Construing Contemporary Cosmopolitan Constitution-Making: A Comparative View

Abstract

The newest and gradually evolving trends in global law-making have been defined by an ever increasing interplay between rules and principles of different legal orders and between national legal orders and international legal order. References in national constitutions to the binding force of international law within the domestic sphere and sometimes the primacy of such internationally-made law over national laws are now a widespread and unsurprising phenomenon. Clauses referring to international human rights, including direct applicability of specific international human rights instruments, also to international organizations such as the UN, or accession to new international organizations, including transfer of sovereignty, can also be found in a significant variety of cases. The most unique feature of these trends could, however, be the establishment of national constitutional and legal order based on, or modeled after, international law and comparative law. At a broader constitutional level, for example, the international community has played a pivotal role in the style and substance of the constitutions of a number of post-conflict, newly-formed or transformed societies (e. g., Constitutions of Cambodia, Bosnia and Herzegovina, South Africa, East Timor, Afghanistan, Iraq, Kosovo, Libya, and South Sudan). This process of constitution-making influenced by, based on, or modeled after, international law, has unique features that resonate with a cosmopolitan constitutional law-making. This paper seeks to understand the contours of this phenomenon, ascribe the proper value, and identify the degree to which contemporary constitution-making conforms to the original ideals of cosmopolitanism.