The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State
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The language of constitutionalism has become widespread among international lawyers. International law as a whole or specific international regimes are described using constitutional language. Yet from the perspective of many national constitutional lawyers—not only, but particularly, in the United States—the application of constitutional language to international law is viewed with skepticism. A constitution, in the modern tradition, is generally understood as the supreme law of a sovereign state. The constitution is a written document, imagined as constituting and authorized by “We the People,” enforced, if need be, by the coercive power of the state. International law, on the other hand, is conventionally imagined as the law among states, founded on the consent of states, and addressing questions of foreign affairs. Within this dualist paradigm, any talk of constitutionalism beyond the state is deeply implausible. Whoever uses the language of constitutionalism in relation to public international law is suspected of effectively advocating some version of a constitutional world state. Given the central role that sovereign states play and are likely to continue to play in the international system, such ideas, whatever their merit from a purely moral point of view might be, are easily dismissed as hopelessly out of touch with reality and certainly of little value for the analysis and assessment of international law as it exists today. Of course most international lawyers embracing the language of constitutionalism do not see themselves as committed to a grand institution-building project that will lead to the establishment of a federal world state. The way that international lawyers use constitutional language to describe facets of international law is, at least on the surface, more modest. Their project is conventional: to describe and analyze international law or some part of it as a coherent legal order. Constitutional language is helpful for this purpose, because there are structural features of international law that bear some resemblance to features associated with domestic constitutional law. In part these are formal: there are elements of a hierarchy of norms in international law. They range from jus cogens norms to article 103 of the UN Charter, establishing the priority of the UN Charter over other norms of international law. In part they are functional: there are multilateral treaties that serve as regime-specific constitutional charters for institutionally complex transnational governance practices. And in part they are substantive: human rights obligations have long pierced the veil of sovereignty that kept the relationship between the state and its citizens from the purview of international law. The individual has long emerged as a subject of rights and obligations under international law. There are international human rights courts established by treaties that authorize individuals to vindicate their rights before international courts. International law even criminalizes certain types of particularly serious human rights violations. These are features more characteristic of modern constitutional systems than of the traditional paradigm of international law as the law among states. To the extent that constitutional language is used to describe international law in these contexts, it appears to be used in a different way from in the domestic context. Domestic constitutionalism and international constitutionalism appear, on the surface, to be homonyms. There is constitutionalism with a “big C” (constitutionalism properly so called, or domestic constitutionalism) and there is constitutionalism with a “small c.” Constitutionalism properly so called is linked to the establishment of ultimate legal authority in the form of a written constitution, in the service of “We the People” people governing itself democratically and supported by the coercive powers of the state. Constitutionalism with regard to international law is constitutionalism with a small c: the project to describe international law or parts of it as a coherent legal system that exhibits some structural features of domestic constitutional law, but that is not connected to the establishment of an ultimate authority, not connected to the coercive powers of state institutions and not connected to the self-governing practices of a people.
Source Publication
Ruling the World?: Constitutionalism, International Law, and Global Governance
Source Editors/Authors
Jeffrey L. Dunoff, Joel P. Trachtman
Publication Date
2009
Recommended Citation
Kumm, Mattias, "The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State" (2009). Faculty Chapters. 1070.
https://gretchen.law.nyu.edu/fac-chapt/1070
