© Springer International Publishing Switzerland 2015Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_14
14. The Individual, the State and a Cosmopolitan Legal Order
Humboldt University Berlin, Berlin, Germany
Walther-Schücking-Institut, Kiel, Germany
Recently, it became mainstream to consider individuals as subjects of international law.1 Generally, this assessment refers to human rights law and international criminal law containing individual rights and obligations deriving directly from international law. However, individuals are not considered as being on equal footing with states. Here, the term of “partial” subjects of international law comes into play even though the accuracy of the term is limited.2 This article will elaborate on the philosophical foundations of international law following Immanuel Kant’s legal philosophy in order to discuss two interrelated phenomena of current global law: on one hand, the role of states and the changed relationship between states and individuals and, on the other hand, the claim for legal empowerment of the individual beyond state borders. The line of argumentation will support the development of a cosmopolitan global order that primarily aims at securing individual external freedom.
14.2 Kant’s Legal Philosophy
Kant’s legal philosophy is threefold and consists of three distinct but interrelated legal orders. First, there is the law within a state that ensures that every human being can enjoy rights domestically.3 Second, “the law of nations shall be founded on a federation of free states.”4 Finally, there is the cosmopolitan constitution. The cosmopolitan right (Weltbürgerrecht) is founded on “the rights of men, as citizens of the world” to universal hospitality.5
Kant’s philosophy of law is based on the assumption that every human being carries the natural right of men to freedom.6 The external or outer freedom is the independence of constraints imposed by others, the independence from another’s necessitating choice.7 This faculty of free agency constitutes tensions within an unavoidable community of free human beings. Kant calls the situation of unsecured freedom the “natural state.”8 The natural state is a non-juridical state, outside the required order in which everyone follows his own inclination and no distributive justice exists. However, within the natural state, human beings have rights, private rights, rights by virtue of being human. But in the state of nature, those rights remain unsecured, provisional:
As long as Robinson lives alone on his island, he has no right to external freedom. It is first when Friday joins him that rights vest and legal issues can evolve. Because both Robinson and Friday have an original right they can come into conflict.9
Kant proclaims that there is a necessity based on the concept of reason to leave the natural state. The obligation to leave the natural state (exeundum esse e statu naturali) and to enter the juridical state is called the postulate of Public Law.10 Individual rights can only be secured in a state of public justice. That requires public laws to be mere transformations of the common will of all citizens.11 In such a state, mutual security from interference is granted by and under enforceable laws.12 Thus, the only end of every legal order is the installation of an order that ensures equal individual external freedom.
This line of argument seems to justify the emergence and existence of states because within a juridical state the natural state is negated. That means the state is supposed to be capable of ensuring individual freedom by procedurally tying public laws to the common will of its citizens.
The fact that there is no world state, but rather a multiplicity of states that coexist, leads to Kant’s interstate law and cosmopolitan law.13 Interstate law shall ensure that the juridical state within a state is not endangered. And cosmopolitan law addresses situations in which individuals leave their home country. In theory, these three legal regimes ensure universal freedom.
Either because he underestimated the contemporaneous status and the development of transnational activities beyond the degree of trade and refugee situations or perhaps because the time was simply not right for a more holistic cosmopolitan right, Kant only makes a claim for a true juridical state on the domestic level.14 The legal concept is based on the premise that the state can secure the natural right of individuals within its jurisdiction and that a world state is not desirable or realizable.15
Humanitarian disasters in Somalia, Ruanda, Kosovo, Afghanistan, and elsewhere clearly question Kant’s belief in the state as the principal ensurer of freedom. Nowadays, international reality is characterized by failed/failing state situations, by states that are unable or unwilling to ensure its citizens’ rights, by globally active networks of non-state actors such as terrorists, pirates, and groups of organized crimes or multinational enterprises that contradict international human rights standards without being bound by them. What’s more, modern borderless communication technologies boost global interdependencies between all kinds of actors. Additionally, the financial and economic crisis as well as natural disasters and ecological challenges have worked to underline the necessity of global political institutions and regulations.16 Referring to the multifaceted processes of globalization, it is not surprising that the traditional nation-state of the nineteenth century seems to be overwhelmed17 by the task of establishing inner state conditions that allow every citizen to execute her external freedom according to the categorical imperative.
In the article Idea for a Universal History from a Cosmopolitan Perspective (1784), Kant advocates a world state with coercive laws, a federation of peoples, the cosmopolitan republic. Following the concept of reason, all individuals that can mutually affect each other are entitled to oblige each other to enter the juridical state.18 But as in a globalized world, political, social, and economic movements located in one state (or even on one continent) can very easily affect every human being no matter where. Thus, the necessity of building a lawful condition does not lead to a multitude of nation-states. The ultimate juridical state consists in a single cosmopolitan world state.19 The obligation to create a juridical state with others does not exclude people who live farther away. Every human being may inflict harm on the external freedom of another human being. To avoid this conflict, it is reasonable to enter into a cosmopolitan state with enforceable laws. Thus, the creation of states is a mere historical fact but not a reasonable means to ensure the natural right of men to freedom. States are a means to ensure individual freedom but are not ends in themselves. According to practical reason, the cosmopolitan state is a moral duty.20
This conclusion is often criticized. However, even if it must be admitted that some of the arguments brought up against the world state are well placed and point out some serious difficulties, first, most of the arguments brought up—such as the lack of governability of a world state—are speculative and not conceptual.21 Second, most of those reasons can also be upheld against the creation of states in general.22 Nevertheless, as states do not want the world state,23 Kant eventually rejects the idea of a world state embracing every free being.24 The fact that states do not want the world state does not inflict the moral duty to enter into a juridical state, but it hinders the installation of a true lawful condition from a realistic point of view.25 In consequence, Kant develops a second best option of a federation of states that will lead the way to an approximation of the juridical condition.26
14.3 Kant Now
Kant’s legal philosophy can help in understanding the dynamics of current global law. Furthermore, it might even provide current debates about the constitutionalization of international law with a theoretical underpinning.
The diverse challenges of globalization have caused efficiency deficits on the national level and therefore have gradually diminished the set of classical state functions.27 Consequently, traditional state competencies have been increasingly transferred to transnational institutions that regulate the life of individuals alongside domestic law.28 Due to the increased interpenetration of the national and the international, international law has come to address subjects and objects of domestic law.29 Concomitant with the shrunken state functions and the weakening of state sovereignty came the demand for a more cosmopolitan legal order. Despite the fact that Kant’s remarks on cosmopolitan law remained very limited, his legal philosophy can still serve as a blueprint for a supranational legal order. Due to the categorical reasoning, the underlying principles of his state law also hold true in other legal orders.30 But what ingredients are needed to support the true Kantian juridical condition that can cope with twenty-first century challenges?
14.3.1 A Multilevel Legal Order
As a matter of historical fact, the Kantian second-best option of interstate coordination reflects the origins of the international legal order. The foundation of the United Nations (U.N.) after two world wars in 1945 through state contract clearly demonstrates the demand for transnational solutions. Originally, the U.N. represented the consent-based structure of a power-coordinative international legal order. Since the twentieth century, the coordinative part is consecutively replaced by cooperative elements. This development came along with the veil-piercing powers of the U.N. Security Council. The competences of the U.N. Security Council were gradually widened to the point where it started to authorize humanitarian interventions,31 to create general and abstract norms like a legislator,32 to establish international criminal tribunals, and to address non-state actors individually in its resolutions.33 Thus, the U.N. Security Council has powers that equal or even surpass state powers. However, despite the enlarged powers of the U.N. Security Council and the growing need for global approaches, the U.N. does not establish a cosmopolitan legal order that negates the natural state universally. It rather establishes what Kant called a federation of states.34
Kant advocates for a loose federation of states for pragmatic reasons. Categorically applied, the postulate of Public Law demands a world state in which every individual is a cosmopolitan citizen. Here, the exeundum obligation could demand for a single cosmopolitan state that dissolves all states. Alternatively, it could lead to a state of states. Keeping in mind that nation-states exist and are still believed to fulfill important tasks in regard to the protection of their citizens and their cultural particularities, today cosmopolitan law is often discussed referring to multilevel constitutionalism or constitutional pluralism.35 It is accepted that there is a society that cannot be taken captive by state borders but will develop itself transnationally by building “communicative forms and rationalities.”36 Simultaneously, the processes of globalization made state sovereignty a porous concept.37 Thus, public international law has been gradually reconceptualized from a state-centric to a more value-driven,38 cosmopolitan global law.39