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Whose Sovereignty? Empire Versus International Law Jean L 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. Whose Sovereignty? Empire Versus International Law Jean L. Cohen et me begin by juxtaposing two facts: standard view of international law as the law The world’s sole superpower has that states make through treaties, or consent Linvaded and occupied Iraq. Carl to through long practice (custom), has to be Schmitt’s Nomos der Erde has just been revised. The emergence of human rights law translated into English, or I should say based on consensus apparently implies that American.1 Is this mere coincidence? Are not global cosmopolitan law trumps the will of the questions he raised, if not his answers, states and their international treaties (con- once again on the agenda? sent).3 Today the very category “inter- This article focuses on the impact of glob- national” appears outdated. The question alization on international law and the dis- course of sovereignty. We have been hearing for quite some time that state sovereignty is 1 Carl Schmitt, The Nomos of the Earth in the Interna- being undermined. The transnational char- tional Law of the Jus Publicum Europaeum, trans. G. L. Ulmen (New York: Telos Press, 2003). acter of “risks,” from ecological problems to 2 See Günther Teubner, “‘Global Bukowina’: Legal Plu- terrorism, including the commodification ralism in the World Society,” in Günther Teubner, ed., of weapons of mass destruction, highlights Global Law Without a State (Brookfield,Vt.: Dartmouth Publishing Group, 1997), pp. 3–15 and passim; Günther the apparent lack of control of the modern Teubner, “Societal Constitutionalism: Alternatives to nation-state over its own territory, borders, State-Centered Constitutional Theory?” in Christian and the dangers that its citizens face. Joerges, Inger-Johanne Sand, and Günther Teubner, Moreover, key political and legal deci- eds., Transnational Governance and Constitutionalism (Portland, Ore.: Hart Publishing, 2004), pp. 3–29; Ken- sions are being made beyond the purview of neth W.Abbott, Robert O. Keohane,Andrew Moravcsik, national legislatures. A variety of supra- Anne-Marie Slaughter, and Duncan Snidal, “The Con- national organizations, transnational cept of Legalization,” in Robert O. Keohane, Power and Governance in a Partially Globalized World (New York: “private global authorities,” and transgov- Routledge, 2002), pp. 132–51; James N. Rosenau et al., ernmental networks engage in regulation Along the Domestic-Foreign Frontier: Exploring Gover- and rule making, bypassing the state in the nance in a Turbulent World (New York: Cambridge Uni- 2 versity Press, 1997); and James N. Rosenau,“Governance generation of hard and “soft law.” Indeed and Democracy in a Globalizing World,” in Daniele the apparent decoupling of law from the Archibugi, David Held, and Martin Kohler, eds., Re- territorial state suggests to many that the Imagining Political Community: Studies in Cosmopolitan latter has lost legal as well as political sover- Democracy (Palo Alto: Stanford University Press, 1998), pp. 28–58. eignty. 3 See Allen Buchanan, Justice, Legitimacy, and Self- This conundrum has triggered the emer- Determination: Moral Foundations for International Law gence of a set of claims about the transfor- (New York: Oxford University Press, 2004), pp. 301–13, for an argument that consensus should replace state mation of international law. If law making is consent as the principle of legitimacy in the interna- escaping the monopoly of states, then the tional system. 1 001-024_cohen.qxd 12/1/04 4:19 PM Page 2 thus becomes: What is to be the new imperial world domination. From this per- “nomos” of the earth and how should we spective, governance, soft law, self- understand globalized law?4 regulation, societal constitutionalism, trans- Legal theorists have certainly risen to the governmental networks, human rights talk, challenge over the last decade. Talk of legal and the very concept of “humanitarian inter- and constitutional pluralism, societal con- vention”are simply the discourses and defor- stitutionalism, transnational governmental malized mechanisms by which empire aims networks, cosmopolitan human rights law to rule (and to legitimate its rule) rather than enforced by “humanitarian intervention,” ways to limit and orient power by law.9 and so on are all attempts to conceptualize the new global legal order that is allegedly emerging before our eyes.5 The general 4 See Schmitt, The Nomos of the Earth,pp.336–51, for the claim is that the world is witnessing a move concept of nomos. In short, a nomos is the concrete ter- to cosmopolitan law, which we will not per- ritorial and political organization of the world order, ceive or be able to influence if we do not invested with symbolic meaning, that undergirds the 6 formal rules of international law. For a critique of his abandon the discourse of sovereignty. The essentialist understanding of this concept, see Martti debates from this perspective are around Koskenniemi, The Gentle Civilizer of Nations: The Rise how to conceptualize the juridification of and Fall of International Law 1870–1960 (New York: the new world order.7 Despite their differ- Cambridge University Press, 2004), pp. 415–24. 5 Teubner, “‘Global Bukowina’: Legal Pluralism in ences, what seems obvious to those seeking World Society”; and Neil Walker, “The Idea of Consti- to foster legal cosmopolitanism is that sov- tutional Pluralism,”Modern Law Review 65,no.3 (2002), ereignty talk and the old forms of public p. 317. 6 Judith Goldstein, Miles Kahler, Robert O. Keohane, and international law based on the sovereignty Anne-Marie Slaughter, “Introduction: Legalization and paradigm have to go. World Politics,” in Goldstein et al., eds., Legalization and But there is another way of interpreting World Politics (Cambridge: MIT Press, 2001), pp. 1–15. 7 One battle is between traditional sovereigntists and the changes occurring in the international cosmopolitans. Another debate exists within cosmo- system. If one shifts to a political perspective, politanism between centered versus decentered models. the sovereignty-based model of interna- For more centered models of legal and political tional law appears to be ceding not to cos- cosmopolitanism, see David Held, Democracy and the Global Order (Stanford: Stanford University Press, mopolitan justice but to a different bid to 1995); and Daniele Archibugi, “Cosmopolitan Democ- restructure the world order: the project of racy,”in Daniele Archibugi, ed., Debating Cosmopolitics empire. The idea that we have already (New York: Verso, 2003), pp. 1–16. 8 Michael Hardt and Antonio Negri, Empire (Cam- entered into the epoch of empire has taken bridge: Harvard University Press, 2000). See also Ethics hold in many circles, as the popularity of the International Affairs 17,no.2 (2003), “The Revival of Hardt and Negri volume, and the avalanche Empire,” pp. 34–98; and Michael Ignatieff, “The Bur- den,” New York Times Magazine, January 5, 2003,p.22. of writings and conferences on empire, wit- 9 EIA’s “The Revival of Empire” is more nuanced than 8 ness. Like the theorists of cosmopolitan law, this characterization. There is, of course, a debate over proponents of this view also insist that the whether the United States is an empire, whether it can discourses of state sovereignty and public be a successful empire, when the empire began, and whether recent activity, including the invasions of international law have become irrelevant. Afghanistan and Iraq, are signs of its demise. See also But they claim that what is replacing the sys- Emmanuel Todd, C. Jon Delogu, and Michael Lind, tem of states is not a pluralistic, cooperative After the Empire: The Breakdown of the American Order (New York: Columbia University Press, 2003). My inter- world political system under a new, impartial est is the fate of the discourse of state sovereignty in global rule of law, but rather a project of these claims and counterclaims. 2 Jean L. Cohen 001-024_cohen.qxd 12/1/04 4:19 PM Page 3 I agree that we are in the presence of control of neighboring smaller polities) by something new. But I am not convinced that twenty-first-century great powers, who one should abandon the discourse of sover- invoke (and instrumentalize) cosmopolitan eignty in order to perceive and conceptual- right as they proceed.10 Clearly I opt for the ize these shifts. Nor am I convinced that the former over the latter. step from an international to a cosmopoli- The first project entails acknowledging tan legal world order without the sovereign the existence and value of a dualistic world state has been or should be taken. The two order whose core remains the international doubts are connected: I argue that if we drop society of states embedded within (suitably the concept of sovereignty and buy into the reformed) international institutions and idea that the state has been disaggregated, international law, but that also has impor- and that international treaty organizations tant cosmopolitan elements and cosmopol- are upstaged by transnational governance, itan legal principles (human rights norms) we will misconstrue the nature of contem- upon which the discourse of transnational- porary international society and the politi- ism and governance relies, if inadequately. cal choices facing us. If we assume that a On this approach (my own), legal cos- constitutional, cosmopolitan legal order
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