Claiming Rights across Borders: International Human Rights and Democratic Sovereignty

[Pas publié encore par problème de droits d'accès]

The status of international law and transnational legal agreements with respect to the sovereignty
claims of liberal democracies has become a highly contentious theoretical and political issue.
Although recent European discussions focus on global constitutionalism, there is increasing
reticence on the part of many that prospects of a world constitution are neither desirable nor salutary. This
article more closely considers criticisms of these legal transformations by distinguishing the nationalist
from democratic sovereigntiste positions, and both, from diagnoses that see the universalization of
human rights norms either as the Trojan horse of a global empire or as neocolonialist intentions to assert
imperial control over the world. These critics ignore “the jurisgenerativity of law.” Although democratic
sovereigntistes are wrong in minimizing how human rights norms improve democratic self-rule; global
constitutionalists are also wrong in minimizing the extent to which cosmopolitan norms require local
contextualization, interpretation, and vernacularization by self-governing peoples.

The New Legal Landscape - The status of international law and transnational legal agreements and treaties with respect to the sovereignty
claims of liberal democracies has become a highly contentious
theoretical and political issue. In his highly
controversial decision that struck down the death
penalty for juvenile delinquents, Justice Anthony M.
Kennedy cited the United Nations (UN) Convention
on the Rights of the Child and the African Charter
on the Rights and Welfare of the Child, among other
documents (Roper v. Simmons 2005). In his dissenting
opinion, Justice Antonin Scalia, thundered: “The basic
premise of the court’s argument—that American law
should conform to the laws of the rest of the world—
ought to be rejected out of hand.” Seeing this as an
all-or-nothing equation, Justice Scalia drove to a reductio
ad absurdum: “The Court should either profess
its willingness to reconsider all these matters in the light
of views of foreigners, or else it should cease putting
forth foreigners’ views as part of the reasoned basis
of its decisions. To invoke alien law when it agrees
with one’s own thinking, and ignore it otherwise, is not
reasoned decision making, but sophistry.”
(emphasis in original).

What indeed is the status of foreign and international
law in a world of increasing interdependence?
Isn’t legal epistemology enriched by looking across the
border and even the ocean? What is the source of
the anxieties and fears invoked by so many in recent
years within the U.S. context, in particular, about the
problematic relation of transnational legal norms and
democratic sovereignty? Citing a foreign ruling does
not convert it into a binding precedent, but may be
wise judicial reasoning. Although recent European
discussions focus on global law with or without a state,
global constitutionalism, a global res publica, juridi?cation
(Verrechtlichung), or constitutionalizaton (Konstitutionalisierung)
in a world society, there is increasing
reticence on the part of many that prospects of
a world constitution and the global harmonization of
legal traditions and jurisdictions are neither desirable
nor salutary. What sense can we make of this new legal
landscape? Like Swift’s giant Gulliver, states have been
pinned down by hundreds of threads of international
law, some of which they can free themselves from,
while others, much like those that tie the giant, prevent
them from escaping their bonds. The controversy
over international law has become the site over the
future viability of democracies in a world of growing
interdependence.