for the Protection of Human Rights and the Inter-American Court of Human Rights. See Gerald Neuman,"Human Rights and Constitutional Rights: Harmonyand Dissonance," Stanford Law Review 55, no. 5 (2003),

pp. 1863 901. By "soft law" is meant an international

agreement that is not concluded as a treaty and there-fore not covered by the Vienna Convention on the Lawof Treaties. Such an agreement is adopted by states thatdo not want a treaty-based relationship and do not wantto be governed by treaty or customary law in the eventof a breach of their obligations.' Carl Schmitt, The Concept of the Political, trans.,intro., and notes by George Schwab (Chicago: Univer-sity of Chicago Press, [1927] 1996)."1 Neuman, "Human Rights and Constitutional Rights,"p. 1875.3' I use the term "human rights codes" rather than"human rights" in this context for an important reason.Human rights need to be interpreted, concretized, andcodified by each society's own democratic constitutionsaccording to their own legal, constitutional, political, andcultural traditions. I distinguish between the principle ofrights and the schedule of rights. While the principle ofrights establishes that a democratic constitution ought toincorporate basic or fundamental rights to which ali areentitled, the schedule of rights means that the preciseconcretization of these rights occurs through a process ofcollective self-determination. Of course, there will needto be a permissible range of interpretation and determi-nation, for it is quite possible for countries with auto-cratic and illiberal traditions to claim that there is aschedule of "Asian rights" or "Islamic rights" that wouldnot recognize the equal rights of women to divorce andinheritance, for example, as their male counterparts. Insuch cases, a contentious dialogue ensues between thoseupholding the general human rights norms enshrined invarious human rights treaties and existing governmentsthat choose to interpret them in a specific way. This is an

example of "democratic iterations" that I discuss below.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 87

sovereign states and in some cases theirincorporation into domestic constitutions isone of the most promising aspects of con-temporary political globalization processes.

We are witnessing this development in atleast three related areas:

Crimes Against Humanity, Genocide, andWar Crimes. The concept of crimes againsthumanity, first articulated by the Alliedpowers in the Nuremberg trials of Nazi warcriminals, stipulates that there are certainnorms in accordance with which state offi-cials as well as private individuals are to treatone another, even, and precisely under, con-ditions of extreme hostility and war. Ethniccleansing, mass executions, rape, cruel andunusual punishment of the enemy, such asdismemberment, which occur under condi-tions of a "widespread or systematic attack,"are proscribed and can all constitute suffi-cient grounds for the indictment and prose-cution of individuals who are responsiblefor these actions, even if they are or werestate officials, or subordinates who actedunder orders. The refrain of the soldier andthe bureaucrat-"I was only doing myduty"-is no longer an acceptable groundfor abrogating the rights of humanity in theperson of the other, even when, and espe-cially when, the other is your enemy.

During the Nuremberg trials, "crimesagainst humanity" was used to refer tocrimes committed during internationalarmed conflicts.14 Immediately after theNuremberg trials, genocide was alsoincluded as a crime against humanity, butwas left distinct, due its own jurisdictionalstatus, which was codified in Article II of theConvention on the Prevention and Punish-ment of the Crime of Genocide (1948).Genocide is the knowing and willful destruc-tion of the way of life and existence of a col-lectivity through acts of total war, racialextinction, or ethnic cleansing. It is the

supreme crime against humanity, in that itaims at the destruction of human variety, ofthe many and diverse ways of being human.Genocide does not only eliminate individu-als who may belong to this or another group;it aims at the extinction of their way of life.15

War crimes, as defined in the Statute of theInternational Criminal Tribunal for the For-mer Yugoslavia (1993), initially only appliedto international conflicts. With the Statute ofthe International Criminal Tribunal forRwanda (1994), recognition was extended tointernal armed conflict as well. "War crimes"now refers to international as well as inter-nal conflicts that involve the mistreatmentor abuse of civilians and noncombatants, aswell as one's enemy in combat.16

Thus, in a significant development sinceWorld War II, crimes against humanity,genocide, and war crimes have all beenextended to apply not only to atrocities thattake place in international conflict situa-tions but also to events within the borders ofa sovereign country that may be perpetratedby officials of that country and/or by its cit-izens during peacetime.

The continuing rearticulation of thesethree categories in international law, and inparticular their extension from situations ofinternational armed conflict to civil warswithin a country and to the actions of gov-ernments against their own people, has in

14 Charter of the International Military Tribunal, 1945,Art. 6 (c), as cited in Steven R. Ratner and Jason S.Abrams, Accountability for Human Rights Atrocities inInternational Lawv: Beyond the NurembergLegacy (NewYork: Clarendon Press, [1997] 2002) 2nd ed., pp. 26-45;and William A. Schabas, An Introduction to the Interna-tional Criminal Court (Cambridge: Cambridge Univer-sity Press, 2001), pp. 6-7.'5 Ratner and Abrams, Accountabilityfor Human RightsAtrocities, pp. 35-36.i6 Ibid., pp. 8o-nio; and Schabas, Introduction to theInternational Criminal Court, pp. 40-53.

Seyla Benhabib88

turn encouraged the emergence of the con-cept of "humanitarian interventions."

Humanitarian Interventions. The theoryand practice of humanitarian interventions,to which the United States and its NATOallies appealed in order to justify theiractions against ethnic cleansing and contin-uing crimes against the civilian populationin Bosnia and Kosovo, suggest that when asovereign nation-state egregiously violatesthe basic human rights of a segment of itspopulation on account of their religion,race, ethnicity, language, or culture there is ageneralized moral obligation to end actionssuch as genocide and crimes against human-ity.17 In such cases, human rights normstrump state sovereignty claims. No matterhow controversial in interpretation andapplication they may be, humanitarianinterventions are based on the growing con-sensus that the sovereignty of the state todispose over the life, liberty, and property ofits citizens or residents is not unconditionalor unlimited.'8 State sovereignty is no longerthe ultimate arbiter of the fate of citizens orresidents. The exercise of state sovereigntyeven within domestic borders is increasinglysubject to internationally recognized normsthat prohibit genocide, ethnocide, mass

expulsions, enslavement, rape, and forcedlabor.

Transnational Migration. The third areain which international human rights normsare creating binding guidelines upon thewill of sovereign nation-states is that ofinternational migration. Humanitarianinterventions deal with the treatment bynation-states of their citizens or residents;crimes against humanity and war crimes con-cern relations among enemies or opponentsin nationally bounded as well as extraterri-torial settings. Transnational migrations, bycontrast, pertain to the rights of individualsnot insofar as they are considered members

of concrete bounded communities, butinsofar as they are human beings simpliciter,

when they come into contact with, seekentry into, or want to become members ofterritorially bounded communities.

The Universal Declaration of HumanRights recognizes the right to freedom ofmovement across boundaries, a right toemigrate-that is, to leave a country-butnot a right to immigrate, a right to enter acountry (Article 13). Article 14 anchors theright to enjoy asylum under certain circum-stances, while Article 15 proclaims thateveryone has "the right to a nationality." Thesecond half of Article 15 stipulates that "Noone shall be arbitrarily deprived of hisnationality nor denied the right to changehis nationality."

Yet the declaration is silent on states' obli-gations to grant entry to immigrants, touphold the right of asylum, and to permitcitizenship to alien residents and denizens.These rights have no specific addressees, andthey do not appear to anchor specific obliga-tions on the part of second and third partiesto comply with them. Despite the cross-border character of these rights, the declara-tion upholds the sovereignty of individualstates. A series of internal contradictionsbetween universal human rights claims andterritorial sovereignty are thereby built rightinto the logic of the most comprehensiveinternational law document in our world.

The Geneva Convention of 1951 Relatingto the Status of Refugees, and its Protocoladded in 1967, is the second most importantinternational legal document after the Uni-

17 Allen Buchanan, "From Nuremberg to Kosovo: TheMorality of Illegal International Legal Reform," EthicsIII (July 2001), pp. 673-705.15 Michael Doyle, "The New Interventionism," inThomas W. Pogge, ed., Global Justice (Malden, Mass.:Blackwell, 2001), pp. 219-42.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 89

versal Declaration of Human Rights. Never-theless, neither the existence of this docu-ment nor the creation of the United NationsHigh Commissioner on Refugees has alteredthe fact that this convention and its protocolare binding on signatory states alone andcan be brazenly disregarded by nonsignato-ries and, at times, even by signatory statesthemselves.

Some lament the fact that as internationalhuman rights norms are increasinglyinvoked in immigration, refugee, and asy-lum disputes, territorially delimited nationsare challenged not only in their claims tocontrol their borders but also in their pre-rogative to define the "boundaries of thenational community." Others criticize theUniversal Declaration for not endorsing"institutional cosmopolitanism," and forupholding an "interstatal" rather than atruly cosmopolitan international order.'9Yet one thing is clear: the treatment by statesof their citizens and residents within theirboundaries is no longer an unchecked pre-rogative. One of the cornerstones of West-phalian sovereignty-namely, that statesenjoy ultimate authority over all objects andsubjects within their circumscribed terri-tory-has been delegitimized throughinternational law.

The evolution of cosmopolitan norms,however, is rife with a central contradiction:while territorially bounded states areincreasingly subject to international norms,states themselves are the principal signato-ries as well as enforcers of the multiple andvaried human rights treaties and conven-tions through which international normsspread. In this process, the state is both sub-lated and reinforced in its authority.Throughout the international system, aslong as territorially bounded states are rec-ognized as the sole legitimate units of nego-tiation and representation, a tension, and at

times even a fatal contradiction, is palpable:the modern state system is caught betweensovereignty and hospitality, between the pre-rogative to choose to be a party to cosmo-politan norms and human rights treaties,and the obligation to extend recognition ofthese human rights to all.

In a Kantian vein, by "hospitality" I meanto refer to all human rights claims that arecross-border in scope. The tension betweensovereignty and hospitality is all the morereal for liberal democracies since they arebased on the fragile but necessary negotia-tion of constitutional universalism and ter-ritorial sovereignty.

THE PARADOX OF DEMOCRATICLEGITIMACY

Ideally, democratic rule means that all mem-bers of a sovereign body are to be respectedas bearers of human rights, and that theconsociates of this sovereign freely associatewith one another to establish a regime of self-governance under which each is to be con-sidered both author of the laws and subject tothem. This ideal of the original contract, asformulated by Jean-Jacques Rousseau andadopted by Immanuel Kant, is a heuristicallyuseful device for capturing the logic of mod-ern democracies. Modern democracies,unlike their ancient counterparts, conceive oftheir citizens as rights-bearing consociates.The rights of the citizens rest upon the"rights of man.' "Les droits de l'homme et ducitoyen" do not contradict one another; quiteto the contrary, they are coimplicated. This isthe idealized logic of the modern democratic

19 For the first position, see David Jacobson, RightsAcross Borders: Immigration and the Decline of Citizen-ship (Baltimore: Johns Hopkins University Press, 1997),p.5; for the second, see Onora O'Neill, Bounds ofJustice(Cambridge: Cambridge University Press, 2000), p. 180.

Seyla Benhabibgo

revolutions following the American andFrench examples.

The democratic sovereign draws its legit-imacy not merely from its act of constitu-tion, but equally significantly, from theconformity of this act to universal principlesof human rights, which are in some sensesaid to precede and antedate the will of thesovereign and in accordance with which thesovereign undertakes to bind itself. "We, thepeople" refers to a particular human com-munity, circumscribed in space and time,sharing a particular culture, history, andlegacy; yet this people establishes itself as ademocratic body by acting in the name ofthe "universal." The tension between univer-sal human rights claims and particularisticcultural and national identities is constitu-tive of democratic legitimacy. Moderndemocracies act in the name of universalprinciples, which are then circumscribedwithin a particular civic community. This isthe "Janus face of the modern nation" in thewords of Jiirgen Habermas.20

Since Rousseau, however, we also knowthat the will of the democratic people maybe legitimate but unjust, unanimous butunwise. "The general will" and "the will ofall" may not overlap either in theory or inpractice. Democratic rule and the claims ofjustice may contradict one another. Thedemocratic precommitments expressed inthe idealized allegiance to universal humanrights-life, liberty, and property-need tobe reactualized and renegotiated withinactual polities as democratic intentions.Potentialy, there is always a conflict betweenan interpretation of these rights claims thatprecede the declared formulations of thesovereign and the actual enactments of thedemocratic people that could potentiallyviolate such interpretations. We encounterthis conflict in the history of politicalthought as the conflict between liberalism

and democracy, and even as the conflictbetween constitutionalism and popular sov-ereignty. In each case the logic of the conflictis the same: to assure that the democraticsovereign will uphold certain constraintsupon its will in virtue of its precommitmentto certain formal and substantive interpreta-tions of rights. Liberal and democratic the-orists disagree with one another as to theproper balance of this mix: while strong lib-erals want to bind the sovereign will throughprecommitments to a list of human rights,strong democrats reject such a prepoliticalunderstanding of rights and argue that theymust be open to renegotiation and reinter-pretation by the sovereign people-admit-tedly within certain limits.

Yet this paradox of democratic legitimacyhas a corollary that has been little noted:every act of self-legislation is also an act ofself-constitution. "We, the people" whoagree to bind ourselves by these laws are alsodefining ourselves as a "we" in the very act ofself-legislation. It is not only the general lawsof self-government that are articulated inthis process; the community that binds itselfby these laws defines itself by drawingboundaries as well, and these boundaries areterritorial as well as civic. The will of thedemocratic sovereign can only extend overthe territory that is under its jurisdiction;democracies require borders. Empires havefrontiers, while democracies have borders.Democratic rule, unlike imperial dominion,is exercised in the name of some specificconstituency and binds that constituencyalone. Therefore, at the same time that thesovereign defines itself territorially, it alsodefines itself in civic terms. Those who are

20 Jiirgen Habermas, "The European Nation-State: Onthe Past and Future of Sovereignty and Citizenship," inCiaran Cronin and Pablo de Greiff, eds., The Inclusionof the Other: Studies in Political Theory (Cambridge:MIT Press, 1998), p. 115.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 91

full members of the sovereign body are dis-tinguished from those who "fall under itsprotection," but who do not enjoy "fullmembership rights." Women and slaves,servants, propertyless white males, non-Christians and nonwhite races were histori-cally excluded from membership in thesovereign body and from the project of citi-zenship. They were, in Kant's famous words,"mere auxiliaries to the commonwealth'' 2 '

In addition to these groups are those res-idents of the commonwealth who do notenjoy full citizenship rights either becausethey do not possess the requisite identity cri-teria through which the people defines itself,or because they belong to some other com-monwealth, or because they choose toremain as outsiders. These are the "aliens"and "foreigners" amid the democratic peo-ple. They are different from second-class cit-izens, such as women and workers, as well asfrom slaves and tribal peoples. Their status isgoverned by mutual treaties among sover-eign entities-as would be the case with offi-cial representatives of a state power upon theterritory of the other; and if they are civil-ians, and live among citizens for economic,religious, or other cultural reasons, theirrights and claims exist in that murky spacedefined by respect for human rights on theone hand and by international customarylaw on the other. They are refugees from reli-gious persecution, merchants and mission-aries, migrants and adventurers, explorersand fortune seekers.

I have circumscribed in general theoreti-cal terms the paradox of democratic legiti-macy. The paradox is that the republicansovereign should undertake to bind its willby a series of precommitments to a set offormal and substantive norms, usuallyreferred to as "human rights."

I want to argue that while this paradoxcan never be fully resolved in democracies,

its impact can be mitigated through therenegotiation and reiteration of the dualcommitments to human rights and sover-eign self-determination. Popular sover-eignty is not identical with territorialsovereignty, although the two are closelylinked, both historically and normatively.Popular sovereignty means that all fullmembers of the demos are entitled to have avoice in the articulation of the laws by whichthe demos governs itself. Democratic ruleextends its jurisdiction to those who canview themselves as the authors of such rule.There never was a perfect overlap betweenthe circle of those who stand under the law'sauthority and those recognized as full mem-bers of the demos. Every democratic demoshas disenfranchised some, while recognizingonly certain individuals as full citizens. Ter-ritorial sovereignty and democratic voicehave never matched completely.Yet presencewithin a circumscribed territory, and in par-ticular continuing residence within it,brings one under the authority of the sover-eign-whether democratic or not. The newpolitics of cosmopolitan membership isabout negotiating this complex relationshipbetween rights of full membership, demo-cratic voice, and territorial residence. Whilethe demos, as the popular sovereign, mustassert control over a specific territorialdomain, it can also engage in reflexive acts ofself-constitution, whereby the boundaries ofthe demos can be readjusted.

The evolution of cosmopolitan norms,from crimes against humanity to normsextending to regulate refuge, asylum, andimmigration, have caught most liberaldemocracies within a network of obligations

21 Immanuel Kant, "Die Metaphysik der Sitten in zweiTeilen" 117971, in Ernst Cassirer, ed., Immanuel KantsWerke (Berlin: Cassirer, 1912), p. 121; The Metaplhysics ofMorals, trans. and ed. Mary Gregor (Cambridge: Cam-bridge University Press, 1996), p. 140.

Seyla Benhabib92

to recognize certain rights claims. Althoughthe asymmetry between the "demos" and the"populus," the democratic people and thepopulation as such, has not been overcome,norms of hospitality have gone far beyondwhat they were in Kant's understanding: thestatus of alienage is now protected by civil aswell as international laws; the guest is nolonger a guest but a resident alien, as we sayin American parlance, or a "foreign co-citizen," as Europeans say. In a remarkableevolution of the norms of hospitality, withinthe European Union in particular, the rightsof third-country nationals are increasinglyprotected by the European Convention onFundamental Rights and Freedoms, with theconsequence that citizenship, which wasonce the privileged status entitling one torights, has now been disaggregated into itsconstituent elements.22

TESTING THE PARADOX:THE CASEOF GERMANY

I want to concretize these considerations byturning to a decision of the German SupremeCourt on alien suffrage rights in order toillustrate some of the conceptual issuesinvolved in a concrete institutional setting.

On October 31,1990, the German Consti-tutional Court ruled against a law passed bythe provincial assembly of Schleswig-Holstein on February 21, 1989, that changedthe qualifications for participating in localmunicipal and district-wide elections.2 3

According to Schleswig-Holstein's electionlaws in effect since May 31, 1985, all thosewho were defined as German in accordancewith Article 1i6 of the Basic Law, who hadcompleted the age of eighteen and who hadresided in the electoral district for at leastthree months were eligible to vote. The lawof February 21, 1989, proposed to amend thisas follows: all foreigners residing in

Schleswig-Holstein for at least five years,who possessed a valid permit of residency orwho were in no need of one, and who werecitizens of Denmark, Ireland, the Nether-lands, Norway, Sweden, or Switzerland,would be able to vote in local and district-wide elections. The choice of these six coun-tries was made on the grounds ofreciprocity. Since these countries permittedtheir foreign residents to vote in local, and insome cases regional, elections, the Germanprovincial legislators saw it appropriate toreciprocate.

The claim that the new election law wasunconstitutional was brought by 224 mem-bers of the German Parliament, all of themmembers of the conservative ChristianDemocratic and Christian Social Union(CDU/CSU) party; it was supported by theFederal Government of Germany. The courtjustified its decision with the argument thatthe proposed change of the electoral lawcontradicted "the principle of democracy,"as laid out in Articles 20 and 28 of Germany'sBasic Law, and according to which "All state

2 2 For a more detailed discussion of institutional devel-opments, particularly within the European contextleading to the disaggregation of citizenship rights, seeSeyla Benhabib, The Rights of Others: Aliens, Citizensand Residents (The John Seeley Memorial Lectures)(Cambridge: Cambridge University Press, 2004), ch. 4.23 A similar change in its election laws was undertakenby the free state of Hamburg such as to enable those ofits foreign residents of at least eighteen years of age toparticipate in the election of local municipal assemblies.Since Hamburg is not a federal province but a free city-state, with its own constitution, some of the technicalaspects of this decision are not parallel to those in thecase of Schleswig-Holstein. I chose to focus on the lat-ter case alone. It is nonetheless important to note thatthe federal government, which had opposed Schleswig-Holstein's electoral reforms, supported those of Ham-burg. See Bundesverfassungsgericht (Federal Con-stitutional Court; abbreviated hereafter as BVerfGe) 83,60, II, No. 4, pp. 60-81; and BVerfGe 83, 11, No. 3, p. 37.All translations from the German are mine.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 93

power [Staatsgewalt] proceeds from thepeoplef'24 Furthermore,

The people [das Volk], which the Basic Law ofthe Federal Republic of Germany recognizes tobe the bearer of the authority [Gewalt] fromwhich issues the constitution, as well as thepeople which is the subject of the legitimationand creation of the state, is the German peo-ple. Foreigners do not belong to it. Member-ship in the community of the state[Staatsverband] is defined through the right ofcitizenship.... Citizenship in the state [Staats-angehorigkeit] constitutes a fundamentallyindissoluble personal right between the citizenand the state. The vision [or image-Bild] ofthe people of the state [Staatsvolkes], whichunderlies this right of belonging to the state, isthe political community of fate [die politischeSchicksalsgemneinschaft], to which individualcitizens are bound. Their solidarity with andtheir embeddedness in [Verstrickung] the fateof their home country, which they cannotescape [sich entrinnen konnen], are also thejustification for restricting the vote to citizensof the state. They must bear the consequencesof their decisions. By contrast, foreigners,regardless of however long they may haveresided in the territory of the state, can alwaysreturn to their homeland.25

This resounding statement by the court canbe broken down into three components: first,a disquisition on the meaning of popularsov-ereignty (all power proceeds from the peo-ple); second a procedural definition of howwe are to understand membership in the state;third, a philosophical explication of thenature of the bond between the state and theindividual, based on the vision of a "politicalcommunity offate.' The court argued thataccording to the principle of popular sover-eignty, there needed to be a "congruence"between the principle of democracy, the con-cept of the people, and the main guidelinesfor voting rights, at all levels of state power-namely, federal, provincial, district, and com-munal. Different conceptions of popularsovereignty could not be employed at differ-

ent levels of the state. Permitting long-termresident foreigners to vote would imply thatpopular sovereignty would be defined in dif-ferent fashion at the district-wide and com-munal levels than at the provincial andfederal levels. In an almost direct repudiationof the Habermasian discursive democracyprinciple, the court declared thatArticle 20 ofGermany's Basic Law does not imply that"the decisions of state organs must be legit-imized through those whose interests areaffected [Betroffenen] in each case; rather,their authority must proceed from the peo-ple as a group bound to each other as a unity[das Volk als eine zur Einheit verbundeneGruppe von Menschen] ,26

The provincial parliament of Schleswig-Holstein challenged the court's understand-ing and argued that neither the principle ofdemocracy nor that of the people excludesthe rights of foreigners to participate in elec-tions: "The model underlying the Basic Lawis the construction of a democracy ofhuman beings, and not that of the collectiveof the nation. This basic principle does notpermit that one distinguish in the long-runbetween the people of the state [Staatsvolk]and an association of subservients [ Unter-tanenverband] ,27

The German Constitutional Court eventu-ally resolved this controversy about the mean-ing of popular sovereignty by upholding aunitary and functionally undifferentiated ver-sion of it, but it did concede that the sovereignpeople, through its representatives, couldchange the definition of citizenship. Procedu-rally, "the people" simply means all those whohave the requisite state membership. If oneis a citizen, one has the right to vote; if not,

24 BVerfGe 83,37, No. 3, p. 39-2

5 Ibid., pP. 39-40.

26 Ibid., p. 51.2 7 Ibid., p. 42.

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not. "So the Basic Law ... leaves it up to thelegislator to determine more precisely therules for the acquisition and loss of citizen-ship and thereby also the criteria of belong-ing to the people. The law of citizenship isthus the site at which the legislator can dojustice to the transformations in the compo-sition of the population of the Federal Repub-lic of Germany." This can be accomplished byexpediting the acquisition of citizenship byall those foreigners who are long-term per-manent residents of Germany.2 8

The court here explicitly addresses what Ihave called the paradox of democratic legit-imacy-namely, that those whose rights toinclusion or exclusion from the demos arebeing decided upon will not themselves bethe ones to decide upon these rules. Thedemocratic demos can change its self-definition by altering the criteria for admis-sion to citizenship. The court still holds tothe classical model of citizenship accordingto which democratic participation rightsand nationality are strictly bundledtogether, but by signaling the procedurallegitimacy of changing Germany's natural-ization laws, the court also acknowledges thepower of the democratic sovereign to alterits self-definition such as to accommodatethe changing composition of the popula-tion. The line separating citizens and for-eigners can be renegotiated by the citizensthemselves.

Yet the procedural democratic opennesssignaled by the court stands in great contrastto the conception of the democratic people,also adumbrated by the court, and accordingto which the people is viewed as "a politicalcommunity of fate," held together by bondsof solidarity in which individuals areembedded (verstrickt). Here the democraticpeople is viewed as an ethnos, as a commu-nity bound together by the power of sharedfate, memories, solidarity, and belonging.

Such a community does not permit freeentry and exit. Perhaps marriage with mem-bers of such a community may producesome integration over generations; but, byand large, membership in an ethnos-in acommunity of memory, fate, and belong-ing-is something that one is born into,although as an adult one may renounce thisheritage, exit it, or wish to alter it. To whatextent should one view liberal democraticpolities as ethnoi communities? Despite itsemphatic evocation of the nation as a "com-munity of fate," the court also emphasizesthat the democratic legislator has the pre-rogative to transform the meaning of citi-zenship and the rules of democraticbelonging. Such a transformation of citizen-ship may be necessary to do justice to thechanged nature of the population. Thedemos and the ethnos do not simply overlap.

Written in 19go, this decision of the Ger-man Constitutional Court appears in retro-spect as a swan song to a vanishing ideologyof nationhood.2 9 In 1993 the Treaty of Maas-tricht, or the Treaty on the European Union,

28 Ibid., p. 52.

29 I do not mean to suggest that nationalist ideologiesand sentiments vanished from the unified Germany.Unlike in many of Germany's neighboring countries,such as France and the Netherlands, however, they didlose institutional traction throughout the 1990s. Thecitizenship laws were passed by parliamentary majori-ties of Social Democrats, Greens, and Christian Democ-rats; but the price for the liberalization of citizenshipwas paid in terms of further restrictions on Germany'srather generous asylum laws. So these transitions werenot without cost. Nationalism reappeared on the Ger-man scene first when i million signatures were collectedin a referendum in Hesse against permitting dual citi-zenship of immigrant children, who are now entitled tothis only until they reach age twenty-four; the secondinstance was the recent Iraq war and deep fear and dis-like of the U.S. administration under George W. Bush;and the third case was the surprisingly racialized debateabout Turkey's admission to membership talks in theEU in the fall of 2004. For a representative sample of thepositions in this debate, see Claus Leggewie, Die Turkeiund Europa (Frankfurt: Suhrkamp, 2004).

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 95

I

established European citizenship, whichgranted voting rights and rights to run foroffice for all citizens of the fifteen, and nowtwenty-five, members of the signatory statesresiding in the territory of other membercountries. Of the six countries to whose citi-zens Schleswig-Holstein wanted to grantreciprocal voting rights-Denmark, Ireland,the Netherlands, Norway, Sweden, andSwitzerland-only Norway and Switzerlandremained nonbeneficiaries of the MaastrichtTreaty since they were not EU members.

In the years following, an intense processof democratic iteration unfolded in thenow-unified Germany, during which thechallenge posed by the Federal Constitu-tional Court to the democratic legislator ofbringing the definition of citizenship in linewith the composition of the population wastaken up, rearticulated, and reappropriated.The city-state of Hamburg, in its parallelplea to alter its local election laws, stated thisvery clearly: "The Federal Republic of Ger-many has in fact become in the last decadesa country of immigration. Those who areaffected by the law that is being attackedhere are thus not strangers but cohabitants[Inltinder], who only lack German citizen-ship. This is especially the case for those for-eigners of the second and third generationborn in Germany."30 The demos is not anethnos, and those living in our midst who donot belong to the ethnos are not strangerseither; they are rather "cohabitants," or aslater political expressions would have it,"our co-citizens of foreign origin" [Aus-landische Mitbiurger]. Even these terms,which may sound odd to ears not accus-tomed to any distinctions besides those ofcitizens, residents, and nonresidents, suggestthe transformations of German public con-sciousness in the 199os. This intense andsoul-searching public debate finally led to anacknowledgment of the fact as well as the

desirability ofimmigration. The need to nat-uralize second- and third-generation chil-dren of immigrants was recognized, and thenew German citizenship law was passed inJanuary 2000.

Ten years after the German Constitu-tional Court turned down the election lawreforms of Schleswig-Holstein and the city-state of Hamburg on the grounds that resi-dent foreigners were not citizens and werethus ineligible to vote, Germany's member-ship in the European Union led to the disag-gregation of citizenship rights. Residentmembers of EU states can vote in local aswell as EU-wide elections; furthermore,Germany now accepts that it is a country ofimmigration; immigrant children becomeGerman citizens according to jus soli andkeep dual nationality until the age oftwenty-four, at which point they mustchoose either German citizenship or that oftheir country of birth. Furthermore, long-term residents who are third-countrynationals can naturalize if they wish to doso. The democratic people can reconstituteitself through such acts of democratic itera-tion so as to enable the extension of demo-cratic voice. Aliens can become residents,and residents can become citizens. Democ-racies require porous borders.

The constitution of "we, the people" rep-resents a fluid, contentious, contested, anddynamic process. All people possess a dualidentity as an ethnos, as a community ofshared fate, memories, and moral sympa-thies, on the one hand, and as the demos, asthe democratically enfranchised totality ofall citizens, who may or may not belong tothe same ethnos, on the other. All liberaldemocracies that are modern nation-statesexhibit these two dimensions. The politics ofpeoplehood consists in their negotiation.

30 BVerfGe 83,37, II, p. 42.

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The presence of so many guest workers inGermany is a reflection of the economicrealities of Germany since World War II, justas the presence of so many migrants fromAlgeria, Tunisia, and Morocco, as well asfrom centralAfrica, todaytestifies to France'simperial past and conquests. Some wouldeven argue that without their presence, thepost-World War II German miracle wouldnot have been conceivable. 31 Peoplehood isdynamic and not a static reality.

The presence of others who do not sharethe dominant culture's memories andmorals poses a challenge to the democraticlegislatures to rearticulate the meaning ofdemocratic universalism. Far from leadingto the disintegration of the culture ofdemocracy, such challenges reveal the depthand the breadth of the culture of democracy.Only polities with strong democracies arecapable of such universalist rearticulation,through which they refashion the meaningof their own peoplehood.

Let me anticipate some objections againstthe considerations developed above: in viewof the resurgence of anti-immigration senti-ment throughout Europe, from Denmark toFrance to Germany and to Italy; in view ofthe anti-Muslim backlash in all Europeancountries, the Netherlands and France inparticular; in view of the mobilization ofdeeply nationalist sentiments in Germanyagainst Turkey's admission to membershiptalks with the EU in particular, isn't theaccount I have presented above one that fliesin the face of historical realities? Far fromcosmopolitanism, we are experiencing therise of tribalism, nationalism, and civiliza-tional wars.

I want to suggest that in an odd fashion,but in ways that are not unfamiliar to usfrom previous episodes of history, univer-salism and particularism may incite, invite,and even provoke one another's articula-

tion. Europe's migrants, and particularlyEuropean Muslims, have becomes symbolsfor Europe's own "othering,' its gradualtransformation from a continent of nation-states into a continent of pooled sovereignty,guided by cosmopolitan principles of uni-versalist human rights. Europe's peoplesmay not be, and I believe definitely are not,ready for some of these transformations.The Muslim immigrants, with their visibleotherness displayed through their modes ofdress, dietary laws, habits of prayer, and gen-erally repressive family and sexual ethic, areall too striking symbols of the loosening ofthe boundaries of the nation.

The transition to a political entity whoseidentity is as yet undefinable generates anxi-ety: is the EU a republican federation, asupersized nation-state, a free trading zone,or some sort of postnationalist condo-minium in which increasingly more func-tions of sovereignty are pooled? Whatever itsprecise future form, one thing is certain: theEuropeans are set upon a path through whichthey have sublated the nation-state with all itsparadoxical consequences. The condition ofEurope's third-country nationals is a sorryreminder to them both of cultural otheringand of the obsolescence of the nation. Notsurprisingly, therefore, like the phoenix risingfrom the ashes, French nationalism returns todefend "Muslim girls against their patriarchaloppressors." As the Bernard Stasi report onthe headscarves "affair" self-servingly pro-

claims, "The Republic cannot remain deaf tothese girls' cry for help."3 2

In Germany, where the very concept ofIKultur had been sullied by its associations

3' James F. Hollifield, Immigrants, Markets, and States:The Political Economy of Postwvar Europe (Cambridge:Harvard University Press, 1992).32 "Commission de Reflexion Sur l'Application duPrincipe du Laicite dans la Republique" (Paris: Office ofthe President, December 1u, 2003), P. 58.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 97

with the racializing overtones of the conceptof the Kulturnation, socialist historians ofthe past, such as Hans-Ulrich Wehler, find itpossible to recycle this old German set ofideas against the Turks, whose "culture" ofmilitarism, the extermination of the Arme-nians, and intolerance toward the propertyof Christian churches is said to set themapart from Europe forever. Of course, manysilently think of Germanywhat the Germansthink of the Turks, once we substitute Jewsfor Armenians and Christians in these for-mulations. But the attempt of some Germanintellectuals and politicians to redefineEurope as a Christian cultural common-wealth has failed, precisely because of Ger-many's own constitutional and legalcommitments to the Treaty of Europe andthe European Charter of Human Rights andFundamental Freedoms. A slim majority,but a majority nevertheless, supportedTurkey's entry into the EU precisely on thebasis of commitments that transcendedGerman exceptionalism. It is this tensionbetween cosmopolitan universalism andrepressive secular nationalism that we mustdisentangle in today's Europe.

Let me end by returning once more to thephilosophical questions raised by cosmo-politan norms.

THE NEW POLITICAL CONDITION

After the capture of Eichmann by Israeliagents in 1960, Arendt and Jaspers initiateda series of reflections on the status of inter-national law and norms of cosmopolitanjustice. Their queries can be summarizedwith three questions: (i) What is the onto-logical status of cosmopolitan norms in apostmetaphysical universe? (2) What is theauthority of norms that are not backed by asovereign with the power of enforcement?and (3) How can we reconcile cosmopolitan

norms with the fact of a divided mankind?My answer to the third question, of how

to reconcile cosmopolitanism with theunique legal, historical, and cultural tradi-tions and memories of a people, is that wemust respect, encourage, and initiate multi-ple processes of democratic iteration. Bydemocratic iterations I mean social, cul-tural, legal, and political processes of strug-gle and contestation, as well as deliberationand argumentation, through which juris-generative politics develops. 33 Jurisgenera-tive politics are those cases of legal andpolitical contestation when the meaning ofrights and other fundamental constitutionalprinciples are reposited, resignified andreappropriated by new and excludedgroups, or by the citizenry in the face ofunprecedented hermeneutic challenges andmeaning constellations.

Universalist norms are thereby mediatedwith the self-understanding of local com-munities. The availability of cosmopolitannorms in the general public sphere raises thethreshold of justification to which formerlyexclusionary practices must now be submit-ted. Exclusions take place, but the thresholdfor justifying them is now higher. Thishigher threshold of justification triggers anincrease in democratic reflexivity. Itbecomes increasingly more difficult to jus-tify practices of exclusion against foreignersand others by democratic legislatures simplybecause their decisions express the will ofthe people; such decisions are now subjectnot only to constitutional checks and bal-

33 For further elaboration of these themes, see Ben-habib, The Rights of Others, ch. 5. The term "jurisgener-ative politics" comes from Robert Cover, "Nomos andNarrative," Harvard Law Review 97, no. i (1983), pp.4-68; I am using the term here in a sense that is muchindebted to Frank Michelman, "Law's Republic," YaleLaw Journal 97, no. 8 (1998), pp. 1493-537.

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ances in domestic law but in the interna-tional arena as well. Reflexive grounds mustbe justifiable through reasons that would bevalid for all. This means that such groundscan themselves be recursively questioned forfailing to live up to the threshold set in theirown very articulation.

To Arendt's and Jaspers's second questionas to the authority of cosmopolitan norms,my answer is: the democratic power of globalcivil society. Of course, the global humanrights regime by now has its agencies ofnegotiation, articulation, observation, andmonitoring. In addition to processes ofnaming, shaming, and sanctions that can beimposed upon sovereign nations in theevent of egregious human rights violations,the use of power by the international com-munity, as authorized by the UN SecurityCouncil and the General Assembly, remainsan option.

I come then to the final question: what isthe ontological status of cosmopolitannorms in a postmetaphysical universe?Briefly, such norms and principles aremorally constructive: they create a universeof meaning, values, and social relations thathad not existed before in that they changethe normative constituents and evaluativeprinciples of the world of "objective spirit,'to use Hegelian language. They found a neworder-a novo ordo saeclorum. They are thussubject to all the paradoxes of revolutionarybeginnings. Their legitimacy cannot be jus-tified through appeal to antecedents or toconsequents: it is the fact that there was noprecedent for them that makes themunprecedented; likewise, we can only knowtheir consequences once they have beenadopted and enacted.

The act that "crimes against humanity"has come to name and to interdict was itselfunprecedented in human history; that is, themass murder of a human group on account

of its race, and not its deeds, through anorganized state power with all the legal andtechnological means at its disposal. Cer-tainly, massacres, group murders, and tribalatrocities were known and practicedthroughout human history. The full mobi-lization of state power, with all the means ofa scientific-technological civilization at itsdisposal, in order to extinguish a humangroup on account of its claimed racial char-acteristics, was wholly novel.

In conclusion: although Hannah Arendtwas skeptical that international criminal lawcould ever be codified and properly rein-forced, she in fact praised and commendedthe judges who sought to extend existingcategories of international law to the crimi-nal domain. She wrote:

If genocide is an actual possibility of thefuture, then no people on earth .. .can feel rea-sonably sure of its continued existence with-out the help and the protection ofinternational law. Success or failure in dealingwith the hitherto unprecedented can lie onlyin the extent to which this dealing may serve asa valid precedent on the road to internationalpenal law.... In consequence of this as yetunfinished nature of international law, it hasbecome the task of ordinary trial judges torender justice without the help of, or beyondthe limitation set upon them through, posi-tive, posited laws.34

However fragile their future may be, cosmo-politan norms have evolved beyond thepoint anticipated and problematized byArendt. An International Criminal Courtexists, although the Bush administration hasrescinded the decision of former presidentClinton to sign the Rome Treaty legitimizingit. The spread of cosmopolitan norms, frominterdictions of war crimes, crimes againsthumanity, and genocide, to the increasingregulation of cross-border movements

34 Arendt, Eichmann in Jerusalem, pp. 273-74.

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through the Geneva Conventions and otheraccords, has yielded a new political condi-tion: the local, the national, and the globalare all imbricated in one another. Futuredemocratic iterations will make their inter-connections and interdependence deeperand wider. Rather than seeing this situation

as an undermining of democratic sover-eignty, we can view it as promising the emer-gence of new political configurations andnew forms of agency, inspired by the inter-dependence-never frictionless but everpromising-of the local, the national, andthe global.

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