On the Alleged Conflict between Democracy and International Law

Abstract

The period since the Universal Declaration of Human Rights in 1948 has witnessed the rise of an international human rights regime. There has been a shift in international law from state-based treaty obligations to cosmopolitan norms whose subject is individuals and their rights and entitlements under international law. Along with the rise of cosmopolitan norms, conflicts between enactments by states, often through democratic legislatures, of laws and practices that may contradict these norms, has also intensified.The article focuses on one such set of cosmopolitan norms concerning the crossborder rights of immigrants within the context of the European Union. By examining a German Constitutional Court Case which denied long-term resident aliens voting privileges in local and district-wide elections, it illuminates the “paradox of democratic legitimacy.” The rights of foreigners and aliens are an intrinsic aspect of the self-understanding of a democratic people. The demos can alter the boundaries differentiating it from nonmembers. The line between citizenship and alienage can be renegotiated through processes of democratic iterations. Cosmopolitan norms can become guidelines informing the will and opinion formation of democratic peoples.