Edward Song discusses a cosmopolitan view posited by political theorists emphasizing the idea that ‘individuals are the ultimate units of moral concern and states must earn their sovereignty through the just treatment of persons within their borders’ (Song p. 137). The issue raised in his article has to do with the question of whether the Westphalian concept of State sovereignty continues to prevail – a view that States should be ‘free from external intervention to organize their polities and conduct their internal affairs as they see fit’ (Song p.137) – or whether a more objectivist form of cosmopolitanism that assesses State sovereignty in relation to ‘the objective demands of liberal justice’ (Song, p.138) is emerging.

In light of historical and contemporary examples of State atrocities committed against their populations, such as the alleged genocide of the Rohingya by the Myanmar military, one may be more inclined to support a cosmopolitan form of justice that transcends the territorial and political boundaries imposed by the notion of State sovereignty, to extend protection to victims of such human rights abuses. After all, it is arguable that a cosmopolitan ethic perceives  individuals as moral beings , citizens of the world (Diogenes, fourth century BCE), deserving a form of universal protection against State harms.

The Hobbesian idea of State sovereignty, however, continues to resonate within the ‘international community’; the analogy drawn between the individual’s right ‘to be free to pursue their own conceptions of the good without external interference’, and the right of states ‘to be wholly autonomous over their own affairs’ is at times invoked by state officials to justify State policies oppressive of ethnic and religious minorities such as the Turkic speaking Muslims in Xinjiang province, China. Such a personification of nation States and the attempt to imbue them with a form of sentience particular to human beings is unconvincing. It is arguable that ‘States do not have the obvious intrinsic moral value that we think individual persons do,’ (Song, p.139) since thoughts, actions,political and moral judgments are exercised by individuals who make up the state.

Beitz argues that ‘a more persuasive strategy for defending the traditional Westphalian view of sovereignty would be to ground state autonomy in a framework of individual rights’ (Song, p.139). From this perspective, intervening in the affairs of a State that commits atrocities against its population might be argued to be protective of the autonomy and moral rights of its people, since state autonomy is perceived to be an ‘ extension of individual autonomy’. ( Song, p.139). Such an objectivist cosmopolitan idea of justice, however, that presupposes the consent of individuals within a State to such coercive interference in the name of liberal justice remains problematic.

Gray and Kalyalya explore the emergence of cosmopolitan values within principles of State sovereignty and ‘dependent on the Westphalian order of States’ (Gray, p.56). Cosmopolitan justice is increasingly evinced by the signing of treaties such as the Rome Statute 1998 which created the International Criminal Court and delegated to it ‘authority that has traditionally been held exclusively by states – such as the right of criminal prosecution for the most severe of international crimes, including genocide, crimes against humanity and war crimes’ ( Gray, p.57). The ICC arguably  ‘expands cosmopolitan justice’ by possessing the jurisdiction to prosecute not only individuals within the 122 signatory States for such crimes , but also territorial criminal jurisdiction to prosecute ‘nationals of non-parties, where those non-party nationals commit a crime within the territory of the ICC party’ (Gray, p.58).

Thus the ICC pre-trial Chamber ruled that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh despite the fact that Myanmar is not a signatory of the Rome statute.  The reason for the ICC’s ruling is that ‘an element of this crime (the crossing of a border) took place on the territory of a State party to the Statute (Bangladesh). The court also held that it had ‘jurisdiction with regard to any other crime set out in article 5 of the Statute, such as the crimes against humanity or persecution and/or other inhumane acts.’ (ICC 2018).

This expansion of cosmopolitan justice involving the delegation of criminal jurisdiction by signatory States to the ICC for crimes committed by nationals of non- parties without the consent of the State of nationality is criticized by some, since the Treaty of Rome Statute is only binding on signatory States.The fact, however, that such crimes against humanity occur within the territorial borders of a signatory State party should entitle the State party to exercise its prerogative as a Sovereign State to refer criminal jurisdiction to the ICC, perhaps in the same way it would exercise jurisdiction over the prosecution of suspected terrorists or war criminals residing within their State. 

Kevin W. Gray & Kafumu Kalyalya (2016) ‘Overcoming Statism from Within:
The International Criminal Court and the Westphalian System’, Critical Horizons, 17:1, 53-65.

Edward Song, (2010), ‘Subjectivity, cosmopolitanism and the morality of intervention’, Journal of Social Philosphy, 41(2):137-151.

‘ICC Pre-Trial Chamber I rules that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh’, ICC, 6 September 2018. Online:https://www.icc-cpi.int/Pages/item.aspx?name=pr1403