Sunday, September 13, 2009

Cosmopolitan Constitutionalism?

Has there really been a turn to cosmopolitan constitutionalism? Have we evolved out of the Kantian state-centric model articulated in Perpetual Peace? Or is such a term an oxymoron in the first place? I am, at present, immersed in cosmopolitanism-related literature for both research and upcoming exams and these questions came to mind as I have started to skim through the new book edited by Jeff Dunoff and Joel Trachtman, Ruling The World? Constitutionalism, International law and Global Governance. Although this might seem like a rhetorical (read: useless) question to a realist, I nevertheless offer this for reflection for two main reasons.
First, it seems to me that despite the proliferation of international organizations and cooperation regimes, the state of current world affairs is fast regressing into a moralization of international politics, rather than advancing towards the direction of an international "rule of law." By moralization, I mean that a thoroughly realist conception by and large pervades today's conduct of international affairs. No longer (or perhaps never were) enamored by the starry-eyed ideals of the U.N., states have gone about their own ways without regard for what passes as international "rules" as embodied in legal instruments. Granted of course that international compliance must always take into account domestic politics and considerations, the fact is that there is not even any semblance of a constitutional discourse on a global level, at least on the issues of peace and human rights. (The international economic law folks might argue otherwise since the WTO at least provides for concrete enforcement and dispute resolution mechanisms). The second reason is that, as a result of the absence of this constitutional discourse, we will never be able to formulate effective policies when it comes to truly global problems, which are more often than not intractable if tackled by a single state, even a superpower at that, alone. The natural tendency of course is to more or less leave it to the discretion or political interests of the interested and the powerful, and hold these states accountable only ex post.

But these are late-night reflections on an admittedly complex and multi-faceted project started several centuries ago. The bottomline of my inquiry can perhaps be summed up thus: is there a future for the cosmopolitan project? Can we constitutionalize our duties to others who belong to other political allegiances on the basis of the equality of all human beings?

1 comment:

  1. It seems quite difficult for it would have to be rather thin form of constitutionalism. Think of rights. It seems extremely difficult to agree on fundamental rights on a national level (think of health care, abortion, freedom to publish cartoons depicting religious leaders). For instance, would this global constitutional citizenship entitle you to carry a gun? And if global constittionalism is not about rights, what is is then? When you move national constitutional discussion into the international level, the cherry-picking problem comes even more apparent. How many proponents of global constitutionalism would accept a libertarian reading of constitutional values, and would like to see American-style hate-speech protection and right to enjoy pornography, individual-right reading of the Second Amendment, or Lochner-Era property rights regime projected into the international sphere? No one, I suppose. Which rights would then be the core of global constitutionalism? And are we ready for a transnational constitutional court, and how to give it legitimacy?

    This will, of course, make it extremely difficult to tackle issues like global warming, but do we even have constitutional law that would help us in solving environmental issues?

    I apologize if my understanding of global constitutionalism is erroneous and all these objections have already been discredited in the literature. It's an extremely interesting topic and I hope to be able to follow the discussions more closely in the future.


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