On the Alleged Conflict Between Democracy and International Law Seyla Benhabib*

On the Alleged Conflict between Democracy and International Law Seyla Benhabib*

-r-t is December 12, 1960. Israeli secret "crime against humanity." "Had the court in agents have captured Adolf Eichmann, Jerusalem" she writes, "understood that A and the Israeli government has declared there were distinctions between discrimina- its intention to put Eichmann on trial. Karl tion, expulsion, and genocide, it would have Jaspers writes to Hannah Arendt: "The Eich- become clear that the supreme crime it was mann trial is unsettling .. . because I am confronted with, the physical extermination afraid Israel may come away from it looking of the Jewish people, was a crime against bad no matter how objective the conduct of humanity, perpetrated upon the body of the the trial.... Its significance is not in its being Jewish people...."3 a legal trial but in its establishing of histori- If, however, there are crimes that can be cal facts and serving as a reminder of those perpetrated against humanity itself, then the facts for humanity."' For the next several individual human being is considered not months and eventually years an exchange only as a being worthy of moral respect but ensues between Hannah Arendt and her as having a legal status as well that ought to teacher and mentor, Karl Jaspers, about the be protected by international law. The distin- legality or illegality of the Eichmann trial, guishing feature of this legal status is that it about institutional jurisdiction, and about would take precedence over all existing legal 4 the philosophical foundations of interna- orders and it would bind them. Crimes tional law and in particular of "crimes against humanity are different from other against humanity." Arendt replies that she is not as pessimistic This article is based in part on my Tanner Lectures, as Jaspers is about "the legal basis of the delivered at the University of California at Berkeley in March 2004. They will appear as Seyla Benhabib, "Rec- trial.' 2 Israel can argue that Eichmann had onciling Universalism and Republican Self-Determina- been indicted in the first trial in Nuremberg tion," in The Tanner Lectures Yearbook (Salt Lake City: and escaped arrest. In capturing Eichmann, Utah University Press, forthcoming). A separate publi- Kym- Israel was capturing an outlaw-a hostis cation with commentaries by Bonnie Honig, Will licka, and Jeremy Waldron is in preparation with humani generis (an enemy of the human Oxford University Press. race)-who had been condemned of "crimes I Lotte Kohler and Hans Saner, eds., Hannah against humanity." He should have appeared Arendt-Karl Jaspers Correspondence: 1926-1969, trans. Robert and Rita Kimber (New York: Harcourt Brace court, but since there before the Nuremberg Jovanovich, 1992), pp. 409-10. was no successor court to carry out its mis- 2 Ibid., p. 414. sion, Arendt thinks that Israeli courts have a 3 Hannah Arendt, Eichmann in Jerusalem: A Report on of Evil (NewYork: Penguin Books, 1963; rev. plausible basis for assuming jurisdiction. the Banality ed., 1994), p. 269. According to Hannah Arendt, genocide is 4 Kohler and Saner, eds., Hannah Arendt-Karl Jaspers the one crime that truly deserves the label Correspondence,p. 414.

85 crimes, which can only exist when there is a the guilt or innocence of individuals '8 known and promulgated law that has been Why does Arendt deny that an Interna- violated. But which are the laws that crimes tional Criminal Court is conceivable? Does against humanityviolate, particularly if, as in she mean that it is unlikely to come into the case of Eichmann and the Nazi genocide existence, or rather that, even if it were to of the Jews, a state and its established legal come into existence, it would be without system sanctify genocide, and even order it to authority? Her position is all the more baf- be committed? A crime, as distinct from a fling since her very insistence upon the moral injury, cannot be defined independ- juridical as opposed to the merely moral ently of posited law and a positive legal order. dimension of crimes against humanity sug- Arendt is aware that on account of philo- gests the need for a standing international sophical perplexities, there will be a ten- body that would possess the jurisdiction to dency to think of crimes against humanity try such crimes committed by individuals. as "crimes against humanness" or "humaneness'" as if what was intended was a moral COSMOPOLITAN NORMS injury that violated some kind of shared OF JUSTICE moral code. The Nuremberg Charter's definition of "crimes against humanity" (Ver- The Eichmann trial, much like the Nurem- brechen gegen dieMenschheit) was translated berg trials before it, captured some of the per- into German as "Verbrechen gegen die Men- plexities of the emerging norms of schlichkeie' (crimes against humaneness), international and, eventually, cosmopolitan "as if," she observes, "the Nazis had simply justice. It is my thesis that since the UN Dec- been lacking in human kindness, certainly laration of Human Rights in 1948, we have the understatement of the century."5 entered a phase in the evolution of global civil Although Jaspers is willing to accept society that is characterized by a transition Arendt's distinction between crimes against from internationalto cosmopolitan norms of humanity versus humaneness, he points out justice. While norms of international justice that since international law and natural law frequently emerge through treaty obligations are not "law in the same sense that underlies to which states and their representatives are normal court proceedings" 6 it would be signatories, cosmopolitan norms of justice most appropriate for Israel to transfer the accrue to individuals as moral and legal per- competency to judge Eichmann either to the sons in a worldwide civil society. Even if cos- UN, to the International Court at The Hague, mopolitan norms also originate through or to courts provided for by the UN Charter. treatylike obligations, such as the UN Charter Neither Arendt nor Jaspers harbors any can be considered to be for the signatory illusions that the UN General Assembly states, their peculiarity is that they endow would rise up to this task.7 The postscript to individuals with certain rights and claims, Eichmann in Jerusalem ends on an unex- pected and surprising note: "It is quite con- 5 Arendt, Eichmann in Jerusalem,p. 275; and Kohler and ceivable that certain political responsibilities Saner, eds., Hannalh Arendt-Karl Jaspers Correspon- among nations might some day be adjudi- dence, pp. 423, 431. cated in an international court; what is 6Kohler and Saner, eds., Hannah Arendt-KarlJaspers Correspondence; p. 424. inconceivable is that such a court would be 7 Arendt, Eichmann in Jermsalem, p. 270. a criminal tribunal which pronounces on 8 Ibid., p. 298.

86 Seyla Benhabib and often against the will of the states that are consequence is a complex system of interde- themselves signatories. This is the uniqueness pendence that gives the lie to Carl Schmitt's of the many human rights agreements signed dictum that "there is no sovereign to force the 1 since World War II. They signal an eventual sovereign."' As Gerald Neuman observes, transition from international law based on "National constitutions vary greatly in their treaties among states to cosmopolitan law provisions regarding the relationship between understood as public law that binds and international and domestic law. Some are bends the will of sovereign nations.9 more or less dualist, treating international The rise of multiple human rights regimes norms as part of a distinct legal system.... causes both the collusion and confluence of Others are more or less monist, treating inter- international and domestic law. By an "international law and domestic law as a single legal national human rights regime" I understand system, often giving some category of inter- a set of interrelated and overlapping global national norms legal supremacy over domes- and regional regimes that encompass human tic legislation?' 2 The transformation of 3 rights treaties as well as customary interna- human rights codes' into generalizable tional law or international soft law.' 0 The norms that ought to govern the behavior of

9 See Anne-Marie Slaughter's lucid statement, in "Leading agreement that is not concluded as a treaty and there- Through Law," Wilson Quarterly (Autumn 2003), fore not covered by the Vienna Convention on the Law pp. 42 43: "International law today is undergoing pro- of Treaties. Such an agreement is adopted by states that found changes that will make it far more effective than it do not want a treaty-based relationship and do not want has been in the past. By definition international law is a to be governed by treaty or customary law in the event body of rules that regulates relations among states, not of a breach of their obligations. individuals. Yet over the course of the 21st century, it will ' Carl Schmitt, The Concept of the Political, trans., increasingly confer rights and responsibilities directly on intro., and notes by George Schwab (Chicago: Univer- individuals. The most obvious example of this shift can be sity of Chicago Press, [1927] 1996). seen in the explosive growth of international criminal law?" "1Neuman, "Human Rights and Constitutional Rights," 10 Such examples would include the UN treaty bodies p. 1875. under the International Covenant on Civil and Political 3' I use the term "human rights codes" rather than Rights; the International Covenant on Economic, Social "human rights" in this context for an important reason. and Cultural Rights; the International Convention on Human rights need to be interpreted, concretized, and the Elimination of All Forms of Racial Discrimination; codified by each society's own democratic constitutions the Convention on the Elimination of All Forms of Dis- according to their own legal, constitutional, political, and crimination Against Women; the Convention Against cultural traditions. I distinguish between the principle of Torture and Other Cruel, Inhuman or Degrading Treat- rights and the schedule of rights. While the principle of ment or Punishment; and the Convention on the Rights rights establishes that a democratic constitution ought to of the Child. The establishment of the European Union incorporate basic or fundamental rights to which ali are has been accompanied by a Charter of Fundamental entitled, the schedule of rights means that the precise Rights and by the formation of a European Court of Jus- concretization of these rights occurs through a process of tice. The European Convention for the Protection of collective self-determination. Of course, there will need Human Rights and Fundamental Freedoms, which to be a permissible range of interpretation and determi- encompasses states that are not EU members as well, nation, for it is quite possible for countries with auto- permits the claims of citizens of adhering states to be cratic and illiberal traditions to claim that there is a heard by the European Court of Human Rights. Parallel schedule of "Asian rights" or "Islamic rights" that would developments can be seen on the American continent not recognize the equal rights of women to divorce and through the establishment of the Inter-American Sys- inheritance, for example, as their male counterparts. In tem for the Protection of Human Rights and the Inter- such cases, a contentious dialogue ensues between those American Court of Human Rights. See Gerald Neuman, upholding the general human rights norms enshrined in "Human Rights and Constitutional Rights: Harmony various human rights treaties and existing governments and Dissonance," Stanford Law Review 55, no. 5 (2003), that choose to interpret them in a specific way. This is an pp. 1863 901. By "soft law" is meant an international example of "democratic iterations" that I discuss below.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 87 sovereign states and in some cases their supreme crime against humanity, in that it incorporation into domestic constitutions is aims at the destruction of human variety, of one of the most promising aspects of con- the many and diverse ways of being human. temporary political globalization processes. Genocide does not only eliminate individu- We are witnessing this development in at als who may belong to this or another group; least three related areas: it aims at the extinction of their way of life.15 Crimes Against Humanity, Genocide, and War crimes, as defined in the Statute of the War Crimes. The concept of crimes against International Criminal Tribunal for the For- humanity, first articulated by the Allied mer Yugoslavia (1993), initially only applied powers in the Nuremberg trials of Nazi war to internationalconflicts. With the Statute of criminals, stipulates that there are certain the International Criminal Tribunal for norms in accordance with which state offi- Rwanda (1994), recognition was extended to cials as well as private individuals are to treat internal armed conflict as well. "War crimes" one another, even, and precisely under, con- now refers to international as well as inter- ditions of extreme hostility and war. Ethnic nal conflicts that involve the mistreatment cleansing, mass executions, rape, cruel and or abuse of civilians and noncombatants, as unusual punishment of the enemy, such as well as one's enemy in combat.16 dismemberment, which occur under condi- Thus, in a significant development since tions of a "widespread or systematic attack," World War II, crimes against humanity, are proscribed and can all constitute suffi- genocide, and war crimes have all been cient grounds for the indictment and prose- extended to apply not only to atrocities that cution of individuals who are responsible take place in international conflict situa- for these actions, even if they are or were tions but also to events within the borders of state officials, or subordinates who acted a sovereign country that may be perpetrated under orders. The refrain of the soldier and by officials of that country and/or by its cit- the bureaucrat-"I was only doing my izens during peacetime. duty"-is no longer an acceptable ground The continuing rearticulation of these for abrogating the rights of humanity in the three categories in international law, and in person of the other, even when, and espe- particular their extension from situations of cially when, the other is your enemy. international armed conflict to civil wars During the Nuremberg trials, "crimes within a country and to the actions of gov- against humanity" was used to refer to ernments against their own people, has in crimes committed during international armed conflicts.14 Immediately after the Nuremberg trials, genocide was also 14 Charter of the International Military Tribunal, 1945, included as a crime against humanity, but Art. 6 (c), as cited in Steven R. Ratner and Jason S. was left distinct, due its own jurisdictional Abrams, Accountabilityfor Human Rights Atrocities in status, which was codified in Article II of the InternationalLawv: Beyond the NurembergLegacy (New Convention on the Prevention and Punish- York: Clarendon Press, [1997] 2002) 2nd ed., pp. 26-45; and William A. Schabas, An Introduction to the Interna- ment of the Crime of Genocide (1948). tional Criminal Court (Cambridge: Cambridge Univer- Genocideis the knowing and willful destruc- sity Press, 2001), pp. 6-7. tion of the way of life and existence of a col- '5Ratner and Abrams, AccountabilityforHuman Rights Atrocities, pp. 35-36. lectivity through acts of total war, racial i6 Ibid., pp. 8o-nio; and Schabas, Introduction to the extinction, or ethnic cleansing. It is the InternationalCriminal Court, pp. 40-53.

88 Seyla Benhabib turn encouraged the emergence of the con- of concrete bounded communities, but cept of "humanitarian interventions." insofar as they are human beings simpliciter, HumanitarianInterventions. The theory when they come into contact with, seek and practice of humanitarian interventions, entry into, or want to become members of to which the United States and its NATO territorially bounded communities. allies appealed in order to justify their The Universal Declaration of Human actions against ethnic cleansing and contin- Rights recognizes the right to freedom of uing crimes against the civilian population movement across boundaries, a right to in Bosnia and Kosovo, suggest that when a emigrate-that is, to leave a country-but sovereign nation-state egregiously violates not a right to immigrate, a right to enter a the basic human rights of a segment of its country (Article 13). Article 14 anchors the population on account of their religion, right to enjoy asylum under certain circum- race, ethnicity, language, or culture there is a stances, while Article 15 proclaims that generalized moral obligation to end actions everyone has "the right to a nationality." The such as genocide and crimes against human- second half of Article 15 stipulates that "No ity.17 In such cases, human rights norms one shall be arbitrarily deprived of his trump state sovereignty claims. No matter nationality nor denied the right to change how controversial in interpretation and his nationality." application they may be, humanitarian Yet the declaration is silent on states' obli- interventions are based on the growing con- gations to grant entry to immigrants, to sensus that the sovereignty of the state to uphold the right of asylum, and to permit dispose over the life, liberty, and property of citizenship to alien residents and denizens. its citizens or residents is not unconditional These rights have no specific addressees, and or unlimited.'8 State sovereignty is no longer they do not appear to anchor specific obliga- the ultimate arbiter of the fate of citizens or tions on the part of second and third parties residents. The exercise of state sovereignty to comply with them. Despite the cross- even within domestic borders is increasingly border character of these rights, the declara- subject to internationally recognized norms tion upholds the sovereignty of individual that prohibit genocide, ethnocide, mass states. A series of internal contradictions expulsions, enslavement, rape, and forced between universal human rights claims and labor. territorial sovereignty are thereby built right TransnationalMigration. The third area into the logic of the most comprehensive in which international human rights norms international law document in our world. are creating binding guidelines upon the The Geneva Convention of 1951 Relating will of sovereign nation-states is that of to the Status of Refugees, and its Protocol international migration. Humanitarian added in 1967, is the second most important interventions deal with the treatment by international legal document after the Uni- nation-states of their citizens or residents; crimes againsthumanity and war crimes con- cern relations among enemies or opponents 17Allen Buchanan, "From Nuremberg to Kosovo: The in nationally bounded as well as extraterri- Morality of Illegal International Legal Reform," Ethics torial settings. Transnational migrations, by III (July 2001), pp. 673-705. 15 Michael Doyle, "The New Interventionism," in contrast, pertain to the rights of individuals Thomas W. Pogge, ed., Global Justice (Malden, Mass.: not insofar as they are considered members Blackwell, 2001), pp. 219-42.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 89 versal Declaration of Human Rights. Never- times even a fatal contradiction, is palpable: theless, neither the existence of this docu- the modern state system is caught between ment nor the creation of the United Nations sovereignty and hospitality, between the pre- High Commissioner on Refugees has altered rogative to choose to be a party to cosmo- the fact that this convention and its protocol politan norms and human rights treaties, are binding on signatory states alone and and the obligation to extend recognition of can be brazenly disregarded by nonsignato- these human rights to all. ries and, at times, even by signatory states In a Kantian vein, by "hospitality" I mean themselves. to refer to all human rights claims that are Some lament the fact that as international cross-border in scope. The tension between human rights norms are increasingly sovereignty and hospitality is all the more invoked in immigration, refugee, and asy- real for liberal democracies since they are lum disputes, territorially delimited nations based on the fragile but necessary negotia- are challenged not only in their claims to tion of constitutional universalism and ter- control their borders but also in their pre- ritorial sovereignty. rogative to define the "boundaries of the national community." Others criticize the THE PARADOX OF DEMOCRATIC Universal Declaration for not endorsing LEGITIMACY "institutional cosmopolitanism," and for upholding an "interstatal" rather than a Ideally, democratic rule means that all mem- truly cosmopolitan international order.'9 bers of a sovereign body are to be respected Yet one thing is clear: the treatment by states as bearers of human rights, and that the of their citizens and residents within their consociates of this sovereign freely associate boundaries is no longer an unchecked pre- with one another to establish a regime of self- rogative. One of the cornerstones of West- governance under which each is to be con- phalian sovereignty-namely, that states sidered both author of the laws and subject to enjoy ultimate authority over all objects and them. This ideal of the original contract, as subjects within their circumscribed terri- formulated by Jean-Jacques Rousseau and tory-has been delegitimized through adopted by Immanuel Kant, is a heuristically international law. useful device for capturing the logic of mod- The evolution of cosmopolitan norms, ern democracies. Modern democracies, however, is rife with a central contradiction: unlike their ancient counterparts, conceive of while territorially bounded states are their citizens as rights-bearing consociates. increasingly subject to international norms, The rights of the citizens rest upon the states themselves are the principal signato- "rights of man.' "Les droits de l'homme et du ries as well as enforcers of the multiple and citoyen" do not contradict one another; quite varied human rights treaties and conven- to the contrary, they are coimplicated. This is tions through which international norms the idealized logic of the modern democratic spread. In this process, the state is both sublated and reinforced in its authority. Throughout the international system, as 19 For the first position, see David Jacobson, Rights long as territorially bounded states are rec- Across Borders:Immigration and the Decline of Citizen- ship (Baltimore: Johns Hopkins University Press, 1997), ognized as the sole legitimate units of nego- p.5; for the second, see Onora O'Neill, Bounds ofJustice tiation and representation, a tension, and at (Cambridge: Cambridge University Press, 2000), p. 180. go Seyla Benhabib revolutions following the American and and democracy, and even as the conflict French examples. between constitutionalism and popular sov- The democratic sovereign draws its legit- ereignty. In each case the logic of the conflict imacy not merely from its act of constitu- is the same: to assure that the democratic tion, but equally significantly, from the sovereign will uphold certain constraints conformity of this act to universal principles upon its will in virtue of its precommitment of human rights, which are in some sense to certain formal and substantive interpreta- said to precede and antedate the will of the tions of rights. Liberal and democratic the- sovereign and in accordance with which the orists disagree with one another as to the sovereign undertakes to bind itself. "We, the proper balance of this mix: while strong lib- people" refers to a particular human com- erals want to bind the sovereign will through munity, circumscribed in space and time, precommitments to a list of human rights, sharing a particular culture, history, and strong democrats reject such a prepolitical legacy; yet this people establishes itself as a understanding of rights and argue that they democratic body by acting in the name of must be open to renegotiation and reinter- the "universal." The tension between univer- pretation by the sovereign people-admit- sal human rights claims and particularistic tedly within certain limits. cultural and national identities is constitu- Yet this paradox of democratic legitimacy tive of democratic legitimacy. Modern has a corollary that has been little noted: democracies act in the name of universal every act of self-legislation is also an act of principles, which are then circumscribed self-constitution. "We, the people" who within a particular civic community. This is agree to bind ourselves by these laws are also the "Janus face of the modern nation" in the defining ourselves as a "we" in the very act of words of Jiirgen Habermas.20 self-legislation. It is not only the general laws Since Rousseau, however, we also know of self-government that are articulated in that the will of the democratic people may this process; the community that binds itself be legitimate but unjust, unanimous but by these laws defines itself by drawing unwise. "The general will" and "the will of boundaries as well, and these boundaries are all" may not overlap either in theory or in territorial as well as civic. The will of the practice. Democratic rule and the claims of democratic sovereign can only extend over justice may contradict one another. The the territory that is under its jurisdiction; democratic precommitments expressed in democracies require borders. Empires have the idealized allegiance to universal human frontiers, while democracies have borders. rights-life, liberty, and property-need to Democratic rule, unlike imperial dominion, be reactualized and renegotiated within is exercised in the name of some specific actual polities as democratic intentions. constituency and binds that constituency Potentialy, there is always a conflict between alone. Therefore, at the same time that the an interpretation of these rights claims that sovereign defines itself territorially, it also precede the declared formulations of the defines itself in civic terms. Those who are sovereign and the actual enactments of the democratic people that could potentially 20 Jiirgen Habermas, "The European Nation-State: On violate such interpretations. We encounter the Past and Future of Sovereignty and Citizenship," in Ciaran Cronin and Pablo de Greiff, eds., The Inclusion this conflict in the history of political of the Other: Studies in Political Theory (Cambridge: thought as the conflict between liberalism MIT Press, 1998), p. 115.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 91 full members of the sovereign body are dis- its impact can be mitigated through the tinguished from those who "fall under its renegotiation and reiteration of the dual protection," but who do not enjoy "full commitments to human rights and sover- membership rights." Women and slaves, eign self-determination. Popular sover- servants, propertyless white males, non- eignty is not identical with territorial Christians and nonwhite races were histori- sovereignty, although the two are closely cally excluded from membership in the linked, both historically and normatively. sovereign body and from the project of citi- Popular sovereignty means that all full zenship. They were, in Kant's famous words, members of the demos are entitled to have a "mere auxiliaries to the commonwealth'' 2 ' voice in the articulation of the laws by which In addition to these groups are those res- the demos governs itself. Democratic rule idents of the commonwealth who do not extends its jurisdiction to those who can enjoy full citizenship rights either because view themselves as the authors of such rule. they do not possess the requisite identity cri- There never was a perfect overlap between teria through which the people defines itself, the circle of those who stand under the law's or because they belong to some other com- authority and those recognized as full mem- monwealth, or because they choose to bers of the demos. Every democratic demos remain as outsiders. These are the "aliens" has disenfranchised some, while recognizing and "foreigners" amid the democratic peo- only certain individuals as full citizens. Ter- ple. They are different from second-class cit- ritorial sovereignty and democratic voice izens, such as women and workers, as well as have never matched completely.Yet presence from slaves and tribal peoples. Their status is within a circumscribed territory, and in par- governed by mutual treaties among sover- ticular continuing residence within it, eign entities-as would be the case with offi- brings one under the authority of the sover- cial representatives of a state power upon the eign-whether democratic or not. The new territory of the other; and if they are civil- politics of cosmopolitan membership is ians, and live among citizens for economic, about negotiating this complex relationship religious, or other cultural reasons, their between rights of full membership, demo- rights and claims exist in that murky space cratic voice, and territorial residence. While defined by respect for human rights on the the demos, as the popular sovereign, must one hand and by international customary assert control over a specific territorial law on the other. They are refugees from reli- domain, it can also engage in reflexive acts of gious persecution, merchants and mission- self-constitution, whereby the boundaries of aries, migrants and adventurers, explorers the demos can be readjusted. and fortune seekers. The evolution of cosmopolitan norms, I have circumscribed in general theoreti- from crimes against humanity to norms cal terms the paradox of democratic legiti- extending to regulate refuge, asylum, and macy. The paradox is that the republican immigration, have caught most liberal sovereign should undertake to bind its will democracies within a network of obligations by a series of precommitments to a set of formal and substantive norms, usually 21 Immanuel Kant, "Die Metaphysik der Sitten in zwei referred to as "human rights." Teilen" 117971, in Ernst Cassirer, ed., Immanuel Kants Werke (Berlin: Cassirer, 1912), p. 121; The Metaplhysics of I want to argue that while this paradox Morals, trans. and ed. Mary Gregor (Cambridge: Cam- can never be fully resolved in democracies, bridge University Press, 1996), p. 140.

92 Seyla Benhabib to recognize certain rights claims. Although Schleswig-Holstein for at least five years, the asymmetry between the "demos" and the who possessed a valid permit of residency or "populus," the democratic people and the who were in no need of one, and who were population as such, has not been overcome, citizens of Denmark, Ireland, the Nether- norms of hospitality have gone far beyond lands, Norway, Sweden, or Switzerland, what they were in Kant's understanding: the would be able to vote in local and district- status of alienage is now protected by civil as wide elections. The choice of these six coun- well as international laws; the guest is no tries was made on the grounds of longer a guest but a resident alien, as we say reciprocity. Since these countries permitted in American parlance, or a "foreign co- their foreign residents to vote in local, and in citizen," as Europeans say. In a remarkable some cases regional, elections, the German evolution of the norms of hospitality, within provincial legislators saw it appropriate to the European Union in particular, the rights reciprocate. of third-country nationals are increasingly The claim that the new election law was protected by the European Convention on unconstitutional was brought by 224 mem- Fundamental Rights and Freedoms, with the bers of the German Parliament, all of them consequence that citizenship, which was members of the conservative Christian once the privileged status entitling one to Democratic and Christian Social Union rights, has now been disaggregated into its (CDU/CSU) party; it was supported by the constituent elements.22 Federal Government of Germany. The court justified its decision with the argument that TESTING THE PARADOX:THE CASE the proposed change of the electoral law OF GERMANY contradicted "the principle of democracy," as laid out in Articles 20 and 28 of Germany's I want to concretize these considerations by Basic Law, and according to which "All state turning to a decision of the German Supreme Court on alien suffrage rights in order to illustrate some of the conceptual issues 2 2 involved in a concrete institutional setting. For a more detailed discussion of institutional developments, particularly within the European context On October 31,1990, the German Consti- leading to the disaggregation of citizenship rights, see tutional Court ruled against a law passed by Seyla Benhabib, The Rights of Others: Aliens, Citizens the provincial assembly of Schleswig- and Residents (The John Seeley Memorial Lectures) (Cambridge: Cambridge University Press, 2004), ch. 4. 21, 1989, Holstein on February that changed 23 A similar change in its election laws was undertaken the qualifications for participating in local by the free state of Hamburg such as to enable those of municipal and district-wide elections.2 3 its foreign residents of at least eighteen years of age to participate in the election of local municipal assemblies. According to Schleswig-Holstein's election Since Hamburg is not a federal province but a free city- laws in effect since May 31, 1985, all those state, with its own constitution, some of the technical who were defined as German in accordance aspects of this decision are not parallel to those in the with Article 1i6 of the Basic Law, who had case of Schleswig-Holstein. I chose to focus on the lat- ter case alone. It is nonetheless important to note that completed the age of eighteen and who had the federal government, which had opposed Schleswig- resided in the electoral district for at least Holstein's electoral reforms, supported those of Ham- three months were eligible to vote. The law burg. See Bundesverfassungsgericht (Federal Con- stitutional Court; abbreviated hereafter as BVerfGe) 83, of February 21, 1989, proposed to amend this 60, II, No. 4, pp. 60-81; and BVerfGe 83, 11, No. 3, p. 37. as follows: all foreigners residing in All translations from the German are mine.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 93 power [Staatsgewalt] proceeds from the ent levels of the state. Permitting long-term peoplef'24 Furthermore, resident foreigners to vote would imply that The people [das Volk], which the Basic Law of popular sovereignty would be defined in dif- the Federal Republic of Germany recognizes to ferent fashion at the district-wide and com- be the bearer of the authority [Gewalt] from munal levels than at the provincial and which issues the constitution, as well as the federal levels. In an almost direct repudiation people which is the subject of the legitimation and creation of the state, is the German peo- of the Habermasian discursive democracy ple. Foreigners do not belong to it. Member- principle, the court declared thatArticle 20 of ship in the community of the state Germany's Basic Law does not imply that [Staatsverband]is defined through the right of "the decisions of state organs must be legit- citizenship.... Citizenship in the state [Staats- imized through those whose interests are angehorigkeit] constitutes a fundamentally affected [Betroffenen] in each case; rather, indissoluble personal right between the citizen and the state. The vision [or image-Bild] of their authority must proceed from the peo- the people of the state [Staatsvolkes], which ple as a group bound to each other as a unity underlies this right of belonging to the state, is [das Volk als eine zur Einheit verbundene the political community of fate [die politische Gruppe von Menschen] ,26 Schicksalsgemneinschaft], to which individual The provincial parliament of Schleswig- citizens are bound. Their solidarity with and their embeddedness in [Verstrickung] the fate Holstein challenged the court's understand- of their home country, which they cannot ing and argued that neither the principle of escape [sich entrinnen konnen], are also the democracy nor that of the people excludes justification for restricting the vote to citizens the rights of foreigners to participate in elec- of the state. They must bear the consequences tions: "The model underlying the Basic Law their decisions. By contrast, foreigners, of is the construction of a democracy of regardless of however long they may have resided in the territory of the state, can always human beings, and not that of the collective return to their homeland.25 of the nation. This basic principle does not permit that one distinguish in the long-run This resounding statement by the court can between the people of the state [Staatsvolk] be broken down into three components: first, and an association of subservients [ Unter- a disquisition on the meaning of popularsov- tanenverband] ,27 ereignty (all power proceeds from the peo- The German Constitutional Court eventu- ple); second a procedural definition of how ally resolved this controversy about the mean- we are to understand membership in the state; ing of popular sovereignty by upholding a third, a philosophical explication of the unitary and functionally undifferentiated ver- nature of the bond between the state and the sion of it, but it did concede that the sovereign individual, based on the vision of a "political people, through its representatives, could community offate.' The court argued that change the definition of citizenship. Procedu- according to the principle of popular sover- rally, "the people" simply means all those who eignty, there needed to be a "congruence" have the requisite state membership. If one between the principle of democracy, the con- is a citizen, one has the right to vote; if not, cept of the people, and the main guidelines for voting rights, at all levels of state power- 24 BVerfGe 83,37, No. 3, p. 39- namely, federal, provincial, district, and com- 2 5 Ibid., pP. 39-40. munal. Different conceptions of popular 26 Ibid., p. 51. 2 7 sovereignty could not be employed at differ- Ibid., p. 42.

94 Seyla Benhabib not. "So the Basic Law ... leaves it up to the Such a community does not permit free legislator to determine more precisely the entry and exit. Perhaps marriage with mem- rules for the acquisition and loss of citizen- bers of such a community may produce ship and thereby also the criteria of belong- some integration over generations; but, by ing to the people. The law of citizenship is and large, membership in an ethnos-in a thus the site at which the legislator can do community of memory, fate, and belong- justice to the transformations in the compo- ing-is something that one is born into, sition of the population of the Federal Repub- although as an adult one may renounce this lic of Germany." This can be accomplished by heritage, exit it, or wish to alter it. To what expediting the acquisition of citizenship by extent should one view liberal democratic all those foreigners who are long-term per- polities as ethnoi communities? Despite its manent residents of Germany.2 8 emphatic evocation of the nation as a "com- The court here explicitly addresses what I munity of fate," the court also emphasizes have called the paradox of democratic legit- that the democratic legislator has the pre- imacy-namely, that those whose rights to rogative to transform the meaning of citi- inclusion or exclusion from the demos are zenship and the rules of democratic being decided upon will not themselves be belonging. Such a transformation of citizen- the ones to decide upon these rules. The ship may be necessary to do justice to the democratic demos can change its self- changed nature of the population. The definition by altering the criteria for admis- demos and the ethnos do not simply overlap. sion to citizenship. The court still holds to Written in 19go, this decision of the Ger- the classical model of citizenship according man Constitutional Court appears in retro- to which democratic participation rights spect as a swan song to a vanishing ideology and nationality are strictly bundled of nationhood.2 9 In 1993 the Treaty of Maas- together, but by signaling the procedural tricht, or the Treaty on the European Union, legitimacy of changing Germany's natural- ization laws, the court also acknowledges the 28 Ibid., p. 52. power of the democratic sovereign to alter 29 I do not mean to suggest that nationalist ideologies its self-definition such as to accommodate and sentiments vanished from the unified Germany. Unlike in many of Germany's neighboring countries, the changing composition of the popula- such as France and the Netherlands, however, they did tion. The line separating citizens and for- lose institutional traction throughout the 1990s. The eigners can be renegotiated by the citizens citizenship laws were passed by parliamentary majori- ties of Social Democrats, Greens, and Christian Democ- themselves. rats; but the price for the liberalization of citizenship Yet the procedural democratic openness was paid in terms of further restrictions on Germany's signaled by the court stands in great contrast rather generous asylum laws. So these transitions were not without cost. Nationalism reappeared on the Ger- to the conception of the democratic people, man scene first when i million signatures were collected also adumbrated by the court, and according in a referendum in Hesse against permitting dual citi- to which the people is viewed as "a political zenship of immigrant children, who are now entitled to community of fate," held together by bonds this only until they reach age twenty-four; the second instance was the recent Iraq war and deep fear and dis- of solidarity in which individuals are like of the U.S. administration under George W. Bush; embedded (verstrickt). Here the democratic and the third case was the surprisingly racialized debate people is viewed as an ethnos, as a commu- about Turkey's admission to membership talks in the EU in the fall of 2004. For a representative sample of the nity bound together by the power of shared positions in this debate, see Claus Leggewie, Die Turkei fate, memories, solidarity, and belonging. und Europa (Frankfurt: Suhrkamp, 2004).

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 95

I established European citizenship, which desirabilityofimmigration. The need to nat- granted voting rights and rights to run for uralize second- and third-generation chil- office for all citizens of the fifteen, and now dren of immigrants was recognized, and the twenty-five, members of the signatory states new German citizenship law was passed in residing in the territory of other member January 2000. countries. Of the six countries to whose citi- Ten years after the German Constitu- zens Schleswig-Holstein wanted to grant tional Court turned down the election law reciprocal voting rights-Denmark, Ireland, reforms of Schleswig-Holstein and the city- the Netherlands, Norway, Sweden, and state of Hamburg on the grounds that resi- Switzerland-only Norway and Switzerland dent foreigners were not citizens and were remained nonbeneficiaries of the Maastricht thus ineligible to vote, Germany's member- Treaty since they were not EU members. ship in the European Union led to the disag- In the years following, an intense process gregation of citizenship rights. Resident of democratic iteration unfolded in the members of EU states can vote in local as now-unified Germany, during which the well as EU-wide elections; furthermore, challenge posed by the Federal Constitu- Germany now accepts that it is a country of tional Court to the democratic legislator of immigration; immigrant children become bringing the definition of citizenship in line German citizens according to jus soli and with the composition of the population was keep dual nationality until the age of taken up, rearticulated, and reappropriated. twenty-four, at which point they must The city-state of Hamburg, in its parallel choose either German citizenship or that of plea to alter its local election laws, stated this their country of birth. Furthermore, long- very clearly: "The Federal Republic of Ger- term residents who are third-country many has in fact become in the last decades nationals can naturalize if they wish to do a country of immigration. Those who are so. The democratic people can reconstitute affected by the law that is being attacked itself through such acts of democratic itera- here are thus not strangers but cohabitants tion so as to enable the extension of demo- [Inltinder], who only lack German citizen- cratic voice. Aliens can become residents, ship. This is especially the case for those for- and residents can become citizens. Democ- eigners of the second and third generation racies require porous borders. born in Germany."30 The demos is not an The constitution of "we, the people" rep- ethnos, and those living in our midst who do resents a fluid, contentious, contested, and not belong to the ethnos are not strangers dynamic process. All people possess a dual either; they are rather "cohabitants," or as identity as an ethnos, as a community of later political expressions would have it, shared fate, memories, and moral sympa- "our co-citizens of foreign origin" [Aus- thies, on the one hand, and as the demos, as landische Mitbiurger]. Even these terms, the democratically enfranchised totality of which may sound odd to ears not accus- all citizens, who may or may not belong to tomed to any distinctions besides those of the same ethnos, on the other. All liberal citizens, residents, and nonresidents, suggest democracies that are modern nation-states the transformations of German public con- exhibit these two dimensions. The politics of sciousness in the 199os. This intense and peoplehood consists in their negotiation. soul-searching public debate finally led to an acknowledgment of the fact as well as the 30 BVerfGe 83,37, II, p. 42.

96 Seyla Benhabib The presence of so many guest workers in tion. Europe's migrants, and particularly Germany is a reflection of the economic European Muslims, have becomes symbols realities of Germany since World War II, just for Europe's own "othering,' its gradual as the presence of so many migrants from transformation from a continent of nation- Algeria, Tunisia, and Morocco, as well as states into a continent of pooled sovereignty, from centralAfrica, todaytestifies to France's guided by cosmopolitan principles of uni- imperial past and conquests. Some would versalist human rights. Europe's peoples even argue that without their presence, the may not be, and I believe definitely are not, post-World War II German miracle would ready for some of these transformations. not have been conceivable. 31 Peoplehood is The Muslim immigrants, with their visible dynamic and not a static reality. otherness displayed through their modes of The presence of others who do not share dress, dietary laws, habits of prayer, and gen- the dominant culture's memories and erally repressive family and sexual ethic, are morals poses a challenge to the democratic all too striking symbols of the loosening of legislatures to rearticulate the meaning of the boundaries of the nation. democratic universalism. Far from leading The transition to a political entity whose to the disintegration of the culture of identity is as yet undefinable generates anxi- democracy, such challenges reveal the depth ety: is the EU a republican federation, a and the breadth of the culture of democracy. supersized nation-state, a free trading zone, Only polities with strong democracies are or some sort of postnationalist condo- capable of such universalist rearticulation, minium in which increasingly more func- through which they refashion the meaning tions of sovereignty are pooled? Whatever its of their own peoplehood. precise future form, one thing is certain: the Let me anticipate some objections against Europeans are set upon a path through which the considerations developed above: in view they have sublated the nation-state with all its of the resurgence of anti-immigration senti- paradoxical consequences. The condition of ment throughout Europe, from Denmark to Europe's third-country nationals is a sorry France to Germany and to Italy; in view of reminder to them both of cultural othering the anti-Muslim backlash in all European and of the obsolescence of the nation. Not countries, the Netherlands and France in surprisingly, therefore, like the phoenix rising particular; in view of the mobilization of from the ashes, French nationalism returns to deeply nationalist sentiments in Germany defend "Muslim girls against their patriarchal against Turkey's admission to membership oppressors." As the Bernard Stasi report on talks with the EU in particular, isn't the the headscarves "affair" self-servingly pro- account I have presented above one that flies claims, "The Republic cannot remain deaf to in the face of historical realities? Far from these girls' cry for help."3 2 cosmopolitanism, we are experiencing the In Germany, where the very concept of rise of tribalism, nationalism, and civiliza- IKultur had been sullied by its associations tional wars. I want to suggest that in an odd fashion, 3' James F. Hollifield, Immigrants, Markets, and States: but in ways that are not unfamiliar to us The Political Economy of Postwvar Europe (Cambridge: from previous episodes of history, univer- Harvard University Press, 1992). 32 "Commission de Reflexion Sur l'Application du salism and particularism may incite, invite, Principe du Laicite dans la Republique" (Paris: Office of and even provoke one another's articula- the President, December 1u, 2003), P. 58.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 97 with the racializing overtones of the concept norms with the fact of a divided mankind? of the Kulturnation, socialist historians of My answer to the third question, of how the past, such as Hans-Ulrich Wehler, find it to reconcile cosmopolitanism with the possible to recycle this old German set of unique legal, historical, and cultural tradi- ideas against the Turks, whose "culture" of tions and memories of a people, is that we militarism, the extermination of the Arme- must respect, encourage, and initiate multi- nians, and intolerance toward the property ple processes of democratic iteration. By of Christian churches is said to set them democratic iterations I mean social, cul- apart from Europe forever. Of course, many tural, legal, and political processes of strug- silently think of Germanywhat the Germans gle and contestation, as well as deliberation think of the Turks, once we substitute Jews and argumentation, through which juris- for Armenians and Christians in these for- generative politics develops. 33 Jurisgenera- mulations. But the attempt of some German tive politics are those cases of legal and intellectuals and politicians to redefine political contestation when the meaning of Europe as a Christian cultural common- rights and other fundamental constitutional wealth has failed, precisely because of Ger- principles are reposited, resignified and many's own constitutional and legal reappropriated by new and excluded commitments to the Treaty of Europe and groups, or by the citizenry in the face of the European Charter of Human Rights and unprecedented hermeneutic challenges and Fundamental Freedoms. A slim majority, meaning constellations. but a majority nevertheless, supported Universalist norms are thereby mediated Turkey's entry into the EU precisely on the with the self-understanding of local com- basis of commitments that transcended munities. The availability of cosmopolitan German exceptionalism. It is this tension norms in the general public sphere raises the between cosmopolitan universalism and threshold of justification to which formerly repressive secular nationalism that we must exclusionary practices must now be submit- disentangle in today's Europe. ted. Exclusions take place, but the threshold Let me end by returning once more to the for justifying them is now higher. This philosophical questions raised by cosmo- higher threshold of justification triggers an politan norms. increase in democratic reflexivity. It becomes increasingly more difficult to jus- THE NEW POLITICAL CONDITION tify practices of exclusion against foreigners and others by democratic legislatures simply After the capture of Eichmann by Israeli because their decisions express the will of agents in 1960, Arendt and Jaspers initiated the people; such decisions are now subject a series of reflections on the status of inter- not only to constitutional checks and bal- national law and norms of cosmopolitan justice. Their queries can be summarized with three questions: (i) What is the onto- 33 For further elaboration of these themes, see Ben- logical status of cosmopolitan norms in a habib, The Rights of Others, ch. 5. The term "jurisgener- postmetaphysical universe? (2) What is the ative politics" comes from Robert Cover, "Nomos and authority of norms that are not backed by a Narrative," Harvard Law Review 97, no. i (1983), pp. 4-68; I am using the term here in a sense that is much sovereign with the power of enforcement? indebted to Frank Michelman, "Law's Republic," Yale and (3) How can we reconcile cosmopolitan Law Journal97, no. 8 (1998), pp. 1493-537.

98 Seyla Benhabib ances in domestic law but in the interna- of its race, and not its deeds, through an tional arena as well. Reflexive grounds must organized state power with all the legal and be justifiable through reasons that would be technological means at its disposal. Cer- valid for all. This means that such grounds tainly, massacres, group murders, and tribal can themselves be recursively questioned for atrocities were known and practiced failing to live up to the threshold set in their throughout human history. The full mobi- own very articulation. lization of state power, with all the means of To Arendt's and Jaspers's second question a scientific-technological civilization at its as to the authority of cosmopolitan norms, disposal, in order to extinguish a human my answer is: the democraticpower of global group on account of its claimed racial char- civil society. Of course, the global human acteristics, was wholly novel. rights regime by now has its agencies of In conclusion: although Hannah Arendt negotiation, articulation, observation, and was skeptical that international criminal law monitoring. In addition to processes of could ever be codified and properly rein- naming, shaming, and sanctions that can be forced, she in fact praised and commended imposed upon sovereign nations in the the judges who sought to extend existing I event of egregious human rights violations, categories of international law to the crimi- the use of power by the international com- nal domain. She wrote: munity, as authorized by the UN Security If genocide is an actual possibility of the Council and the General Assembly, remains future, then no people on earth .. .can feel rea- an option. sonably sure of its continued existence with- I come then to the final question: what is out the help and the protection of international law. Success or failure in dealing the ontological status of cosmopolitan with the hitherto unprecedented can lie only norms in a postmetaphysical universe? in the extent to which this dealing may serve as Briefly, such norms and principles are a valid precedent on the road to international morally constructive: they create a universe penal law.... In consequence of this as yet of meaning, values, and social relations that unfinished nature of international law, it has become the task of ordinary trial judges to had not existed before in that they change render justice without the help of, or beyond the normative constituents and evaluative the limitation set upon them through, posi- principles of the world of "objective spirit,' tive, posited laws.34 to use Hegelian language. They found a new order-a novo ordo saeclorum. They are thus However fragile their future may be, cosmo- subject to all the paradoxes of revolutionary politan norms have evolved beyond the beginnings. Their legitimacy cannot be jus- point anticipated and problematized by tified through appeal to antecedents or to Arendt. An International Criminal Court consequents: it is the fact that there was no exists, although the Bush administration has precedent for them that makes them rescinded the decision of former president unprecedented; likewise, we can only know Clinton to sign the Rome Treaty legitimizing their consequences once they have been it. The spread of cosmopolitan norms, from adopted and enacted. interdictions of war crimes, crimes against The act that "crimes against humanity" humanity, and genocide, to the increasing has come to name and to interdict was itself regulation of cross-border movements unprecedented in human history; that is, the mass murder of a human group on account 34 Arendt, Eichmann in Jerusalem, pp. 273-74.

ON THE ALLEGED CONFLICT BETWEEN DEMOCRACY AND INTERNATIONAL LAW 99 through the Geneva Conventions and other as an undermining of democratic sover- accords, has yielded a new political condi- eignty, we can view it as promising the emer- tion: the local, the national, and the global gence of new political configurations and are all imbricated in one another. Future new forms of agency, inspired by the inter- democratic iterations will make their interdependence-never frictionless but ever connections and interdependence deeper promising-of the local, the national, and and wider. Rather than seeing this situation the global.

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