Globalized Citizenship: Sovereignty, Security and SoulUF Law Faculty Publications
AbstractHuman rights law has redefined the concepts of sovereignty and citizenship. Just as transnationalization has weakened the hegemony of the political elites (corporate economic elites and domestic ruling classes) by strengthening citizenship claims of all persons, so, too, a globalized citizenship grounded on a human rights model will strengthen personhood by denationalizing states' claims on individuals' rights. The human rights narrative has been imagined, crafted and delivered by Northern/Western powers--the hegemon--however, for the human rights model to be of utility to the globalized citizen project, it must be reconstituted with an antisubordination agenda. It must include the voices of the marginalized--both persons outside Western cultures and subordinated persons within Western cultures--all women; racial, ethnic, religious, cultural and sexual minorities; the poor; and the differently abled. In sum, such a new vision of human rights refocuses the discourse and creates a globalized citizenship movement from below that embraces and empowers those currently in the periphery. This essay will use the reconstituted human rights paradigm to explore the relationship between sovereignty, security and personhood. Part II engages the human rights model by recognizing how it first effected a change in the concept of sovereignty and suggest a reconstitution to render the human rights system truly pluralistic. As reconceived, the human rights system provides a rich and complex foundation for a globalized citizenship model that promotes and respects personhood, well-being and human flourishing. Part III explores the tension between human rights and security, acknowledging three significant realities: (1) the normative reality that in times of danger the sovereign can suppress certain human rights to maximize security protections for its citizens and others within its territory; (2) the corollary legal and moral reality that even in times of danger the sovereign cannot derogate from certain fundamental human rights; and (3) the practical reality that the ability of the sovereign to act in breach of the nonderogable obligations may be unassailable if the actor is a powerful world actor. In this context, the essay addresses the uneasy legacy of Nuremberg and its more recent delineation of the bounds of sovereignty--the addition of individual responsibility which means that states cannot escape accountability by doing indirectly (via individual actors) what they cannot do directly. Part IV moves toward a new conceptualization of limits on sovereignty: a proposed globalized citizenship model that draws from traditional citizenship theory, uses the human rights structure as its foundation and places limits on the power of entities, including states and transnational and multinational organizations, associations or groups, to act if the consequence is a violation of human rights norms. This new conceptualization is different from the previous conceptualizations of the limits of sovereignty because the affirmation emanates from the individual him/herself (and others similarly situated around the globe) who has suffered as a consequence of a breach of norms regardless of whether the norm violator is a state actor. Finally, Part V applies the developed model to the post-9/11 condition of the captives held in Guantánamo Bay, Cuba.
Citation InformationBerta Esperanza Hernández-Truyol, Globalized Citizenship: Sovereignty, Security and Soul, 50 Vill. L. Rev. 1009 (2005), available at http://scholarship.law.ufl.edu/facultypub/516