Cosmopolitan Right and Non-Intervention: On the Conflictual Interplay of Philosophical Ideas and Legal Principles

Even though Kant’s concept of cosmopolitan right is, regarding its content, restricted to conditions of universal hospitality, its structure nevertheless challenges the traditional design of the international order. Modern international law is built upon the idea that it is the law governing the relations between sovereign states, the latter being the only legal subjects of international law. The state has, according to the principle of non-intervention, the exclusive right to decide with which rights its citizens may be endowed. A cosmopolitan right, however, is a right of international legal origin the bearer of which are not the states but the individuals. Strictly speaking, it entails a structural limitation of sovereignty’s exclusive right to decide upon its citizens’ legal status and appears (at least from the viewpoint of international law) as a form of interference with the domestic domain. As Jürgen Habermas has argued, Kant’s insistence on a sovereignty-friendly conception of interstate associations shows therefore a paradoxical (or even inconsistent) structure, since there is a tension between a cosmopolitan community on the one hand and a sovereignty centred order on the other. The paper aims to explore this tension between the idea of a cosmopolitan right and the established principle of international law, the principle of non-intervention. It does so by analysing the most progressive form of a cosmopolitan order, the European Union, in the light of Habermas’s critical revision of Kant’s concept, arguing furthermore, that paradigmatic changes in international treaty law are only explainable against the background of Kant’s idea of a cosmopolitan right.