SUVERANITATEA UMANA_EN

HUMAN SOVEREIGNTY, COSMOPOLITAN LAW AND HUMAN
PERSON, AS SUBJECT OF COSMOPOLITAN LAW1
Mădălina Virginia ANTONESCU, PhD
Abstract:
This paper is an attempt to understand the concept of “sovereignty” both
from the perspective of the contemporary international law, as well as from that of
a post-state juridical order centred on human person as principal subject of law,
as the cosmopolitan law. According to this type of legal order, specific to the
global, post-westphalian world, the physical person can represent the direct
beneficiary of rights and juridical obligations on the global level, without being
submitted to the global order through the agency of the state. The state level,
which is fundamental for regulating the relation between individual and
international level in cases of individual claims addressed to international
institutions on human rightsfield, is now considerate as inappropriate for defining
the status of a human person from the perspective of the global society and
cosmopolitan law. The paper explores some of main concepts and visions of this
relation (individual-globalsociety-cosmopolitan law), remembering also, the roots
of the “sovereignty” concept (from Jean Bodin’s “monarchical sovereignty”
vision to the postmodern vision of “human sovereignty”).
Key-words: sovereignty, international law, human rights, human sovereignty,
nation-state, cosmopolitan law, global world, westphalian world
1 The present article represents only the personal opinion of the author and it does not involve in any form any other
natural person or legal entity. All the rights over the present text are reserved. The quotations from the present text
are made by mentioning the author and the complete source.

1. Definitions of the Term “Sovereignty”. From Constitutional Law to
International Law
In the current sense, the term “sovereignty” is understood as a legal-political concept
closely connected to the concept of “nation-state”. More specific, the authors in the field of
constitutional law consider that one of the fundamental elements of the nation-state, without
which it could not exist, is sovereignty. Similarly, the international law doctrine sees the term
“sovereignty” as one of the bases for the entire international legal order and a fundamental legal
principle, used to regulate the relations among states.
There is a connection consolidated in time, between the concept of “sovereignty” and the
Westphalian world, connection which is now, at the beginning of the 21st century, under the
pressure of changes and challenges created by the global society and by globalization, in its
multiple senses.
The Westphalian world is centred on the idea of an unbreakable connection between the
nation and the state, acknowledging that both a sovereignty of the state2 and a national
sovereignty3 are possible.
The Westphalian world (postmodern) is however no longer built around the nation-state;
instead, it becomes a composite world (consisting of a multitude of global actors, infra-state,
regional, non-state, transnational etc.), which generates mutations in the conception and
functioning of the international reality. The challenges entailed by rethinking the concepts used
for the doctrine of international law or in the field of international relations (international society,
international system, nation-state) are also determined by this multiplication and variety of
2 Ludovic Takacs, Marțian Niciu, Drept internațional public, Ed. Didactică și Pedagogică, Bucharest, 1976, pg.35.
If, according to this view, sovereignty is considered an essential attribute of the state, without which it cannot be a
subject of international law, thus we cannot consider that the individual is sovereign, as an intrinsic quality (as the
human rights are considered, as subjective rights par excellence, inherently belonging to the human person, without
being acquired the same as the state functions). Moreover, the state, starting fromthe theory of the social contract, is
an abstract entity, which receives from the people parts of their intrinsic sovereignty, to regulate at common level
certain functions required for the social-political and economic organization. The state is not inherently sovereign, as
the human being; instead, it is sovereign on the basis of a social convention, freely accepted by the people. The
people are the creators of the state, while the state considers itself the creator of the international law. At the origin
of the states being created lie the free, consistent and sovereign wills of the people and, from this viewpoint, the
cosmopolitan law is but an acknowledgement of the intrinsic and individual sovereign character of the hu man
person, a return to the original maker of forms or state and non-state political-social organization: the man.
3 National sovereignty is construed as “the expression of the collective power of the nation, whose supreme keeper
and guarantoris the state”.See Marie-Claude Smouts, Dario Battistella, Pascal Vennesson, Dictionnaire des
relationsinternationales. Approches,Concepts,Doctrines, Dalloz, Paris, 2006, pg. 510-511.

global actors. They bring in other rules or challenge or break the functioning rules of the inter-
state society, causing changes in its very structure and functioning.
The norms and regulations created for the states and for the inter-state world cannot be
applied to the non-state actors, which operate in a parallel reality, called the “globalized
society”. In order to grasp the nature of actions and to set the adequate responsibility of these
actors, the occurrence of a different type of law, post-international (transnational or
cosmopolitan), as well as of other concepts for the structure and functioning of this world,
parallel to the westphalian world (still functional, but limited, inevitably) is necessary.
In the field of contemporary international law, sovereignty is defined as being a
characteristic specific to the state, from where derives its quality of subject of international law,
original principal4, in relation to other entities (be they acknowledged as subjects by the
international law, or not).
The contemporary international law itself is the result of the sovereign and consistent
wills of the nation-states, in an order of legal equality among states, which do not accept
superior authorities of the states5, or other types of sovereignties, competing against or replacing
the national sovereignty or the state sovereignty. For example, the contemporary international
law is dominated by the general and express prohibition of imperialisms and neo-colonialisms,
therefore empires, as supra-state entities, are entities which are not acknowledged and are illegal,
in relation to the international law (a westphalian right, par excellence, not a right of the large
powers). In this international law, the states are not mistaken for empires (political-military
supra-structures, with their own superior legal identity, in relation to the nation-states, and, even
more, which develop concepts superior to the concept of state and nation, such as: imperial
citizenship, imperial nation or privileged nations).
The contemporary international law considers that the state is a sovereign entity, in
relation to any other subject of international law (international inter-governmental organizations,
belligerent parties, peoples fighting for independence). The nation-state is the sole subject of
international law, characterized by sovereignty, in relation to other entities acknowledged by the
same international law, as being able to act (with the quality of subjects of international law), in
the contemporary international legal order. In relation to the nation-state, the individual (the
human person) is not considered to be a subject of international law or the attribute of
sovereignty. In our opinion, this is a limitation of the international law, generated in time, by
exceeding the concept of sovereignty for the human person (of the king, in the initial sense) and
of understanding sovereignty at an abstract (state) level or at a collective-symbolic level
(nation).
4 Jean-Francois Guilhaudis, Relationsinternationals contemporaines,Lexis Nexis, Litec, Paris, 2005, pg. 50-51.
5 Raluca Miga-Beșteliu, Drept internațional.Introducere în dreptul internațional public,Ed. All-B, Bucharest,
1998, pg. 7-8.

From the perspective of international law, the nation-state is sovereign as it is the original
entity and the initial subject of the international legal order.
The norms of international law are generated and observed by the states as sovereign
subjects of law6, not by the individuals. The individuals only have a temporary quality of
representatives for the will of the state and they cannot be themselves, at international legal level,
generators of international legal norms, replacing the nation-states or over the will of the nation-
states. The basic rule of international law (and a cause for which it does not accept empires or
individuals, as subjects of the law) is that only the states have full legal, original personality7
(i.e. of subjects generating the international law, underlying the international law and taking full
legal responsibility for the failure to observe its rules).
The nation-state is an absolute sovereign in the westphalian order, because it has “the
competence of competences” (the attribute of setting its own competences)8 and the attribute of
indivisibility and uniqueness of its sovereignty. In other words, it is not accepted (in international
law or in the constitutional law of the current westphalian order) that the state is in competition,
in its sovereignty, with other entities (empires, international organizations, intergovernmental
organizations, international financial institutions or international banking institutions, groups of
interests and individuals). Its sovereignty is indivisible, inalienable and full9, in the sense that it
is not accepted that a state shares its sovereignty with another state or with other entities
(wherefrom the issue of legal legitimacy of certain constructions of supra-state dimensions, such
as the European Union, where the theory of attributing competences was used to justify the
doctrine, in order not to contradict the legal characters of sovereignty, as well as not to create
breaches or precedents for other constructions superior to the states – in the international law).
Using this legal trick to build a multifaceted postmodern supra-structure, such as the EU
(through the theory of voluntary attribution of competences), it is considered that the EU
member states do not alienate their sovereignty or parts thereof, instead they share certain
attributions, competences, in order to use them at a superior (European) level. This attribution
of competences takes place by virtue of their sovereign wills and it is regarded as an expression
of their sovereignty, not as an infringement upon it.
For the doctrine of constitutional law, the state power is not a purpose in itself; instead,
the sovereign power of the people10 must be achieved by exercising the state power. In this view,
there is a close connection between the sovereignty of the people and the organization model of
the state, which determines us to consider the post-state stage, entered by a world organized
under the impact of globalization and in which power would become post-state power, being
exercised not for the achievement of the sovereign power of peoples, as it did in the 20th century,
6 Grigore Geamănu, Drept internațional public, vol.1, Ed. Didactică și Pedagogică, Bucharest, 1981, pg. 142.
7 Idem, pg. 276-277.
8 Jean-Francois Guilhaudis, op. cit., pg. 50.
9 Grigore Geamănu,op. cit., pg. 143.
10 Genoveva Vrabie, Drept constituțional și instituții politice contemporane,Ed. Ștefan Procopiu, Iași, 1993, pg. 51.

but in the name of a post-state or non-state sovereignty (wherefrom the version of exercising a
global power – or cosmopolitan – on behalf of the individual). In this context (post-state), human
sovereignty becomes an expression of global or cosmopolitan society, in which the individual
becomes the primary unit of the new social-political multicultural system of organizing the
world, not the nation-state. As compared to the world of states (by “state”, referring to “an
organized society, with autonomous or sovereign rule, in relation with others11), the
cosmopolitan world will be one based on the individual and on the idea of the individual
belonging to the great transnational community of people (the phrase “human community”, as a
21st century underlying concept, being connected to other phrases, such as “global society”,
“global governing” and “cosmopolitan democracy”).
Concerning the theory of human sovereignty in the 21st century, in our view, it would
represent a return to the medieval concept of “superanus” (defined by Thomas D’Aquino), which
referred to the position of an individual (representing a temporal power or a power or divine
representation), at the top of the hierarchy – the king or the Pope. The medieval European
concept of the individual as sovereign (here, only by virtue of a quality, of sacred or political-
symbolic nature) shows that, ever since the beginning, any connection between the human
person and the sovereignty was not excluded. The origins of this concept clearly show the
individual as a primary source of the supreme power (superanus), not as an abstract entity (the
state or the Church). In the post-state age, it is possible to witness a return of the original
concept of sovereign-individual (in the conditions of installing certain global forms of
government, different from the representative democracy), as a result of installing a universal
empire or a global monarchy (because these versions of organization of the post-state world, in
the 21st century, must also be taken into consideration, in an a comprehensive analysis of this
dynamic and surprising world, besides the democratic model, already touched by a phenomenon
of “classicization”).
In his book, “Les Six Livres de la République”/1583, Jean Bodin considers the term
“sovereignty” as a referring to absolute power or “majestas”, as it resides in the monarch (i.e. an
individual) and, only in the case of monarchs elected for a limited period, sovereignty resides in
the aristocracy or in the people, as the case may be12. According to Bodin, the monarchic
authority is independent from the sacred power (of the Church); thus, there is a relation of
rivalry, in the European Occident, between two types of people, each invested with sacred
attributes (the monarch and the pope), situation which does not have a parallel in the European
Medieval East or in the Oriental tyrannies13.
11 Idem, pg. 52.
12 Genoveva Vrabie, op. cit., pg.75.
13 See Stelian Brezeanu, Imperiu universal si monarhie națională în Europa Creștină. Studii de gândire politică
medievală, Ed. Meronia, Bucharest, 2005, pg. 20-21. Also see Stelian Gomboș, Contribuția religiei la realizarea
stării de securitate, în antologia Vorbirea despre Biserică și Stat- între curs și discurs, Ed. Top Form, Bucharest,
2009, pg. 174-175.

From Bodin’s perspective, the monarch does not have to explain himself before anyone,
as he is solely responsible before God (wherefrom the thinkers extracted the idea that the power
of the monarch or the power of the pope was independent). He considers that the legitimacy of
the power does not find its origin in the people, but in God (theory of the divine origin of the
law).
The monarch is sovereign and he is the embodiment of the state (the origin of the
absolutist character of sovereignty lies in the idea of supreme, absolutist power of the monarch).
In Bodin’s view, sovereignty is full, indivisible, and inalienable and it is an attribute of the
person of the monarch who, in his turn, embodies the state (wherefrom the prerogative of
promulgating laws). As a sovereign independent from the Papacy, the sovereign king is, in
Bodin’s view, the element which will gradually separate the world of the Occidental states from
the power of the Pope and which will lead to the idea of a state with a well delimited and
autonomous territory, in relation with other states (Vrabie, 1993, p. 76). However, Bodin
mistakes the sovereignty of the monarch for that of the state, in his perspective. The people is
subject to the monarchic power, rather than being the source of sovereignty, while in the
absolutist monarchy, only the monarch, the one representing the general interest of his people, is
the source of sovereignty. The king is sovereign not by will of the people (since it is not the
people that is the source of legitimacy), but by the will of God, since divinity is the origin of the
monarchic power (see the theocratic doctrines in France, 17th – 18th century, until the 20th
century, which were invoked by the monarchs to justify their power, in the original sense, the
one stemming from the person of the monarch who holds a supreme position in a monarchic
governing system)14.
The second great doctrine direction regarding sovereignty occurred with thinkers such as
Jean Jacques Rousseau, Hobbes and Pufendorf, whose approach was a theoretical line of
breaking away from the sovereignty of the monarch and the divine will and connecting the idea
of the sovereignty of the people, nation or state. The state, as an abstract entity, becomes the
representative of the general will, a state of the people. Through the social contract theory,
sovereignty belongs to the state, as a representative of the will of the people, with the state rulers
as mere clerks that can be removed from their position, at any point, or held liable for their deeds
as public clerks (Vrabie, 1993, p. 77). In this theory, sovereignty cannot be alienated or divided,
as it is an expression of the general will.
However, another part of the constitutional law doctrine did not accept the fiction of
sovereignty, or the idea of the legal personality of the state, as the state is considered to be a
social fact; according to Léon Duguit, the state does not have the right to command
individuals15. As a social fact, the state is reduced to a relationship of force between the
governing authorities (the strongest who grab the power and order the others, by election or by
14 Genoveva Vrabie, op. cit., pg. 76.
15 Idem, pg. 79.

force) and the governed people. The legitimate nature of this power resides only in its
compliance with the law, as the fundamental purpose of the state is to elaborate the law.
Therefore, at Duguit, we must note the idea that sovereignty does not belong to the state, but to
the law, as it is the will of the governing authorities, based on social solidarity, as the underlying
principle of the law. The command power must be exercised in order to become legitimate,
according to the law.
Another perspective (underlying the Declaration of the Human Rights/1789), that of the
social contract and sovereignty of the people, considers that “the principle of any sovereignty
resides in the nation, from which all the powers emanate” (Vrabie, 1993, p.78). The right to
command does not belong to king, but to the nation, with sovereignty being considered here to
be inalienable, indivisible and imprescriptible. Thus, national sovereignty comprises the idea
opposed to human sovereignty (the individual as a citizen of the post-state cosmopolitan order),
that of its indivisibility (i.e. sovereignty cannot be distributed among the individuals forming the
population of a state, because it belongs to the nation, as a collective entity)16.
For other thinkers, such as Hegel (the 19th century German school), the source of
sovereignty must be sought again in the human person (the monarch), not in the people, because
“in the absence of the monarch, it is but an amorphous, unorganized mass” (Vrabie, 1993, p.78).
For Hegel, hereditary monarchy is the most adequate system, “to reconcile the man with himself,
through the state and within the state”17.
Finally, another party of the constitutional law doctrine, a more recent one, considers that
sovereignty would be obsolete, as it is no longer compliant with the new realities of the dynamic
world; renouncing sovereignty is seen as “a way to maintain peace among the peoples, as a
means to enable free circulation of people and ideas”. As for the power of constraint exercised
by a state, it is explained by certain authors as being directly subordinated to the international
law, because sovereignty as a concept is obsolete18.
In other views, a recapitalization of the idea of sovereignty is proposed, by
acknowledging a difference between having sovereignty (holder de jure of sovereignty) and the
entity actually exercising it. From this perspective, the necessity to limit the sovereignty of the
state in favour of certain international organisms is justified. For jurists such as Verdross, the
theory of distributing competences is acceptable, supporting the need to transfer sovereign
attributes of the states to an international or supra-state plan, while other authors state the idea of
16 Ibidem, pg. 78.
17 Ibidem, pg. 78.
18 Ibidem, pg. 82-83. A se vedea și Ion Diaconu, Tratat de drept internațional public,vol.I, Ed. Lumina Lex,
Bucharest, 2002, pg. 275. Grigore Geamănu, Drept internațional public,vol.1, Ed. Didactică și Pedagogică,
Bucharest, 1981, pg. 150-151.

relativity of sovereignty (which would admit the possibility of unlimitedly restraining the
exercise of sovereignty)19.
For jurists such as Hans Kelsen, the international law supersedes the internal law,
gradually evolving towards a world law, to which a world state, therefore an entity with a single
sovereignty, is subject. In Kelsen, the state itself is a subordinated entity, as legal order, to a
legal order superior to the international law. Kelsen’s globalist view entails an integration of all
the national legal orders, in a world law.20
Other authors set a clear distinction between the state sovereignty (where the power is
organized at state level, as it is the supremacy and independence of power, in expressing and
exercising the will of the governing authorities as state will) and the sovereignty of the people. In
this last case, the holder of sovereignty is the people, sovereignty being exercised through the
representative bodies, such as the parliaments, as well as directly, through referendum21.
We cannot conclude this section without considering the view on the concept of
“sovereignty”, in the international public law (as state-centred law, since it acknowledges only
the legal quality of the state of being subject of original law, full and at the basis of the
international legal order which it formed)22.
Without the states, the international law, in its classic concept (that of inter-state law),
could not exist, for which reason there is a fundamental contradiction between the current
international law, specific to the westphalian world, which, in our opinion reached its peak at the
end of the 20th century, and the globalist order (post-state) order, centred on other actors and on
other views on sovereignty. If the states, as original subjects, preceded the forming of the
contemporary international legal order, it is adequate to also notice the fact that the global actors
(transnational companies, supra-national political entities, global NGOs etc.) formed in a
different manner: some preceded the globalist order of the beginning of the 21st century and even
determined its occurrence (by the decisional informal or financial power they exercised), others
occurred as an effect of the globalist order taking shape. What is important to notice when we
consider the globalist order are the composite, hybrid character and variety of roles played by
the actors of this order. It includes not only the states (as actors of secondary rank), but also the
individuals; in it, not only forms of post-state sovereignties (such as supra-state sovereignties),
but also non-state sovereignties (such as the concept of “human sovereignty”, specific to the
cosmopolitan law) take shape.
Regarding the acknowledgement of the quality of international law subject for the natural
persons, there are several doctrine trends: one of them, represented by jurists such as Léon
Duguit and G. Scelle, regards the international society as a society of people, which would mean
19 Ibidem, pg. 86
20 Ibidem, pg. 86-87.
21 Ioan Muraru, Simina Tănăsescu,Drept constituțional și instituții politice,vol.II, Ed. All Beck, Bucharest, pg. 83.
22 Ion Diaconu, Tratat de drept internațional public, vol.1, Ed. Lumina Lex, Bucharest, 2002, pg. 397.

that “only the people could be the recipients of the international law, therefore its subjects”23.
Certain international pacts and covenants in the field of human rights (a field based on which, in
our opinion, a true basis for the cosmopolitan law can be consolidated in the future) were used
as arguments; through these pacts and covenants, the people have the right to submit complaints
directly to international bodies or courts, against their own states, in case the rights protected by
these agreements are violated: International Covenant on Civil and Political Rights of 1966,
Covenant against Torture of 1984, International Covenant on Eliminating all the Forms of Racial
Discrimination of 196524. However, there are certain authors who reject these arguments,
claiming that the agreements are concluded among states, not among individuals, while the
liability of the states for violating the human rights stipulated in the said international treaties is
assumed by the states, by virtue of their sovereignty, not imposed by the individuals. Generally,
authors of international law agree that the natural persons are holders of internal law and, only
exceptionally, they can be considered beneficiaries of international rights and obligations, based
on treaties concluded among states. The contemporary international law (which remained a
westphalian one) thus rejects a positioning of the human person beside international
organizations and peoples fighting for independence25.
As a westphalian law, the contemporary international law is formed of sovereign states
and sovereign states, construed as entities that organize the political power, under all its aspects
and manifestations, as a sovereign power. Sovereignty does not stem from the world law,
according to other authors; instead, it is an intrinsic attribute of the state, stemming from the
sovereign character of the state power (exclusive supremacy, within the boundaries of a
determined territory, understood as not having to be acknowledged as such, by the exterior)26.
The conceptions that reflect certain westphalian absolutism, we could say, specific to the second
half of the 20th century, dominated by the rigid view of the cold war period, are strongly
contested today by the authors who try to define the post-state world, coexisting with the
westphalian world, characterizing the beginning of the 21st century.
2. From the Law of the Sovereign to the Sovereign-Human-Person. A
Recreation of the Original Meaning (related to the human being) in the
Globalized Society of the 21st Century
23 Ion Diaconu, Tratat, op. cit., pg. 494-495.
24 Idem, pg. 495.
25 Ibidem, pg. 498-499.
26 Gheorghe Moca, Suveranitatea de stat și dreptul internațional contemporan,Ed. Științifică, Bucharest, 1970,
pg.14-15.

If we discuss about a supra-state as an empire, with an imperial citizenship granted to its
subjects, and about an imperial nation27, then we must discuss whether the empire, as a supra-
state, holds its own imperial and superior sovereignty (if not exclusive, replacing or cancelling
the sovereignties of the states included in its structure). If we discuss about a theocratic or
monarchic imperial supra-structure, we can distinguish a type of imperial sovereignty closely
related to the idea of divine representativeness of the ruler of the empire, therefore we would
return to the initial sense (ante-westphalian) of the concept of “sovereignty”, in which only the
ruler of the kingdom (the monarch who, in certain situations, also receives the supreme
priesthood function, that of great priest and representative of the divinity) held sovereignty
(wherefrom the title of sovereign). From the accumulation of imperial (temporal) and divine
(spiritual) power attributes, the ruler of the empire is mistaken for his empire (the sovereign is
the empire) and impregnates the entire imperial supra-structure with the attributes of divine
representativeness, deriving from his person. Thus, at the origin, we find in the senses of
sovereignty both a sacred symbolism (sacredness of the person of the emperor) and a profane
symbolism (the empire seen as an extension of the will of the sovereign, as well as of his being –
the empire is sovereign, the imperial will is the will of its sovereign, exclusively and
mandatorily, absolutely and exclusively).
At the origin, sovereignty derives from the human person (emperor, as a human being), as
well as from the special quality of the person (political-sacred quality of emperor, where the
temporal power meets the spiritual power). The human person, who is the sovereign, at the
origins of this term, is positioned at the top of the pyramid of political power, rules over the
entire supra-structure, in an absolutist manner, without limitations from other people (or, in
certain situations, with only certain limitations from the priests, consequence of division of the
sacred imperial power between the sovereign and the caste of priests). Thus, for a proper
understanding of the global sense (related again to the human person) of sovereignty, it is
necessary to refer to the pre-westphalian period, including ages in which the empires were
acknowledged as being legitimate entities founded, which, besides functioning legally, were the
entities that made the “international” law.
27 The empire and the concept of “imperial nation”, do not exclude each other, in our opinion, if we consider that the
empire can also be a supra-state, with a decisional (metropolitan) nucleus. Let’s remember the title used in 619, that
of basileus, in the European East, with the meaning of “universal emperor” and, after 800/the year when Charles the
Great was crowned as emperor of the occident, the concept of “imperial people” occurs as a reaction of contra-
reaction of the Byzantine world (the emperor of the New Rome – of Byzantium – is from now on “the basileus of
the Romans”, act by which the frank usurpation of the imperial title and the lack of legitimacy of the political
creation were denounced. The Roman Empire (Byzantine) becomes “the sole power created by God on Earth and
the source of power for its sovereigns is Christ the Lord” (Byzantine imperial ideology). See Stelian Brezeanu,
quoted op. pg. 26. The intrinsic connection between the religion and the empire, between the emperor and the sacred
dimension of the empire, leads to the creation of the imperial ideology, based on the imperial people and the
universal emperor, each of the concepts being directly and inherently related to the sacred domain (divine
legitimacy, not the theory of the social contract), wherefrom other perspectives and meanings to explore occur for
the concepts of “imperial nation” “imperial people” and “sovereignty”.

Thus, we will not make the error of regarding the concept of sovereignty exclusively
through its regular lens, that of the westphalian world. At its origin, sovereignty was a
characteristic of the sacred-political person of the monarch, setting order in the type of social
and political organization of a structure (kingdom, empire), based on a pyramidal, hierarchic
model, with the sovereign and the imperial dynasty at the top, and the large categories of
subjects, beneath this level.
Monarchic or theocratic imperial sovereignty only generates a non-citizen hierarchic
organization, of the community of imperial subjects, which is not connected to the westphalian
world ordered around the concepts of national sovereignty, equality before the law among all the
citizens and considering the sacred person of the monarch himself to be “a citizen”. The
westphalian world annuls the sacred character of the monarch, considering him a simple
element in the social-political organization of a community, an element with symbolic role,
belonging to the past.
However, the global society can generate forms of post-westphalism in the social-
political organization of the communities, including the reoccurrence of theocratic or monarchic
empires, in which the human person regains its sacred position, as well as the double and real
power (not symbolic): sacred-political. Recombining politics and religion, in the person of the
monarch, can generate the occurrence of new empires that lead to an essential change in the
current international law, no longer capable of setting order in a global, post-state world. We do
not consider that we are faced with a world of incapable or weakened states, but a world which
proposes new models (post-westphalian) of social-political organization, due to the globalization
level specific to the 21st century.
The post-westphalian 21st century world would operate with legal-political concepts and
models of social-political organization, which are different from the model of the nation-state
and the force relation with the individual (here, the notion of state is interpreted through the idea
of force or legitimate coercive power, in relation to the individual, who is dispossessed of
sovereignty and is “captive” in a legal-political relationship, in which the “sovereign” is a
collective entity – the nation, the people – or abstract entity – the state). These legal-political
concepts specific to the globalized world of the 21st century form a direct legal-political
connection between the human person and the top level of the global governing model (the
institutions of global governing), which stems, according to most of the opinions, from the
mechanisms and principles of democracy (with certain authors talking about the cosmopolitan
participative democracy and others about a mainly representative cosmopolitan democracy).
This legal-political connection of the cosmopolitan citizen generates global/cosmopolitan
rights for the individual and a set of cosmopolitan responsibilities, with the occurring
perspective of holding the individual directly liable before the impartial, legal institutions, at
global level. However, such perspectives build a global supra-state model, which exceeds the
perspective of the inter-state world of equal and sovereign states, which do not accept any

authority superior to them, in any form. With the perspective of cosmopolitan democracy
(participative or representative), it is possible to also generate global mechanisms and institutions
of government, which lead to the creation of a global bureaucracy, of a global technocracy
(independent clerks and specialists, who cannot be held accountable by the states, but only by
other global institutions, and who no longer represent the nation-states, such as clerks in certain
international organizations, in the state-centred westphalian world).
It is important to ascertain that, in the post-state world towards which the globalization
processes direct us, the individual will no longer be ignored or minimized in relation to other
actors (states, corporations, NGOs, international financial banking institutions etc.). Better said,
the individual will become more and more important for the functioning and consolidation of the
new cosmopolitan order, as the sovereignty of the individual, construed as power, as set of
political rights, as well as cosmopolitan (global) responsibilities, will be acknowledged at global
level.
The transnational character of the globalization phenomena, which have led to the
porosity of state border and relativization of its jurisdiction in relation to the individuals, will
lead in the 21st century to the creation of this cosmopolitan relation of citizenship, between the
individual and the level of global governing (different from the international level currently
existing, which stems from the sovereign and common will of the nation-states and which can be
ended by the same sovereign will of the states).
This level of global governing, specific to the cosmopolitan order will be not only one
superior to the states, in the 21st century world, but also generating an increase level of
responsibility at its level (global responsibility, before other global institutions, not at the inferior
level, the state). This explains the great vulnerability of the cosmopolitan order or the great limit
of cosmopolitan democracy, which no longer allows the control performed by other levels (state,
infra-national), due to democratic pressures, lobby or democratic mechanisms, over the global
governing level. The main democratic mechanisms and institutions, which we see functioning
today, in the state world or even in certain supra-state regional orders (European Union), should
be globalized: a global parliament, global referendums to consult the citizens, global decisional
institutions, with extremely clear statuses regarding the decisional limits and legal-political
responsibilities, a balance among global institutions that exercise legislative, executive and
judicial functions. In another alternative, the failure or formalization of cosmopolitan democracy,
by excluding the direct citizen control over the global institutions would mean abusing the global
power and, in original form, never before seen in history, totalitarianism or authoritarianism.
In a post-state world, what transformations could the state power suffer, since it is today
an essential attribute of the state? In a cosmopolitan world, centred on the individual as a source
of cosmopolitan power (transcending and replacing the state power), a new power, construed as a
political power, invested with coercive force, with an organized character and generating a

global sovereignty28, the state would be dispossessed of this essential attribute, becoming a
pseudo-state, without authentic power or even abolished (as the doctrine speaks even of the
transformation of states into simple political communities or strongholds29.) The cosmopolitan
world would entail either a combination of sovereignties, an overlapping of autonomies and
powers of the global actors (corporations, individuals, global institutions, transnational
organizations, empires, supra-states), which transcend or replace the classic sovereignty of the
westphalian world (sovereignty of the nation and state sovereignty), or a sovereignty of the basic
level of the contemporary order, the cosmopolitan citizen: human sovereignty. Thus, unlike the
state sovereignty (with super-positioned and centralized character, in relation to the individual),
the human sovereignty in the cosmopolitan order would be generated by the human being, as a
source of power and as a recipient of power. Without this sovereignty, the individual could not
act at global political level, in relation with other financially strong actors or with the global
institutions.
Acknowledging a global sovereignty for the global super-state (defined through
institutions of global governing, global coercion force, global territory and a global population,
under its jurisdiction) would mean denying the intrinsic sovereign character of the individual, in
relation with any abstract construction, as well as with the possibility of a global abuse of
power, for the bureaucracy or technocracy at the global level of functioning.
These might not be held responsible before anyone (because the individual would lack
sovereignty, the nation-state would be abolished or weakened, reduced to a simple province or
stronghold, while the levels of regional integration would generate their own forms of abuse of
power, in the absence of the sovereign and limiting will of the states, now incorporated to a
maximum in their structures). A bureaucracy or technocracy independent in relation to the
inferior levels (infra-global) and broken away from the control of the citizens, from the legal-
political viewpoint (with a weak and corrupt global parliament) would lead to forms of abuse of
power unprecedented in history and to a dissipation of responsibility. Therefore, considering
that the individual is the source of the legitimate power exercised by the global institutions leads
to necessarily creating certain strong mechanisms for the control exercised by the citizens at the
global level of governing, on the principle of a real cosmopolitan participative democracy.
Acknowledging the human sovereignty would lead to the formation of certain institutions
different from the state (collective) institutions, which directly represent the human person as a
sovereign person, subject of cosmopolitan law and direct recipient of the rules of cosmopolitan
law30, in the global order and at any level (infra-state, national).
28 Genoveva Vrabie, quoted op., pg. 62.
29 Cosmopolitanism, http://en.wikipedia.org/wiki/Cosmopolitanism
30 Cosmopolitan law being defined, according to certain globalist authors, as originating fromthe concept of law and
world society, where the concepts of a common humanity and of universal human rights replace the traditional
perspective, based on the nation-state. See the definition given to by internationalism, as a precursor of

If, in the westphalian world, the states represent sovereign and equal wills, refusing to
acknowledge any authority superior to them31 (wherefrom the fundamental incompatibility
between the world of nation-states and the global, cosmopolitan world, each generating its own
forms of legitimacy, its own subjects of law and rules of law), in the post-state world of the 21st
century, the individuals will represent, as global actors and direct subjects of the rules of
cosmopolitan law, the basis for the cosmopolitan rule of law, the fundamental measurement unit,
for the entire cosmopolitan order, the sovereign subject, issuing cosmopolitan legislation,
through global institutions, which will represent his/her will (such as the multi-chamber
parliament, representing various social or, maybe, geographically territorial categories).
The cosmopolitan order sees a fundamental repositioning of the individual in relation to
the state: the individual is no longer exclusively subject to the will of the state, which has lost or
eroded its sovereignty; instead, the individual, as sovereign, controls the entire cosmopolitan
order of law, being the generator and recipient of the cosmopolitan law rules. The material force
of constraint setting the ground for the state’s sovereignty, in the westphalian world, is now (in
the post-state world of the 21st century) transferred to the global level, which is also strongly
controlled by real mechanisms of participative democracy. It is essential for the creation of an
authentic cosmopolitan participative democracy that the global supra-state (if the new post-state
global world of the 21st century is organized in this manner) generate mechanisms of global
liability and self-limiting mechanisms, for the global governing institutions, in a process of
rethinking the theory of balance among powers at global level (also taking into consideration
other global actors, which are capable of generating forms of civilian control over these
institutions, such as the global mass media, the global public opinion lato sensu, various global
NGOs etc.)
This global supra-state, organized on the democratic functioning principle, should protect
the interests of the majority of cosmopolitan citizens, not particular interests or minority interests
(a group of oligarchs, a regime of plutocrats holding the levers of global power, by virtue of their
financial power, and thus influencing global governing institutions, for their own benefit, and
generating forms of authoritarianism at global level). If we conceive a organization of power in
post-state forms, in the cosmopolitan order (also considering the formation of a global supra-
state, with composite, inferior levels of power, such as the regional supra-states), this would
entail an organization of the global level of governing, through an institutional device, able to
exercise a material force of constraint accepted as legitimate by the cosmopolitan citizens and
controlled through mechanisms of authentic participative democracy.
The global power (in the supra-state model, of global governing) would be unique,
therefore it would remove the state power (thus seeing the historical transfer from the
westphalian world to the global world). The hypothesis of peaceful coexistence between the two
cosmopolitanism, by authors such as Graham Evans, Jeffrey Newnham, Dicționar de relații internaționale, trad. de
Anca Irina Ionescu, Universal Dalsi Publishing House, Bucharest, 2001, pg. 288-289.
31 Grigore Geamănu, quoted op., pg. 156-157.

worlds would be a transient one, because it is no longer possible to conceive two types of rival
powers, both proclaiming their uniqueness, such as the one generated by the states (as sovereign
entities) and the one generated by individuals (as sovereign entities, governing at global level,
through direct institutions and mechanisms, as well as through representative institutions and
mechanisms). We cannot admit that the global level of governing generate a power of its own, to
the detriment of the individuals and obtained from the states (through the theory of attributing
competences which, naturally, remove the content from the sovereignty of states).
Since the westphalian world does not admit any authority superior to the states
themselves (the EU itself was founded on a legal trick, that of the member states transferring
certain attributes, by common consent, for common management by the states, at a superior level
– legal trick, which does not explain the occurrence and consolidation of certain supra-state,
pre-cosmopolitan forms of power, which exclude the state level, constructing a direct political
relationship with the citizens of the EU member states), the post-state cosmopolitan world can be
created through the (legitimate) approach of considering that the individual is the source of
power; this world is organized at global level through institutions and mechanisms which are the
legitimate carriers of this power (wherefrom the concept of human sovereignty, replacing the
state sovereignty). Accent would be placed again on the original meaning of sovereignty (that of
the 15th century, when the term referred to the position of the king, in the feudal hierarchy, i.e. it
evokes the situation of the man who is above the hierarchy, there is no one above, he is not
subordinated to anyone32).
Human sovereignty would be that position of supremacy of the individual, in the
hierarchy of the global world, which expresses his/her quality of free and dignified human being,
in relation to any global actor (state or non-state), legal quality which grants his/her right to be
treated as a cosmopolitan citizen with full legal personality, at global level, as well as his/her
quality to freely delegate, as a consequence of sovereignty, certain attributes to the level of
global governing, required for the performance of cosmopolitan representative democracy.
As a sovereign power, the individual holds a supreme position in the cosmopolitan law
order; therefore the individual cannot be considered a subject of the global governing
institutions, but a cosmopolitan citizen who, in relation to these institutions, owns the primary
source of power, which he/she can freely delegate to the global institutions or which he/she can
exercise directly, through the mechanisms of the cosmopolitan participative democracy. The
sovereign power of the individual, in the post-state order of the 21st century also signifies that the
human person is regarded as supreme in relation to any institution, be it state or non-state; thus,
the global institutions to which certain attributions required for the functioning of the
cosmopolitan political-legal order are delegated temporarily and conditionally (observing the
regulations of cosmopolitan law) are not superior in relation to the individuals; instead they are
the representatives of the individuals. These global institutions (global parliament, for example)
32 Genoveva Vrabie, quoted op., pg. 69-70.

pass the mandatory rules for the cosmopolitan citizens based on the latter delegating the exercise
of certain decision-making attributions, even if they are in an inter-relating and democratic
mechanism, permanently balancing in the global super-state. In the post-westphalian order, the
distinction between the external and the internal sovereignty is no longer relevant, because these
two concepts refer to two aspects of the same phenomenon, in a global world, in which the state
border have lost their relevance from the 20th century.
Human sovereignty also expresses the phenomenon of consolidation of the international
regime of human rights protection which, in the cosmopolitan law, becomes a global legal
regime, whose application is left to the global institutions that protect the human rights
(institutions with legal regimes better consolidated by comparison to the current international
institutions in charge with protecting the human rights).
Asserting the sovereignty of an individual entails observing the sovereignty of the other
individuals, who have equal rights. Human sovereignty adds concrete legal content to the idea of
cosmopolitan order, in which all the human beings are free, with equal rights and acting based
on mutual respect33.
Human sovereignty proves the return of law to its original track, from which it broke
away in the adventure and justification of an abstract entity, considered superior to the
individual, such as the nation-state. In the cosmopolitan order, as postmodern order, in other
versions of development, human sovereignty is found besides other types of sovereignties and we
can even discuss about a phenomenon of multiplication and coexistence among sovereignties
(specific to the imperial medieval age, in the European area, such as the Holy Roman-German
Empire34. The noted characteristics of the nation-state world (territorial supremacy, indivisibility,
inviolability, uniqueness) tend to fade away in the composite, post-state world of the 21st
century35.
3. The Human Person, Subject of Cosmopolitan Law: Rethinking the
Concept of Sovereignty from the Perspective of the Human Person and
the Post-State Global Society
33 Luke Martell, Cosmopolitanism and Global Politics, Political Quaterly 18, 4, Autumn 2011, www.sussex.ac.ik,
accessed on 09.01.2015. Gustavo Lins Ribeiro, What is Cosmopolitanism, Department of Anthropology, University
of Brasilia, www.vibrant.org.br, accessed on 9.01.2015. In addition, see Cosmopolitanism,
http://en.wikipedia.org/wiki/Cosmopolitanism
34 It refers to the sovereignty of the large powers (understood in a wider sense than the sovereignty of the other states
included in the Holy German Empire), France and Sweden, which reserved the right to guard over maintaining the
freedom of religions, amended in the Westphalia treaty. Therefore, even in the treaty of Westphalia/1648, there is a
hierarchization among the large powers and the other states, despite the stipulation of the principle of equality.
35 Grigore Geamănu, quoted op., pg. 143.

Regarding the term “cosmopolitan”, we should also recall the contribution of the
Frankfurt school36 (the critical theoreticians, developed around the thinker Jurgen Habermas37),
stating that “the contemporary international relations see a process of democratization”) and
introducing the phrase “cosmopolitan democracy”.
Other authors using this phrase (David Held, Daniele Archibugi38, in Kjaeler/2004)39
consider that this sate of the global society can be achieved by creating and consolidating certain
levels: strengthening the level of regional integrity (EU), a civil society created and elected at the
level of the international institutions, developing the global level of governing (owned resources,
owned capacity of administration), a consolidation of certain international existing institutions,
which regard the direct legal relation between the individual and the international legal order
(International Criminal Court, European Court of Human Rights, International Justice Court),
being transformed into mandatory jurisdictions and having amendment capacity; a reform of the
UN Security Council (extending the quality of member to other states as well, eliminating the
veto); creating an international military force distinct from the level of the states and from their
capacity to control it; increasing the transfer level of the coercive capacity, from states to global
and regional institutions40.
David Held (quoted in Colas/2002) considers that the transnational social movements are
a mediator between the global governing institutions and the cosmopolitan democracy. The same
author regards the content of the phrase as envisaging a “blending of roles among political
institutions and agencies set up by civil societies, by the national or international ones”41.
Thus, cosmopolitan democracy is connected to phrases such as: “global governing”,
“global institutions”, “global civil society”, “global level of governing and administration of
resources” and “regional integration”. All these phrases used by the above-mentioned authors in
relation to the “cosmopolitan democracy” phrase are insufficiently connected to the individual
and to the idea of democracy, being rather oriented towards strengthening a global level of
governing, which overlaps the inter-state level, thus building a hierarchical, pyramidal, global
model of organization, apart from the individual and from the real possibility that the latter be
able to control or elect the representatives operating at supra-state governing level, through
authentically democratic mechanisms. Here, global governing is assimilated with a supra-state
level of governing (which is not accepted in the current international law), but which does not
concern (besides the effect on the sovereignty of states) either creating a sovereignty of the
36 Critical/postmodernist theory in international relations. See Graham Evans, Jeffrey Newnham, op. cit., pg. 116-
118.
37 Idem, pg.117. In addition, also see Marie-Claude Smouts, Dario Battistella, Pascal Vennesson, Dictionnaire des
relations internationales, Paris, Dalloz, 2006, pg. 106-107. Vasile Pușcaș, Relații internaționale/transnaționale, Ed.
Sicron, Cluj-Napoca, 2005, pg. 36.
38 Quoted in Vasile Pușcaș,quoted op., pg. 190-191.
39 Quoted in Vasile Pușcaș,quoted op., pg. 190.
40 Idem, pg. 190-191
41 Ibidem, pg. 191.

individual or creating supra-state democratic mechanisms, which limit the global power
prerogatives of the non-state actors (transnational financial or banking institutions, corporations,
large powers, groups of large powers, operating on the basis of supra-state rules, by evading or
exceeding the international law).
In the absence of real democratic mechanisms at global level, the cosmopolitan
democracy faces the risk of becoming an empty phrase, with no content, used to grant higher
power to the states, to certain non-state actors, without provisioning an adequate global
responsibility or organisms with the task of controlling these global actors based on the
democratic rules.
Even if an international (or global) citizenship were created in the 21st century, turning
the individual into a citizen of a global society, which acknowledges him as subject of law and as
subject of a global policy (with a series of specific political rights, by virtue of a political
relation, connecting the individual directly to the global level of governing), the absence of
democratic regulations at global governing level would lead to a form of global totalitarianism,
in which global institutions had unlimited power, not limited by adequate cosmopolitan laws,
thus opening the path towards an abuse of power, which concerns not only the relation with the
states, the individuals – as global citizens, but also humanity itself.
The development of a global level of governing, without the parallel development of
global democratic legal regimes, meant to legally limit the attributions of such global
institutions, would represent totalitarian models of global governing, emptying the
“cosmopolitan democracy” phrasing of real content.
When using the term “cosmopolitan culture”, other authors envisage the human capacity
(generated by living in a global society) of thinking globally and of acting locally42. The idea of
the new regionalism, of regional integrations, generating original structures in certain points,
with certain supra-state elements (EU), is also connected to the current concept of “cosmopolitan
culture”. In addition, other authors warn about the risk of mistaking cosmopolitanism (a state in
which all the individuals are respected and equal, in the contemporary international system), for
Communitarianism (which refers to a political relation, of citizenship, through which more and
more individuals are defined in a relation with a specific community)43.
Certain Conclusions
42 David Held, Daniele Archibugi, quoted in Vasile Pușcaș,quoted op., pg. 190-192.
43 Vasile Pușcaș,quoted op., pg. 193.

We shall see whether the contemporary international system accepts (or is compatible
with) the idea of cosmopolitanism (connected more to the concept of global governing, rather
than with the current international law, centred on the nation-states, on the principle of legal
equality among them).
Cosmopolitanism accepts a direct legal-political relation between the individual and the
top level of the pyramidal organization model of the 21st century global society. Global
governing directly regards the individual, who becomes subject of cosmopolitan law, thus
having cosmopolitan legal personality and benefiting from a set of cosmopolitan rights (such as
the right to elect representatives in the global governing and to be elected in the global governing
institutions, through election procedures organized under cosmopolitan law regimes, not under
national law regimes). The individual would also be the subject of certain types of direct
responsibilities, at global level (wherefrom the level of individual liability for international
terrorism, crimes against humanity, war crimes), starting from the current means of international
criminal liability, with the individual as a subject, in the contemporary international law.
In the same manner in which, in the contemporary international legal order, the nation-
state represents the main actor and subject of law, endowed with sovereignty, in the
cosmopolitan law of the 21st century(substantially organized around the idea of cosmopolitan
democracy), the individual becomes a subject of cosmopolitan law, endowed with sovereign, in a
direct legal relation with global governing institutions, which represent his/her interests, in
which the individual can be elected through democratic uniform procedures, at global level,
institutions with a specific responsibility, in relation with their attribution and with the
individuals (to counter the abuse of power).
Thus, the idea of cosmopolitan democracy regards a real limitation of the global
governing institutions, as well as a real communication (including the global civil society, as a
means) between the basic level of the social-political organization pyramid (organic individuals
and communities) and the global level of governing. This connection would be a political one
(entailing the global citizenship) and legal (entailing concrete mechanisms for the nation-states,
the global civil society and the individuals to hold the global governing institutions responsible,
personally and directly). An authentic cosmopolitan (or global) democracy cannot be imagined in
the absence of concrete modalities and mechanisms to hold the global institutions responsible
(also by ensuring the civil control over the global armed forces and not privatizing them), by the
states and individuals, by the global civil society (through the NGO representatives), before
certain impartial international legal courts (which escaped the control of global institutions),
through which the credibility and legal and political legitimacy of this social-political
organization model are ensured.
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