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On the Alleged Conflict between Democracy and International Law

Published online by Cambridge University Press:  28 September 2012

Seyla Benhabib
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Extract

The period since the Universal Declaration of Human Rights in 1948 has witnessed the rise of an international human rights regime. There has been a shift in international law from state-based treaty obligations to cosmopolitan norms whose subject is individuals and their rights and entitlements under international law. Along with the rise of cosmopolitan norms, conflicts between enactments by states, often through democratic legislatures, of laws and practices that may contradict these norms, has also intensified.

The article focuses on one such set of cosmopolitan norms concerning the crossborder rights of immigrants within the context of the European Union. By examining a German Constitutional Court Case which denied long-term resident aliens voting privileges in local and district-wide elections, it illuminates the “paradox of democratic legitimacy.” The rights of foreigners and aliens are an intrinsic aspect of the self-understanding of a democratic people. The demos can alter the boundaries differentiating it from nonmembers. The line between citizenship and alienage can be renegotiated through processes of democratic iterations. Cosmopolitan norms can become guidelines informing the will and opinion formation of democratic peoples.

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Articles
Information
Ethics & International Affairs , Volume 19 , Issue 1 , March 2005 , pp. 85 - 100
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2005

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References

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5 Arendt, Eichmann in Jerusalem, p. 275; and Kohler and Saner, eds., Hannah Arendt-Karl Jaspers Correspondence, pp. 423,431.

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9 See Anne-Marie Slaughter's lucid statement, in “Leading Through Law,”Wilson Quarterly (Autumn 2003), pp. 42–43: “International law today is undergoing profound changes that will make it far more effective than it has been in the past. By definition international law is a body of rules that regulates relations among states, not individuals. Yet over the course of the 21st century, it will increasingly confer rights and responsibilities directly on individuals. The most obvious example of this shift can be seen in the explosive growth of international criminal law.”

10 Such examples would include the UN treaty bodies under the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Convention on the Rights of the Child. The establishment of the European Union has been accompanied by a Charter of Fundamental Rights and by the formation of a European Court of Justice. The European Convention for the Protection of Human Rights and Fundamental Freedoms, which encompasses states that are not EU members as well, permits the claims of citizens of adhering states to be heard by the European Court of Human Rights. Parallel developments can be seen on the American continent through the establishment of the Inter-American System for the Protection of Human Rights and the Inter-American Court of Human Rights. See Neuman, Gerald, ‘Human Rights and Constitutional Rights: Harmony and Dissonance,” Stanford Law Review 55, no. 5 (2003), pp. 1863–901Google Scholar. By “soft law” is meant an international agreement that is not concluded as a treaty and therefore not covered by the Vienna Convention on the Law of Treaties. Such an agreement is adopted by states that do not want a treaty-based relationship and do not want to be governed by treaty or customary law in the event of a breach of their obligations.

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12 Neuman, “Human Rights and Constitutional Rights,” p. 1875.

13 I use the term “human rights codes” rather than “human rights” in this context for an important reason. Human rights need to be interpreted, concretized, and codified by each society's own democratic constitutions according to their own legal, constitutional, political, and cultural traditions. I distinguish between the principle of rights and the schedule of rights. While the principle of rights establishes that a democratic constitution ought to incorporate basic or fundamental rights to which all are entitled, the schedule of rights means that the precise concretization of these rights occurs through a process of collective self-determination. Of course, there will need to be a permissible range of interpretation and determination, for it is quite possible for countries with autocratic and illiberal traditions to claim that there is a schedule of “Asian rights” or “Islamic rights” that would not recognize the equal rights of women to divorce and inheritance, for example, as their male counterparts. In such cases, a contentious dialogue ensues between those upholding the general human rights norms enshrined in various human rights treaties and existing governments that choose to interpret them in a specific way. This is an example of “democratic iterations” that I discuss below.

14 Charter of the International Military Tribunal, 1945, Art. 6 (c), as cited in Ratner, Steven R. and Abrams, Jason S., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (New York: Clarendon Press, [1997] 2002) 2nd ed., pp. 26–45Google Scholar; and Schabas, William A., An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2001), pp. 6–7CrossRefGoogle Scholar.

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19 For the first position, see Jacobson, David, Rights Across Borders: Immigration and the Decline of Citizenship (Baltimore: Johns Hopkins University Press, 1997), p. 5Google Scholar; for the second, see O'Neill, Onora, Bounds of Justice (Cambridge: Cambridge University Press, 2000), p. 180CrossRefGoogle Scholar.

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22 For a more detailed discussion of institutional developments, particularly within the European context leading to the disaggregation of citizenship rights, see Benhabib, Seyla, The Rights of Others: Aliens, Citizens and Residents (The John Seeley Memorial Lectures) (Cambridge: Cambridge University Press, 2004CrossRefGoogle Scholar), ch. 4.

23 A similar change in its election laws was undertaken by the free state of Hamburg such as to enable those of its foreign residents of at least eighteen years of age to participate in the election of local municipal assemblies. Since Hamburg is not a federal province but a free city-state, with its own constitution, some of the technical aspects of this decision are not parallel to those in the case of Schleswig-Holstein. I chose to focus on the latter case alone. It is nonetheless important to note that the federal government, which had opposed Schleswig-Holstein's electoral reforms, supported those of Hamburg. See Bundesverfassungsgericht (Federal Constitutional Court; abbreviated hereafter as BVerfGe) 83, 60, II, No. 4, pp. 60–81; and BVerfGe 83, II, No. 3, p. 37. All translations from the German are mine.

24 BVerfGe 83,37, No. 3, p. 39.

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29 I do not mean to suggest that nationalist ideologies and sentiments vanished from the unified Germany. Unlike in many of Germany's neighboring countries, such as France and the Netherlands, however, they did lose institutional traction throughout the 1990s. The citizenship laws were passed by parliamentary majorities of Social Democrats, Greens, and Christian Democrats; but the price for the liberalization of citizenship was paid in terms of further restrictions on Germany's rather generous asylum laws. So these transitions were not without cost. Nationalism reappeared on the German scene first when 1 million signatures were collected in a referendum in Hesse against permitting dual citizenship of immigrant children, who are now entitled to this only until they reach age twenty-four; the second instance was the recent Iraq war and deep fear and dislike of the U.S. administration under George W. Bush; and the third case was the surprisingly racialized debate about Turkey's admission to membership talks in the EU in the fall of 2004. For a representative sample of the positions in this debate, see Leggewie, Claus, Die Türkei und Europa (Frankfurt: Suhrkamp, 2004Google Scholar).

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32 “Commission de Réflexion Sur l'Application du Principe du Laïcité dans la Republique” (Paris: Office of the President, December 11, 2003), p. 58Google Scholar.

33 For further elaboration of these themes, see Ben-habib, The Rights of Others, ch. 5. The term “jurisgenerative politics” comes from Cover, Robert, ‘Nomos and Narrative,” Harvard Law Review 97, no. 1 (1983), pp. 4–68Google Scholar; I am using the term here in a sense that is much indebted to Michelman, Frank, ‘Law's Republic,” Yale Law Journal 97, (1998), pp. 1493–537CrossRefGoogle Scholar.

34 Arendt, , Eichmann in Jerusalem, pp. 273–74Google Scholar.