Whose Sovereignty

Whose Sovereignty? Empire Versus International Law

Jean L. Cohen

Let me begin by juxtaposing two facts:The world’s sole superpower hasinvaded and occupied Iraq. Carl

Schmitt’s Nomos der Erde has just beentranslated into English, or I should sayAmerican.1 Is this mere coincidence? Are notthe questions he raised, if not his answers,once again on the agenda?

This article focuses on the impact of glob-alization on international law and the dis-course of sovereignty. We have been hearingfor quite some time that state sovereignty isbeing undermined. The transnational char-acter of “risks,” from ecological problems toterrorism, including the commodificationof weapons of mass destruction, highlightsthe apparent lack of control of the modernnation-state over its own territory, borders,and the dangers that its citizens face.

Moreover, key political and legal deci-sions are being made beyond the purview ofnational legislatures. A variety of supra-national organizations, transnational “private global authorities,” and transgov-ernmental networks engage in regulationand rule making, bypassing the state in thegeneration of hard and “soft law.”2 Indeedthe apparent decoupling of law from theterritorial state suggests to many that thelatter has lost legal as well as political sover-eignty.

This conundrum has triggered the emer-gence of a set of claims about the transfor-mation of international law. If law making isescaping the monopoly of states, then the

standard view of international law as the lawthat states make through treaties, or consentto through long practice (custom), has to berevised. The emergence of human rights lawbased on consensus apparently implies thatglobal cosmopolitan law trumps the will ofstates and their international treaties (con-sent).3 Today the very category “inter-national” appears outdated. The question

1

1 Carl Schmitt, The Nomos of the Earth in the Interna-tional Law of the Jus Publicum Europaeum, trans.G. L. Ulmen (New York: Telos Press, 2003).2 See Günther Teubner, “‘Global Bukowina’: Legal Plu-ralism in the World Society,” in Günther Teubner, ed.,Global Law Without a State (Brookfield, Vt.: DartmouthPublishing Group, 1997), pp. 3–15 and passim; GüntherTeubner, “Societal Constitutionalism: Alternatives toState-Centered Constitutional Theory?” in ChristianJoerges, Inger-Johanne Sand, and Günther Teubner,eds., Transnational Governance and Constitutionalism(Portland, Ore.: Hart Publishing, 2004), pp. 3–29; Ken-neth W.Abbott, Robert O. Keohane,Andrew Moravcsik,Anne-Marie Slaughter, and Duncan Snidal, “The Con-cept of Legalization,” in Robert O. Keohane, Power andGovernance in a Partially Globalized World (New York:Routledge, 2002), pp. 132–51; James N. Rosenau et al.,Along the Domestic-Foreign Frontier: Exploring Gover-nance in a Turbulent World (New York: Cambridge Uni-versity Press, 1997); and James N. Rosenau,“Governanceand Democracy in a Globalizing World,” in DanieleArchibugi, David Held, and Martin Kohler, eds., Re-Imagining Political Community: Studies in CosmopolitanDemocracy (Palo Alto: Stanford University Press, 1998),pp. 28–58.3 See Allen Buchanan, 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 stateconsent as the principle of legitimacy in the interna-tional system.

Ethics & International Affairs 18, no. 3 (2004).All rights reserved. No part of this article may be reproduced or utilized in any form without the written permission of the Carnegie Council on Ethics and International Affairs.

thus becomes: What is to be the new“nomos” of the earth and how should weunderstand globalized law?4

Legal theorists have certainly risen to thechallenge over the last decade. Talk of legaland constitutional pluralism, societal con-stitutionalism, transnational governmentalnetworks, cosmopolitan human rights lawenforced by “humanitarian intervention,”and so on are all attempts to conceptualizethe new global legal order that is allegedlyemerging before our eyes.5 The generalclaim is that the world is witnessing a moveto cosmopolitan law, which we will not per-ceive or be able to influence if we do notabandon the discourse of sovereignty.6 Thedebates from this perspective are aroundhow to conceptualize the juridification ofthe new world order.7 Despite their differ-ences, what seems obvious to those seekingto foster legal cosmopolitanism is that sov-ereignty talk and the old forms of publicinternational law based on the sovereigntyparadigm have to go.

But there is another way of interpretingthe changes occurring in the internationalsystem. If one shifts to a political perspective,the sovereignty-based model of interna-tional law appears to be ceding not to cos-mopolitan justice but to a different bid torestructure the world order: the project ofempire. The idea that we have alreadyentered into the epoch of empire has takenhold in many circles, as the popularity of theHardt and Negri volume, and the avalancheof writings and conferences on empire, wit-ness.8 Like the theorists of cosmopolitan law,proponents of this view also insist that thediscourses of state sovereignty and publicinternational law have become irrelevant.But they claim that what is replacing the sys-tem of states is not a pluralistic, cooperativeworld political system under a new, impartialglobal rule of law, but rather a project of

imperial world domination. From this per-spective, governance, soft law, self-regulation, societal constitutionalism, trans-governmental networks, human rights talk,and the very concept of “humanitarian inter-vention”are simply the discourses and defor-malized mechanisms by which empire aimsto rule (and to legitimate its rule) rather thanways to limit and orient power by law.9

2 Jean L. Cohen

4 See Schmitt, The Nomos of the Earth, pp. 336–51, for theconcept of nomos. In short, a nomos is the concrete ter-ritorial and political organization of the world order,invested with symbolic meaning, that undergirds theformal rules of international law. For a critique of hisessentialist understanding of this concept, see MarttiKoskenniemi, The Gentle Civilizer of Nations: The Riseand Fall of International Law 1870–1960 (New York:Cambridge University Press, 2004), pp. 415–24.5 Teubner, “‘Global Bukowina’: Legal Pluralism inWorld Society”; and Neil Walker, “The Idea of Consti-tutional Pluralism,” Modern Law Review 65, no.3 (2002),p. 317.6 Judith Goldstein, Miles Kahler, Robert O. Keohane, andAnne-Marie Slaughter, “Introduction: Legalization andWorld Politics,” in Goldstein et al., eds., Legalization andWorld Politics (Cambridge: MIT Press, 2001), pp. 1–15.7 One battle is between traditional sovereigntists andcosmopolitans. Another debate exists within cosmo-politanism between centered versus decentered models.For more centered models of legal and political cosmopolitanism, see David Held, Democracy and theGlobal Order (Stanford: Stanford University Press,1995); and Daniele Archibugi, “Cosmopolitan Democ-racy,” in Daniele Archibugi, ed., Debating Cosmopolitics(New York: Verso, 2003), pp. 1–16.8 Michael Hardt and Antonio Negri, Empire (Cam-bridge: Harvard University Press, 2000). See also Ethics� International Affairs 17, no. 2 (2003), “The Revival ofEmpire,” pp. 34–98; and Michael Ignatieff, “The Bur-den,” New York Times Magazine, January 5, 2003, p. 22.9 E�IA’s “The Revival of Empire” is more nuanced thanthis characterization. There is, of course, a debate overwhether the United States is an empire, whether it canbe a successful empire, when the empire began, andwhether recent activity, including the invasions ofAfghanistan and Iraq, are signs of its demise. See alsoEmmanuel Todd, C. Jon Delogu, and Michael Lind,After the Empire: The Breakdown of the American Order(New York: Columbia University Press, 2003). My inter-est is the fate of the discourse of state sovereignty inthese claims and counterclaims.

001-024_cohen.qxd 12/1/04 4:19 PM

I agree that we are in the presence ofsomething new. But I am not convinced thatone should abandon the discourse of sover-eignty in order to perceive and conceptual-ize these shifts. Nor am I convinced that thestep from an international to a cosmopoli-tan legal world order without the sovereignstate has been or should be taken. The twodoubts are connected: I argue that if we dropthe concept of sovereignty and buy into theidea that the state has been disaggregated,and that international treaty organizationsare upstaged by transnational governance,we will misconstrue the nature of contem-porary international society and the politi-cal choices facing us. If we assume that aconstitutional, cosmopolitan legal orderalready exists, which has replaced or shouldreplace international law and its core princi-ples of sovereign equality, territorialintegrity, nonintervention, and domesticjurisdiction with cosmopolitan right, and ifwe construe the evolving doctrine of“humanitarian intervention” as the enforce-ment of that right, we risk becoming apolo-gists for imperial projects. Under currentconditions, this path leads to the politicalinstrumentalization of “law” (cosmopolitanright) and the moralization of politicsrather than to a global rule of law. I willargue that we face the following politicalchoice today: We can either opt for strength-ening international law by updating it, mak-ing explicit the particular conception ofsovereignty on which it is now based andshowing that this is compatible with cosmo-politan principles inherent in human rightsnorms; or we can abandon the principle ofsovereign equality and the present rules ofinternational law for the sake of humanrights, thus relinquishing an important bar-rier to the proliferation of imperial projectsand regional attempts at Grossraum order-ing (direct annexation or other forms of

control of neighboring smaller polities) bytwenty-first-century great powers, whoinvoke (and instrumentalize) cosmopolitanright as they proceed.10 Clearly I opt for theformer over the latter.

The first project entails acknowledgingthe existence and value of a dualistic worldorder whose core remains the internationalsociety of states embedded within (suitablyreformed) international institutions andinternational law, but that also has impor-tant cosmopolitan elements and cosmopol-itan legal principles (human rights norms)upon which the discourse of transnational-ism and governance relies, if inadequately.On this approach (my own), legal cos-mopolitanism is potentially linked to a proj-ect radically distinct from empire and purepower politics—namely, the democratiza-tion of international relations and theupdating of international law. This requiresthe strengthening of supranational institu-tions, formal legal reform, and the creation ofa global rule of law that protects both the sov-ereign equality of states based on a revisedconception of sovereignty and human rights.Much will depend on how the new, and itsrelation to what went before, is framed.Unlike the theorists of cosmopolitan lawand justice without state sovereignty, theparadox for which I want to argue is thattoday the rearticulation and democratiza-tion of sovereignty (internal and external),configured within a multilayered worldorder with effective international institu-tions and an updated international law, is

whose sovereignty? 3

10 Of course, international law can also be instrumen-talized by the powerful. But the principle of sovereignequality and its correlate, nonintervention, provides apowerful normative presumption against unwarrantedaggression. Abandoning it would be a mistake. I alsoprovide noninstrumental, normative arguments infavor of the discourse of sovereignty and public inter-national law.

001-024_cohen.qxd 12/1/04 4:19 PM

the sine qua non for the emergence of aglobal “rule of law” and constitutes animportant part of a counterproject toempire. Without a global rule of law thatprotects sovereignty as well as human rights,any talk of “cosmopolitan” right, especiallyand above all the alleged right to intervenemilitarily to enforce human rights, is inher-ently suspect. Cosmopolitan right can supplement—but not replace—sover-eignty-based public international law.

I do not, however, mean to take a Schmitt-ian or a “political realist” stance. For Schmittand his contemporary followers, any versionof international law articulating universalisticprinciples, and any conceivable form of cos-mopolitanism, amount to empty formalism,irresponsible utopianism, and/or a set ofmoralistic platitudes cynically invoked tocover the power bids of a superpower or of afew great powers against the weaker ones.11 Tothinkers in this tradition, international law iseither irrelevant or just another name for thepolicy of the powerful. This is especially trueof international law purporting to criminalizeaggression, protect human rights, and sanc-tion violations through military or othermeans. For the Schmittian, “He who invokeshumanity wants to cheat.”12 Accordingly,international tribunals applying internationalor cosmopolitan law and the “humanitarianinterventions” allegedly legitimated byhuman rights discourse can never escape thecharge of political justice.13

While the concepts of global law and globalright can indeed turn into window dressing, itis not necessary to buy into Schmitt’s theoret-ical assumptions regarding territory or spatialordering in order to see this.14 AgainstSchmitt, I will make a case for the importanceand autonomy of formal international andcosmopolitan law.

Yet neither do I want simply to affirm thearguments of moral cosmopolitans or, less

kindly, contemporary human rights funda-mentalists. If the political realist errs by over-generalizing the perspective of strategicinteraction (national or great power or impe-rial self-interest), the moral cosmopolitan errsin the opposite direction. The former isunable to account for the fact that today thereis a great deal of effective international lawthat orients states and shapes their conceptionof state interest. The moral cosmopolitanfocused on global justice and human rights,however, tends to fall prey to a parallelmyopia. For reasoning exclusively from theperspective of human rights and what justicerequires (overgeneralization of the moral per-spective) also leads to contempt for existinginternational law and a disdain for legalreform through legal means. Like the politicalrealist, the moral cosmopolitan sees sover-eignty as a matter of power politics, involvingthe strategic calculation of national interestand pure raison d’état. Unlike the realists,however, the conclusion drawn by humanrights fundamentalists is that internationallaw and the discourse of state sovereignty thatit is based on must be abandoned in favor ofthe protection of human rights. In short, the

4 Jean L. Cohen

11 On the influence of Schmitt on contemporary realismvia his influence on Hans Morgenthau, see Kosken-niemi, The Gentle Civilizer of Nations, pp. 413–509. Seealso Henry Kissinger, Diplomacy (New York: Simon &Schuster, 1994). Kissinger is also, in my view, clearlyinfluenced by Schmitt. I include Hardt and Negriamong the contemporary left followers of Schmitt.12 Carl Schmitt, The Concept of the Political, trans.George Schwab (Chicago: University of Chicago Press,1996), p. 54.13 For this concept, see Otto Kirchheimer, Political Jus-tice: 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 onthe right to go to war and sovereignty are incompatible.And we certainly should not embrace his wholesalerejection of legal formalism or adopt his substantiveconception of “law” as merely the ratification of a con-crete order.

001-024_cohen.qxd 12/1/04 4:19 PM

demands of justice must trump both sover-eignty and formal international law, equatedwith “legalism.”15 To the moral cosmopolitan,the legalistic discourse of sovereignty andpower-oriented international organizationsmust not be permitted to block rescue opera-tions in the face of gross human rights viola-tions.16 Accordingly, the default position ofsovereignty in international law has to begiven up: hence the rush to establish a newfundamental norm for the internationalorder.17 Among the candidates are a basichuman right to security, a fundamental rightto protection, a principle of civilian inviola-bility, and even a human right to popular sov-ereignty.18 Indeed, violation of internationallaw, we are told, may be the only means ofupdating it.19

While I cannot address the arguments ofthe moral cosmopolitans in the confines ofthis article, I hope to redeem the discourse ofsovereignty and international law against itsattackers. In what follows, I concentrate ontwo recent attempts to theorize the new worldorder along the lines of decentered legal cos-mopolitanism. I then present a critique of thisconstruction on empirical and normativegrounds. Next, I consider the claim that wehave entered into the epoch of empire andshow how this approach, despite its criticalintentions, blocks crucial reforms in the inter-national system. I conclude by presenting analternative, dualistic conception of the “new”world order and offer some proposals forreform.

FROM INTERNATIONAL SOCIETY TOA DECENTERED WORLD ORDER:BEYOND SOVEREIGNTY?

There are two versions of the thesis that adecentered cosmopolitan world order hasemerged that renders the discourse of sover-eignty irrelevant: one focuses on political

institutions and the other on legal develop-ments. Both maintain that a transition hasoccurred away from the international soci-ety of states and international law to adecentered form of global governance andcosmopolitan law. And both cite the indi-vidualization of international law, the invo-cation of jus cogens, which signals theobligatory character of key human rightsnorms based on consensus, not state con-sent, and the emergence of transnational


15 The clearest statement of this position is that ofMichael Walzer, Just and Unjust Wars (New York: BasicBooks, 1977), esp. pp. 51–117; and Michael Walzer, Argu-ing about War (New Haven: Yale University Press, 2004).16 See Walzer, Arguing about War, pp. 67–85; and Fer-nando R. Tesón, Humanitarian Intervention: An Inquiryinto Law and Morality, 2nd ed. (Dobbs Ferry, N.Y.:Transnational Publishers, 1997).17 See, e.g., Michael Ignatieff, “Human Rights as Poli-tics,” in Amy Gutmann, ed., Human Rights as Politicsand Idolatry (Princeton: Princeton University Press,2003), p. 42, for the suggestion that the default positionon sovereignty in the international order be abandoned.18 On the human right to security, see ICISS, TheResponsibility to Protect (Canada: IDRC, 2001). On thehuman right to protection, see Michael Walzer,“Au-delàde l’intervention humanitaire: les droits de l’hommedans la société globale,” Esprit 9 (August/September2004), pp. 66–67; and my reply, Jean L. Cohen, “Loiinternationale ou intervention unilatérale?” Esprit 9(August/September 2004), pp. 80–88. On the principleof civilian inviolability, see Anne-Marie Slaughter andWilliam Burke-White,“An International ConstitutionalMoment,” Harvard International Law Journal 43, no. 1(2002). On popular sovereignty as a human right thattrumps state sovereignty, see W. Michael Reisman,“Sov-ereignty and Human Rights in Contemporary Interna-tional Law,” American Journal of International Law 84,no. 4 (1990), pp. 866–76.19 See Buchanan, Justice, Legitimacy, and Self-Determi-nation; and Allen Buchanan, “Reforming the Interna-tional Law of Humanitarian Intervention,” in Holzgrefeand Keohane, eds., Humanitarian Intervention, pp.130–73. I strongly disagree with their position. For acounterargument with which I do agree, see MichaelByers and Simon Chesterman, “Changing the Rulesabout Rules? Unilateral Humanitarian Intervention andthe Future of International Law,” in Holzgrefe and Keo-hane, eds., Humanitarian Intervention, pp. 177–203.

001-024_cohen.qxd 12/1/04 4:19 PM

loci of decision and rule making as evidencefor this shift.

The first approach focuses on the emer-gence of new forms of transnational gover-nance that have allegedly replaced unitarystates as the key actors in the global politicalsystem.20 This involves both an epistemo-logical and an empirical claim. We must,first, stop imagining the international sys-tem as a system of states—unitary entitieslike billiard balls. In order to perceive its newstructural features, we must open up theblack box of the state and apply the idea ofthe separation of powers, thus far restrictedto domestic governments, to the globalpolitical scene. This conceptual shift willallow the core components of the new worldorder to come into view: horizontal and ver-tical transgovernmental networks.21

The empirical claim is that the state hasbeen disaggregated into its component parts,each of which functions autonomously inthe global political system. Intergovernmen-tal relations now occur primarily through amultiplicity of horizontal networks linkinggovernment officials in distinct transna-tional judicial, regulatory, and legislativechannels that operate independently of oneanother without any claim to represent “thestate” as a unitary entity. Together with ver-tical governmental networks betweennational and supranational counterparts,these linkages comprise the main loci ofglobal governance and law making, replac-ing diplomacy and interstate cooperation.The network structure of interaction isallegedly based on the disaggregation of thestate and its sovereignty: it enables officialsin each domain to solve common problems,share information, harmonize rules, gener-alize normative expectations, coordinatepolicy, and punish violators of global lawwithout claming to do so in the name of thestate as a whole.22

Transgovernmental networks involvecollaborative work by the same officials whoare judging, regulating, and legislatingdomestically. Examples of horizontal regu-latory governmental networks are the G-7and the G-20 organizations, the regularmeetings of national finance ministers, aswell as the IMF Board of Governors. Theseare only a small part of the myriad networksamong such regulators as central bankers,securities commissioners, and so on, someof whom now even have their own interna-tional institutions: the Basel Committee, theInternational Organization of SecuritiesCommissions, and the International Associ-ation of Insurance Supervisors.23 Such reg-ulatory networks engage in informationexchange, enforcement cooperation, andharmonization of practices. Indeed, Anne-Marie Slaughter refers to networked regula-tors as “the new diplomats.”24

Examples of vertical networks include therelationship between the European Court ofJustice (ECJ), the International CriminalCourt (ICC), and the courts of their respec-tive member states. In each case, primaryresponsibility for adjudication and enforc-ing decisions devolves upon the judgeswithin the member states (of the EuropeanUnion or the United Nations), thus differingfrom the traditional model of internationallaw adjudication, which assumed that a tri-bunal such as the International Court of Jus-tice (ICJ) would hand down a judgmentapplicable to “states,” leaving it up to statesto enforce or ignore.25 There are also vertical

6 Jean L. Cohen

20 See the work of Anne-Marie Slaughter, esp. her recentbook, A New World Order (Princeton: Princeton Uni-versity Press, 2004).21 Ibid., p. 15.22 Ibid., p. 63.23 Ibid., p. 38.24 Ibid., pp. 36–64.25 Ibid., p. 21.

001-024_cohen.qxd 12/1/04 4:19 PM

regulatory networks, in the EU, for example,which link antitrust authority of the Euro-pean Commission and national antitrustregulators.26

This new world order is a world full oflaw, but to perceive the nature of the newglobal law, proponents of the disaggregatedstate argue that we need a concept of legal-ization that drops the idea that law is pro-duced or enforced by a sovereign.27

Accordingly, one must also finally relinquishthe myth of formalism, accept the legal real-ist critique, shift to an external sociologicalperspective, and acknowledge a wide rangeof norms and regulations in the global sys-tem as law. Instead of a bright line betweenlegalized and nonlegalized institutions inthe global order, there is a continuumbetween legal and nonlegal obligations anda broad spectrum of norms that ranges fromsoft to hard law. The point is that as sover-eignty breaks down, as the state becomesdisaggregated transnationally, and as globaltransgovernmental (and nongovernmental)networks produce more and more norms toregulate their own interaction,“the dynamicof a politically oriented law will no longertolerate formalism.”28 Indeed, comparedwith interstate cooperation and the slowcollective action (and inaction) by formalinternational institutions such as the UN,coordinated action by networks of regula-tors, judges, and other government officialsis fast, flexible, and effective.

This means that the discourse of sover-eignty should be abandoned. Once a usefulfiction for imagining international rela-tions, the concept of the sovereign territorialstate conceals more than it reveals today. Forthe networked global political system hasallegedly moved beyond mere interdepend-ence to a situation of deep interrelationshipand interconnectedness. In short, the back-ground conditions of the international sys-

tem allegedly no longer involve a baseline ofseparation, autonomy, and defined territo-rial or jurisdictional boundaries, but ratherentails connection, interaction, and inter-penetrating networks and institutions.Accordingly, “sovereignty-as-autonomy”makes no sense today.29

The claim is not only that there are newsources of global law today, but also that the“Westphalian” sovereignty paradigm ofinternational relations, with its principles ofsovereign immunity, domestic jurisdiction,and nonintervention that kept state-societyrelations opaque and impervious to interna-tional law (the “black box” problem), hasalready been displaced (de facto) by a new“principle of civilian inviolability,” a corol-lary of human rights talk.30 Responding tothe shift from war to armed conflict, the riseof transnational terrorism, and the prolifer-ation of disastrous civil wars, the principleof civilian inviolability is allegedly the logi-cal sequel to the progressive individualiza-tion of international law. In short, thedignity and integrity of the individual andher right to protection—the core principleof human rights law—is and should replacesovereignty as constitutive of global (ratherthan international) relations. Cosmopolitanlaw already protects individual citizensagainst abuses of power by their govern-ments and imposes individual liability onsoldiers and officials who commit gravehuman rights abuses. It renders the relations


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 ofNations, p. 488, for a brilliant critique of the rejection offormalism in the combined work of Keohane andSlaughter.29 Slaughter, A New World Order, p. 267.30 Slaughter and Burke-White, “An International Con-stitutional Moment,” p. 8.

001-024_cohen.qxd 12/1/04 4:19 PM

between citizen and the state transparent atlast. Accordingly, we should acknowledgethe principle of civilian inviolability as thenew Grundnorm of the contemporary cos-mopolitan legal and political order, replac-ing sovereignty.31 Several theorists have nothesitated to take the next step, construinghumanitarian intervention by coalitions ofthe willing as the enforcement of this prin-ciple against grave human rights viola-tions.32

To parry qualms that this transformationof international relations amounts to globaltechnocracy and governance by unaccount-able regulators and judges (given the paucityof legislative networks to date), this analysiscomes replete with a set of fundamentalnorms that should acquire “constitutional”status in the disaggregated world order.33 Icannot go into detail here. Suffice it to saythat since global governance exists, it mustbe oriented by moral principles and ren-dered accountable by appropriate mecha-nisms. Once these norms are in place, a fullydisaggregated world order could dispenseentirely with the anachronistic discourseand rules of sovereignty and replace the oldinternational law and slow internationalinstitutions with decentered, efficient cos-mopolitan governance and law making.

This brings me to the second version ofthe thesis that we have entered a postsover-eign, decentered world order—namely, theclaim that a cosmopolitan legal system reg-ulating global politics actually exists andthat it is already constitutionalized.34 To thesystems theorists who elaborate thisapproach, the key development is the emer-gence of a world society out of the old inter-national order.35 The idea is thatinternational society has gone global, shift-ing from a segmental form of differentiationto a set of relations between many function-ally differentiated global systems, of which

the political subsystem is only one. Func-tional differentiation has also occurredwithin that subsystem, overlaying andundermining the previous order of “inter-national society”composed of sovereign ter-ritorial states.

This analysis thus meshes with the imageof the global political order presented above.Here too it is argued that this order is com-posed not of states but of components ofstates along with nongovernmental civilactors. From this perspective as well there isa proliferation of law making in world soci-ety independent of national governments’consent or control. But here the claim that aconstitutional global legal system already

8 Jean L. Cohen

31 Ibid.32 Ibid. These theorists construe the Kosovo interven-tion (which was not authorized by the UN) as a “consti-tutional moment,” which articulated a new Grundnormfor the new world order that has replaced the legal prin-ciple of sovereignty. It is worth pointing out that this useof Kelsen’s term, Grundnorm, goes against everything hestood for. Slaughter and Burke-White misconstrue theformal transcendental concept of a Grundnorm, whichin Kelsen’s theory serves as the necessary presuppositionfor the validity and autonomy of the legal order, as asubstantive 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 nowallegedly permits humanitarian intervention withoutUNSC authorization and is presented as a constitu-tional moment is really only the dressing up of policy aslaw. This is precisely what Kelsen fought against. Nosuch constitutional moment has occurred in opiniojuris.33 Slaughter, A New World Order, pp. 30, 216–60.34 Andreas Fischer-Lescano, “Constitutional Rights–Constitutional Fights: Human Rights and the GlobalLegal System” (unpublished); Fischer-Lescano,“Afghanistan and Global Constitutionalism: NewHeaven of the Empire or Autopoiesis of Global Law?”(unpublished); and Bardo Fassbender, “The UnitedNations Charter as Constitution of the InternationalCommunity,” Columbia Journal of Transnational Law 36(1998), pp. 529–615.35 See Teubner, “‘Global Bukowina’: Legal Pluralism inthe World Society.”

001-024_cohen.qxd 12/1/04 4:19 PM

exists (which regulates global politics)involves a shift from the external sociologi-cal to the internal legal perspective con-cerned above all with the production of legalvalidity. Accordingly, the focus is on hard,not soft, law—on the legal system, not onthe mere proliferation of regulations. Never-theless, on this approach too the discourseof sovereignty must be abandoned.

Indeed, from this perspective it is the legalsystem itself, and not external political,administrative, or corporate economicactors, that determines what the law is. Alegal system cannot be understood in termsof the implementation of political programsor sovereign will; it must be seen asautonomous and in charge of the codifica-tion of the code: legal/illegal. Courts, inshort, are at the core of any legal system, andthey must decide whether the law has beenviolated in any particular instance andresolve any controversy over the legal status(validity) of norms. Accordingly, legality isnot a matter of more or less, nor can legal-ization be understood in terms of a contin-uum. From the internal perspectiveconcerned with validity, oriented by thecode “legal/illegal,” a legal order must beconstrued as a closed, gapless normative system.

However, under the conditions of global-ization, the legal system and its courts escapethe bounds of states and no longer requirereference to the political or legal concept ofsovereignty.36 Globalization undermines thetraditional legal doctrine that traces the dis-tinction between law and nonlaw back to theconstitution (higher law) of the nation-stateand to legislation ultimately by a constituentpower (sovereignty). The global politicalconstitution is not produced by legislationbut through decentered legal self-reflectionand through a global community of courts,which ascertain legal validity and legal vio-

lations. The emphasis here is on the emer-gence of a global political constitution and aglobal legal system through polycentric, plu-ral, autological processes that produce validlegal norms that regulate actors connectedthrough complex networks bounded not byterritory but by function, communicativecodes, and particular practices.37

Why does it matter that we perceive andhelp to further institutionalize decentered,cosmopolitan constitutional law? For thesystems theorist, a constitution is a matter of“structural coupling” between subsystemicstructures and legal norms. Its function is toguarantee the multiplicity of social differen-tiation and to liberate the internaldynamism of each subsystem while alsoinstitutionalizing mechanisms of self-restraint against their society-wide expan-sion. This problem emerged first for thepolitical system within the nation-state:mechanisms that could block the politicalinstrumentalization of civil society, of theeconomy, of law, and so forth, had to befound and legally institutionalized. Thestructural coupling of law and politicalpower was the solution. Accordingly, consti-tutionalized rights in the form of negativecivil liberties are mechanisms that preservethe autonomy of spheres of action in acountermovement to the expansionist logicof the state. Structural coupling reduces theharm that politics and law can cause eachother. The theory of global constitutional-ism generalizes this idea to the global politi-cal subsystem: human rights (negative andpositive) are the functional equivalents ofcivil liberties.

Relying on H. L. A. Hart’s criteria, thisapproach points to several indicia of global


36 Ibid.37 See Teubner, “Societal Constitutionalism: Alterna-tives to State-Centered Constitutional Theory?”

001-024_cohen.qxd 12/1/04 4:19 PM

constitutionalism. The transnational judi-cial networks described above are construedas a “heterarchical” organization of courts,which provide global remedies and are at thecenter of global political constitutionalism.These involve various levels of communica-tion, ranging from the citation of decisionsof foreign courts by national courts, toorganized meetings of supreme court jus-tices, such as those held triennially (since1995) by the Organization of SupremeCourts of the Americas, to the mostadvanced forms of judicial cooperationinvolving partnership between nationalcourts and a supernational tribunal, such asthe ECJ and more recently the ICC.38 Theproliferation of supranational courts mustbe seen as providing global remedies for vio-lations of cosmopolitan law despite the factthat they originate in treaty organizations.Even national courts can double as elementsof this cosmopolitan legal system, insofar asthey participate in the interpretation andjudgment of violations of global law. Thus,despite the fact that states are the primaryagents responsible for delivering on individ-ual rights, what they enforce are cosmopoli-tan legal norms, and their failure to do somay expose them to “cosmopolitan justice.”

The treatment of human rights law as juscogens in the Vienna Convention on the Lawof Treaties means that formal constitutionallaw exists and functions as higher law vis-à-vis the will of states.39 No treaty will be con-sidered valid that violates human rightsnorms, for these are now based on “consen-sus.” Included in this category are such pre-emptory norms as the prohibitions againsttorture, genocide, extralegal killing and dis-appearances, crimes against humanity, andso on. The proliferation of erga omnes rules(which obligate all states whether or not theysigned a treaty) is another sign of constitu-tional cosmopolitanism indicating transcen-

dence of the old international legal order.The fact that the individual is now a key sub-ject at international law, as evidenced byhuman rights law, also confirms the cosmo-politan character of the global legal system.

Finally, courts decide what amounts toviolations of jus cogens norms, and they settledisputes about legal validity in the globallegal system.There are now norms in that sys-tem designating the sources by which normsbecome law. This ultimate indication of aglobal political constitution means that thereis legal law making (a rule of recognition,higher law regulating lower law). Whenever aquestion arises about the source of law, itimmediately becomes a question aboutwhether a law invoked really is law—a ques-tion that only the legal system (courts) canresolve. Thus, there exists a closed, autopoi-etic (self-creating) global legal system.

These developments are indeed impres-sive and certainly transcend traditionalinternational law principles. However, toclaim that they already amount to a cosmo-politan political constitution that should beor is in the process of replacing the interna-tional society of sovereign states and inter-national law is premature and dangerous.The risk is that of “symbolic constitutional-ism”—that is, the invocation of the core val-ues and legal discourse of the internationalcommunity to dress up strategic powerplays, self-interested regulations, and inter-ventions in universalistic garb. The Bushadministration’s justification of its invasionof Iraq as an enforcement of human rightslaw and Security Council resolutions, despitethe failure to win Security Council authori-zation for this action, is a case in point. The

10 Jean L. Cohen

38 See Anne-Marie Slaughter, “A Global Community ofCourts,” Harvard International Law Journal 44 (Winter2003), pp. 191–219.39 Available at www.un.org/law/ilc/texts/treaties.htm.

001-024_cohen.qxd 12/1/04 4:19 PM

invocation of cosmopolitan principles toclassify a state as “rogue” (criminal), and tojustify military intervention as the “enforce-ment” of global right, allow the violator ofinternational law to appear as the upholderof global constitutional legal norms. Somesystems theorists are aware of this risk, butthey attribute it to the incompleteness of thetransition from international to cosmopoli-tan law, insisting nonetheless on the consti-tutional and systemic character of the globallegal system.40 The problem from their per-spective is the restricted reach of globalremedies: the ICJ lacks compulsory jurisdic-tion, the ICC lacks a definition for the crimeof aggression, the Security Council is legallyunrestrained and escapes subjection to sepa-ration of powers principles, and so on. Whenthese restrictions are overcome, law will beable to control politics.

These are serious problems and I willreturn to them. But I argue that there is abasic flaw in this overall approach, which ren-ders it defenseless against political instru-mentalization despite its intentions. In short,articulating what a decentered cosmopolitanlegal system must involve conceptually byreasoning from the standpoint of legal valid-ity is not enough to demonstrate the socio-logical claim that it in fact exists.The problemlies in a specific kind of legalism: generalizingfrom a purely internal juridical perspectivefocused on validity, coupled with an overlynarrow concept of constitutionalism and anindefensible evolutionary bias. Constitu-tional elements and some structural couplingdo not amount to constitutionalism, and thepresence of some global remedies, preemp-tory human rights norms, and so forth doesnot mean that a full-fledged autonomouscosmopolitan legal system already exists.41

Moreover, to claim that the concept ofsovereignty is irrelevant because it is notneeded for internal legal validity or for the

narrow concept of constitution that isdeployed in this approach is myopic. Unfor-tunately, this undermines a key principle ofinternational law—the sovereign equality ofstates—and blocks needed reflection onhow to reconcile it with the new importanceascribed to human rights law and other cos-mopolitan principles with which it mayconflict. In the current context, in whichthere is a powerful imperial project afootseeking to develop a useful version of “globalright” that can be invoked to justify quick,unilateral military reactions to allegedhuman rights abuses, undermining theprinciple of sovereign equality of states inthe name of legal cosmopolitanism playsinto the wrong hands.

CRITICAL REFLECTIONS ON THENEW LEGAL COSMOPOLITANISM

Empirical ComplexityThere are several problems on the empiricallevel. First, the existence of a global, net-worked, constitutionalized political order,even an incomplete one, is vastly overstated.States have yielded some powers to supra-and transnational organizations, transgov-ernmental networking is an important newphenomenon, there is a good deal of non-state governance and rule making, and cer-tainly there are trends in a cosmopolitandirection, especially regarding humanrights. The most important is indeed thestriking move toward accepting individualsas legal subjects endowed with fundamentalrights under international law. A person in


40 Fischer-Lescano, “Constitutional Rights–Constitu-tional Fights,” p. 12.41 See Ernst-Ulrich Petersmann, “Constitutionalismand International Adjudication: How to Constitution-alize the U.N. Dispute Settlement System?” New YorkUniversity Journal of International Law & Politics 31(1999), p. 753.

001-024_cohen.qxd 12/1/04 4:19 PM

violation of this law can be brought beforean international tribunal without goingthrough the medium of the respectivenational legal system, and claims to sover-eignty or domestic jurisdiction do not shieldstate actors when they violate the humanrights of their own citizens.

But it is not clear that these constitutionalelements are the sign of a cosmopolitan legalorder that has replaced instead of supple-mented international law based on the con-sent of states, which remain sovereign, albeitin an altered way. To legal cosmopolitans,these developments indicate that we are in atransitional phase away from international-ism toward a cosmopolitan world societyand legal system. But it is not the case that allof the constitutive principles of the newinternational order can be so character-ized—several of them point in the oppositedirection. Indeed, it is unclear just whichversion of international society and whichmodel of sovereignty is being replaced. Thelegal cosmopolitans speak as if the move isfrom Westphalian sovereignty to a cosmo-politan legal order, but this is a conceptualsleight of hand: the former, if it ever existed,disappeared long ago. Certainly one wouldbe hard pressed to construe the principle ofthe sovereign equality of states or the stric-tures of nonintervention and nonaggres-sion, articulated in the UN Charter, as eitherWestphalian or as indicating the disaggrega-tion and irrelevance of sovereignty.

Moreover, it is important to acknowledgethat such principles as sovereign equality,nonaggression, nonintervention, and self-determination are, in key respects, new: theyare not remnants of the traditional West-phalian international order or of the con-ception of sovereignty that prevailed withinit. The latter involved a legal arrangement,jus publicum europaeum, that attributedWestphalian sovereignty and equal recogni-

tion only to European states, and gave thesestates the right to acquire colonies and theright to go to war for any reason.42 The prin-ciples of nonintervention and domesticjurisdiction applied only to European mem-ber states, not to the rest of the world—thereno such norm of nonintervention applied,for no equal sovereignty was ascribed tonon-European polities.

The new version of sovereign equalityarticulated by the UN Charter is ascribed toall member states, and since the 1960 GeneralAssembly Resolution (1514 and 1541), colo-nialism has been explicitly rejected. This shiftallowed for the emergence in principle of anegalitarian international system with a singlenorm of nonintervention applying to allstates.43 Inherent in this conception of sover-eign equality, the newly generalized principleof nonintervention, together with stricturesregarding the peaceful settlement of disputesand the principle of nonaggression in the UNCharter, are meant to protect state sover-eignty while also limiting it.44 To be sure, theCharter also articulates the principle of col-lective security, eliminating the jus ad bellum,and it gives the Security Council wideauthority to decide when to use force to parrythreats to peace and security. Today this dis-cretion is taken to apply to domestic as well asinternational conflicts if they pose suchthreats. This is the cosmopolitan dimensionof the Charter. Nevertheless, sovereignty,reconstituted and revised as sovereign equal-ity, entailing the principles of domestic juris-diction and nonaggression, remains the

12 Jean L. Cohen

42 See Schmitt, The Nomos of the Earth, pp. 140–210.43 See Chris Brown, Sovereignty, Rights and Justice: Inter-national Political Theory Today (Cambridge: PolityPress, 2002), p. 145.44 Chapter I, Article 2 of the UN Charter states, “TheOrganization is based on the principle of sovereignequality of all its Members”; available atwww.un.org/aboutun/charter.

001-024_cohen.qxd 12/1/04 4:19 PM


default position in the Charter, the collectiveenforcement provisions and the recent juscogens status of human rights normsnotwithstanding.

These principles should thus be seen aspart of a project to “democratize,” not to“abolish sovereignty.” Of course, the concep-tion of what are the prerogatives of sover-eignty has changed. Today the “sovereignequality” of states is deemed compatible withlimits on what were once considered theirsovereign privileges. These limits, imposed byinternational institutions, articulate a newform of international society, based onincreased cooperation among states and analtered conception of sovereignty, not awholesale shift to a different principle ofinternational order. Indeed, the growth ofinternational cooperation, the increasedemphasis on human rights since the 1990s,the expansion of intergovernmental organi-zations and their increased capacity to med-dle should drive the internationalcommunity to define more clearly wherestates are entitled to remain immune fromoutside interference. In the current hybridglobal political order, with its internationaland cosmopolitan elements, the answers areno longer self-evident. But we are certainlynot in a world where functional differentia-tion and transnational networks havereplaced states and rendered sovereigntyirrelevant. There has, to be sure, been a par-tial disaggregation of sovereignty in the sensethat some functions once considered the pre-rogatives of the sovereign state are nowplaced in the hands (authority) of suprana-tional bodies: courts, the Security Council,and some transnational regulatory bodies.But the overly strong and misleading disag-gregation thesis described above is not help-ful: representative government (internal andexternal) has not been replaced by gover-nance, and the unity and sovereignty of the

state remain intact, as does the importance ofpublic international law and institutionsdespite the emergence of transnational gov-ernmental networks.

I argue that the core of the world politicalsystem remains the “international society ofstates,” although it has undergone importanttransformations.45 The global political sys-tem is dualistic, composed of sovereign statesand international law along with nonstateactors, new legal subjects, and consensual,cosmopolitan elements. Segmental differen-tiation persists alongside the new functionaldifferentiation. There can be collisionsbetween the principles expressed in eachaspect of the global political order. It is hardlynews that the principles of human rights canclash with the principles of noninterventionand “domestic jurisdiction.” What is neededtoday is the articulation of new legal rulesthat anticipate and regulate these clashes.

Whether one should construe this multi-faceted order as inherently contradictory,unstable, and therefore transitory—that is, asdisorder for which the remedy is a wholesaleshift from international to cosmopolitansociety and law—or as a new phase of inter-national society, internally dynamic withimportant new heterogeneous elements thatneed to be coordinated with the existingprinciples of international law via legalreform, cannot be decided empirically. Nor-mative and political issues are involved.

Normative AmbiguitiesCosmopolitan moral and legal theorists,along with many human rights advocates,are eager to abandon the concept of sover-eignty because it signifies to them a claim to

45 For the concept of international society, see HedleyBull, The Anarchical Society (New York: Columbia Uni-versity Press, 2002), pp. 1–94.

001-024_cohen.qxd 12/1/04 4:19 PM

power unrestrained by law and a bulwarkagainst legal, political, and military actionnecessary to enforce human rights.

I contend that this view is profoundlymistaken and that the discourse of sover-eignty involves normative principles andsymbolic meanings worth preserving. Evenif one particular sovereignty regime haswaned, another can take its place with con-tinuity on this level. Indeed, the absolutistconception of sovereignty that correspondsto the negative assessment cited above haslong since been abandoned, Schmitt’sattempted revival of a decisionistic, existen-tialist model notwithstanding.46 Indeed theHobbesian claim that internal sovereigntymust be located in one single institutionalcenter whose will is legibus solutus has beenbelied ever since the first modern constitu-tional democracy emerged in the UnitedStates in the eighteenth century, based onthe separation of powers, checks and bal-ances, and popular sovereignty, not to men-tion the division of powers entailed byfederalism. The theory and practice of mod-ern constitutionalism demonstrates thatlimited sovereignty is not an oxymoron, andthat sovereignty, constitutionalism, and therule of law are not incompatible. It alsoshows that functions or prerogatives onceascribed to the unitary sovereign can bedivided and/or ascribed to other bodies(such as the EU or the UN) without the abo-lition of sovereignty or the disaggregation ofthe state.

I make an even stronger claim. Situated atthe boundary between politics and law, sov-ereignty evokes both the public power thatenacts law and the public law that restrainspower.47 The concept of sovereignty is areminder not only of the political context oflaw but also of the ultimate dependence ofpolitical power and political regimes on avalid, public, normative legal order for their

authority. Sovereignty is thus a dynamicprinciple of the mutual constitution andmutual containment of law and politics.48

From a purely juridical perspective, sover-eignty refers to a valid, public legal order thatallocates authority and jurisdictional com-petence.

From a political perspective, sovereigntyevokes the autonomy of the political and, inthe form of popular sovereignty, a distinctivepolitical relationship between a citizenry andits government within a defined territory.49

Today, sovereignty means that politicalpower is public and impersonal, as it islodged in a set of offices, or government.Indeed, the discourse of sovereignty articu-lates the political as a distinct realm of pub-lic activity within which power is supposedto serve public purposes, to be exercisedthrough law, and which involves consensusbuilding, deliberation, and compromise.The citizen is the referent of public powerand of the constitutional principles anddesign regulating the exercise of sovereignpower. The discourse of popular sovereigntyimplies that government is representativegovernment. Precisely because sovereigntyis a relational concept, it cannot be locatedin any political body—neither in the handsof rulers nor in a particular institution suchas a parliament or the presidency, nor in aparticular group of citizens. Internal sover-eignty is thus, in the final analysis, based onthe consent of the governed; government isto serve the interests of the citizenry andpublic purposes generally. It involves a claim

14 Jean L. Cohen

46 See Carl Schmitt, Political Theology: Four Chapters onthe Concept of Sovereignty, trans. George Schwab (Cam-bridge: MIT Press, 1986).47 See Martin Laughlin, “Ten Tenets of Sovereignty,” inNeil Walker, ed., Sovereignty in Transition (Oxford: HartPublishing, 2004), pp. 55–87.48 Ibid.49 Ibid.

001-024_cohen.qxd 12/1/04 4:19 PM

to ultimate authority within a political com-munity, but it is also a contingent claim,which requires recognition, domesticallyand internationally. Today, external sover-eignty has to be understood against thisbackground of meanings.

The discourse of external sovereigntyarises within a plural political universe,one inwhich neither a single global authority nor anunchallenged world empire exists. In such acontext, sovereignty becomes the constitutiveframe of reference for international relationsand serves an epistemic function: allowingone to think of the multiplicity ofautonomous political communities and theirinterrelationship.50 State sovereignty andinternational law are coconstitutive: interna-tional law accords the recognition, standing,and rules of behavior for sovereign states;sovereign states are a key source of interna-tional law. Nevertheless, international laworients and delimits state sovereignty. Inter-national institutions are also the products oftreaties among sovereign states but, similarly,develop their own autonomous logic andbecome an additional source of law andpower without thereby undermining the coreprinciple of contemporary internationalsociety: sovereign equality.

From the external perspective, sover-eignty entails the normative principle ofautonomy, ascribed by the community ofsovereign states to one another. To be sure,the claim to autonomy was tightly coupled,in the Westphalian model, to exclusivity: theterritorial sovereign state in the system ofstates would brook no interference in its“internal affairs.” The system of sovereignstates was construed as one of discrete,mutually exclusive, comprehensive territo-rial jurisdictions. This implied that a nonex-clusive authority is typically a dependentone. There could be no overlapping jurisdic-tions within a sovereign state.

In the contemporary post-Westphalianorder, these two dimensions of sovereigntycan and have become decoupled. It is possi-ble, in other words, to conceive of autonomywithout comprehensive territorial exclusiv-ity and to imagine jurisdictional overlapwithout subsumption.51 This means that theintegrity and autonomy of a polity quapolity need not be impugned by the coexis-tence of other jurisdictional claims, some ofwhich may even assert supremacy within thesame territorial space. The mere fact thatthere are rules obligating states or rules thatascribe competence over what were onceconsidered internal matters to suprana-tional bodies does not mean that states areno longer sovereign, for it is the rules ofinternational law that tell us in what sover-eignty consists. Thus, the new jus cogens sta-tus of certain human rights norms are nowpart of the rules that constitute and limitsovereignty, but they are not proof that it isirrelevant. Similarly, the development offunctionally delimited supranational andtransnational jurisdictional claims in theglobal political system can supplement andoverlap without abolishing the autonomy ofsegmentally differentiated territorial sover-eign states.

International and cosmopolitan law canhave their own integrity and jurisdictionalscope without threatening the autonomy ofthe polities to which they are applied. Suchlaw can reach right through the state, with-out destroying the latter’s internal legal orpolitical coherence, its legal status in thesociety of states, its identity as a polity, or itsultimate authority and supremacy in its


50 See Neil Walker, “Late Sovereignty in the EuropeanUnion,” in Walker, ed., Sovereignty in Transition, pp.3–32; and Neil Walker, “The Idea of Constitutional Plu-ralism,” Modern Law Review 65, no. 3 (2002), pp. 317–59.51 See Walker, “Late Sovereignty.”

001-024_cohen.qxd 12/1/04 4:19 PM

respective jurisdictional domain. The statecan be sovereign so long as the political rela-tionship between the government and thecitizenry remains intact and autonomous,and provided that new institutionalarrangements or jurisdictions promotemore efficacious external action by thestate.52 Accordingly, the normative plus thatthe discourse of sovereignty entails—namely, the autonomy and equality of poli-ties, including their nonsubordination andnondomination by others, and the pre-sumption against unwarranted interven-tion—can be had without the downside ofthe black box problem, without comprehen-sive territorial exclusivity, without insistingon the untrammeled will of the state, oncewe give up the Westphalian conception. Theprinciple of sovereign equality should beunderstood in these terms. I submit thatespecially in the epoch of “humanitarianintervention,” it must remain the defaultposition of the international order. Accord-ingly, the principle of nonintervention (thecorrelative of sovereignty) retains its pri-macy even though it may have to be reinter-preted in light of whatever formal legal rulesare developed to regulate humanitarianactions authorized by the UN. In short,keeping the principle of sovereign equalityfront and center keeps the burden of proofwhere it should be: on the shoulders ofwould-be interveners.53

The paradox of a multilayered globalpolitical order that enunciates sovereignequality and human rights can be a produc-tive one. It should spur jurists and politicaltheorists to make new distinctions thatdevelop formal international law in waysadequate to the shifts in values and to thecomplexities of the contemporary worldorder.54 Indeed, that is how the recurrenttension between rights and sovereignty hasbeen handled in domestic political sys-

tems—the assertion of new rights or newclaims regarding the scope and design ofdemocracy has triggered innovative legaland political distinctions in order to resolveconflicts. The core intuition that makes theparadox productive rather than destructiveis the idea that rights and democracy (pop-ular sovereignty) are coequivalent—democ-racy without constitutionalism is asunacceptable today as is constitutionalismwithout democracy.55 The parallel intuitionregarding external sovereignty is that wemust sever political autonomy from the ideaof comprehensive jurisdiction and realizethat the apparent antinomy between sover-eignty and human rights or between statesovereignty and multiple sources of interna-tional law is based on an anachronistic con-ception of the former as absolute.

Sovereign equality and human rights areboth new and indispensable principles; ininternational relations, both are based onwhat Jürgen Habermas has called egalitarianuniversalism, and they can become comple-mentary if the attempt is made in good faithto make new distinctions and update therules of the international legal order accord-

16 Jean L. Cohen

52 The example of the EU is most instructive. Strongclaims to state sovereignty coexist with strong claims tosupremacy of EU law over union matters. This is a pro-ductive paradox involving division and the increase ofpower.53 See the debate in Holzgrefe and Keohane, eds.,Humanitarian Intervention, over whether a new normof unilateral humanitarian intervention has in factemerged and whether legal reform should occur tomake it hard law.54 On the productivity of legal paradoxes, see G. P.Fletcher, “Paradoxes in Legal Thought,” Columbia LawReview 85 (1985), pp. 1263–92; and Niklas Luhmann,“The Third Question: The Creative Use of Paradoxes inLaw and Legal History,” Journal of Law and Society 15,no. 2 (1988), pp. 153–65.55 See Jürgen Habermas, Between Facts and Norms: Con-tributions to a Discourse Theory of Law and Democracy,trans. William Rehg (Cambridge: MIT Press, 1996),pp. 84–118.

001-024_cohen.qxd 12/1/04 4:19 PM

ingly.56 As opposed to imperial universal-ism, which perceives the world from the cen-tralizing perspective of its own worldview(hoping to impose its version of globalright), egalitarian universalism demandsthat even superpowers relativize their par-ticular interpretations of general principlesvis-à-vis the interpretive perspectives ofequally situated and equally entitled agents.The universalistic core of the principles ofsovereign equality and human rightsrequires the rejection of the hierarchal, eth-nocentric, and racist assumptions thatinformed the Westphalian sovereigntyorder. It implies that political autonomy,democratic self-determination, and humanrights are the legitimate aspirations of citi-zens in every polity.

Let me be very clear here. I am most cer-tainly not arguing that external sovereigntybe made contingent upon a particular inter-nal political arrangement, such as constitu-tional democracy, or that a “human right topopular sovereignty” renders unilateral mil-itary intervention to protect this rightacceptable. To construe popular sovereigntyor democracy as a human right is to make acategory mistake: it collapses political intomoral categories, reducing the citizen to“person” and confusing collective politicalaction of a citizenry with the citizen’s legalstanding.Yes, citizenship involves basic indi-vidual rights, such as the right to vote, but italso has a political meaning and an identitycomponent that cannot be reduced to thedimension of individual rights.57 To arguefor making the international legal principleof sovereignty contingent on the “humanright” of popular sovereignty as an individ-ual right is sophistry. Popular sovereignty isa regulative principle, not an individualright. The relation between internal sover-eignty, citizenship, constitutional democ-racy, and external sovereignty I outlined

above must be understood differently—namely, as constituting a regulative princi-ple, a normative set of meanings to which weshould aspire, not a recipe to justify abolish-ing the principle of sovereign equality.

GLOBAL LAW WITHOUT THESTATE—THE IDEOLOGY OFEMPIRE?

Of course for Schmitt and contemporarySchmittians, sovereign equality is alwayspredicated on inequality. Only equals areequal. Equality means identity—homo-geneity along a substantive dimension. Andindeed, the system of sovereignty he ana-lyzed (jus publicum europaeum) restrictedsovereign equality to “friends”—membersof the European community. There was noequality, no sovereignty, no “bracketing ofwar” for non-European polities.

Although this system was already under-mined by the end of the nineteenth centuryafter its Eurocentric character was aban-doned, it took two world wars and theemergence of non-European superpowersto give it its final deathblow. Writing in 1950,Schmitt argued that the passing of the West-phalian sovereignty order expressed in juspublicum europaeum leaves us with threealternatives: (1) The new “nomos” of theearth could retain the old structure in waysconsistent with contemporary technicalmeans. America would step into England’sshoes and guarantee the balance of the restof the world; (2) A plurality of regionalgroupings, or Grossräume, could emergeand balance one another, while dominating


56 Jürgen Habermas, “Interpreting the Fall of the Mon-ument,” trans. Max Pensky, German Law Journal 4,no. 7 (July 1, 2003).57 See Jean L. Cohen, “Changing Paradigms of Citizen-ship and the Exclusiveness of the Demos,” InternationalSociology 14, no. 3 (1999), pp. 245–68.

001-024_cohen.qxd 12/1/04 4:19 PM

the smaller polities; (3) The victor in theglobal antithesis between West and East(the Cold War) would be the world’s solesovereign and appropriate the wholeearth—land, sea, and air—dividing andmanaging it in accord with its plans andideas.58

From the perspective of the twenty-firstcentury it certainly looks like the thirdoption is well under way. The current U.S.administration seems bent on underminingthe international order it helped to establishwith the signing of the UN Charter and laterimportant international agreements. It isalso determined to prevent the developmentof clear, coherent legal principles (and hardprocedural law) that could help to regulatethe enforcement of human rights in waysconsistent with the sovereign equality ofstates and existing international law andinstitutions. The United States’ failure to payits full UN dues, its rejection of the ICC, itsrefusal to sign the Kyoto Protocol on globalwarming, are only a few examples indicatingthat it disdains international institutions.The recent invasion and occupation of Iraqbecame the occasion for making the moveagainst international law explicit. Far fromaccepting the role of responsible hegemonparticipating in international structures,backing up international law and helping tocodify the new, the United States has resus-citated the discourse of “old versus new” inorder to split Europe, undermine interna-tional institutions, and reorder basic rela-tionships unilaterally.

Open hostility to international law and tothe UN is coupled with the use of moralisticdiscourses of humanitarian intervention to“enforce” human rights, including the newlyalleged human right to democracy, and jus-tifications for “preventive wars.” Hand inhand with these discourses goes the insis-tence on maintaining unrivaled military

power. This indicates more than the empir-ical fact that the United States happens at themoment to be the world’s sole superpower.For it appears to be trying to position itselfas the only power able to secure world peaceand justice, police and punish violators,guarantee human rights, and protectdemocracy and “civilization” in the name ofglobal right. It sees itself as engaging in “justwars” at the periphery, and combating ter-rorism everywhere. But it often wants to dothis without subjecting itself to interna-tional law or participating in internationalinstitutions or in the international commu-nity. The name of such an “order and orien-tation” is empire.

The imperial project is certainly on theagenda today. As indicated above, Hardt andNegri assume that the project has alreadysucceeded, although they propound a rathervague concept of empire, which, mostimportantly and least convincingly, lacks acenter. They explicitly deny that its center isthe United States, arguing instead for animperial network with multiple centers.59

They are wrong on both counts: the projecthas not yet triumphed, and it does have acenter and a carrier.

Given their position, it is odd and deeplycontradictory to insist as they do that sov-ereignty has not faded away but rather hasbecome imperial. For their decentered“imperial sovereignty” is based on the lossof the autonomy of the political, on theelimination of the distinction between pub-lic and private, on the erosion of “hard”international law in favor of “soft” defor-malized rulings, and on the disintegrationof a distinctive political relationshipbetween a polity or government and its

18 Jean L. Cohen

58 Schmitt, The Nomos of the Earth, pp. 354–55.59 Hardt and Negri, Empire, pp. xii, xiv.

001-024_cohen.qxd 12/1/04 4:19 PM

citizenry.60 Accordingly, decentered impe-rial “sovereignty” replaces government withgovernance, public law with the rules of self-regulating systems and networks, relationalsovereignty between equal cooperatingunits in a community of states with global-ized and unitary imperial right. The concep-tual confusion here is staggering, for thekind of rule they describe is the antithesis ofthe theoretical concept of sovereignty, whichperforce has as its referent public power andpublic law.

Be that as it may, Hardt and Negri con-strue the discourse of decentered cosmopol-itan constitutionalism (along with theconcepts of soft law, self-regulation, humanrights, humanitarian intervention, andrevived just war doctrine) as an obviouscandidate for the job of legitimating empireby dressing up its mode of exercising domi-nation as law. They are right to warn thatthis discourse can be instrumentalized bythe imperial project. Talk of global constitu-tionalism and the death of sovereignty avantla lettre helps to marginalize internationallaw and to legitimize interventions. It invitesthe claim that even a unilateral militaryintrusion into a weaker state is not a viola-tion of international law but rather anenforcement of global right and cosmopoli-tan justice. Indeed, some internationallawyers and human rights theorists haveexplicitly embraced the task of justifying theimperial project in the name of globalright.61 Even if this role is refused, in a con-text in which a world republic is not on theagenda, and in which a strong, centeredimperial project bent on undermining inter-national institutions and law does exist, it isdangerous to make unwarranted claimsabout global constitutional law and theirrelevance of sovereignty. Indeed, Hardtand Negri’s conception of a decenteredempire, coupled with their rejection of the

concepts of state and popular sovereignty,public power and public international law,and government in favor of governance,entails some complicity with the imperialproject. Such claims deflect attention awayfrom the only viable political alternative toempire: a strengthened international societyand law informed by the culture of rightsbut based on the principle of sovereignequality.

MAINTAINING SOVEREIGNEQUALITY

There is an alternative to the project ofempire and to the restricted set of choicesSchmitt described. I believe that it is possi-ble to strengthen international institutionsand develop international law in a way thatprotects state sovereignty and human rights,supports popular sovereignty, and helps toregulate the self-regulation of the new non-state transnational powers while fostering aglobal rule of law. This requires certain the-oretical and practical steps.

The disassociation of the tight linkbetween autonomy and exclusivity is thefirst theoretical step toward such a project.The second is the abandonment of the abso-lutist and decisionistic concept of sover-eignty in favor of the relational modeldescribed above. If these two ideas are linkedtogether, then it is perfectly conceivable thatinternational law could penetrate the blackbox of the state without undermining itssovereign autonomy or integrity. Whenstates agree to certain restrictions, whenthey “delegate” jurisdiction to supranationalentities, when they establish frameworks for


60 See the discussion of Laughlin,“Ten Tenets of Sover-eignty,” pp. 55–87.61 See, e.g., Slaughter and Burke-White, “An Inter-national Constitutional Moment”; and Ignatieff, “TheBurden.”

001-024_cohen.qxd 12/1/04 4:19 PM

cooperation that create binding rules, theydo not thereby lose or divide their sover-eignty—indeed, they may even enhance it.

Despite its polemical character, Schmitt’sanalysis of the Westphalian understandingof sovereignty in Nomos of the Earth is help-ful in this regard. In describing the system ofsovereign states that was the basis for the juspublicum europaeum, Schmitt states theobvious: European international law wasgrounded in a balanced relationship of aplurality of sovereign territorial states. Thebalance of power was crucial to maintainingplurality. It was also the precondition foreffective international law: if one power wasstronger than all the others put together, itmight think it had no need for internationallaw. However, he goes on to insist,

Such an order was not a lawless chaos of ego-istic wills to power . . . these egoistic powerstructures existed side-by-side in the samespace of one European order, wherein theymutually recognized each other as sovereigns.Each was the equal of the other, because eachconstituted a component of the system ofequilibrium.62

Accordingly, the articulation of sovereigntywithin a community of states that decides toconsider one another as equals is the politicalprecondition for feasible and effective inter-national law. In other words, internationallaw has to be based on a set of political rela-tionships between states to which sover-eignty is ascribed within a commonframework, based on shared politicalnorms, involving mutual recognition, bal-ance, and institutionalized cooperation.

Moreover, formal equality has to belinked to some degree of material equalityamong the states. In an institutionalizedstructure of power and counterpowers, nosingle sovereign state should be able to pre-vail over all the others and impose its will as

law. This does not exclude a guarantor ofinternational right and international law—that is, a state powerful enough to ensurethat others play by the rules to which it alsosubscribes. The ascription of sovereignty tostates by an international “community” byvirtue of which they become members andequals is thus a way of limiting as well asempowering those states. Without this, anopponent becomes nothing more than anobject of violent measures, while lawbecomes mere window dressing.

I see no reason why this conception can-not be generalized to all states construed asequal members of the international com-munity along the lines of the UN Charter.Equality need not be construed as a sub-stantive principle of homogeneity based ona friend/enemy conception of the political.It is enough that the general principles of theinternational order—sovereign equality andhuman rights—are accepted in principle (asthey are by any state that has joined the UN),and allowed to develop into a shared cultureof mutual respect of rights and accountabil-ity. The “democratization” of external sover-eignty backed up by international law is thusthe third step in the project. Certainly this isthe idea behind the principle of “sovereignequality.” It informs the key “transforma-tive” developments in international rela-tions since World War II: sovereign statesgave up their “sovereign” right to go to warand aggressive war became illegal; colonial-ism was dismantled and deemed a violationof the principle of self-determination; sov-ereign states began actively to pursue coop-eration in a multiplicity of internationalinstitutions; and they accepted being limitedby human rights principles, renouncingimpermeability to international law in thisdomain. These are the new rules of sover-

20 Jean L. Cohen

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

001-024_cohen.qxd 12/1/04 4:19 PM

eignty in the society of states, not indica-tions of its abolition. Pace Schmitt, partici-pation in supranational institutions andfurther development of international law,spurred in part by the efforts of nongovern-mental organizations of international civilsociety, can thicken commonalities and con-sensus.

The fourth step involves fostering the inter-nal democratization of all states, large andsmall.With the disintegration of formal colo-nialism and the Cold War–era blocs, theautonomy of countries once subordinated tothe great powers has the potential to take onreal meaning, especially if they becomeinvolved in regional associations based on theprinciples of sovereign equality and constitu-tionalism, like the EU. But what makes thesovereignty of states valuable in the long runis that autonomy is a precondition for popu-lar sovereignty and democracy within apolity. Today, the idea of self-determination isnot only a principle of national identity andliberation but also a principle of popular sov-ereignty involving democratic self-govern-ment under law. The dimension of politicalautonomy at issue here has nothing to dowith defining an external enemy and every-thing to do with the internal constructionand articulation (constitutional design andarticulation of rights) of the “friend” compo-nent of Schmitt’s infamous distinction.

The spread of the discourse of popularsovereignty (and the rule of law) and theemergence of representative constitutionalgovernments in more and more statesthroughout the world fosters the tide ofdemocratization (equal autonomous voice)in international relations. We got an inklingof what this could mean when governmentsof countries large and small, having to worryabout their citizens’ views, refused to cave into the most intense pressure by the world’ssole superpower and insisted on weapons

inspections rather than voting for the war inIraq. Instead of being able to bask in theglobal legitimacy of a widely accepted“peace action” that a positive vote in theSecurity Council would have afforded, theUnited States confronted one of the mostmultipolar moments in history and to thisdate has not been able to muster the supportfor its Iraq venture that a well-establishedempire would expect.

Support for internal democratization,however, must not be taken as a green lightfor violent interventions by powerful out-siders purporting to impose democracy, lib-erating the locals against their will and thusforcing them to be free. As I already indi-cated, there is no such thing as a humanright to popular sovereignty, and anyattempt to justify interventions by invokingsuch a right is pure ideology. In short, theprinciple of sovereign equality and nonin-tervention is and must remain the defaultposition of the international order. Theproblem of what to do in the case of dictato-rial authoritarian regimes that overthrowdemocratic institutions or block their emer-gence is of course a troubling one. So is theissue of how to deal with regimes that violatethe most basic rights of their own citizens.The decision taken in 1997 by the Organiza-tion of American States (OAS) to amend itscharter to permit suspension of a memberwhose democratic government is over-thrown by force is a fascinating example of aset of rules agreed upon by sovereign statesaimed at linking recognition of state sover-eignty to the protection of internal popularsovereignty.63 One thing is sure, however: theclaim of a superpower to be defendingdemocracy while engaging in unilateral mili-tary intervention is bound to appear as, and


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

001-024_cohen.qxd 12/1/04 4:19 PM

usually is a fig leaf for, parochial ends. In lightof today’s imperial project and the recentexperience in Iraq, the world communityrightly condemns such actions.

This does not preclude regional associa-tions like the EU or the OAS from agreeingnot to tolerate the forcible overthrow of aconstitutional democracy by a would-be dic-tator or to insist on the observance of certaindemocratic and legal principles of would-bemembers. In such cases, military interven-tion can be avoided precisely because sover-eign states have accepted these rules ensuringa link between popular sovereignty, politicalrepresentation, and external sovereignty.Such agreements do not undermine theprinciple of sovereign equality, theystrengthen it.

A fifth step must be taken if the project ofempire is to be defeated—namely, the emer-gence of effective counterpowers within theworld community, able to balance the super-power of the United States as well as the“infra-power” of “private” transnational net-works involved in governance. This is the“truth content” of political realism—neitherlaw nor morality can conjure away politicalpower or strategic calculations. Unless viablecounterpowers emerge willing to strengtheninternational law and institutions and drawthe United States back into their framework,cosmopolitan right will be nothing otherthan what Schmitt always said it is: utopianand ideological. It would be disastrous if theemerging superpowers of the twenty-firstcentury emulated the disdain for interna-tional law and the imperial gesturing of theUnited States. It would be far better if effec-tive state alliances emerged that were articu-lated in regional associations, along the linesof the EU, and that were committed to shoul-dering the responsibilities of their combinedpower, strengthening international law, fos-tering a global rule of law, and, with UN

authorization, helping to enforce interna-tional law. Membership in such regionalassociations could protect the sovereignequality of small polities and make theirvoices matter more on the world scene. Itwould also help enormously if the regionalassociation stood for democratic principlesand human rights and encouraged its mem-bers to foster and maintain them. This is thelevel on which plurality, in the sense of effec-tive political power (counterpower), will re-emerge and matter, as Schmitt rightly foresaw.But it can exist in conjunction with the legalprinciple of sovereign equality for all stateswithin (and outside) regional associations(thus blocking Grossraum projects) and withinternational and cosmopolitan law on theglobal level (thus blocking imperial projects).

The sixth and final step is to stop the trendtoward the deformalization of internationallaw that began in the 1990s with the invasionof Kosovo and that has been fostered byevery subsequent “humanitarian interven-tion.” These interventions are usually justi-fied in moral terms of an obligation of thepowerful to act in dire emergencies, to rescuepeople (the powerless) from disastroushuman rights violations (genocide, ethniccleansing, and so on), regardless of legalniceties. For there is at present no “law ofhumanitarian intervention,” and, strictlyspeaking, the Security Council is authorizedto approve military interventions only wheninternational peace and security are threat-ened. There is no customary rule that con-strues military intervention as the way to“enforce”human rights law. There is only theimprecise and ad hoc expansion of the defi-nition of threats to peace and security frominterstate to internal civil disturbances, andthe generalized moral discourse of humanrights, which enable the Security Counciland others to justify violations of state sover-eignty in the name of humanitarianism. The

22 Jean L. Cohen

001-024_cohen.qxd 12/1/04 4:19 PM

point is, pace human rights fundamentalists,that one cannot simply postulate a humanright to protection, to rescue, to security, orto civilian inviolability and then assert thatany state or collective body able to do so hasthe moral duty to enforce such rightsthrough military intervention. Indeed theargument, via analogy with civil disobedi-ence, that it is necessary to update interna-tional law by such illegal military means isdeeply unconvincing and counterintuitive.64

The proliferation of “exceptional” rescueoperations, which violate international law inthe name of cosmopolitan right, underminesrather than fosters respect for the rule of law.Several authors have traced the ways in whichsuch a deformalized moral-humanitariandiscourse has undermined existing interna-tional law, and how it is being used (especiallyby the United States) to block the creation ofnew, coherent legal rules that could andshould regulate humanitarian interventionin ways that respect the principle of sovereignequality.65 These include the formal interna-tional legal articulation of the relevant rights;clearly articulated and agreed upon substan-tive standards identifying what kind and levelof violation would be sufficient to warrantintervention (thresholds); formalization ofthe rules, including procedural rules, indicat-ing how claims can be made; determinationof who (which public body) is authorized tomake the judgment that a violation hasoccurred, and what to do about it, includingwho is authorized to act to stop the violation.Without such rules, one cannot speak ofupdating international law or enforcing cos-mopolitan right. Indeed, moral cosmopoli-tans disagree about minimal and maximalinterpretations of the human right to securityor protection and about what constitutes aviolation.66 Only international law can medi-ate between the moral and the political so asto establish clear limits and rules while

affording legality and legitimacy to appropri-ate action.

We do not have a global rule of law todayor a constitutionalized international order,but we do have hard international law thatcan be developed in the right direction. TheSecurity Council and Chapter VII of the UNCharter is the place to start. Security Councilauthorization is indispensable, in my view,for any military intervention, but it is notenough: one needs the articulation of coher-ent and consistent rules to regulate the newpowers that the Council has arrogated toitself by extending those granted to it underChapter VII to apply to domestic conflictsand grave rights violations that do not crossborders. The principle of sovereign equalitycan remain intact under these circumstancesonly if the rules are formalized after publicdeliberation and if they are consistentlyapplied. Otherwise, a two-tiered system willemerge that leaves the weak (developingcountries) defenseless against the powerful(developed, industrialized countries). Such a


64 I am referring to Allen Buchanan and Robert O. Keo-hane, “The Preventive Use of Force: A CosmopolitanInstitutional Proposal,”Ethics & International Affairs 18,no. 1 (2004), pp. 1–22.65 See Martti Koskenniemi,“The Lady Doth Protest TooMuch: Kosovo and the Turn to Ethics in InternationalLaw,” Modern Law Review 65, no. 2 (2002); and Ruti G.Teitel, “Humanity’s Law: Rule of Law for the NewGlobal Politics,” Cornell International Law Journal 35(2002), p. 355.66 In Buchanan and Keohane, “The Preventive Use ofForce,” the authors offer a very long list that includesnot only genocide, ethnic cleansing, and torture butalso the “more damaging forms of discrimination” andthe “right to the means of subsistence.” They supportinterventions by “coalitions of democratic states” with-out the detour of the UNSC. Others, like Michael Reis-man, support intervention in favor of a right to popularsovereignty that “trumps state sovereignty.” Still otherlists, like that of Michael Walzer, are more minimal.Moral philosophy cannot adjudicate among these dif-ferent lists of “fundamental” human rights. See my “Loiinternationale ou intervention unilatérale?”

001-024_cohen.qxd 12/1/04 4:19 PM

system would have a familiar ring—andstands little chance of being accepted today.

There are many suggestions for reform ofthe UN, and this is not the place to discussthem in any detail.67 Yet there clearly is a needto find a way to bring the Security Councilitself (a political body, after all) under theprinciple of the separation of powers and torender it accountable. Global remedies andcompulsory jurisdiction for internationalcourts should apply to this body as well as tostates. Among the most frequent reform pro-posals are the expansion of the permanentmembership of the Security Council toinclude twenty-first-century great powers(maybe even the EU), a voluntary renuncia-tion of the veto in favor of a two-thirds votewhen “humanitarian” intervention is at issue,and some expanded, deliberative, advisoryrole for the General Assembly in these mat-ters. The idea is to make international insti-tutions more effective, so that it becomesmore likely that necessary interventions takeplace and less likely that purely self-interestedones do. All interventions will be based onmixed motives. Only if one is forced to givereasons not only to one’s domestic public orthe informal world publics of internationalcivil society but also in institutionalized, deci-sional, political public spheres (like the Secu-rity Council and those in regional bodies) inorder to garner support and convince othersto share responsibility for authorizing anaction will it be possible to make a plausibleclaim that there are genuine, universallyacceptable reasons for an intervention. With-out further development of hard interna-tional law along these lines, predicated on thedefault position of sovereign equality yet ori-ented toward “norming the exception,” with-out legality complementing alleged morallegitimacy, interventions justified by the dis-course of human rights will threaten the

autonomy not only of failed or rogue statesbut of every political community.

Constitutionalization of the global politicalsystem is a work in progress, not a fait accom-pli. The dualistic model I have in mind wouldinvolve the articulation of public power andpublic law on multiple levels of the worldpolitical system. It would seek to harmonizethe core principles of international relationstoday—sovereign equality and humanrights—not abandon one in favor of the other.At issue is a shift of the culture of sovereigntyfrom one of impunity to one of accountabilityand responsibility of states in light of theirobligation to protect.68 This entails reformu-lating, not abandoning, the default position ofsovereignty and its correlate, the principle ofnonintervention, in the international system.

We really face only two choices today:strengthened international law or imperialprojects by existing and future superpowers.We know that though strong states are themost effective guarantors of human rights,states also violate these rights. The old rulesdon’t suffice, but the time has certainly notcome for abandoning the discourse of sover-eignty as human rights fundamentalists andempire enthusiasts propose. Instead, the cur-rent rules of international legal sovereigntyhave to be rethought. For it is the revised dis-course of sovereignty, backed up by interna-tional institutions, that can situate globalregulation and cosmopolitan law on the side ofthe first project and help to prevent theirinstrumentalization by the second. This is theonly answer to Schmitt’s charge that “he whoinvokes humanity wants to cheat.”

24 Jean L. Cohen

67 See the three-volume work of Joachim Muller, ed.,Reforming the United Nations: New Initatives and PastEfforts (The Hague: Martinus Nijhoff, 1997).68 See, e.g., ICISS, The Responsibility to Protect.

001-024_cohen.qxd 12/1/04 4:19 PM

Whose Sovereignty

Documents

Transcript of Whose Sovereignty