Whose Sovereignty? Empire versus International Law

By Cohen, Jean L. | Ethics & International Affairs, December 2004 | Go to article overview

Whose Sovereignty? Empire versus International Law


Cohen, Jean L., Ethics & International Affairs


Let me begin, by juxtaposing two facts: The worlds sole superpower has invaded and occupied Iraq. Carl Schmitt's Nomos der Erde has just been translated into English, or I should say American. (1) Is this mere coincidence? Are not the questions he raised, if not his answers, once again on the agenda?

This article focuses on the impact of globalization on international law and the discourse of sovereignty. We have been hearing for quite some time that state sovereignty is being undermined. The transnational character of "risks" from ecological problems to terrorism, including the commodification of weapons of mass destruction, highlights the apparent lack of control of the modern nation-state over its own territory, borders, and the dangers that its citizens face.

Moreover, key political and legal decisions are being made beyond the purview of national legislatures. A variety of supranational organizations, transnational "private global authorities," and transgovernmental networks engage in regulation and rule making, by passing the state in the generation of hard and "soft law." (2) Indeed the apparent decoupling of law from the territorial state suggests to many that the latter has lost legal as well as political sovereignty.

This conundrum has triggered the emergence of a set of claims about the transformation of international law. If law making is escaping the monopoly of states, then the standard view of international law as the law that states make through treaties, or consent to through long practice (custom), has to be revised. The emergence of human rights law based on consensus apparently implies that global cosmopolitan law trumps the will of states and their international treaties (consent). (3) Today the very category "international" appears outdated. The question thus becomes: What is to be the new "nomos" of the earth and how should we understand globalized law? (4)

Legal theorists have certainly risen to the challenge over the last decade. Talk of legal and constitutional pluralism, societal constitutionalism, transnational governmental networks, cosmopolitan human rights law enforced by "humanitarian intervention," and so on are all attempts to conceptualize the new global legal order that is allegedly emerging before our eyes. (5) The general claim is that the world is witnessing a move to cosmopolitan law, which we will not perceive or be able to influence if we do not abandon the discourse of sovereignty. (6) The debates from this perspective are around how to conceptualize the juridification of the new world order. (7) Despite their differences, what seems obvious to those seeking to foster legal cosmopolitanism is that sovereignty talk and the old forms of public international law based on the sovereignty paradigm have to go.

But there is another way of interpreting the changes occurring in the international system. If one shifts to a political perspective, the sovereignty-based model of international law appears to be ceding not to cosmopolitan justice but to a different bid to restructure the world order: the project of empire. The idea that we have already entered into the epoch of empire has taken hold in many circles, as the popularity of the Hardt and Negri volume, and the avalanche of writings and conferences on empire, witness. (8) Like the theorists of cosmopolitan law, proponents of this view also insist that the discourses of state sovereignty and public international law have become irrelevant. But they claim that what is replacing the system of states is not a pluralistic, cooperative world political system under a new, impartial global rule of law, but rather a project of imperial world domination. From this perspective, governance, soft law, self-regulation, societal constitutionalism, transgovernmental networks, human rights talk, and the very concept of "humanitarian intervention" are simply the discourses and deformalized mechanisms by which empire aims to rule (and to legitimate its rule) rather than ways to limit and orient power by law. …

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