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The contents and contours of contemporary cosmopolitan constitution-making: Immanuel Kant in the twenty-first century

Published online by Cambridge University Press:  13 June 2019

QERIM QERIMI Open the ORCID record for QERIM QERIMI [Opens in a new window]
QERIM QERIMI*
Affiliation:
Faculty of Law, University of Prishtina, Prishtina10000, Kosovo
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Abstract:

This article articulates legal and practical discourse that seek to apply and extend the classic cosmopolitan ideals of Immanuel Kant to the evolving practice and reality of the twenty-first century. It identifies five major strands through which cosmopolitan law ideals express themselves in contemporary constitution-making, forming in turn the major composite cosmopolitan contents. In some sense, the proposed framework re-imagines Kant in the twenty-first century, mirroring a conjoined classic and contemporaneous concept of cosmopolitan constitution-making. Kantian cosmopolitanism is reinterpreted by way of conjoining the classic cosmopolitan moral and normative principles of universal freedom, human worth and global justice to emerging and actual contemporaneous constitution-making trends such as using international or comparative foreign models as a basis for constitutional design, using international law and foreign domestic law in national constitutional interpretation, or using regional or international bodies of adjudication and their jurisprudence as a constitutionally mandated source of law. The outlined framework seeks to transcend the occasional historical setbacks and sceptical objections to cosmopolitanism, while admitting their continuous, albeit gradually unobtrusive presence. This framework is naturally predisposed to be deferential to a bold imaginative project, such as the one embodied in the Kantian vision of cosmopolitanism, which is both rooted in and survived the historical forces that ran contrary to the cosmopolitan ideals, to reach a point of its ever closer materialisation.

Keywords

cosmopolitanismcosmopolitan lawcomparative constitutional lawinternational lawImmanuel Kant
Type
Articles
Information
Global Constitutionalism , Volume 8 , Issue 2 , July 2019 , pp. 227 - 269
Copyright
Copyright © Cambridge University Press 2019 

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References

1 See Table 1 Annex. See also Saunders, C, ‘Constitution-making in the 21st century’ (2012) 4 International Review of Law, available at <http://dx.doi.org/10.5339/irl.2012.4>.Google Scholar

2 Ibid 2.

3 See Table 2 Annex.

4 See Table 3 Annex.

5 See Table 4 Annex.

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17 Ibid.

18 Barcelona Traction, Light and Power Co. Ltd. (Belgium v Spain) (1970) ICJ 3, 32 (5 February).

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29 Ibid 674.

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33 Ibid.

34 See Constitution of Bosnia and Herzegovina (1996), in particular Chapter II: Human Rights and Fundamental Freedoms and Annex I. This list includes: (1) 1948 Convention on the Prevention and Punishment of the Crime of Genocide; (2) 1949 Geneva Conventions I–IV on the Protection of the Victims of War, and the 1977 Geneva Protocols I–II thereto; (3) 1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto; (4) 1957 Convention on the Nationality of Married Women; (5) 1961 Convention on the Reduction of Statelessness; (6) 1965 International Convention on the Elimination of All Forms of Racial Discrimination; (7) 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto; (8) 1966 Covenant on Economic, Social and Cultural Rights; (9) 1979 Convention on the Elimination of All Forms of Discrimination against Women; (10) 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (11) 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; (12) 1989 Convention on the Rights of the Child; (13) 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; (14) 1992 European Charter for Regional or Minority Languages; and (15) 1994 Framework Convention for the Protection of National Minorities. For an overview of the Dayton constitutional framework for Bosnia and Herzegovina, see J Marko, ‘Constitutional Reform in Bosnia and Herzegovina 2005–2006’ (2005) 5(1) European Yearbook of Minority Issues 207.

35 Constitutional Court of Bosnia and Herzegovina, Case U-5/1998, Partial Decision (30 January 2000), Partial Decision (19 February 2000), Partial Decision (19 August 2000), available at <http://ccbh.ba/decisions.case.asp?ul=5&u2=98>.

36 See UN Secretary-General, Report of the Special Envoy of the Secretary-General on Kosovo’s Future Status, UN Doc S/2007/168 (27 March 2007).

37 See Constitutional Framework for Self-Government in Kosovo, Reg 2001/9, UN Doc UNMIK/2001/9 (15 May 2001).

38 Constitution of the Republic of Kosovo, art 22. This list includes the following international instruments: (1) Universal Declaration of Human Rights; (2) European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols; (3) International Covenant on Civil and Political Rights and its Protocols; (4) Council of Europe Framework Convention for the Protection of National Minorities; (5) Convention on the Elimination of All Forms of Racial Discrimination; (6) Convention on the Elimination of All Forms of Discrimination Against Women; (7) Convention on the Rights of the Child; and (8) Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.

39 Ibid.

40 Ibid, art 53.

41 Rambouillet Accords: Interim Agreement for Peace and Self-Government in Kosovo, S/1999/648 (1999) art 6, para 2.

42 Constitution of Bosnia and Herzegovina (1996) art 2 (Ch II).

43 Constitution of the Democratic Republic of Timor-Leste (2002) art 23.

44 Constitution of the Portuguese Republic (1976, with subsequent revisions) art 16, para 2 (‘The constitutional precepts concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights.’).

45 Constitution of Romania (1991) art 20, para 1 (‘Constitutional provisions on the rights and freedoms of citizens shall be interpreted and applied in accordance with the Universal Declaration on Human Rights and with other treaties and pacts to which Romania is a party.’).

46 Constitution of the Republic of South Africa (1996) art 233 (‘When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.’).

47 Constitution of Andorra (1993) art 5 (‘The Universal Declaration of Human Rights is binding in Andorra.’).

48 Constitution of Angola (2010) art 26(2).

49 Constitution of Argentina (1853; reinstated in 1983; amended in 1994) art 75(22).

50 Tushnet, M, ‘The Inevitable Globalization of Constitutional Law’ (2009) 49 Virginia Journal of International Law 985, 1006.Google Scholar Also envisioning ‘that convergence with respect to fundamental rights will occur more quickly than convergence with respect to constitutional structures, largely because constitutional structures more strongly condition the way politics is conducted on the national level and so produce stronger counterpressures, through those who are involved in domestic politics’. Ibid 1002.

51 This figure is generated by reference to the Constitutions database of the Constitutions Comparative Project, available at <https://www.constituteproject.org/search?lang=en&key=intrght&status=in_force>.

52 Art 26(2).

53 Art 19.

54 Pmbl.

55 Art 45.

56 Pmbl.

57 Pmbl and art 25.

58 Art 43.

59 Pmbl.

60 Pmbl.

61 Art 23.

62 Art 13.

63 Art 74.

64 Art 426.

65 Art 93.

66 Art 7(1) (Ch 2).

67 Art 84.

68 Arts 21 and 51.

69 Arts 6 and 41.

70 Art 7.

71 Art 43.

72 Art 68.

73 Art 81.

74 Pmbl and art 19.

75 Art 6.

76 Art 42.

77 Art 18.

78 Arts 3(4) and 40.

79 Art 9.

80 Art 27.

81 Art 236.

82 Pmbl.

83 Art 6.

84 Arts 3, 44 and 46.

85 Constitution of the Russian Federation, art 17, para 1 (‘In the Russian Federation human and civil rights and freedoms shall be recognized and guaranteed according to the universally recognized principles and norms of international law and this Constitution.’).

86 See, for example, T Ginsburg, S Chernykh and Z Elkins, ‘Commitment and Diffusion: How and Why Constitutions Incorporate International Law’ (2008) 2008 University of Illinois Law Review 201.

87 Constitution of the Kingdom of the Netherlands, art 91, para 3 (‘Any provisions of a treaty that conflict with the Constitution or which lead to conflicts with it may be approved by the Houses of the States General only if at least two-thirds of the votes cast are in favour.’).

88 Ibid, art 93.

89 For a discussion, see A Cassese, International Law (2nd edn, Oxford University Press, Oxford, 2005) 225–30.

90 See, for example, ECtHR, Mork v Germany, Appl Nos 31047/04 and 43386/08, Judgment of 9 June 2011, para 31 (‘In its judgment, the GFCC stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to … dialogue between the courts’, further noting that, in its reasoning, the GFCC ‘relied on the interpretation … of the Convention made by this Court in its judgment in the case of M. v Germany.’); Schmitz v Germany, Appl No 30493/04, Judgment of 9 June 2011, para 41 (the ECtHR noted that the GFCC had reversed its earlier case law, declaring that it welcomed the GFCC’s ‘approach of interpreting the provisions of the Basic Law also in light of the Convention and this Court’s case-law, which demonstrates that court’s continuing commitment to the protection of fundamental rights not only on national, but also European level’.).

91 See Besson, S, ‘The Reception Process in Ireland and the UK’ in Keller, H and Sweet, AS (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press, Oxford, 2008) 31–106.Google Scholar Although no judge is authorised to set aside legislation that conflicts with the Convention or ECtHR case law, under the UK Human Rights Act of 2000, individuals may challenge all acts, including legislation adopted by the Parliament. If such acts turn out to be incompatible with the ECHR, courts are obliged to rule on the incompatibility, which are then addressed to the Parliament, indicating any remedial legislation.

92 See, for example, Remy-Granger, D, ‘The Ambiguities of the State Based on the Rule of Law: A Unitary System à la Frangaise’ in Vandamme, TAJ and Reestman, JH (eds), Ambiguity in the Rule of Law: The Interface Between National and International Legal Systems (Europa Law Publishing, Groningen, 2001) 53, 53–4.Google Scholar

93 Federal Constitution of the Swiss Confederation (1999) art 193, para 4 and art 194, para 2.

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95 Constitution of the United States, art 6. (‘This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’).

96 See, e.g., Henkin, L, Foreign Affairs and the United States Constitution (2nd edn, Clarendon Press, Oxford, 1996) 211–12;CrossRefGoogle Scholar Ku, JG, ‘Treaties as Laws: A Defense of the Last-in-Time Rule in Treaties and Federal Statutes’ (2005) 80 Indiana Law Journal 319, 333–5;Google Scholar Paust, JJ, ‘Self-Executing Treaties’ (1988) 82(4) American Journal of International Law 760;CrossRefGoogle Scholar Vázques, CM, ‘The Four Doctrines of Self-Executing Treaties’ (1995) 89 American Journal of International Law 695;CrossRefGoogle Scholar Sloss, D, ‘Non-Self-Executing Treaties: Exposing a Constitutional Fallacy’ (2002–2003), 36 U.C. Davis Law Review 1.Google Scholar

97 See the list of constitutions making specific references to international law, available at <https://www.constituteproject.org/search?lang=en&key=intlaw&status=in_force>.

98 See the list of constitutions making reference to the status of international treaties in respective national legal orders, available at <https://www.constituteproject.org/search?lang=en&key=treatcon&status=in_force>.

99 See the list of constitutions containing provisions on treaty ratification, available at <https://www.constituteproject.org/search?lang=en&key=treat&status=in_force>.

100 See the list of constitutions containing references to customary international law, available at <https://www.constituteproject.org/search?lang=en&key=custlaw&status=in_force>.

101 AM Slaughter, ‘Judicial Globalization’ (2000) 40 Virginia Journal of International Law 1103. See also Slaughter, AM, A New World Order (Princeton University Press, Princeton, NJ, 2004).Google Scholar

102 Choudhry, S (ed), The Migration of Constitutional Ideas (Cambridge University Press, Cambridge, 2006).Google Scholar

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105 See, e.g., Supreme Court of Canada, Suresh v Canada (Minister of Citizenship and Immigration), Judgment of 11 January 2002, 41 ILM 945, para 60 (2002) (‘[I]n seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look at international law as evidence of these principles … .’). Similarly, see the US Supreme Court, Hurtado v California, 110 U.S. 516, 531 (1884), noting that ‘There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted.’

106 The years used refer to the time of adoption rather than the entry into force of the legal instrument. This list, with some modifications and expansion, draws on a listing made by S Benhabib in Benhabib, ‘The New Sovereigntism and Transnational Law’ (n 22) 114.

107 See, e.g., R Teitel, ‘Comparative Constitutional Law in a Global Age’ (2004) 117 Harvard Law Review 2570, 2593; L Scheeck, ‘The Relation between the European Courts and Integration through Human Rights’ (2005) 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 837.

108 See Peters, A, ‘Supremacy Lost: International Law Meets Domestic Constitutional Law’ (2009) 3 Vienna Journal on International Constitutional Law 170, 174.Google Scholar

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111 See, e.g., A King, Does the United Kingdom Still Have a Constitution? (Sweet and Maxwell, London, 2001) 53 and 81 (noting that ‘Although few people have noticed the fact, the truth is that the United Kingdom’s constitution changed more between 1970 and 2000, especially between 1997 and 2000, than during any comparable period since the middle of the 18th century’; also stating that ‘The traditional British constitution … is dead. Requiescat in pace.’). In support of his statements, King enumerates 12 ‘important individual changes’ that have taken place in the UK’s constitutional system since 1970; M Loughlin, Sword and Scales: An Examination of the Relationship between Law and Politics (Hart Publishing, Oxford, 2000) 4 (‘[m]any recent developments – including participation in the European project, … the passage of the Human Rights Act of 1998 … suggest that we are now taking steps to transform our ‘‘political constitution’’ into a constitution which rests on a foundation of law’.).

112 See Peters, ‘Supremacy Lost’ (n 108) 175.

113 Búrca, G and Gerstenberg, O, ‘The Denationalization of Constitutional Law’ (2006) 47 (1) Harvard International Law Journal 243, 255.Google Scholar

114 See, e.g., the following ECJ cases: Case C-85/96, Sala v Freistaat Bayern, 1998 EC. I-2708; Case C-224/98, D’Hoop v Office national de l’emploi (2002) ECR I-6191; Case C-184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve (2001) ECR I-6229; Case C-456/02, Trojani v Centre public d’aide sociale de Bruxelles (2004) ECJ WL 59428 (7 September 2004); Case C-138/02, Collins v Secretary of State for Work and Pensions (2004) ECJ WL 58319 (23 March 2004).

115 See, e.g., Case C-456/02, Trojani v Centre public d’aide sociale de Bruxelles, ibid. (‘In the present case, it must be stated that, while the Member States may make residence of a citizen of the Union who is not economically active conditional on his having sufficient resources, that does not mean that such a person cannot, during his lawful residence in the host Member State, benefit from the fundamental principle of equal treatment as laid down in Article 12 EC.’); Case C-413/99, Baumbast v Secretary of State for the Home Department (2002) ECR I-7136.

116 C Hahm and SH Kim, ‘To Make “We the People”: Constitutional Founding in Postwar Japan and South Korea’ (2010) 8(4) International Journal of Constitutional Law 800, 810.

117 Ibid.

118 A Skordas, ‘Self-determination of Peoples and Transnational Regimes: A Foundational Principle of Global Governance’ in N Tsagourias (ed), Transnational Constitutionalism: International and European Perspectives (Cambridge University Press, Cambridge, 2007) 207, 218.

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122 See, e.g., Saunders, ‘Constitution-making in the 21st century’ (n 1).

123 See, e.g., GL Neuman, ‘International Law as a Resource in Constitutional Interpretation’ (2006) 30 Harvard Journal of Law & Public Policy 177, 185 (‘International law can never control U.S. constitutional law. It provides factors that judges (and other interpreters) can appropriately take into account among others. There is no sacrifice of sovereignty in that.’).

124 See Amann, DM, ‘Guantánamo’ (2003-2004), 42 Columbia Journal of Transnational Law 263.Google Scholar

125 See, e.g., Qerimi, Q, Development in International Law: A Policy-Oriented Perspective (Brill – Martinus Nijhoff Publishers, Leiden and Boston, 2012).CrossRefGoogle Scholar

126 Neuman, ‘International Law as a Resource in Constitutional Interpretation’ (n 114) 177.

127 See Federalist No. 63 (‘An attention to the judgment of other nations is important to every government …’).

128 See, e.g., Atkins v Virginia, 536 U.S. 304 (2002); Lawrence v Texas, 539 U.S. 558 (2003); Roper v Simmons, 543 U.S. 551 (2005).

129 See, e.g., Justice Scalia’s dissent in Lawrence v Texas, id. at 2495, characterising the reference to foreign views or material as ‘meaningless’ and ‘dangerous’.

130 Ibid, 2483 (emphasis added).

131 Atkins v Virginia (n 128) 316.

132 Roper v Simmons (n 128) 575–578.

133 Ibid.

134 Ibid.

135 Trop v Dulles, 356 U.S. 86, 102–103 (1958).

136 Enmund v Florida, 458 U.S. 782, 796–797 (1982).

137 See Ramsey, MD, ‘International Materials and Domestic Rights: Reflections on Atkins and Lawrence’ (2004) 98 American Journal of International Law 69, 76.CrossRefGoogle Scholar

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139 Koh, HH, ‘International Law as Part of Our Law’ (2004) 98 American Journal of International Law 43, 54.CrossRefGoogle Scholar

140 Kiobel v Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).

141 Ibid.

142 Ibid.

143 Ibid.

144 Ibid, Kennedy J., concurring.

145 Ahmed v Magan, US District Court, S.D. Ohio, No. 2: 10-cv-342 (2013).

146 Constitution of Zimbabwe (2013) art 46(1)(c).

147 Ibid, art 46(1)(e).

148 Constitution of Timor-Leste (2002) art 23.

149 Constitution of Mozambique (2004) art 43.

150 Constitution of Somalia (2012) art 40(2).

151 Constitution of Maldives (2008) art 68.

152 Art 26.

153 Art 13.

154 Art 74.

155 Art 426.

156 Art 7(1) (Ch 2).

157 Art 81.

158 Keller, H and Sweet, AS (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press, Oxford, 2008) 31–106.Google Scholar

159 Steyn, L, ‘The New Legal Landscape’ (2000) 5 European Human Rights Law Review 549, 550.Google Scholar

160 Ibid.

161 Appeal Court, High Court of Judiciary (Scotland), Starrs vs Ruxton (2000 JC 208) (Lord Reed).

162 King, Does the United Kingdom Still Have a Constitution? (n 111) 81.

163 Human Rights Act 1998, section 2, para 1, available at <https://www.legislation.gov.uk/ukpga/1998/42/contents>.

164 Ibid, section 3, para 1.

165 For example, a number of countries such as Albania, Austria, Bosnia and Herzegovina, Kosovo, and Slovenia give the Convention a constitutional rank, while others, such as The Netherlands, supra-constitutional status; yet, in some other states, the ECHR has supra-legislative but infra-constitutional rank (e.g., Belgium, France, Portugal, Spain).

166 T Buergenthal, D Shelton and DP Stewart, International Human Rights in a Nutshell (4th edn, Thomson/West, St Paul, MN, 2009) 204.

167 Constitutional Court of Latvia, Judgment No. 2000-03-01 of 30 August 2000.

168 Constitutional Court of Latvia, Judgment No. 2006-03-0106 of 23 November 2006.

169 Judgment of the Constitutional Review Chamber of the Supreme Court of Estonia, 30 December 2008 in case No. 3-4-1-12-08.

170 Sweet, ‘A Cosmopolitan Legal Order’ (n 10) 68.

171 Benhabib, ‘The New Sovereigntism and Transnational Law’ (n 22) 109.

172 Cover, RM, ‘Foreword: Nomos and Narrative’ (1983–1984) 97 Harvard Law Review 4, 4–5.Google Scholar

173 Kuwait (1992), Latvia (1991) and Pakistan (2002), not included in this list, reinstated their constitutions after 1989.