From Human Rights
to Cosmopolitanism
{
Olivier de Frouville
I – A genealogy of human rights and international law
II – Three cosmopolitan challenges in the field of human rights
I – A genealogy of human rights and international law
1. A phenomenological approach: the self and the other
2. From heteronomy to autonomy: Modernity
2.1. Autonomy as applied to the relations of the self with
authority and with the individual others: human rights
2.2. Autonomy as applied to the relations of the self with the
collective others: international law
3. Towards cosmopolitan law
3.1. The Federation of Free States
3.2. The status of Human Rights and the cosmopolitan
sentiment
I.
A GENEALOGY OF HUMAN RIGHTS AND INTERNATIONAL LAW
1.
A PHENOMENOLOGICAL APPROACH: THE SELF AND THE OTHER
“[C]ommiseration [pity] is (…) a sentiment, which puts us in
the place of him who suffers, a sentiment obscure but active
in the savage, developed but dormant in civilized man (…).”
J.-J. Rousseau, A Discourse Upon the Origin and the Foundation
of the Inequality Among Mankind.
Three types of relations with the Other:

Solipsism: I see myself in the Other. I am the Other. I suffer
for myself.

The Imagination of the Other: The Other is not another Self
but I can imagine the Other as an Other Self, while
understanding his/her Otherness. I suffer for the Other,
because imagination puts me at the place of the Other

The “Epiphany of the Face” (Emmanuel Levinas) or
Dialogical Relation or the I-Other Encounter: I meet the
Other in his/her Otherness and not as another Self or as an
Other that I can imagine as an Other Self. I am
transformed by this experience of the encounter.
« The action of injuring occurs precisely because we have
trouble believing in the reality of other persons. At the same
time, the injury itself makes visible the fact that we cannot
see the reality of other persons. It displays our perceptual
disability. For if other persons stood clearly visible to us, the
infliction of that injury would be impossible.”
Elaine Scarry, The Difficulty of Imagining Other People (Doc., p.
20)
Ferdinand Tonnies’
GEMEINSCHAFT UND GESELLSCHAFT
Emile Durkheim’s
ORGANIC SOLIDARITY AND MECHANICAL SOLIDARITY
“It would be a mistake to suppose that Madame de Sevigne,
who wrote these lines, was a selfish or cruel person; she was
passionately attached to her children, and very ready to
sympathize in the sorrows of her friends; nay, her letters
show that she treated her vassals and servants with kindness
and indulgence. But Madame de Sevigne had no clear notion
of suffering in anyone who was not a person of quality.”
Alexis de Tocqueville, Democracy in America. Vol. II.
2.
FROM HETERONOMY TO AUTONOMY : MODERNITY
“Have we more sensibility than our forefathers? I know not
that we have (…) When all the ranks of a community are
nearly equal, as all men think and feel in nearly the same
manner, each of them may judge in a moment of the
sensations of all the others (…) There is no wretchedness
into which he cannot readily enter, and a secret instinct
reveals to him its extent. It signifies not that strangers or foes
be the sufferers; imagination puts him in their place;
something like a personal feeling is mingled with his pity,
and makes himself suffer whilst the body of his fellowcreature is in torture. In democratic ages men rarely sacrifice
themselves for one another; but they display general
compassion for the members of the human race.”
Alexis de Tocqueville, Democracy in America. Vol. II.
2.1
AUTONOMY AS APPLIED TO THE RELATIONS OF THE SELF
WITH AUTHORITY AND WITH THE INDIVIDUAL OTHER
“To find that form of association which shall protect and
defend, with the whole force of the community, the person
and property of each individual, and in which each person,
by uniting himself to the rest, shall nevertheless be obedient
only to himself, and remain as fully at liberty as before. Such
is the fundamental problem, of which the social compact
gives the solution.”
Jean-Jacques Rousseau, The Social Contract.
“I agree with Elaine Scarry, therefore, that the imagination
needs laws – especially constitutional arrangements – that
do as much as possible to institutionalize the equal worth of
persons. But these laws must take the impetus from the
imagination, and they will prove unstable to the extent that
people become obtuse. We must, therefore, cultivate world
citizenship in our hearts and minds as well as our codes of
laws.”
Martha Nussbaum, Reply (Doc., p. 29).
2.2.
AUTONOMY AS APPLIED TO THE RELATIONS OF THE COLLECTIVE SELF
WITH THE COLLECTIVE OTHER
THE CONTROVERSY OF VALLADOLID
1550
Bartolomeo de Las Casas (1484-1566)
Juan Gines de Sepulveda (approx 1490-1573)
The key to international peace in the context of the war of religions:
Cujus regio, ejus religio
The equal right of Princes to choose freely, without interference from other
Princes, the religion of their people and, by extension, the political and
economic regime of the State, is called external Sovereignty
THE BAN OF EXTRA-TERRITORIAL APPLICATION OF DOMESTIC LAW
Permanent Court of International Justice, Lotus case, September 7th, 1927
“Now the first and foremost restriction imposed by international law
upon a State is that – failing the existence of a permissive rule to the
contrary – it may not exercise its power in any form in the territory of
another State. In this sense jurisdiction is certainly territorial; it cannot be
exercised by a State outside it’s territory, except by virtue of a permissive
rule derived from international custom or from a convention. (…)
Far from laying down a general prohibition to the effect that States may
not extend the application of their laws and the jurisdiction of their
courts to persons, property and acts outside their territory, it leaves them
in this respect a wide measure of discretion, which is only limited in
certain cases by prohibitive rules (…)”
• International Law is the relation of personified collective bodies: States.
• Domestic Law is the law of the relations between Governments and
individuals and of the relations of individuals between themselves.
• Dualism/Pluralism
• Tolerance is relativism without knowing or by ignoring the difference of
the Other.
• Human Rights is relativism through knowing and understanding the
difference of the Other.
“The civil law being thus become the common rule of
citizens, the law of nature no longer obtained but among the
different societies, in which, under name of the law of
nations, it was qualified by some tacit conventions to render
commerce possible, and supply the place of natural
compassion, which, losing by degrees all that influence over
societies which it originally had over individuals, no longer
exists but in some great souls, who consider themselves as
citizens of the world, and forcing the imaginary barriers that
separate people from people, after the example of the
Sovereign Being from whom we all derive our existence,
make the whole human race the object of their benevolence.”
J.-J. Rousseau, A Discourse Upon the Origin and the Foundation
of the Inequality Among Mankind.
“Political bodies, thus remaining in a state of nature among
themselves, soon experienced the inconveniences which had
obliged individuals to quit it; and this state became much more
fatal to these great bodies, than it had been before to the
individuals which now composed them. Hence those national
wards, those battles, those murders, those reprisals, which make
nature shudder and shock reason; hence all those horrible
prejudices, which make it a virtue and an honour to shed human
blood. The worthiest men learned to consider the cutting the
throats of their fellows as a duty; at length men began to butcher
each other by thousands without knowing for what; and more
murders were committed in a single action, and more horrible
disorders at the taking of a single town, than had been committed
in the state of nature during ages together upon the whole face of
the earth. Such are the first effects we may conceive to have arisen
from the division of mankind into different societies.”
J.-J. Rousseau, A Discourse Upon the Origin and the Foundation of the
Inequality Among Mankind.
3.
TOWARDS COSMOPOLITAN LAW
3.1.
THE FEDERATION OF FREE STATES
Immanuel Kant: two definitions of Law:

Definition #1 “[Law] is therefore the sum total of those
conditions within which the will of one person can be
reconciled with the will of another in accordance with a
universal law of freedom.” (The Metaphysics of Morals – The
Metaphysical Elements of a Theory of [Law], Introduction to a
Theory of [Law], § B.)

Definition #2: “[T]he concept of [law] should be seen as
consisting immediately of the possibility of universal
reciprocal coercion being combined with the freedom of
everyone.” (Id., § E).
Immanuel Kant: The Definitive Articles of Perpetual Peace
Between States:

First Definitive Article of a Perpetual Peace: The Civil
Constitution of Every State shall be Republican.

Second Definitive Article: The Right of Nations shall be
based on a Federation of Free States

Third Definitive Article: Cosmopolitan Right shall be
limited to Conditions of Universal Hospitality
Immanuel Kant’s Federation of Free States as a Process (p.
39):
“There is only one rational way in which states coexisting
with other states can emerge from the lawless condition of
pure warfare. Just like individual men, they must renounce
their savage and lawless freedom, adapt themselves to
public coercive laws, and thus form an international state
(civitas gentium), which would necessarily continue to grow
until it embraced all the peoples of the earth. But since this is
not the will of the nation, according to their present
conception of international right (so that they reject in
hypothesi what is true in thesi), the positive idea of a world
republic cannot be realised.”
Immanuel Kant’s Federation of Free States as a Process (p.
39):
“…. If all is not to be lost, this can at best find a negative
substitute in the shape of an enduring and gradually
expanding federation likely to prevent war. The latter may
check the current of man’s inclination to defy the law and
antagonise his fellows, although there will always be a risk
of it bursting for anew. Furor impius intus – fremit horridus ore
cruento (Virgil).”
3.2.
HUMAN RIGHTS AND THE COSMOPOLITAN SENTIMENT
Three difficulties with the Cosmopolitan Sentiment

The sentiment of powerlessness (facing Sovereignty as Power and
the Infinity of sufferings in the World).

The danger of universalist solipsism (and extra-territorial
application of human rights).

The danger of a World Despotic State (the World Empire)
“Now it is evident that this identification must have been infinitely
more perfect in the state of nature than in the state of reason. It is
reason that endangers self-love, and reflection that strengthens it; it is
reason that makes man shrink into himself, it is reason that makes him
keep aloof from everything that can trouble or afflict him: it is
philosophy that destroys his connection with other men; it is in
consequence of her dictates that he mutters to himself at the sight of
another in distress, “You may perish for aught I care, nothing can hurt
me.”
Jean-Jacques Rousseau, A Discourse upon the Origin and the Foundation
of the Inequality Among Mankind.
THE BAN OF EXTRA-TERRITORIAL APPLICATION OF DOMESTIC LAW
Permanent Court of International Justice, Lotus case, September 7th, 1927
“Now the first and foremost restriction imposed by international law upon
a State is that – failing the existence of a permissive rule to the contrary – it
may not exercise its power in any form in the territory of another State. In
this sense jurisdiction is certainly territorial; it cannot be exercised by a State
outside it’s territory, except by virtue of a permissive rule derived from
international custom or from a convention. (…)
Far from laying down a general prohibition to the effect that States may not
extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, it leaves them in this
respect a wide measure of discretion, which is only limited in certain cases
by prohibitive rules (…)”
“La sociologie nous apprend que le fédéralisme est une loi constante de
l’évolution des sociétés humaines. C’est que le fédéralisme concilie deux
besoins, en apparence contradictoires, mais, en réalité, complémentaires et
également essentiels des groupements politiques.
D’une part, c’est le besoin d’autonomie et de liberté dans la recherche de leurs
fins propres, dans la gérance de leurs solidarités particulières ; le besoin de
self-government, qui est une condition du progrès, du libre développement
des génies ou particularités ethniques.
D’autre part, c’est le besoin non moins puissant d’ordre et de sécurité, de travail
libre et productif, dont la réalisation exige le contrôle, la hiérarchie, l’autorité si
l’on veut, mais consentie et organisée, en vue de procurer le respect de cette
autre solidarité plus large qui unit dans la paix les collectivités en contact
permanent.
Cette extension continue du phénomène de solidarité intersociale implique
donc l’existence d’une hiérarchie juridique et institutionnelle, exclusive de l’idée
de souveraineté, et dont l’aboutissement idéal serait le fédéralisme universel.
C’est vers lui que se dirige, parfois inconsciemment, à travers toutes ses
péripéties politiques et sociales, une humanité, vieille peut-être d’un millier
de siècles. Ce fut jadis la loi de formation des Empires, c’est celle actuellement
du fédéralisme volontaire ou conventionnel. »
Georges Scelle, Précis de droit des gens, vol. I, Paris, Sirey, 1932, p. 188.