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From Human Rights to Cosmopolitanism

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

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From Human Rights to Cosmopolitanism

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  1. From Human Rights to Cosmopolitanism Olivier de Frouville

  2. I – A genealogy of human rights and international law II – Three cosmopolitan challenges in the field of human rights

  3. 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

  4. I. A GENEALOGY OF HUMAN RIGHTS AND INTERNATIONAL LAW

  5. 1. A PHENOMENOLOGICAL APPROACH: THE SELF AND THE OTHER

  6. “[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.

  7. 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.

  8. « 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)

  9. Ferdinand Tonnies’ GEMEINSCHAFT UND GESELLSCHAFT Emile Durkheim’s ORGANIC SOLIDARITY AND MECHANICAL SOLIDARITY

  10. “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.

  11. 2. FROM HETERONOMY TO AUTONOMY : MODERNITY

  12. “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 fellow-creature 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.

  13. 2.1 AUTONOMY AS APPLIED TO THE RELATIONS OF THE SELF WITH AUTHORITY AND WITH THE INDIVIDUAL OTHER

  14. “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.

  15. “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).

  16. 2.2. AUTONOMY AS APPLIED TO THE RELATIONS OF THE COLLECTIVE SELF WITH THE COLLECTIVE OTHER

  17. THE CONTROVERSY OF VALLADOLID 1550 Bartolomeo de Las Casas (1484-1566) Juan Gines de Sepulveda (approx 1490-1573)

  18. The key to international peace in the context of the war of religions: Cujus regio, ejus religio

  19. 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

  20. 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 (…)”

  21. 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

  22. 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.

  23. “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.

  24. “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.

  25. 3. TOWARDS COSMOPOLITAN LAW

  26. 3.1. THE FEDERATION OF FREE STATES

  27. 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).

  28. 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

  29. 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 inhypothesi what is true in thesi), the positive idea of a world republic cannot be realised.”

  30. 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).”

  31. 3.2. HUMAN RIGHTS AND THE COSMOPOLITAN SENTIMENT

  32. 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)

  33. “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.

  34. 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 (…)”

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