The traditional conception construes human rights as moral rights all people have due to some basic feature or interests deemed intrinsically valuable. This comported well with the revival of the discourse of human rights in the wake of atrocities committed during WWII. It served as a useful referent for local struggles against foreign rule and domestic dictatorship in the 1980s. Since 1989, human rights discourse acquired a new function: the justification of sanctions, military invasions, and transformative occupation administrations by outsiders, framed as enforcement of international law against violators. The traditional conception doesn't fit this new function, hence the efforts to counter-pose a “political” to the “traditional” approach. This essay analyzes two recent versions of the political conception, and argues for a third. The thesis is that sovereign equality and human rights are normative principles of our dualist international system and both are needed to construct a more just version of that system.
Allan Buchanan, Justice, Legitimacy and Determination (New York: Oxford University Press, 2004). For debates over the democratic entitlement, see Gregory H. Fox and Brad R. Roth, eds., Democratic Governance and International Law (Cambridge, UK: Cambridge University Press, 2000).
2.
See Jose Alvarez, International Organizations as Law-Makers (Oxford, UK: Oxford University Press, 2005); Ann Marie Slaughter, The New World Order (Princeton, NJ: Princeton University Press, 2004); and Gunther Teubner, ed., Global Law Without the State, (Brookfield, VT: Dartmouth, 1997).
3.
Benedict Kingsbury , Nico Krisch, and Richard B. Stewart, "The Emergence of Global Administrative Law," Law and Contemporary Problems68, no. 15 (Summer/Fall 2005); Thomas Pogge, "Creating Supra-National Institutions Democratically: Reflections on the European Union's `Democratic Deficit,'" Journal of Political Philosophy5, no. 2 (1997): 163-82.
4.
J. Cohen and C. Sabel, "Global Democracy," New York University Journal of International Law and Politics37 ( 2005): 763-97; D. Held and D. Archibugi, Cosmopolitan Democracy: An Agenda for a New World Order ( London: Polity, 1995); Jurgen Habermas, "Does the Constitutionalisation of International Law Still Have a Chance? " in The Divided West, ed. J. Habermas (Cambridge, UK: Cambridge University Press, 2006).
5.
Patrick Macklem , "What is International Human Rights Law: Three Applications of a Distributive Account," forthcoming in McGill Law Journal. Macklem develops a cosmopolitan theory of the international legal system.
6.
By "dualist" international system I mean one with a society of states predicated on the principle of sovereign equality, and "global governance institutions." States are no longer the only actors in the international/global domain, nor are "GGIs" simply their agents. Jean L. Cohen, "Whose Sovereignty? Empire versus International Law," Ethics and International Affairs18, no. 3 (2004): 1-24; and Jean L. Cohen, "Sovereign Equality versus Imperial Right: The Battle over the New World Order," Constellations13, no. 4 (2006): 485-506. See also Cohen and Sabel, "Global Democracy," 773-79.
7.
I reject the claim that sovereignty as inclusion replaces sovereignty as autonomy. Abram Chayes and Antonia Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press) 1995 . Ann-Marie Slaughter, "Security, Solidarity and Sovereignty: The Grand Themes of UN Reform," American Journal of International Law99 (2005): 619, 627-30.
8.
See Allen Buchanan and Robert O. Keohane, "The Legitimacy of Global Governance Institutions," Ethics and International Affairs20, no. 4 (2006): 4-37, for one proposal.
9.
On the shift from the discourse of minority to human rights see Mark Mazower, "The Strange Triumph of Human Rights, 1933-1950," Historical Journal47, no. 2 (2004): 379-98.
10.
The Universal Declaration of Human Rights, adopted 1948, is nonbinding, and does not condition UN membership on its adoption by present or future member states. The 1966 UN Covenants on civil and political and social rights lack provisions for enforcement and adjudication. Even when a country ratifies a UN human rights treaty agreeing to respect the rights the treaty covers, it does not necessarily agree to make them directly enforceable in domestic courts. That would require implementing legislation. James Nickel, "Human Rights ," in Stanford Encyclopedia of Philosophy (2006 ): 1-42.
11.
Margaret Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Ithaca, NY: Cornell University Press, 1998).
12.
Thomas M. Franck first asserted the idea of a democratic entitlement in international law in "The Emerging Right to Democratic Governance ," American Journal of International Law86 (1992): 46. Yet he explicitly rejected the idea that such a right could justify pro-democratic invasions.
13.
Jean L. Cohen, "The Role of International Law in Post-Conflict Constitution-Making: Toward a Jus Post Bellum for Interim Occupations," New York Law Journal51, no. 3 (2006-2007): 498-532.
14.
W. Michael Reisman, "Sovereignty and Human Rights in Contemporary International Law" and Michael Byers and Simon Chesterman , "You, the People: Pro Democratic Intervention in International Law" in Democratic Governance and International Law, ed. Gregory H. Fox and Brad R. Roth (New York: Cambridge University Press, 2000), 239-92. See also Allan Buchanan, Justice, Legitimacy and Self-Determination.
15.
John R. Wallach, "Human Rights as an Ethics of Power," in Human Rights and the "War on Terror," ed. Richard Ashby Wilson (New York: Cambridge University Press, 2005), 108-37.
16.
A caveat: At issue here is not the so-called "paradox of rights" whereby legal rights appear to empower and free the individual legal subject but also serve as the medium by which the administrative apparatuses regulate and coerce these very subjects thereby turning them into sites of "governance." All law backed by sanctions entails coercion, as the most casual reader of Hobbes will note, but law is the condition of possibility of subjective freedom and of realizing the principle of equal liberty, as any reader of Kant should also know. Law is also the medium through which collective self-government, political autonomy, democracy, and the accountability of political power become possible in the modern world, which is why democratic theorists from Rousseau to Arendt and Habermas have insisted that popular sovereignty or public freedom has to be exercised within a constitutional framework that allows the subjects of law to understand themselves as its authors. The duality of law as "institution," constituting legal persons to whom freedom and political equality are ascribed and law as the "medium" that constitutes subjects as objects of rule and the vehicle through which administrative apparatuses penetrate the life world, is a phenomenon that has been discussed in great detail by many including Habermas, Foucault, and myself with Andrew Arato.J. Habermas, Between Facts and Norms (Cambridge, MA: MIT Press, 1996); M. Foucault, "Governmentality," in The Foucault Effect: Studies in Governmentality, ed. G. Burchell, C. Gordon, and P. Miller (Hemel Hempstead , UK: Wheatsheaf, 1991); and J.L. Cohen and A. Arato, Civil Society and Political Theory (MIT Press1992).
17.
A clue as to where the weight of a legal right will lie-freedom enhancing or disempowering- is whether the subjects of rights have a say in determining which rights they have and in interpreting the meaning of the content of rights, and in which respects they are to be treated equally. This is an unending process involving both legal adjudication and struggle, but it presupposes the priority of the internal addressees of the law in determining the political legitimacy of any given set of rights. In other words the interpretation of rights involves an ethical-political process in which the addressees, members of the political community, must have a say or their political autonomy is undermined. Legal rights and the politics of rights are thus part of the complex relation between law and power. This by no means implies that the politics of rights is the only politics. But it does mean that the dualism of the legal medium cannot be wished away, and that there is no viable alternative to government through law, or to the legal articulation of basic rights and the struggles over the interpretation of such rights. Accordingly, a one-sided critique of rights as simply sites of governmentality and subjectivation is as naive as a one-sided defense of rights as simply freedom guaranteeing.
18.
The issue that we confront on the international level is somewhat different. What is at stake is the shift from one form of rights discourse and practice to another. The first involved domestic actors fighting for the transition from dictatorship to democracy and/or for liberation from foreign rule, in which invocation of human rights standards articulated in international documents played a role, but in which domestic actors were the authors and interpreters of the rights they were asserting. The second involves the invocation of human rights "law" by powerful outsiders-states-that, in the name of the "international community" intervene in domestic conflicts, impose severe sanctions, and even new legal systems in the context of onerous occupation regimes. Here the problem is not that the legal medium is the vehicle of "governmentality" but rather that the nature of the international law in question is ambiguous: many human rights documents entail "soft," deformalized law, and their binding legal character is disputed. Those pushing an imperial project are happy with soft, indeterminate law since it gives them the leeway to invoke moral principles to legitimate intervention; others want hard human rights law. This opens up the question as to which rights should acquire the status of hard international law and how to democratize the process of making this decision, the subject of this article.
19.
Allan Gewirth, Human Rights (Chicago: University of Chicago Press, 1982); and Jack Donnelly, Universal Human Rights (Ithaca, NY: Cornell University Press, 2003).
20.
James Nickel , "Human Rights," 2-4; and Thomas Pogge, "Human Rights and Human Responsibilities," in Global Responsibilities: Who Must Deliver on Human Right?, ed. A. Kuper (London: Routledge, 2005), 3-35.
21.
Pogge, "Human Rights and Human Responsibilities."
22.
For a critique, see Jean L. Cohen, Regulating Intimacy, A New Legal Paradigm (Princeton, NJ: Princeton University Press, 2002), 97-101.
23.
For an agency view, see A. Gewirth, Human Rights. For a basic interest view, see John Finnis , Natural Law and Natural Rights ( Oxford, UK: Clarendon, 1980); and Joseph Raz, The Morality of Freedom (Oxford, UK: Oxford University Press, 1988). For a "will theory" approach, see H.L.A. Hart, "Are There Any Natural Rights?" Philosophical Review64, no. 2 (1955): 175-91.
24.
Joshua Cohen , "Is There a Human Right to Democracy?" in The Egalitarian Conscience: Essays in Honor of G.A. Cohen, ed. C. Sypnowich (Oxford, UK: Oxford University Press, 2006), 226-48.
25.
Joseph Raz , "Human Rights Without Foundations," forthcoming in The Philosophy of International Law, ed. John Tasioulis and Samantha Besson (Oxford, UK: Oxford University Press, 2008), 10-12.
26.
For other versions of the political conception see John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999); Charles Beitz, "Human Rights as a Common Concern," American Political Science Review95, no. 2 (2001): 269-82.
27.
Governments thus have the negative duty not to violate human rights and the responsibility to protect their citizens' rights. R. Nickel, "Human Rights," 4.
28.
Joseph Raz , "Human Rights Without Foundations," 4, 19; Joshua Cohen "Is There a Human Right To Democracy?" 234. Cohen states that "human rights standards are urgent standards of political morality whose violation warrants external reproach (and in extreme cases sanctions and intervention)."
29.
For both Rawls and Buchanan, states violating the most basic human rights lose their membership in international society and become outlaw states. Rawls, The Law of Peoples.
30.
Joseph Raz , "Human Rights Without Foundations," 13. By "defeasible," Raz means that the violation of human rights is not an automatic trigger to sanctions but opens up the discursive space for considering appropriate responses, including military intervention, on the part of the international community.
31.
Rawls, The Law of Peoples.
32.
Ibid., 79-80.
33.
Charles Beitz, "Human Rights as a Common Concern."
34.
Joseph Raz, "Human Rights Without Foundations," 16. This is also obviously Rawls's thesis in The Law of Peoples.
35.
I do not discuss Rawls's answer as it has been analyzed by many. Rawls, Law of Peoples , 68, 78-83 throughout. For a summary of the criticisms of Rawls's view, see J. Nickel, "Human Rights," 5-6.
36.
Rawls never articulated a justification for the normative status of the rights he singles out from the Universal Declaration as the "proper subset" in The Law of Peoples. For Rawlsians the discussion focuses on the proper subset of moral rights which set external limits to the sovereign will of peoples but presumably will form part of the "law" of peoples, or binding international law.
37.
Raz, "Human Rights Without Foundations."
38.
Ibid.
39.
Ibid., 171.
40.
Joshua Cohen, "Is There a Human Right to Democracy?" Cohen emphasizes the moral character of human rights in order to indicate any legal list is open to challenge and new rights claims.
41.
Ibid., 237-38. This is a gloss on Rawls's concept of system of cooperation.
42.
Ibid., 238-39.
43.
Ibid., 239-42. I have argued in a similar vein in Jean L. Cohen, "Whose Sovereignty?"
44.
Joshua Cohen, 235. Cohen cites Rawls's argument that the costs of intolerance include lapsing into contempt on the one side, bitterness and resentment on the other. See Rawls, The Law of Peoples, 62.
45.
Ibid., 238.
46.
Ibid., 228. This is a gloss on Rawls's concept of "decent hierarchical societies."
47.
Ibid., 233.
48.
While he does not say much about intervention, Cohen implies that violation of these rights and the internal principle of self-determination as he construes it would be tantamount to a defeasible reason for sanctions by the international community. I think this is too permissive.
49.
See the Genocide Convention and the International Criminal Court statute defining and outlawing crimes against humanity, ethnic cleansing, and severe forms of discrimination that amount to enslavement. My purpose is to provide a systematic justification for the proper subset and for restricting legal collective sanctions that suspend the sovereignty argument to this subset.
50.
The term right to have rights comes from Hannah Arendt. She meant the right to be a member, a citizen of a polity, and she believed that citizenship status constructs natural persons into rights holders, with legal standing and a legal persona. However, the "right" to have rights is a universal moral right, pertaining to all human beings. See Jean L. Cohen, "Rights, Citizenship and the Modern Form of the Social: Dilemmas of Arendtian Republicanism," Constellations3, no. 2 (1996): 164-85.
51.
Sovereignty entails an authoritative political and legal relationship between a government and a citizenry within a bounded territory.
52.
M. Walzer, "The Moral Standing of States," Philosophy and Public Affairs9 (1980): 209-29. Walzer offers communitarian, rights-based, and republican arguments in defense of the moral standing of states. One can make the point without buying into the communitarian argument, without accepting his defense of unilateralism, or his version of just war theory.
53.
Inattention to procedure is serious as it opens the door to unilateralism and diverts attention from the appropriate institutional design (reform) of the international organization making the relevant decisions. Jean L. Cohen, "Sovereign Equality."
54.
It follows from the universalistic scope of Arendt's concept-all human beings have the right to have rights-that there should be legal protections for the basic human rights of residents and aliens, regardless of their citizenship status.
55.
See Jean L. Cohen , "Sovereign Equality," 491-94, for a discussion of the concept of sovereign equality and its normative thrust.
56.
See Jean L. Cohen, "Changing Paradigms of Citizenship and the Exclusiveness of the Demos," International Sociology14, no. 3 (September 1999): 245-68, for a discussion of the analytic of the citizenship principle.
57.
The plurality and autonomy of legal systems says nothing about how they interrelate. The relation among international, cosmopolitan, and domestic law changes in different sovereignty regimes.
58.
"Ethical-political" refers to the question of how we want to live as a particular political community (the good) as distinct from the moral question of what is right for all. See J. Habermas, Justification and Application: Remarks on Discourse Ethics (Cambridge, MA: MIT Press, 1993), chap. 1.
59.
Michael Blake , "Distributive Justice, State Coercion, and Autonomy ," Philosophy and Public Affairs30, no. 3 (2001): 257-96; Thomas Nagel, "The Problem of Global Justice" Philosophy and Public Affairs33 (2005) 113-147.
60.
Jurgen Habermas, Between Facts and Norms, chap. 3.
61.
See Philip Petit, "Democracy, National and International ," The Monist89, no. 2 (2006): 301-24.
62.
See Michael Walzer, "The Moral Standing of States."
63.
Ibid., 214.
64.
Especially when it involves the imposition of laws or a new constitution by outsiders. Jean L. Cohen, "The Role of International Law."
65.
Jean L. Cohen, "Whose Sovereignty?"
66.
On the international law definition a "state" has a territory, a people, effective internal governance, and the ability to conduct foreign relations with other states. Restatement of the Foreign Relations Law of the United States, Third, sec. 201 (1996), cited in Alvarez, International Organizations, 15.
67.
See Partha Chatterjee, "Empire and Nation Revisited: Fifty Years after Bandung" (manuscript on file with author).
68.
Gerritt W. Gong , The Standard of "Civilization" in International Society (Oxford, UK: Clarendon, 1984). On the concept of hierarchy in international law, see Gerry Simpson, Great Powers and Outlaw States (Cambridge, UK: Cambridge University Press, 2004).
69.
M. Foucault, "Governmentality." I am quoting from Neil Walker, "Late Sovereignty in the European Union," in Sovereignty in Transition, ed. N. Walker (Oxford, UK: Hart, 2003), 19-20.
70.
Ibid.
71.
Ibid., 20.
72.
Jean L. Cohen, "Sovereign Equality."
73.
I am paraphrasing from Macklem, "What is International Human Rights Law?"
74.
See Robert O. Keohane, Stephen Macedo, and Philip Pettit, "Democracy-Enhancing Multilateralism" (manuscript on file with author). Nevertheless, the problem of democracy-eviscerating multilateralism is also serious. See Kim Scheppele, "The International State of Emergency: Challenges to Constitutionalism after September 11" (manuscript on file with author).
75.
Chayes and Chayes, The New Sovereignty , 27. Ann-Marie Slaughter, "Security, Solidarity and Sovereignty," 619, 627-30.
76.
That is why I have supported key aspects of the Secretary General's High Level Panel for UN legal and institutional reform. See Jean L. Cohen, "Sovereign Equality ," 499-502.
77.
Thomas Pogge, "Human Rights and Human Responsibilities," arguing that any coercively imposed institutional order is subject to the moral claims of human rights.
78.
Gunther Teubner , "The Anonymous Matrix: Human Rights Violations by `Private Transnational Actors,'" Modern Law Review69, no. 3 (2006): 327-46.
79.
Rainer Forst , "The Basic Right to Justification: Toward a Constructivist Conception of Human Rights," Constellations6, no. 1 ( 1999): 35-60.
80.
Ibid., 48-50.
81.
Ibid., 48-50.
82.
Jurgen Habermas, "Kant's Idea of Perpetual Peace with the Benefit of 200 Years' Hindsight," in Perpetual Peace: Essays on Kant's Cosmopolitan Idea, ed. Kenneth Baynes and M. Lutz-Bachkann (Cambridge, MA: Harvard University Press, 1997).
83.
Jurgen Habermas, Between Facts and Norms, chap. 3.
84.
Habermas is right: international human rights have an ambiguous status today because they do not yet have full legal weight; and he is also right to suggest/hope that the current situation is a transient one. Yet I disagree with his suggestion, repeated by Thomas Pogge, that one can identify Article 28 of the Universal Declaration as a source that could establish the legal status of the proper subset of such rights. J. Habermas, "Remarks on Legitimation Through Human Rights," Philosophy and Social Criticism24, no. 2-3 (1998): 160-61; and Thomas Pogge, "Human Rights and Responsibilities."
85.
Individuals, including government officials, lose immunity if they violate international human rights, humanitarian, or criminal law. But individuals do not have standing to sue in court for their rights, as they do in domestic legal systems. There are many other relevant differences which have yet to be adequately addressed by human rights theorists.
86.
See Jean Cohen, "Whose Sovereignty," 183-89.
87.
Nothing said in this article would preclude states from condemning tyranny or dictatorship and using their foreign policy to influence such governments to respect human rights and transition to democracy. Such influence however may not entail military intervention.
