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1 Transnational Legal Theory ISSN: (Print) (Online) Journal homepage: Introduction Claudio Corradetti To cite this article: Claudio Corradetti (2016): Introduction, Transnational Legal Theory, DOI: / To link to this article: Published online: 18 May Submit your article to this journal Article views: 3 View related articles View Crossmark data Full Terms & Conditions of access and use can be found at Download by: [ ] Date: 19 June 2016, At: 23:58

2 TRANSNATIONAL LEGAL THEORY, SYMPOSIUM: COSMOPOLITAN LAW AND THE COURTS* Introduction Claudio Corradetti Lecturer and Research Fellow, PluriCourts, Centre of Excellence, Faculty of Law, University of Oslo, Norway The thesis of a cosmopolitan turn of state s constitutionalism has quite extensively influenced the debate over the contemporary transformation of international law. 1 A Copernican revolution of sorts, it has consisted not only of a phenomenological shift, but also of the creation of a new paradigm for the definition of legitimate domestic orders. The cosmopolitan turn has run parallel to the constitutionalisation of international law. Here, constitutionalisation is neither simply a process of legalisation nor, obviously, a constitution as such. 2 This is due to the fact that constitutionalisation implies a number of processes that international law undergoes together with a multiplicity of purposes that are served therewith. Constitutionalisation indicates the transformation of bilateral or multilateral agreements into higher order principles of wider scope. In order for this transformation to be possible, a shift in reasoning should precede, one moving away from an instrumental, technocratic form into a value-based approach of legal reasoning. This value inclusion within legal thinking is what the term constitutionalism aims to capture. As a mode of reasoning as a mindset constitutionalism brings about the conditions of a rule of law conceived around the standard of equality, human dignity, or freedom. 3 Constitutionalism indicates also a process of self-reflexivity. It provides a meta-framework from which to evaluate the legitimacy of its own constitutions, their finality and role within transnational law. 4 CONTACT Claudio Corradetti Claudio.Corradetti@jus.uio.no * Dedicated to the memory of Professor Patrick Glenn, McGill University. This article is prepared under the auspices of MultiRights, European Research Council Advanced Grant # at the University of Oslo, Norway. 1 For an engaging presentation of some of the most challenging positions in this regard, see the symposium with Julio Baquero Cruz, Mattias Kumm, Miguel Poiares Maduro and Neil Walker, in Matej Avbelj and Jan Komárek (eds), Spaces of Normativity. Four Visions of Constitutional Pluralism (2008) 2(1) European Journal of Legal Studies Anne Peters and Klaus Armingeon, Introduction: Global Constitutionalism from an Interdisciplinary Perspective (2009) 16(2) Indiana Journal of Global Legal Studies Martti Koskenniemi, Constitutionalism as a Mindset: Reflections on Kantian Themes about International Law and Globalization (2007) 8(9) Theoretical Inquiries in Law On constitutionalism as a conception rather than as a concept, see Peters and Armingeon (n 2) On some of these aspects see Larry Catà Backer, From Constitution to Constitutitonalism: a Global Framework for Legitimate Public Power Systems (2009) 113(3) Penn State Law Review Informa UK Limited, trading as Taylor & Francis Group

3 2 C. CORRADETTI For these reasons, global constitutionalism does not need to be equated with the idea of a constitution in the way this latter regulates the exercise of public authority at the national level. Indeed, even if highly contested, for some scholars like Doyle, not even the UN Charter can be considered a world constitution because it lacks at least two fundamental features: the pervasive character ( all law is subject ) and the basic law character, that is, the derivation of the legal force from one single document. 5 Whereas national constitutions of the nineteenth century were mainly the result of political revolutions which came about in one go and through the declaratory acts of constitutional assemblies, the hypothesis of a global constitution cannot be characterised by the same sociopolitical features. It also lacks the character of a written form, bringing it closer to an analogy with the British constitution insofar as a process of refinement and adjudication through case-law is concerned. As opposed to the British model, however, global constitutionalism lacks a precise definition of a constituent power as well as procedural functions such as a division of powers across different institutional actors and regimes. Furthermore and more importantly, it relies on a plurality of constitution-like sources. Concerning the connection between the regional and the international level, the complexity of such relations becomes apparent, particularly due to the plurality of constitutional legal sources at the transnational level. This plurality impedes the conception of global constitutionalism in analogy with the hierarchical resilience of the domestic order. Such a difference also testifies to the counter-hegemonic dynamics that a multilevel constitutional arrangement triggers by compensating the demands of transnational compliances to international human rights standards, both upwardly and downwardly. There is no doubt that these terminological elucidations simply serve the purpose of orienting the reader throughout the ever growing literature on the subject without showing any ambition of exhaustiveness or conclusiveness. The conviction is also that such notions can be and have been deployed in a variety of ways, with particular respect to the relation with domestic constitutionalism. For instance, whereas for some scholars global constitutionalism has compensated for the demands arising from the deconstitutionalisation of the domestic level, for others it has radically transformed the domestic system. 6 5 Michael Doyle, The UN Charter a Global Constitution? in Jeffrey L Dunoff and Joel P Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, 2009) For the first view, see Anne Peters, The Merits of Global Constitutionalism (2009) 16(2) Indiana Journal of Global Legal Studies And for the other view, see Mattias Kumm, The Cosmopolitan Turn in Constitutionalism; on the Relationship between National Constitutional Law and Constitutionalism beyond the State in Jeffrey L Dunoff and Joel P Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Governance (Cambridge University Press, 2009).

4 TRANSNATIONAL LEGAL THEORY 3 The position that is defended here falls in between these two extremes. It recognises that, indeed, states constitutional arrangements and powers have been transformed by supranational regimes, but it does not assume that this has prompted an irreversible process of authority delegation and cession of state sovereignty. The constitutional tension between these two levels is a sign of the inherent form of pluralism that characterises global constitutionalism. 7 On these premises, it should be recognised that the role of international courts in bringing about constitutionalism beyond the state has become increasingly noteworthy. Indeed, it is certainly possible to refer to a multiplicity of functions that international courts have fulfilled, and to highlight how their adjudicative powers have also been accompanied by others such as dispute settlement, control and legitimation, stabilisation of normative expectations, as well as law-making. 8 Nevertheless, the fact that international courts have realised, primarily, a judicialisation of international law from which a constitutionalisation process has followed cannot be overlooked. It is clear that this is what has occurred in the case of the constitutional transformation of the European Union with regards to the development of specific constitutional legal features such as the supremacy of EU law and its direct effects. Indeed, there is no doubt that the Court of Justice of the European Union (CJEU, formerly the European Court of Justice) has been the major institutional agent to have brought about such a supranational constitutional project. 9 It would be too narrow, however, to think that the judicial constitutionalisation of the EU represents an exceptional circumstance. Another quite significant case is that of the human rights regime realised by the European Convention of Human Rights (ECHR). Here, it is possible to detect a juridical cosmopolitan system in statu nascendi which combines ideas of constitutional pluralism with diffused or decentralised sovereignty through the use of the proportionality principle. 10 First, the cosmopolitan rights that are at stake, an issue which Kant also foresaw with the cosmopolitan right to visit, 11 concern the ECHR s internal expansion of a multiplicity of protections for all people transiting within its territory of competence. This has had as a consequence the imposition of a duty of justice on the protected rights of the 7 Mattias Kumm, The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty (2005) 11 (3) European Law Journal Ingo Venzke and Armin von Bogdandy, In whose Name? A Public Law Theory of International Adjudication (Oxford University Press, 2014) For the judicial constitutionalisation of EU law, see Alec Stone Sweet, The Judicial Construction of Europe (Oxford University Press, 2004). 10 See the excellent essay by Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe (2012) 1(1) Global Constitutionalism Immanuel Kant, Toward Perpetual Peace in MJ Gregor (ed and trans), Immanuel Kant. Practical Philosophy (Cambridge University Press, 1996), 8: 358, 329.

5 4 C. CORRADETTI ECHR. Nevertheless, mere individual safeguards have been further expanded both by the doctrine of the precedents held by the Strasbourg Court, as well as by the pilot judgment cases. 12 Insofar as the constitutional transformation of the state is concerned, the incorporation of the ECHR into domestic constitutions has affected the centralised structure of powers of state parties, in particular with their internal balancing between the legislative, the executive and the judicial. With regards to its external outreach, the European Court of Human Rights (ECtHR) maintains not only an extra-territorial jurisdiction over possible violations by state parties and their members, but it also enforces provisions on forbiddance of extradition for those cases where the person involved faces the possibility of being subjected to torture or inhuman treatment a measure contrary to Article 3 of the ECHR. These two features extend to the external borders the constitutional effects of the ECtHR s reasoning. There is, however, a third aspect which should be highlighted, one which concerns the constitutional impact of the ECHR with regard to the challenging of the primacy of the UN Security Council measures over all other jurisdictions. Indeed, in Al-Jedda 13 first, and then in Nada, 14 the ECtHR considered that state members are bound to respect human rights thresholds set by the ECHR, and that this prevents implementing even UN Security Council resolutions whenever not in compliance with such standards. By the same token, the reasoning of the CJEU in Kadi can also be applied. 15 Moving from the institutional to the normative standpoint of global constitutionalism, it might be wondered what exactly, if anything, the constitutionalisation of international law has to offer. This is indeed a significant shift in international law not just for the overcoming of a treaty-based approach by means of higher ordered constitutional principles, but also because the constitutional character of the law transforms the scope of obligations into mandatory duties on all states in addition to state signatories. It also creates and stabilises an international rule of law. This is quite a significant change when compared to pre-constitutional bilateral or multilateral obligations, where norms are binding only on consenting parties. However, the question then becomes that of defining in virtue of which principles such a shift has been made possible; namely, what, if anything, can also provide an all-encompassing compulsory obligation for those states which have not been signatories to an international agreement. Here the change can be accounted for only if one recognises in all its force the revolutionary character of the individual as a primary source for the legitimacy of 12 Stone Sweet (n 9) Al-Jedda v United Kingdom, Application No 27021/08, ECHR Judgment of 7 July Nada v Switzerland, Application No 10593/08, ECHR Judgment of 12 September Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351.

6 TRANSNATIONAL LEGAL THEORY 5 international law. It is indeed this element which radically transforms international law from being a system of private regulation of inter-state agreements to becoming a system of public law, one that administers the relations between the state and the individual. It appears to be the case that the seeds of this constitutional turn were somehow already present in the difficulties encountered by classical contract theory when attempting a justification of the legitimacy of the state. In Hobbes, for instance, the question of the binding force of political obligation was linked to the idea of a pactum subjections; however, the legitimacy of the latter rested ultimately on the fulfillment of natural law standards. 16 As an illustration, let s consider Hobbes view on the right to preserve one s life as a natural and inalienable right. There can be no derogation from this right, and when the sovereign command[s] a man, though justly condemned, to kill, wound, or maim himself... hath that man the liberty to disobey. 17 However, the question becomes that of understanding what gets transferred by means of the covenant. Here, just to pursue further Hobbes point, it appears to concern the transferring of the authority to be judge to oneself, as when for every private man... [to be] judge of good and evil actions constitutes a power that can be exercised either in the state of nature or in the absence of civil laws. 18 Nevertheless, such a possibility ceases to be so in the commonwealth where the legislator is the judge. 19 Thus, one may arguably ask on what justificatory grounds the right to self-preservation is reclaimed by the individual without incurring a contradiction with the obligations set by the social contract. One interpretive possibility is that delegation of authority can be withdrawn for all those cases where the Leviathan (ie the sovereign) is either incapable or unwilling to provide a sufficient justification for the measure adopted in light of the mandate he has received through the social contract. In this respect, the understanding of Hobbes difficulties in the theory of political obligation informs us of the inherent moral structure of contemporary international and national human rights laws, as with the interdependence between domestic and global constitutionalism. 20 On such a premise, the cosmopolitan turn of constitutional theory illustrates an old problem, one which requires for its solution an integrated view of domestic and transnational constitutionalism. This bears several important consequences, the most relevant 16 For an analysis of this contested point, see Richard Tuck, The Dangers of Natural Rights (1997) 20(3) Harvard Journal of Law and Public Policy See also my interpretation in Claudio Corradetti, Relativism and Human Rights. A Theory of Pluralistic Universalism (Springer, 2009) Thomas Hobbes, Leviathan, JCA Gaskin (ed with an intro and notes) (Oxford University Press, 1998 [1651]) [112] Ibid, [198] Ibid. 20 Kai Möller, From Constitutional to Human Rights: on the Moral Structure of International Human Rights (2014) 3(3) Global Constitutionalism

7 6 C. CORRADETTI of which is the discussion over whether there should be a positive appreciation of the idea of rights inflation or whether protection should be limited to defining a set of fundamental interests, or simply highlighting the lack of normative exceptionality of human rights. 21 From this process of normative legitimation it also follows that the dynamics of a cosmopolitan turn is captured descriptively by those same discussions on rights and rights violations informing the tensions within national constituencies. It also indicates how the link between the legitimacy of the state through the covenant relies, ultimately, on a standard that does not provide a satisfactory account for the correlation between citizenship, human rights and political obligation. These latter should be accounted for, instead, with reference to standards of community affiliation and political inclusion human rights principles which justify primarily cosmopolitan membership. Cosmopolitan membership is generally concerned with the protection of individual human rights guarantees which translate, in turn, into provisions at both the domestic and international levels. As for the latter, the coming to the fore of the individual indicates that the three classical sources of international law treaties and conventions, custom, and general principles of law should be brought into compliance with the principles of human rights. One way to look at this point in more legal terms is to consider that state-agreements are not just subjected to the validating role of jus cogens norms required by Article 53 of the Vienna Convention, but also to wider standards of international law. This trend is obviously only in its beginning stages and can currently be described as something in between inceptive practices and de lege ferenda requests. Nevertheless, the centrality that the rights of men have progressively acquired has been not only that of limiting the action of the governments through de facto direct effects on domestic jurisdictions, as with the ECHR, but also that of recognising human beings as equal members across different jurisdictions. One aspect that reveals more clearly the entrenched character of human rights law and the relevance of equal worthiness among individuals emerges with regard to the restriction of a state s withdrawal from an international treaty. For example, the International Covenant on Civil and Political Rights has no provision for the termination of the agreement. Similar is the case for the Human Rights Committee. 22 The emergence of the individual as a subject of international law suffers, nonetheless, from severe limitations. As Weiler has observed, it is indeed true that, notwithstanding significant progressions, the discovery of the individual as a center of international law has remained limited to its consideration as an object of legal protection on a par 21 On these points, see Möller (n 20) in particular 374 and On this point, see Stephen Gardbaum, Human Rights and International Constitutionalism in Jeffrey L Dunoff and Joel P Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press 2009) 244.

8 TRANSNATIONAL LEGAL THEORY 7 with endangered species rather than as a source of constituent power. 23 Even though there is no doubt that constitutional transformations have consolidated the role of the individual as an object of concern for international law, one might wonder whether the full realisation of this process requires that subjects become a proper constituent power. This would open the discussion of the democratic deficit in international law, as well as the shift of subjects into authors of the law. Even though extremely relevant, the problem of democratic deficit is beyond the scope of this symposium. To see where the problem lies, however, one could say along with Habermas that for instance [i]n the WTO, there is no legislative authority that generates norms in the domain of international business law or could change it. 24 The question then arises with regard to whether one should equate the democratic deficit of the transnational level with the need to realise a fullyfledged legislative power analogous to the domestic realm. If the transnational were to incorporate the same standard of sovereignty as the domestic, then one has to justify why a domestic analogy would hold. One difficulty related to this analogy seems to be that there is a partial difference in the two ultimate founding blocks that justify the constituent sources of power. Indeed, whereas at the national level it is the relevance of the collective We the people that provides the conditions for the democratic legitimacy of domestic constitutionalism, so that any individual human rights claim is filtered out by means of a legislative assembly, at the transnational level, it is instead the individual I that claims priority over the collective wills of democratically conceived collectivities. It is indeed true that any increase of legitimacy beyond the state cannot avoid reference to democratic regulatory standards, such as accountability, transparency and so on; but these are bound in turn to take the subjects the cosmopolitan citizen as a primary source of international law. 25 In the collection of essays presented here, one of the shared premises is that the legitimacy of international law is concerned primarily with a processbased dynamic rather than with an outcome-based process. Such transitional element incorporates both standard mechanisms for the legal improvement of transitional justice contexts as well as cosmopolitan standards of transnational law. This aspect is not simply a progressive addition of yet further constitutional expansions as with the inclusion of 23 Josef Weiler, The Geology of International Law Governance, Democracy and Legitimacy in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) (2004) 64, Jürgen Habermas, A Political Constitution for the Pluralist World Society? (2007) 34(3) Journal of Chinese Philosophy Jürgen Habermas, The Transnational Constellation: Political Essays (MIT Press, 2001). Jürgen Habermas, Time of Transitions (Polity Press, 2006). Jürgen Habermas, The Divided West (Polity Press, 2006). On the problems connected to the three-tiered Habermasian model, see William E Scheuerman, Review: Global Governance without Global Government? Habermas on Transnational Democracy (2007) 36(1) Political Theory 133, 134.

9 8 C. CORRADETTI an economic sector to the civil and political ones. It represents, instead, a distinctive feature for the type of constitutionalism we encounter at the global level in a condition of diffused sovereignty and legal pluralism. The entire project for the constitutionalisation of international law has been endangered by the threat of legal fragmentation and differentiations of functionally specialised regimes. Fragmentation can, however, be reconciled with forms of legal pluralism that are more or less compatible with the idea of a unity of international law. For those scholars who have defended a pure form of regime pluralism, the view has been that the fragmentation of international law leads to a variety of incommensurable systems. Each of these systems has been conceived as being regulated by autopoietic principles. 26 The problem with such a radical view on legal pluralism is that while it helps to capture the idea of functional differentiation as a necessary condition for the articulation of international law, it overlooks problems of validity with regard to the normative expectations of citizens cosmopolitan and national an objection already raised by Habermas, in his conversation with Luhmann, to system theory in general. 27 In other words, a purely functionalist theory of the law fails to see the validity requirement for each system in terms of a set of coordinating rules for the realisation of individual normative pretences. The cosmopolitan turn in international law aims, therefore, to vindicate precisely these individual claims. Here the circle between functional differentiation of regime pluralism and its normative integration within a unitary view of international law regains the ideal of cosmopolitan law and authority. The articles collected in this symposium were originally presented at the conference on Debating Transitional Cosmopolitanism through the Courts organised in Oslo on 3 4 March The event took place under the auspices of MultiRights (European Research Council Advanced Grant #269841) at the University of Oslo, also with the sponsorship of the Norwegian Resource Bank for Democracy and Human Rights (NORDEM). In the opening essay of this collection titled Judicial Cosmopolitan Authority, I define the normative requirements of a distinct form of authority that of cosmopolitan authority. The idea is that in a condition of regime pluralism and in the absence of fixed institutional and normative hierarchies, the exercise of legitimate authority by courts occurs on the grounds of substantive arguments. Cosmopolitan authority aims to account for the legitimate use of power by making explicit the validity conditions for transnational law 26 I shall discuss this point later with reference to Teubner s legal fragmentation thesis. On the notion of autopoiesis for the systems of law, see Günther Teubner, Law as an Autopoietic System (Oxford University Press, 1993). See also Günther Teubner, Autopoietic Law: a New Approach to Law and Society (Walter de Gruyter, 1987). 27 The confrontation between Habermas and Luhmann followed different stages and it remains unclear to what extent Habermas changed his views in considering communicative intersubjectivity as a subjeklose Kommunikation, in Jürgen Habermas, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Suhrkamp, 1992) 362.

10 TRANSNATIONAL LEGAL THEORY 9 and adjudications. The second essay, titled Differential Cosmopolitanism, is a contribution by Patrick Glenn. Sadly and unexpectedly, Professor Glenn passed away on 1 October A final version of the paper is therefore missing. Nevertheless, the bulk of his argument is clear. Cosmopolitan law, starting from its instantiations at the state level, is a form of legal reasoning that shows a both/and form of paraconsistent or multivalued logic. It is a type of legal reasoning which contrasts the classical either/or logic adopted in the construction, more fictional than real, of the nation state. Mario Savino s essay, The Right to Stay as a Fundamental Freedom? The Demise of Automatic Expulsion in Europe, investigates the far-reaching effects of the contemporary judicial defence of the right to stay possibly a transitional extension of the (Kantian) cosmopolitan right to visit (Besuchsrecht). With a specific focus on the recent jurisprudence of the ECtHR, Savino shows how a change in interpretation by the Strasbourg Court from aliens to humans has helped domestic courts to overcome the either/or logic of national membership. The contribution by Andreas Føllesdal expands on the democratic and transitional justice mechanisms that states adopt when incorporating human rights measures and when moving towards regional systems of rights compliance as with the ECtHR. Føllesdal s essay is titled Building Democracy at the Bar: The European Court of Human Rights as an Agent of Transitional Cosmopolitanism. The author, mindful of Rawls non-ideal theory, shows how one of the primary functions of the ECtHR is to promote states approximations toward ideal conditions of justice through the promotion of human rights. Such transitional improvements are analysed at both domestic and regional levels. Consistent with this view is Gentian Zyberi s concluding essay titled United Nations-Related Criminal Courts and Tribunals: Fleeting Mirages of Transitional Justice or a Piecemeal Approach to Cosmopolitan Justice? Here, Zyberi s interest rests mainly on the clarification of the subsidiarity relation between UN-related criminal courts and their contribution to cosmopolitan justice. The author views criminal justice as a stepping stone for the approximation of cosmopolitan justice. According to the author, UN-related courts have been instruments apt for the interpretation and the development of a number of concepts which are essential to both transitional justice and cosmopolitan justice, such as the principle of equality before the law, the rule of law, and the right to an effective remedy and reparations. All in all, these essays demonstrate how cosmopolitan justice depends on a multiplicity of dimensions of cosmopolitan law, revealing both the mutual interdependence of criminal and human rights law, as well as the multiple interactions between the domestic, the regional and the international level. This collection of essays would not have existed without the tenacious commitment of Professor Patrick Glenn. From the earliest stages of this project, Patrick was always present with his encouragements and ideas. This symposium is dedicated to him.