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Published online by Cambridge University Press: 07 December 2020
This article concerns two aspects of Stone Sweet and Ryan’s theory of legal cosmopolitanism: (1) what the Kantian cosmopolitan legal order means for an international court; and (2) what it means for the holders of the rights that flow from the cosmopolitan legal order. The article interrogates the extent to which, in order to be considered a truly cosmopolitan legal order, the European Convention on Human Rights needs at times not only to make non-citizens free of rights equal to those of citizens, but also to give them stronger rights than those enjoyed by citizens. The article concludes by turning to the meaning of the European Convention beyond its European context. The European system for the protection of human rights and fundamental freedoms may fail or succeed, yet the enthusiasm that the most successful rights-protecting body in the world has created in bystanders, and the very fact that it came into being at all, prove that real progress is possible. From a Kantian perspective, this may well be its greatest accomplishment.
1 Sweet, A Stone and Ryan, C, A Cosmopolitan Legal Order: Kant, Constitutional Justice, and the European Convention on Human Rights (Oxford University Press, Oxford, 2018)CrossRefGoogle Scholar.
2 Ibid, 2–3.
3 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222.
4 See (n 1) 85–86.
5 This is not necessarily the only way to see things. In the United Kingdom, for example, legislative sovereignty was upheld in the face of European law through the device that legislative sovereignty was used in order to give EU law sovereignty. Section 2(1) of the 1972 European Communities Act provides that, ‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.’ As Lord Reid said about section 2(1) in Miller, in a paragraph with which the whole Supreme Court agreed, ‘It follows from the UK’s dualist approach to international law that the Treaties could only be given effect in our domestic law by means of an Act of Parliament. This was so notwithstanding the doctrine of EU law, established by the European Court of Justice in Van Gend en Loos … This doctrine in incompatible with the dualist approach of the UK constitution, and ultimately with the fundamental principle of Parliamentary sovereignty … As will appear, section 2(1) enables EU law to be given direct effect in our domestic law, but within a framework established by Parliament, in which Parliamentary sovereignty remains the fundamental principle.’ R (Miller and Another) v Secretary of State for Exiting the European Union [2017] UKSC 5, (2017) 171 ILR 568, 677–78, paras 183–84.
6 Costa, ECJ 6/64, 1964; and Simmenthal II, ECJ 106/77, 1978.
7 See (n 1) 87.
8 See (n 1) 89.
9 Slovak Republic v Achmea BV Judgment of the Court, CJEU Case C-284/16, 181 ILR 249, 6 March 2018: 256, para 33.
10 Opinion 2/13 pursuant to Article 218(11) European Union: Court of Justice of the European Union, TFEU, ECLI:EU:C:2014:2454, 18 December 2014.
11 See (n 1) 91.
12 See (n 9).
13 See, for example, M Andenas and C Contarese, ‘EU Autonomy and Investor–State Dispute Settlement Under Inter Se Agreements Between EU Member States: Achmea’ (2019) 56 Common Market Law Review 157.
14 See, for example, Masdar Solar & Wind Cooperatief UA v Kingdom of Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018.
15 For example, Loizidou v Turkey, Preliminary Objections, 103 ILR 622, 1995, para. 75.
16 Shamayev & Others v Georgia & Russia, ECHR No. 36378/02, 12 April 2005 – III, para 293.
17 European Court of Human Rights, Minutes of the afternoon sitting in Travaux préparatoires to the ECHR IV, 9 June 1950, 124.
18 Schabas, W, The European Convention on Human Rights: A Commentary (Oxford University Press, Oxford, 2014) 913 Google Scholar; Decaux, E, ‘Article 62’ in Pettit, LE and Others (eds), La Convention Européenne des droits de l’homme (2nd edn, Economica, London, 1999)Google Scholar 912–13.
19 Council of Europe, Yearbook of the European Convention on Human Rights, Vol 3 (1960) 168–71Google Scholar.
20 See A Fenet, ‘La fin du litige italo–autrichien sur le Haut-Adige-Tyrol du Sud’ (1993) 39 Annuaire français de droit international 357.
21 International Convention on the Elimination of All Forms of Racial Discrimination in Treaty Series 660 (21 December 1965) 195.
22 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Preliminary Objections, International Court of Justice, ICJ Rep 2011, 70. For criticism see Crawford, J, Brownlie’s Principles of Public International Law (9th edn, Oxford University Press 2019) 669–70CrossRefGoogle Scholar.
23 Georgia v Russia, ECHR, no. 38263/08, 13 December 2011.
24 See (n 23) 79.
25 See (n 18) 914.
26 See (n 1) 249.
27 Ibid 256.
28 Ibid 258.
29 See in this issue the Introduction and the contribution by Corradetti.
30 Crawford, J, International Law as an Open System (Cameron May, London, 2002 Google Scholar).
31 See (n 1) 1.
32 Ibid 15, and I Kant, ‘Toward Perpetual Peace: A Philosophical Sketch’ in Toward Perpetual Peace and Other Writings on Politics, Peace, and History (Yale University Press, New Haven, CT, 2006 [1795]) 358.
33 See (n 1) 18.
34 Ibid.
35 Joseph Charles Lemire v Ukraine, Award, ICSID Case No ARB/06/18, 28 March 2011, para 57.
36 In Lithgow, there was initially one French national among the applicants, Mrs Monique Augustin-Normand, but as she was among those applicants whose complaints were declared inadmissible by the Commission, her complaint was not heard on the merits: see Lithgow & Others v United Kingdom (1986) 8 EHRR 329, paras 2 and 102.
37 See (n 36) para 115; James v United Kingdom, ECHR No. 8793/79, 21 February 1986, para 61.
38 See also Commentary by the Secretariat-General on the Draft Protocol (18 September 1951) Doc DH (57) 10 at 157 (‘the phrase “subject to the conditions provided for … by the general principles of international law” would guarantee compensation to foreigners, even if it were not paid to nationals’).
39 See (n 37) para 63.
40 Ibid.
41 Biloune v Ghana (1989) 95 International Law Review 183, 211.
42 The United Nations Bank for International Settlements – Partial Dispute with former private Shareholders (2002) 23 Reports of International Arbitral Awards 153, 231, para 168.
43 Joseph Charles Lemire v Ukraine, ICSID Case No. ARB/06/18, Award, 28 March 2011, para 57.
44 E de Vattel, Le droit des gens, Vol II (1758, tr Anon 1797), vi, para. 71.
45 Kant, I, ‘The Conflict of Faculties’ in Political Writings (tr Nisbett, HS, Cambridge University Press, Cambridge, 1991)Google Scholar.
46 Compare that with the Proustian sally to the effect that someone looks at history as would a newly born chicken at the bits of the eggshell from which it had been hatched! See Stone, N, Turkey: A Short History (Thames & Hudson, London, 2010) 8 Google Scholar.
47 See (n 45) 182.
48 See (n 1) 1.
49 Ibid 2.