The new sovereigntism and transnational law: Legal utopianism, democratic scepticism and statist realism

What is it about?

This essay examines the contemporary debate about the spread of transnational law and its sovereigntist critiques. Sovereigntists argue that the rapid development of international and transnational treaties and the emergence of regional human rights courts such as the ECHR undermine sovereignty and thus pose a threat to democratic self-determination. I criticize the new sovereigntism and argue that transnational human rights strengthen rather than weaken democratic sovereignty, and name processes through which rights-norms are contextualized in polities ‘democratic iterations.’ I develop the ‘authorship model of democratic legitimacy’ in order to show how constitutional rights and international human rights can be understood to be in harmony and dissonance with one another. The challenge is to think beyond the binarism of the cosmopolitan versus the civic republican; democratic versus the international and transnational; democratic sovereignty versus human rights law. Distinguishing between state sovereignty and popular sovereignty enables us to do so. By constraining certain sovereign powers of the state, international human rights regimes and courts can enhance popular sovereignty in that they strengthen the rights of the marginalized and the excluded. The essay also considers the significance of the Alien Tort Statute in U.S. courts from the standpoint of the development of international human rights norms and focuses on Hirst v. the United Kingdom, recently adjudicated by the ECHR, to substantiate the distinction between state and popular sovereignty

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Why is it important?

It addresses an issue that is contentious for many wo believe in democratic governance but are skeptical about the role of transnational courts.

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