Globalization and Sovereignty by Cohen Jean L

Author:Cohen, Jean L. [Cohen, Jean L.]
Language: eng
Format: mobi
ISBN: 9781139552844
Publisher: Cambridge University Press
Published: 2012-08-30T16:00:00+00:00

This means then that there is no fixed concrete set of rights that can be determined by or derived from a moral theory independently or in advance of social struggles. It also means that what human rights we have can vary over time, and with the relevant context.

Whether Forst or others who embrace the distinction between moral and political constructivism can really escape the charge that they are deriving the most fundamental human rights from the best or correct moral theory remains an open question.275 For as Baynes has cogently pointed out, so soon as one moves from the very abstract principle of a right to justification or the premises of communicative argumentation or the idea of the right to have rights, to a list of moral human rights these principles allegedly entail and which serves to constrain the deliberations within a political society concerned with specifying rights (political constructivist level), one invites the charge that after all one does assume that there are fixed and determinate human rights provided by the correct moral theory in advance of social struggles.276 Much of this turns on other contested distinctions: between the right and the good, between the moral and the ethical. However one comes down on this issue, the distinctions between moral and political constructivism, between the right and the good, between universal moral principle and particularistic ethical good, are clearly part of an effort to articulate the context-transcending thrust of all struggles that invoke human rights (and not only because they are now listed in international documents) while seeking to parry the charges of parochialism or of ethnocentric ethical imperialism. Whether or not these efforts are ultimately convincing, the core intuition remains important, namely that the content and subject of human rights are open-ended and in that sense indeterminate: the subject (and new content) of human rights is whosoever asserts her rights-claims against new or old forms of oppression or newly understood forms of injustice and exclusions whenever and wherever this occurs.277 Human rights assertions are never really only local and contextual irrespective of the historically situated nature of this discursive practice. The international human rights documents and practice are witness to this fact even if one is always able to trace their history and contextualized meanings.

Let me conclude. When it comes to the proper subset of institutionalized and enforceable international human rights – i.e. human security “rights” – whose function is to suspend the sovereignty argument, one cannot read them off the pragmatics of legitimate law-making within a constitutional democracy.278 This won't work because the proper subset would entail rights that are articulated on the supranational level and are binding even on those states that have not included them in their law or constitutions. These are the principles states must not violate and when violated can entail suspension of the sovereignty argument against intervention. On the other hand, they cannot be read off the international legal human rights documents because the list of rights these entail is far too broad given the function at issue.

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