By Prof Francesca Strumia, The City Law School
Set under the palms of Florida’s Key West, the Truman Little White House, originally a winter retreat for US President Harry Truman and now a public museum, has at first sight little to say about law, let alone cosmopolitan law. Yet the sign outside its gate adds a cosmopolitan touch to the history of the building. It points out that the Little White House is ‘held in trust by the state for the citizens of the world’.
In hinting to something that the state, the state of Florida in this case, does for the citizens of the world, the sign evokes an unsolved conundrum of international law and legal theory: does the sovereign state owe any legal duties, beyond its citizens and its jurisdiction, to humanity at large? And if so, why?
These questions about the cosmopolitan role of the sovereign state have grown more pressing as the first quarter of the 21st century slides towards its end. The sovereign state remains the main actor in the international arena. Yet the challenges it faces are increasingly of a type that affects the entire human race: climate change; energy provision; security of data and identities in a borderless cyberspace; as well as the global movement of people. In the face of such challenges, a vision of the sovereign state as the mere guardian of its territory and people is increasingly inadequate.
Of course, international law and human rights law have already contributed to stretch the duties of the state beyond its immediate citizenry. Yet the source of state duties to others, non-citizens beyond its jurisdiction, remains uncertain. In international relations and international law, relevant duties have found justification in rationales of hospitality, no-harm to outsiders (Shapcott 2018), trusteeship (Benvenisti 2013) and other-regardingness (Cohen 2012). Duties of the state to humanity at large are in any case interstitial, caught between duties states owe to their citizens and those they owe to other states. This has been the case ever since Kant entertained the idea of a law of world citizenship, in the 17th century, as a third way between municipal and international law.
In a 2024 article in the Modern Law Review, I challenge this residual character of state cosmopolitan duties and argue that relevant duties are, in the 21st century, a complement rather than an alternative to the duties that states owe to their own citizens. World citizenship is, after all, a capacity of every national citizen, and the first citizens of the world to whom the state owes cosmopolitan duties are the state’s very own citizens. The 21st century state, in other words, ought to be the agent for its citizens as world citizens. Along these lines, the sign in front of the Little White House ought to be read as suggesting that the state of Florida holds the House in trust first and foremost for the citizens of Florida, as citizens of the world.
Once we accept that the state ought to act as the agent for the citizens in their capacity as members of humanity at large, cosmopolitan duties to non-citizen others come to be grounded within, rather than without, the relation between state and citizen. They are not owed just because of goodwill or hospitality. They take on a reflexive nature: the state owes them to others because these others, in their own capacity of citizens of the world, are but the reflection of the state’s own citizens. The state ought to uphold their claims as trustee for its own citizens, and as a surrogate for other states. In protecting the interests of others, the state indirectly protects the interests of its own citizens as citizens of the world.
The first application of this state cosmopolitan role from within can be found in the domain of immigration regulation. Immigrants are the first ‘others’ with whom the 21st century state must deal.
In the heated contemporary debate on the management and regulation of international migration, two models confront one another: first, a security-based model, in whose frame, the need to protect the interests of the citizens and of the community justifies the closure of borders, the control of migration and the detention and return of irregular migrants (Saenz Perez 2023; Ceyhan and Tsoukala 2002); second, a rights-based model, in whose frame, the rights of migrants and the right to migrate ought to drive the regulation of migration. When pushed to the extreme, this second model supports the idea of ‘open borders’ (Carens 2013).
Cosmopolitanism from within suggests a third, citizenship-conscious model, in which migration is reconceived as a citizen’s freedom. Migration is part of the toolset through which the citizen can act in the capacity of citizen of the world. This citizenship-conscious model presents a third way between the security-based and the rights-based one. The state ought to be guided by citizen-regardingness when setting an immigration policy. This requires having regard to both the security of the citizens in the state and to the rights of the citizens as prospective migrants. In practical terms, this citizenship-conscious model suggests for instance to approach the regulation of skilled migration taking into account the interest of citizens to bring their talent where it is best spent; it also suggests looking at policies in respect to refugees’ admission as at an insurance policy for the citizens – what would the state want for its own citizens in case of their being forced to migrate following state failure?; as to irregular migration, the model suggests balancing the interest in legality and the interest in maintaining a degree of factual freedom to move where movement is a necessity and legal options are out of reach. This means for instance combining repressive measures such as return and detention, with options to atone for irregular entry and achieve integration.
The citizenship-conscious model of immigration regulation cannot close its eyes to the fact that a citizen’s freedom to migrate has both a positive and a negative side. The cosmopolitan state ought to protect not only the citizen’s freedom to move, but also the citizen’s freedom not to move. Protecting the citizen’s freedom not to move requires both regulating inward migration so that it is not disruptive of the dynamics of community and removing potential drivers of forced outward migration. This brings the regulation of migration in dialogue with policies that are inward-looking but that nonetheless, in a reflexive perspective, represent a potential driver of migration: welfare, taxes, job market support and workers requalification, to mention just a few examples.
Ultimately, thinking of the state as the agent for the citizen in his capacity as citizen of the world is a plea for moderation in international relations. Cosmopolitanism from within challenges the perceived distinction between citizen and other, and between citizen and migrant. It relieves cosmopolitanism from a false alternative: either the state serves the citizens, or it serves the others. On the contrary, the state serves its citizens through serving the others, and it serves the others in part to protect the global options of its own citizens. In thus aligning political accountability for national and local interests, and moral responsibility for the governance of global problems, cosmopolitanism from within solicits a novel agenda to fill the vacuum of liberal and moderate positions in the political spectrum of contemporary democracies.
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