Human Rights and Collective Security. Two Visions of Cosmopolitan Foundations of Community

Chapter 11

Human Rights and Collective Security: Two Visions of Cosmopolitan Foundations

of Community

Elena Paris

The interaction between human rights and the United Nations Security Council’s bourgeoning practice of adopting targeted sanc-tions against specific individuals suspected of involvement in acts constituting a threat to international peace and security raises an intriguing issue of colliding visions on the foundations of political community. This practice of the UN Security Council’s taking individual measures directly against private persons is controversial in several aspects. Perhaps the most problematic feature is that it is the substantiation of a vision of an exclusionary community at the international level that casts outside the polis the members who breach the rules of the club. It gives the image of a community which cannot accommodate difference and offers to preserve order through ostracism rather than inclusion1.

However, the most vigorous critique formulated in interna-tional law against targeted sanctions tends to focus rather on controlling, through de-centralized judicial review, the ever-ex-panding administrative function of the UN Security Council, in a context marked by proliferation of different levels of govern-ment, following a functional approach or a prevalence of rights/ rule of law discourse. It is this critique raised against the collective security paradigm that this paper is concerned with, because it is

1 See, for a development of this aspect of sanctions Chibundu 2010.

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currently the most vigorously articulated and the most effective. It results into a proliferation of legalistic claims and judicial ac-tion against the UN Security Council’s political discretion of enacting targeted sanctions.

This paper takes up the challenge posed by the contestation of the concept of collective security coming from the human rights paradigm, of depicting this notion in opposition with the idea of individual rights, and tries to discern what new type of thinking about collective security emerges out of it. With the promotion of the idea of prevalence of human rights over com-peting values, I will point to a shift in the values around which solidarity of the political community at the international level is formed—from the “common good” (security) to individual rights. The new project is an atomistic international community that brings the international community from cooperation back to a Westphalian co-existence, which cannot accommodate the idea of collective agency. Constitutionalism’s human rights solu-tion, just like pluralism’s celebration of the particular, preserves a polarity between common good and individual interest by re-placing the structural bias of collective security with new sets of particular preferences. They both offer a hegemonic, inward loo-king approach, unwilling to take the perspective of the whole and, by this, unable to offer a truly cosmopolitan perspective.

However, it should be noticed that this contestation could equally be treated as a confrontation within cosmopolitanism itself, a clash of different cosmopolitan languages. Thus, collective security and its institutional manifestation, the UN Security Council, is easily identifiable with a Kantian type cosmopolita-nism—the security branch of a “federal” global government, which aspires to universal peace. Conversely, the human rights project in collective security seems to be more easily identifiable with a more contemporary development of the cosmopolitan vocabulary, which emphasizes not the creation of universal ins-titutions to build universal values, but which militates, by placing

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the accent on humanity as a whole, for the “democratization” of existing transnational institutions (Archibugi et al. 1998, Held 2004, Waldron 2000, 2003).

In this strained relationship between collective security and human rights, it seemed to me necessary to dig up the founda-tions in order to reflect on the relationship between these two elements, which is the phenomenon of proliferation of economic and political violence as collective security and the significance of their vigorous contestation by human rights. The resulting piece is an essay on the idea of collective security and human rights and their relation to political community.

I shall proceed in what follows with a description of what is at stake in the debate (part 1), and than I shall analyse how are the foundations of political community imagined in each of the two sets of values reclaiming priority (part 2). In a third step, I shall show how both human rights and collective security generate some incongruencies and conflicts with competing values, when treated as firm and absolute foundations. I shall close the argument with a conclusion that contains the proposition that foundations of political community must necessarily remain contingent.

1. Coordinates of contestation

The practice of the UN Security Council of adopting targeted sanctions against individuals is relatively new. This body has gra-dually reinterpreted its role with respect to what was originally conceived by the Charter as inter-state measures to be taken short of war and which consisted, in the initial enumeration of the Charter of severance of diplomatic relations, as well as complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication (art. 41). The UN Security Council devised a new tool for dette-rence targeted directly against individuals deemed responsible of

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a conduct unwelcome by a sorority that goes by the name of „international community”. Those individuals blacklisted by the UN Security Council on various lists, are inflicted freezing of funds and travel bans. Curent examples are the Taliban and Al Qaeda regimes, North Korea, Iran, Lybia, to name but a few2.

In this essay, I concentrate on the specific critique against this practice that comes vigorously from the side of the “liberties lobby” transposed in the international field3, and especially from consti-tutionalism, the most cosmopolitan—style approach to law. Indeed, constitutionalism is a dominant trend in international legal scholarship and practice which most vigorously argues for a kind of “top-down” cosmopolitanism, of a Kantian type, by theo-rizing the constitutionalisation of international law and institu-tions, with arguments, in the field of the relationship between collective security and human rights, about submitting the discre-tion of the United Nations Security Council to judicial review by various courts at regional and domestic level. In this vision, human rights are an essential criterion against which the “legality” of the UN Security Council’s political decisions are to be measured, and they play the role of a “unifying glue”, the “core content” of an “international values system”, or an “international constitutional order” that is allegedly emerging (de Wet 2006). They are the cosmopolitan value by excellence, the natural law universal prin-ciples that trump contrary positive law even in the absence of a specific legal text expressing the consent of international actors

2 Currently, there are in total 16 targeted sanctions regimes, as they appear on the webpage of the UN Security Council [last accessed 12 May 2014];

3 An example of the speech of the “liberties lobby” translated in the area of international relations/ collective security is this: „In the core area of the traditional functions of the State (providing security to citizens and imposing sanctions on individuals that threaten that security), public authority has been transferred form the state to (or rather usurped by) the Security Council. ... Transferring public authority without installing proper procedures for securing human rights is retrogressive. It ... reinstates absolute public power over individuals” (Nollkaemper & de Wet 2002, 200–201).


as to their content. Human rights, in this international manifes-tation of cosmopolitanism, are the Kantian “cosmopolitan right”, translated in a supra-national human rights legal (and not neces-sarily institutional) structure by transposing the principles of rights’ protection from a domestic “republican” (like in Kant) constitution at supra-national level, where individuals are treated as human beings rather than as citizens of states.

The UN Security Council, with its coercive power and political discretion to adopt decisions that concern the whole society of states, receives a critique that is foundational also for domestic state skepticism about security and policing in general. No doubt, the new offensive of the UN Security Council’s recourse to targeted sanction especially in the context of the “war on terror” reflects a disposition towards and identification with security as foundatio-nal stone of any political community and precondition for the enjoyment of other liberties. The liberties lobby mentioned above contests this disposition to promote security as the primary func-tion of public authority in a Hobbesian tradition of thought to the detriment of individual freedom. In this contestation, the UN Security Council is often depicted in the image of the international policeman (Koskenniemi 1995) which, in overreaching itself, threatens to curtail the exercise of fundamental liberties—espe-cially the classical liberal catalogue of rights: freedom of movement and the right to a fair trial, or at least the right to be heard etc. Even if the UN Security Council’s policy of applying targeted sanctions against individuals might be successful in providing security, the trade off in terms of the loss of basic liberties by the persons sub-jected to such measures is deemed to still be excessive.

This fear, of UNSC’s “meddling” directly into the lives of individuals (Loader and Walker 2007, 35–73) and of lifting them up from the simultaneous control and protection of their domes-tic legal system, is fuelled by the way in which the same interna-tional liberal tradition that conceived the initial concept of col-lective security as a solidarity ideal trumping the individual

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“right” to sovereignty of equal states, now reflects a new concern with the moral status of the individual in international law that nurtures a certain conception of security and policing which chal-lenges and conflicts with this individual centeredness.

More precisely, this particular critical disposition regarding security seeks to constrain the power of the security discourse4 with an insistence on protecting and enhancing individual rights and democratic values. Thus, constitutionalist authors submit basically that, if the UN Security Council started to take actions that inflict individuals directly, without the meaningful media-tion of the State, performing, this way, real acts of global gover-nance through administration (Kingsbury, Krisch & Stewart 2005, 54), than it should submit itself to the same constraints as States are under regarding the control through legal mechanisms against the danger of arbitrary use of power. (Nollkaemper & Wet 2002, 199). This modus operandi of the liberal sensibility5 which feared the coercive potential of the state provides a quite effective countervailing power to the current global enthusiasm of adopting targeted sanctions. This move is explainable, as constitutionalism, in a tradition coming from Montesquieu that seeks to guard against the excesses of public power by a number of devices aimed at diversifying, checking and balancing institu-tional power. This critique captures, while not being able to offer a solution to overcome it, one paradox of security—that concen-trated public power is at the same time a guarantor and a threat to individual freedom.

4 This line of critique, characteristic for human rights movements, is distinguished form the one developed in critical security studies, which alleges that the security mindset should be abandoned and ways should be found to think and act beyond security (Loader & Walker 2007: 13–14).

5 In this respect, B. Kingsbury remarks that “Advocating global administrative law on grounds of individual rights protection presupposes a priority of liberal values, to be realized perhaps in a cosmopolitan global society that is based on the centrality of the individual” (Kingsbury, Krisch & Stewart 2005: 46).


This liberal and neo-liberal skepticism with regards to public power is in great part met with large sympathy across the spec-trum of ideological divide. Thus, while it does not contest some value in security, it properly alerts against the danger that arises from concentrating the capacity to exercise legitimate force to a single entity. The very monopoly of violence instituted to gua-rantee individual security and basic liberties stands as an ever-present threat to that security and liberty. It pinpoints to the propensity of the police force of the Security Council to exceed or abuse its power. It likewise indicates the importance of forms of constitutional and political regulation within any scheme that seeks to defend the proper place of the public police force in the just and democratic production of security.

But this critique of security has also shortcomings that I shall try to highlight in what follows.

2. Foundations of political community

2.1. Collective Security’s particular story: from co-existence to cooperation

One way to tell the story of collective security is to depict it as an evolution to cooperation from the logics of strict peaceful co-existence between sovereign and autonomous individual states of the Westphalian system. The Westphalian system produced an agnostic, procedural international law that would regulate, coor-dinate interactions among atoms, and refrained from imposing any normative ideal on the international society.

Against this background, collective security law brought along the idea of cooperation and established a certain teleology to-wards a political community at international level, that departed from the original Westphalian configuration of strict reciprocity. This movement is expressively captured in art. 2 of the UN Charter, stating the principles of the Organization. Thus, at first,

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individualistic morality , “sovereignty”, appears as foundational in article 2 para. 1, but the freedom involved in the idea of sove-reignty is immediately curtailed with the introduction of the idea of the existence of an “international community” which must be taken into consideration first, by acknowledging the status of “equality”. Thus, a social ethics is introduced by article 2 (1) (Danchin 2010, 43), that limits the Westphalian unqualified freedom by some normative demands of living together. Co-existence is replaced by co-operation around some common inte-rests enumerated in article 2 paras. 1–6: equality, peace, security and justice, non-use of force, cooperation. The idea of solidarity appears central to this international community. However, the dialectics between individuality and solidarity and the tension involved therein is inbuilt in the way article 2 of the UN Charter is constructed. After expressing the solidarity mood, it ends up, in final para. 7, re-affirming autonomy. This text turns back to the protection of individuality, by stating the principle of non-intervention in the internal affairs of Member States, in an at-tempt to preserve their internal identity. Indeed, and perhaps it could not have been otherwise, there is a constant oscillation between autonomy and community6 in the concept of collective security and in the construction of this political community in the institutional form of the United Nations itself. The paradox between community and autonomy remains unresolved and the challenge brought by human rights against the practice of collec-tive security measures directed against private individuals is pre-cisely a challenge of collective security’s attempt to assert the prevalence of social order over individual freedom.

6 One suggestive way of expressing this oscillation between community and individuality at the level of legal argument is this: “ In one case, community is interpreted as negative collectivism and autonomy (independence, self-determination) is presented as the normative goal. In the other, autonomy is interpreted as negative egoism and community (integration, solidarity) as what the law should aim at” (Koskenniemi 2005: 476).


Collective security is the precise paradigm that brings in the field of inter-state relations the idea of the prevalence of the legi-timate social order over individual (state) freedom, a certain de-gree of political solidarity amongst individual members as a nor-mative working premise.

This political community settled on solidarity has an institu-tional component regulated by a legal system, and claiming a centralized monopoly of the legal use of force against internal threats coming from its own members and with a military capa-city sufficient to exploit that monopoly and thus to stabilize its rule (think at the provisions of the Charter regarding the consti-tuting of military contingents immediately available to the Security Council for swift deployment—the never enforced ar-ticle 43). The political community thus constituted has an impor-tant trust building function, upon which the liberty and security of its members depend. It is distinct from a classical balance of power arrangement, which rests on the idea of de-centralization, where states act like separate units without subordinating their individuality (autonomy or sovereignty) to any central institution entrusted with the decision-making of whether and when force to be used. In such an alliance, like NATO, states coordinate themselves against perceived external threats. Order is hereby obtained through balancing and counterbalancing competing alliances until deterrence equilibrium is obtained.

In contradistinction to ad-hoc or more institutionalized mili-tary alliances, collective security is a manifestation of Wilsonian liberal-internationalism to institutionalize the legal use of force and to reduce the reliance on self-help as a rather crude instru-ment of law enforcement (Delbruck 1992, 646). It involves a centralization of authority over the use of force to the extent that states give up their sovereign prerogative to use force at their own discretion. This conflicts with the individualistic morality which expresses the international community as a function of each States’ unique identity.

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At the same time, these treats transform the UN Security Council, collective security’s institutional expression, into the Leviathan of this newly imagined international political commu-nity. It is the perfect instantiation of what Carl Schmitt described in his Political Theology as the sovereign—“he who decides on the exception” (Schmitt 1985, 5).7 Since resort to violence has been outlawed (in article 2 para.4 of the UN Charter), it remained within the quasi-monopoly of the UN Security Council to decide when an exception can be made to the rule (Loader & Walker 2007). Indeed, article 39 of the UN Charter endows the Security Council with political discretion to decide, like Schmitt’s autho-ritarian sovereign (Schmitt 1985, 13), what should count as a state of exception—a case of threat or breach of peace or an ag-gression, virtually untied by any preexistent substantive legal constraint, and what kind of measures are most appropriate to be taken to normalize the situation. It appears that, in a political community torn by conflict, there is a need for such a sovereign decision on the exception, restore the common good of peace out of antagonistic individual interests. In relation to the human rights paradigm, like a commissarial type of dictatorship, the Security Council’s collective security measures could be regarded as suspending the “constitutional order” of rights granted to indi-viduals internationally (like the famous article 48 of the Weimar Republic) only in order to restore it under more auspicious conditions. Looked at from this perspective, the UN Security Council is the bearer of sovereign authority which, by its deci-sion, puts an end to the conflicting views as to what constitutes

7 One of the shortcomings of the security mindset (in Loader & Walker’s account) is that any “securitizing” move (calling something a security matter) is to “seek to mobilize audiences behind the idea that `we face an existential threat that calls for immediate, decisive, special measures.` It is … to seek to lift the issue at hand … out of the realm of normal democratic politics, to claim that as an emergency it demands an urgent, even exceptional, response” (Loader & Walker 2007: 11–12).


a danger to the peace and how this should be tackled. It, moreover, resembles the institutional expression of a “global government”, in which, just like in a well-ordered national state, there is a central monopoly on the use of force and power. Thus, the paradox that exists at the level of foundations of political community is replica-ted at institutional level: the Security Council uneasily combines features belonging to both concepts—balance of powers (horizon-tal prevalence of individual interests) and world government (pre-valence of the common good over autonomous actions).

But this institution can also be described differently than a Leviathan. The Security Council is sometimes told to had been conceived as an autonomous institution, as a sphere of cumula-tive discussion and reflection about what should be done in the collective interest. (Klabbers 2010, 79–82). Its essential preroga-tive would be to subject the individual members of the interna-tional community to a certain collective discipline and constraint in the name of the intermeshing interests of these very same in-dividuals, more specifically in its case, in the name of the collec-tively defined project of collective security. By sacrificing the freedom of member states by the normative demands of equal freedom for all states, it posits a social ethics expressing the free-dom of each state as a function of community values and justice. It imagines a solidary international community with the autho-rity to constrain state egoism. It involves a certain degree of poli-tical solidarity and consensus among member states. It also points to a mutually constitutive connection between public authority and security: authority’s most basic function and justification is to provide security to its subjects.

These two visions reflect the perpetual possibility to ground collective security on different foundations. We could ground collective security on man’s original freedom and consider, with Hobbes’ nominalist approach, that the Security Council is the Leviathan, the necessary authority to redeem man (or the state) from perpetual war against man (state). In exchange for gua-

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ranteeing peace, individual rights and liberties are not opposable to the Security Council when it is exercising its functions. Or, we could regard the Security Council as the institutional expression, at international level, of the idea of order, as foundation of so-ciety. Order expresses, although in a diluted form compared with the classical Greek conception of the polis built up around the idea of justice, still a relational understanding of community, which entails a prevalence of communal virtues such as solida-rity against the disruptive forces of individuality.

2.2. Human rights’ vision on the international political commu-nity: from cooperation back to coexistence?

Conversely, human rights propose a different manner of ima-gining political community. Their social imaginary is based on individualism as foundational assumption. They take not the common good, but the natural freedom of man, and deduce from it a radical personal autonomy, as starting point for life in collec-tivity. Individuality and not commonality is the basic grid through which we see the world as proposed by the human rights paradigm. It is, in fact, in Thomas Hobbes’ idea of the human nature where is located the origin of human rights as we know them today (Villey 1998, 136). Liberty and equality is the origi-nal condition of man, wherefrom Hobbes, breaking with the thought that preceded his own, derives rights, not obligations. Liberty—free will, the first human right—is described as “the right of nature … each man hath to use of his own power as he will himself, for the preservation of his own Nature, that is to say of his own Life, and consequently doing anything which, in his own Judgment and Reason he shall conceive to be the aptest thereunto” (Hobbes, 1651, chap. XIV). Man’s social existence is constructed starting from this vision of the state of nature, as a multitude of individuals with unlimited equal liberties which potentially collide.


Also, this individual focus means that rights are not a relatio-nal category8. The relationship between the abstract beneficiaries of rights is similar with the Westphalian logics of coexistence9 between states, political entities reduced to their common deno-minator of being sovereign and equal. Nothing is left, in the lo-gics of human rights, of the Aristotelian conception of the cosmic order, nor of its legal expression given by the Romans—Corpus Juris Civilis, conceived of as regulating relations amongst law’s subjects instead of guaranteeing their individual interests taken in isolation (Villey 1998, 51–82).

What is axiomatic about human rights is therefore a nominalist conception of the priority of the individual, that raises against the Thomist conception of the common, oppressive for what is indi-vidual. Being individual– concerned, the most fundamental criti-cal axiom of the human rights’ moral ontology is the protection of individual agency. Hobbes deduced from the absolute freedom of each individual a need to guard men against men and invented the Leviathan, in order to avoid the perpetual war promised by his vision on the state of nature. The Leviathan is the bearer of the right of absolute freedom and, in exchange for providing peace

8 ” Il existe un violent contrast entre la philosophie d’Occam et la vision grèque du cosmos. Pour Aristote, la réalité n’est pas faite que d’individus. … Tout aussi réel … est l’ordre auquel ils sont soumis …, en général, les rapports entre individus. La philosophie d’Occam va réduire la réalité à des substances individuelles. Seuls réels, les êtres singuliers. .. . Mais alors, que signifieront les noms … relationnels (la paternité, la citoyenneté) existant aussi dans notre langage?” (Villey 1998:119).

9 In this vein, Michel Villey remarks: “ Tous … ont pris l’habitude de calculer leurs «droits« sur la seule considération narcissique d’eux mêmes et d’eux seuls. Par cette voie, déduits du sujet : l’Homme, et sans égard à la nature politique et sociale des hommes, naquirent les droit de l’Homme, infinis : «bonheur », « santé », droit de posséder une chose totalement, à son seul profit, libertés parfaites”, this in contradistinction with Roman civil law (corpus juris civilis) where it was «impossible de parler de droit en faisant abstraction des autres [hommes]» pp. 96–97.

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and security for all, it has the absolute right to overpass men’s freedom.

But this account, in which individual liberties are put at the service of absolutism, has been reversed in the liberal tradition started with John Locke. Locke put rights at the service of the individual and against State power. He gives a patrimonial inter-pretation of freedom—man is free to possess his own existence and the dominium entrusted to him by God (Locke 2008, chap-ter 5). In addition, and unlike Hobbes10, Locke invokes man’s rights as a shield against the authoritarian tendencies of public power and this is how they mainly operate today in the dominant legal liberal discourse. And as a necessary complement to suppor-ting raising rights against public power, Locke modifies the Hobbesian vision on the state of nature—this state might as well be peaceful because there is, he contends, a mutual rule dictating that men should respect each other’s property. The service that public power is expected to deliver, therefore, is to guarantee the private property of each individual who freely enters into the social contract.

Especially in this understanding of rights as a tool to constrain public power, an implication is that this distinct axiology esta-blishes also a distinct priority among legal categories. So, it be-comes possible for constitutionalists to imagine human rights as “trumps”, as Ronald Dworkin famously put it. In the clash between collective security and human rights, constitutionalism, or at least a “thick” version of it, pretends that, based on the foundational priority of the individual, as ultimate unit of concern, rights enjoy priority even in the absence of consensus, expressed in a text of positive law, and even in spite of existing

10 Michel Villey suggests that the different implications of the doctrines of the two authors were determined, in fact, by their different relationship with the political power. Thus, Hobbes’ purpose was to build ideological foundations for absolutism, in the service of the Stuart dynasty, whereas Locke’s purpose was to justify resistance to the authority of the Stuarts (Villey 1998:142,151).


positive law provisions that set the priority around a different set of foundational values—such as collective security. Behind this contention lies a typical liberal instinct to give some special status to the protection of basic liberties, which means that they cannot be traded away for other social gains.

At the same time, the prospect of opening up myriads of possibilities for claiming violations of rights by collective secu-rity measures before domestic courts in any country, also pro-vokes at the international level an old discussion about the effect of over-legalization and litigiousness and the effects of law on the social bond that has been carried out especially in the US domes-tic context. Thus, Mary Ann Glendon (1991) identifies three defects of “rights talk”. A first one would derive from the assump-tion that rights are absolute in character, and so become incon-trovertible “trumps”. This way, they inhibit the chances for poli-tical accommodation and compromise. Second, the underlying assumption in human rights, of the individual as fundamental unit of society, an atomistic and autonomous self, undermines communitarian values and interest. A third problematic aspect would come from the fact that the preoccupation with the vin-dication of rights is made to the exclusion of a symmetrical dis-course of duty and responsibility. It results in an underdeveloped consciousness of the individual’s obligations to the community.

Once established their respective foundations for political community, I shall examine in the third part their respective dynamics of exclusion, but also the surprising points of intersec-tion of these two apparently competing paradigms.

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3. Dynamics of exclusion

3.1. Collective security’s dynamics of exclusion

Order’s dynamics of exclusion is contained in its own inception. Thomas Aquinas, advises the King of Cyprus, that the common good must be realized even at the price of sacrificing the individual good11. What is common is constructed, in this account, as op-posed to what is individual. This is a paradox inherited by liberal internationalism, usually not located so far back to Aquinas, but to which no satisfactory solution has been so far found, except a constant balancing between community and autonomy.

Another opposition would be that between security and other, democratic, values which it has the tendency to trample by invo-cation of the emergency and urgency of the security situation (Buzan et all 1998, 25). Collective security is a mechanism that functions in a state of exception, when normality is suspended and every co-existent social value is subordinated to the impera-tive of putting an end to the danger implied by the state of neces-sity. However, the practice of imposing targeted sanctions is bourgeoning, to the extent that it has the tendency to become the rule, the normal state of things, rather than a provisional necessity. Thus, for the people targeted, in the name of a perma-nent state of necessity to restore or protect order and security, their basic rights and interests are dismissed.

But perhaps the most problematic manifestation of targeted sanctions’ dynamic of exclusion is the one mentioned in the in-troduction above—sanctions can be seen as a low intensity war that casts outside the polis the members who breach the rules of the club12, and which portrays a (global) political community

11 „… the good of the multitude is greater and more divine than the good of one man” (Aquinas 1949: par.70).

12 “As with the Libyan sanctions regime, many countries outside of the Western world were beginning to see Security Council sanctions [against Iraq] less as a device for collective security and more as a means for punishing


incapable to accommodate difference and preserve order other than through ostracism (Chibundu 2010). The UN Security Council exercises its enforcement power, granted under chapter VII of the UN Charter (coercive measures), in order to quasi—establish culpability of those targeted by sanctions for behavior considered intolerable by an elite (basically some of the perma-nent members of the UN Security Council), following a rather dubious process of assessment in which political interests of the great powers seem to weight heavier than the international com-munity’s interest in the maintenance of peace and security. Invoking security needs “links security to a conception of politi-cal community organized around binary oppositions between us/them, here/there, friends/enemies, inside/outside” (Loader & Walker 2007, 12). A further important aspect is that what hap-pens to international actors involved in this process on the wrong side of the barricade is that they are submitted to a process of public labeling (or “named and shamed”, as confidently celebra-ted in a 2013 report on the efficiency of the sanctions process) and punished with asset freeze or travel bans. The punishment is exemplary and fulfills also the function to serve as an example and as a means of deterrence for others who would be tempted to engage in disobedience or who would like to maintain civil relationships with those under the incidence of sanctions (secon-dary sanctions). It is a mindset that uses the logics of coercion and retribution and which excludes, by that, the possibility of engaging with those who disagree with interests promoted by forces which are the mainstream of international relations, the accommodation through dialogue and through recognizing the quality of political actors of those who are left outside the majo-rity in a global democracy.13 And since this international practice

independent-minded governments that operated outside of the West’s orbit” Chibundu 2010:139.

13 This approach is tellingly described by M. Chibundu: “ Collective security … ultimately is about keeping restive societies in check while the rest

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is promoted and sustained mainly by dominant powerful states, it might be plausible to treat it as similar or even as a global ex-pansion of a domestic practice of neo-liberal democracies, which tends, according to a point of critique coming more from the political left, to allocate the police power of the state in a struc-turally biased fashion, in ways that disproportionately benefit some social groups at the expense of others. It results a “new ratio-nality governing the outcasts of the neo-liberal world” which uses the police power preeminently to deal with problems of order raised by the contestants of the wealth distribution or values imposed by the majority (Loader & Walker 2007, 80–81).

Indeed, the exclusionary operation of sanctions as a favorite tool of collective security can be brought one further step in a direction depicted by Carl Schmitt. Somehow the sanctioned individuals and entities, considered as they are as outside the circuit of civilization and regarded as outlaws and enemies of humanity, would be deprived of the status granted to iustus hostis, just enemies, in a legally regulated war. They could be treated as in a discriminatory war (Schmitt 2006, 293–8), not equals to their opponents—the “just” belligerent international commu-nity, but subject to a normless exception, in which their basic rights are suspended. That the violence inflicted by sanctions amounts to a real low intensity war is illustrated by the restrictive measures resorted to against individuals, entities and state actors targeted. From travel bans and assets freeze, or severance of diplo-matic relations and communications with regimes found unfit, to more specific economic activities such as arms, timber, dia-monds, luxury products, oil and gas. An interesting evolution, currently manifesting itself with the sanctions regime against Iran, is that the targeted character of sanctions, actively sought

of us get on with the business of increasing our wealth and welfare. … A policy that is based on forcefully keeping the deviant in check renders unnecessary the need to incur often substantial costs of seeking to understand the sources of deviancy” (Chibundu 2010: 154).


for after the very unfortunate experience with the decade of sanc-tions against Iraq, tends to return to a comprehensive economic blockade. Indeed, the combined effect of UN Security Council, European Union and unilateral sanctions adopted by specific countries against Iran, targeting a vast array of economic fields, some without a direct connection with the Iranian nuclear pro-gram (such as part of the automobile industry, or the oil and gas sector) and particularly the banking sanctions amounts to a truly comprehensive embargo of trade relations with this country.

And here becomes telling Carl Schmitt’s analysis of an econo-mic blockade as a means of conducting sea war. Such blockade, deprived of a direct physical contact and inevitable engagement between a land occupying power and the occupied population, gives rise to a negative relationship, which dissolves the connec-tion between the force applying power (the international com-munity in our case) and the affected population that had inevi-tably existed in a physical form in the case of land occupying power. This way, it becomes possible that the targeted opponent to be treated not as an equal, but as an object of violent measures. Since the weapons of this war are unequal—the whole “interna-tional community” is called to rise up against the “rogue” indi-viduals or regime in question—the concept of war is not mutual and the belligerents do not enjoy equal status. Schmitt further notices how the factual inequality “opens the abyss for an equal-ly legal and moral discrimination” (Schmitt 2006, 321). Indeed, no satisfactory legal protection or means of redress are provided to those targeted by sanctions in their defense and in restoration of their affected interests. Such violence waged through the means of targeted sanctions becomes more and more similar to a police action against trouble-makers, as Carl Schmitt describes in 1955 war conducted through air bombings.

Waging such a discriminatory war would not be possible without the forging of a just cause, in Carl Schmitt’s proposition, the function of which would be precisely to allow a discrimina-

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tory treatment of the enemy. The just cause is transparent in the formulation of objectives invoked in motivating adoption of sanctions—compel an occupying State to withdraw its troops, prevent a state from developing or acquiring weapons of mass destruction, counter international terrorism, stop human rights violations or promote implementation of a peace process. Especially the rhetoric of the “war on terror” has its function in intensifying the justification of such methods of conducting war: terrorism is the terrible threat that compels to push discrimina-tion of the opponent into the abyss.

And here becomes apparent the strange relationship between collective security (manifested through targeted sanctions) and human rights—a complicated dialectics emerges, where human rights is both the contester and the beneficiary of coercive collec-tive security actions involving such dynamics of exclusion. Another nuance remained unapprehended by the human rights is the (mis)treatment of those targeted by sanctions. Contestation coming from the human rights paradigm only unwittingly ad-dresses the issue of the exclusionary function, ostracism and retri-bution involved in this approach to divergence of viewpoints among actors in the international arena. The focus of the objec-tion is on containing the perceived exorbitant, uncontrolled power of the UN Security Council, preventing it from becoming a Leviathan, in a similar way this is done in a domestic setting, where the executive is checked by the judiciary. These aspects shall be further developed in the following section.

3.2. The “other” of human rights

The dynamics of exclusion of human rights which I find relevant for the topic are related to the difficulty of the human rights voca-bulary to accommodate collective agency. Directly related to these aspects, I shall expose in what follows the surprising relationship with collective security of the cosmopolitan human rights ideal.


Human rights support an atomistic and unrelational concept of security—a decentralized collective security system through regionalisation and reliance on self-help. And here appears a paradox of constitutionalism and of cosmopolitan right. It might be said that this effect of decentralization and atomization of the business of security was unwanted by the “liberties lobby” and it even contravenes to the aspiration for unity of the cosmopolitan spirit. An author who encourages domestic courts to take civic attitude (because not clearly grounded in a positive law text) and reject implementation by national authorities of sanctions adop-ted against individuals listed by the UN Security Council for breach of their procedural rights (Nollkaemper & Wet 2002), may, from another angle, manifest her cosmopolitan preference to unity and coherence by deploring the erosion of the centralized collective security system established by the UN Charter caused by the phenomenon of regionalization of reactions against wides-pread violations of human rights (humanitarian intervention) (Wet 2012, 1554). But non-implementation of targeted sanc-tions decided by the UN Security Council as a result of a domes-tic court finding they were taken in violation of the sanctioned person’s rights is as much an erosion of centralized decision—making system in maintenance of international peace and secu-rity as the fragmentation of decision-making resulting from re-gional or unilateral for that matter, decisions to resort to the use of force and reliance on self-help.

The same form of de-centralized and individualized process that results from the local contestation by domestic courts of the UN Security Council’s exclusive authority to determine what is a threat to collective security is similar to what is described as individual security seeking promoted by neo-liberalism. Loader and Walker see in this de-centralization a conception of security that relies on a pre-social, pre-Westphalian state of nature, ato-mistic and unrelational, a re-affirmation of an absolute freedom from social determinations. (Loader & Walker 2007, 69–70).

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As a conceptual consequence, if such individual way of sol-ving the security needs as subordinated to human rights impera-tives is so uninterested to integrate in a broader context of social interactions, than this lacks a prospect of reconciliation with an idea of collective security, which challenges these individual affir-mations of sovereign agency in the name of some broader shared social good. It results a liberal incapacity to conceiving deference by individual rights to a shared good in terms other than loss (Loader & Walker 2007, 70).

Loader and Walker develop this idea further and suggest that liberalism is uneasy with the idea of balance among competing goods, with the sacrifice inherent in the attempt to reconcile individual freedom with collective discipline, liberty and secu-rity. This is due, first, to the fact that the liberals’ insistence on freedom (which seemed to be the value ranking highest on a social scale, but conceived of in an atomistic, exclusionary way) is uncomfortable with the type of consequential reasoning that leads to the erosion of such freedoms (such as Waldron 2003, 194). Rights should always trump competing goods (as with Dworkin) or be granted the Rawlsian “lexical priority”, and at least it should not be possible to trade away basic liberties for other, more social, gains. But balancing cannot accommodate this concern for priority of freedom. Secondly, balancing cannot rely on any clear rule to solve disputes between competing values and any utilitarian calculus fundamentally lacks in certainty and rigor. To this, adds up a liberal anxiety that balancing would work in favor of a structural bias of the social foundations of security as a more common good. (Loader &Walker 2007, 54–56) This difficulty to cope with the idea of compromise is reflected in the existing case-law of regional or local courts which, being asked to decide on targeted sanctions’ encroachment with individual rights, tend to disregard the possibility of making a proportionality test and a balance between competing issues involved, favoring in exchange


an outright priority of individual rights over collective security concerns.

As noticed above (section 2.2.), there is an embedded paradox in human rights in their relation to public power. Human rights are a weapon against anarchy, in support of absolutism (as with Hobbes), and at the same time, they raise against the hypertrophy of power, by claiming various liberal individual entitlements (as with Locke). On this last path, if taken to their ultimate conse-quences, they could bring back to anarchy. I will give in what follows two examples of this paradoxical mode of operation: the “right to security” human rights themselves gave rise to, and tar-geted sanctions, as manifestation of collective security, which are put, by suspending actual rights of those targeted, at the service of promoting ideals of human rights.

This practice is similar to the idea of the “right to security” at domestic level, invoked by those who claim that an innocent, peaceable majority has a forgotten right to live free of crime and violence—a right which trumps those which protect the law-breaking minorities.

In a perhaps similar vein, Michel Villey noticed that human rights can never be exercised by all, but that they are always en-joyed to the detriment of others. Human rights, according to Michel Villey owe their success to their capacity to veil this exclu-sionary effect (Villey 1998, 153–154).

And this brings us to our second exemplification of the strange relationship between human rights and collective security. Human rights’ exclusionary effect works also when supporting the proposition that everybody is free, but only democracies have the right to profess and spread their political creed. Thus, human rights also resort to violence in the form of collective security targeted sanctions as responses to difference, in the intent to re-create a certain “lost unity” around a chosen “universal model”. Democracy and human rights—universal models—must also be brought to those ignorant of them, including by using politico-

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economic (and even military) violence. Various sanctions regimes target and look to isolate regimes that do not follow a certain model of democratic or human rights standards.

At the end of the day, collective security is put, by human rights, at the service of submerging the otherness, the particula-rity, the dissent by mastery or assimilation in the name of “unity and harmony”.

4. Conclusions—Coordinates of a possible reconciliation

Political community, as imagined by both collective security and human rights, is tied to the idea, not of ontological neces-sity, but of about having something in common14. The common of collective security can be examined as a public good, empha-sizing relationship, whereas the common of human rights is pro-tection of individuality, which emphasizes autonomy to the detri-ment of interaction. The strongest opposition seems indeed to form, as I tried to show in this analysis, around the tension between collectivity and individuality.

However, the correction brought by human rights to the modus operandi of collective security seems to potentiate some of collective security’s dynamics of exclusion. When human rights become the just cause for launching the mechanism of targeted sanctions, they embrace and enhance the tendencies towards ostracism of collective security and enhance its discriminatory effect over individuals who do not share the mainstream position. Thus, human rights do not create the possibilities for opening up and correcting the oppressive tendencies of security.

At the same time, the “lexical priority” reclaimed by human rights does not allow to take into consideration and balance the

14 See, for instance, how Aquinas explain man’s social nature—as a practical necessity derived from the fact that man cannot ensure to himself by himself his “necessities of life” (Aquinas. 1949, Book One. Chap. I 5-8, 14)


coexistent security demands of a concrete situation. Evaluation is made in the abstract, and priority of human rights is pro-nounced irrespective of the practical consequences it might entail for security.

The type of collective security that emerges out of the human rights contestation resembles more to a private understanding of a security situation. Since, in the model discussed, every domestic court is entitled to contest the UN Security Council’s centralized appreciation of a situation of threat to international peace and secu-rity and of the appropriate measures to be taken in order to restore security, this means that collective security becomes decentralized, as domestic or regional actors—courts, are also in a position to en-force their understanding of the situation of global security.

The way the human rights critique of collective security has worked to correct security’s shortcomings is itself insufficient. There is still need to search for a more inclusive model based on tolerance for difference and dissent, where difference and multi-plicity could be seen as positive values, rather than justifications for oppression and violence, which is necessary for both human rights and security.

A useful observation resulting from these explorations of the foundations of political community as laying in security (solida-rity) or in human rights (individual-centeredness) would be that both security and human rights are simply constructs of the modern social imaginary. This points therefore to the idea that foundations of political community should necessarily remain contingent and mutable, because, given their constructed nature, there is nothing inherent neither in the ideal of order, nor in human rights as protectors of individual agency. There is no com-pelling reason for one to trump over the other as a matter of principle. Both solidarity and individuality are indispensible in ways that cannot be overlooked and both of them lead to excesses if given absolute preeminence.

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Works Cited

Aquinas, Thomas. 1949. On Kingship to the King of Cyprus. trans. by Gerald B. Phelan. Toronto: The Pontifical Institute of Mediaeval Studies.

Archibugi, Daniele, Held, David and Kohler, Mark (eds). 1998. Re-Imagining Political Community: Studies in Cosmopolitan Democracy. Cambridge: Polity.

Buzan Barry, Waever, Ole and de Wilde, Jaap. 1998. Security: A New Framework for Analysis. London: Lynne Rienner.

Chibundu, O. Maxwell. 2010. Assessing the High-Level Panel Report: rethinking the causes and consequences of threats to collective secu-rity in United Nations Reform and the New Collective Security Peter G. Danchin and Horst Fischer (eds), 117–154, Cambridge: Cambridge University Press.

Danchin, Peter G. 2010. Things fall apart: the concept of collective security in international law in United Nations Reform and the New Collective Security Peter G. Danchin and Horst Fischer (eds), 35–75, Cambridge: Cambridge University Press.

Delbruck, Jost 1992. Collective Security in Encyclopedia of Public International Law Bernhardt R. (ed.), 646.

Dworkin, Ronald. 1977. Taking Rights Seriously. Cambridge, Massachusetts: Harvard University Press.

Glendon, Mary Ann. 1991. Rights Talk: The Impoverishment of Political Discourse. New York: The Free Press.

Held, David. 2004. Global Covenant: The Social Democratic Alternative to the Washington Consensus. Cambridge: Polity.

Hobbes, Thomas. 1651. Leviathan. Leviathan, or the Matter, Form, & Power of a Common-Wealth, Ecclesiastical and Civill. Thomas Hobbes of Malmesbury. Printed for Andrew Crooke at the Green Dragon in St. Paul’s Churchyard, 1651. The Project Gutenberg Ebook of Leviathan. Last Updated: January 24, 2013.

Klabbers, Jan. 2010. The Politics of Institutional Reform in United Nations Reform and the New Collective Security Peter G. Danchin and Horst Fischer (eds), 76–93, Cambridge: Cambridge University Press.

Kingsbury, Benedict, Krisch, Nico & Stewart, Richard B. 2005. “The Emergence of Global Administrative Law” Law and Contemporary Problems, Vol 68, 15–61.


Koskenniemi, Martti. 1995. „The Police in the Temple. Order, Justice and the UN. A dialectical view” European Journal of International Law 6: 325–348.

Koskenniemi, Martti. 2005. From Apology to Utopia. The Structure of International Legal Argument. Cambridge: Cambridge University Press.

Loader, Ian & Walker, Neil. 2007. Civilizing Security. New York: Cambridge University Press.

Locke, John. 2008. Second Treaties of Government. Copyright 2010–2015. Jonathan Bennet

Nollkaemper, André & de Wet, Erika. 2002. „Review of Security Council Decisions by National Courts” German Yearbook of International Law 45: 165–202.

Schmitt, Carl. 1985 (1934). Political Theology. Four Chapters on the Concept of Sovereignty. Translated by George Schwab. Cambridge, Massachussets and London, England: MIT Press.

Schmitt, Carl. 2006. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. Translated and Annotated by G. L. Ulmen. New York: Telos Press Publishing.

Villey, Michel. 1998. Le droit et les droits de l’homme. Paris: Presses Universitaires de France.

Waldron, Jeremy. 2000. „What is Cosmopolitan?” Journal of Political Philosophy 8, 227–43.

Waldron, Jeremy. 2003. „Security and Liberty: The Image of Balance” Journal of Political Philosophy 2, 191–210.

de Wett, Erika. 2006. “The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order” Leiden Journal of International Law 19: 611–632.

de Wet, Erika. 2012. The United Nations Collective Security System in the 21st Century: Increased Decentralization through Regionalization and Reliance on Self-Defence in Coexistence, Cooperation and Solidarity Vol. II Holger P. Hestermeyer, Doris Konig, Nele Matz-Luck, Volker Roben, Anja Seibert-Fohr, Peter-Tobias Stoll Silia Voneky (eds.), 1553–1568, Leiden. Boston: Martinus Nijhoff Publishers.

Human Rights and Collective Security. Two Visions of Cosmopolitan Foundations of Community

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