Supranational courts and cosmopolitan norms as agents of change

To the chagrin of many committed Realists, states today operate in an indubitably ethical environment influenced by a revival of the cosmopolitan tradition.

When in 1948, only three years after the conclusion of the most pernicious conflict of the twentieth century, the framers of the Universal Declaration of Human Rights transcribed the words, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood,” they could not have known that the wounded, but recalcitrant international state system and the entrenched, but capricious interest-driven political environment would effectively mute their full symbolic and legal weight until the dawn of the new millennium.

The growing unreality of the national gaze

Gradually, however, as the importance and condition of sovereignty and territorialization as casus belli in international relations were undermined and diminished by the processes of economic and political globalization, the normative foundation of the legal order has been shifting from state-sovereignty-oriented approaches and its traditional emphasis on security, territory, borders, and statehood, to human-being-oriented approaches that focus on the security of persons and peoples, creating, in an otherwise confrontation-prone socio-political milieu, a space for an enlightened orbis pacificum, which holds perpetrators of crimes offensive to human conscience and dignity to the highest possible legal and moral standard.

This emerging “humanitarian-cosmopolitical turn” has increased the importance of supranational judiciaries, such as the International Criminal Court, European Court of Justice, and the European Court of Human Rights, in furthering the humanity-based scheme of jurisdiction that follows the person (see Ruti Teitel, Humanity’s Law). A more resolute recognition of human rights and claims-based approaches by supranational judicial bodies must co-evolve alongside such paradigmatic norms as inviolability of state sovereignty and superior prerogatives of state security. As “state-sovereignty-oriented approaches have been gradually supplanted by human-oriented approaches,” Teitel notes, the evolution of the international and cosmopolitan legal regime, which emphasizes “the primacy of individual responsibility” as well as “protection and preservation of persons and peoples,” has come to the fore in both domestic and international political and legal discourse.

The international community - mobilized by an ethic of humanitarianism distinct from previous spurs of selfless humanitarian compassion, in that it is for the first time institutionalized, organized and part of governance - has come to increasingly recognize acts of violence, Michael Barnett in Empire of Humanity contends, as “causeways for benevolence,” treating massacres, international and civil wars, war crimes, crimes against humanity, and war-induced famines as “calls to alms” and action. Advances in military technology and logistics of military strategy, Barnett observes, “furthered the desire of the international community to expand the laws of war and provide more protections and relief to civilians.”

Yet such beneficent largesse on the part of humanity could not have occurred spontaneously and without a chartered institutional trajectory of law articulation, interpretation, and enforcement. Alongside the first pangs of cosmopolitan enlightenment exemplified by compassionate recognition of human need and suffering across the globe and growing internationalization and institutionalization of humanitarianism, which provided normative foundations for action, the rise of a supranational legal regime with its novel emphasis on human security and protection of individual human beings has begun to play a transformative role in the discourse and practice of international relations. The Declaration of Human Rights, the Geneva Convention, the International Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights are but a few examples that Teitel gives of multilateral legal instruments which allow, “humanity to assert itself through law” and seek civil and criminal accountability for overt transgressions of “the universalizable content of the core humanity law norms” through global courts.

The changing balance of power between domestic and international actors and legal instruments has a significant impact on the state and results in notable tensions between (i) personal responsibility to abide by international human rights norms and cosmopolitan institutional regimes and the privileges of sovereign immunity of heads of state implicated in the transgression of human rights norms; (ii) between state prerogatives informed by enlightened self-interest and those of human security protected by international conventions and treaties; (iii)  between state sovereignty and immunity from prosecution and the evolution and assertion of universal jurisdiction, human rights law, and humanitarian law. Not only is there now, as Garret Wallace Brown argues, an “array of cosmopolitan norms that structure our lives together” and which the international community must recognize as a political fact, but also “our reality is becoming thoroughly cosmopolitan,” which, as Ulrich Beck would have it, “disguises the growing unreality of the national gaze.”

The project of popular sovereignty

The above trends reveal a novel socio-political experience, which urgently necessitate the establishment and support of enforceable legal frameworks for navigating and coordinating policies and practices that simultaneously (i) instill and maintain respect for essential human rights, and (ii) consolidate and advance a sphere of communal inclusion through legal instruments and a supranational court system in order to maintain the momentum of the cosmopolitan moment in international relations.

The sheer intensification of debates concerning the status of universal human rights in the context of the international state system, refugee, immigrant and asylum status of the internally displaced persons and crimes against humanity, alone, have considerably augmented the conceptual and practical fabric of inter-state relations. The Charter of Fundamental Rights, the European Convention of Human Rights, the establishment of the International Criminal Court, the European Court of Justice, and the European Court of Human Rights have collectively inserted into the legal lexicon a new vocabulary and provided a necessary institutional umbrella that has limited the arbitrary state violations of the rights and dignity of persons, irrespective of their existential and (a)political status. The emergence of, what Benhabib terms, the “cosmopolitan norms regime” has resulted in the enhancement of “the project of popular sovereignty while prying open the black box of state sovereignty.” 

European citizenship fundamentally renegotiated as we speak

To illustrate just how domesticated the cosmopolitan gaze has become in international politics, it may prove instrumental to briefly focus on the European Court of Justice and the European Court of Human Rights. Over the fifty-year period since their formal institutionalization, the supranational courts have proven to have an important exogenous effect on states and citizen rights in that they consistently (i) augment state interests; (ii) increase the network of state interdependence and institutional interventions in the sovereign affairs of states; (iii) mediate power in international politics through human rights-based norms and collective legal constraints; (iv) increase emphasis on rights (to self-determination, belonging, and citizenship status); (v) increase jurisdiction over the “acts of state.”

As such, supranational judicial institutions play an important role in promoting the cosmopolitan norms regime and increased judicialization of international politics. It is important to note that supranational courts are not political organizations: however, they inevitably operate in a political environment. Mary Volcansek argues, “Courts make political decisions regularly, in that they authoritatively allocate values for society.” More importantly, “court decisions often create public policy, and judges are not immune to political influences, even if they are only minimally cognizant of the political environment in which their decisions are implemented.” Such a paradigm of suprastate legal administration is especially visible in the European discourses on citizenship and the ongoing renegotiation of inter- and intra-state relations between citizens and their governments.

Nothing human is alien

The juridical revolution in human rights since 1945 and a steady recognition of cosmopolitan norms has had a significant impact on states. It is now a common occurrence, Richard Beardworth observes, that (i) international legal rulings routinely trump domestic legal rulings; (ii) the rules of international declarations, treaties, and legal custom inform the rules of domestic constitutions; (iii) international legal rulings becomes cited precedents in domestic legal cases and judgments; (iv) state leaders are increasingly made individually accountable, through supranational courts, for the government and its use or misuse of power. Ulrich Petersmann notes that national and international courts now claim that:

“(i) every human being possesses an intrinsic worth and moral entitlement to human rights, merely by being human; (ii) this moral worth and entitlement must be recognized and respected by others; (iii) also the state must be seen to exist for the sake of the individual being, and not vice versa.”

To the chagrin of many committed Realists, states today operate in an indubitably ethical environment influenced by a revival of the cosmopolitan tradition, whose central tenets uphold that: (a) individuals are the fundamental units of moral concern and ought to be regarded as one another’s moral equals; (b) whatever rights and privileges states have, they have them only in so far as they thereby serve individual’s fundamental interests; (c) states are not under a greater obligation to respect their individual member’s fundamental rights than to respect the fundamental rights of foreigners.

According to cosmopolitans, individual’s basic entitlements are independent of political borders, and states have authority to the extent that they respect and promote those entitlements. There should be no doubt, therefore, as Anthony Arnull contends, that “the notion of the rule of law has come to occupy an important place in the scale of values” and that the Courts have become an indispensible moral and legal voice in ascertaining that Conventions and Treaties propounding respect and adherence to human rights are honored by states and that the laws constitute “an effective guide to action, that they are adequately publicized, reasonably clear and prospective rather than retrospective in effect.”

The evolution of the international judicial bodies and cosmopolitical legal norms regime has prompted a recognizable shift from realpolitik based in self-serving state interests and conquistadorian pathos to humanitarian cosmopolitanism; a turn from the state prerogative of self-defense to the responsibility to prevent and protect; and, most importantly, a repudiation of ethics based on the exploitation and instrumentalization of human subjects and citizens and a reinforcement of concerns over human beings qua persons, who, endowed with inalienable rights that extend beyond the provenance of any one statist regime, give renewed salience to an enlightened cosmopolitan sentiment of thinking nothing human alien. 

About the author

Joanna Rozpedowski is a doctoral candidate in the Department of Government and International Affairs at the University of South Florida.