Peter Kooijmans' inquiry into the doctrine of the legal equality of states and, with it, the foundations of international law, reflects a peculiar brand of cosmopolitan thought, namely innate cosmopolitanism. Though under-recognized, innate cosmopolitanism is an argument for re-conceiving the modern international legal order according to a deep unity underlying the whole of human relations. As such, innate cosmopolitanism is distinct from better-recognized examples of cosmopolitan thinking, including liberal cosmopolitanism and cosmopolitan constitutional theory. Rejecting the normative individualism of liberal cosmopolitanism, and eschewing the formal orientation of constitutional theory, innate cosmopolitanism envisions the world as a viable collectivity that is perceived to exist, irrespective of formal recognition, as a matter of historical fact. But while innate cosmopolitanism operates according to a top-down model of collectivity, it nonetheless recognizes and incorporates smaller units of collectivity. As such, it holds especial relevance at a time when international legal doctrine looks beyond the preeminence of states, but continues to be bound to them in practice. Following innate cosmopolitanism, the international system incorporates all members equally when it takes into account the different material position of each member vis-à-vis the collective whole. The rights and responsibilities enjoyed by each, and their political situation within the community, will vary accordingly. This article will explore the innate cosmopolitan contribution to international law by reference to two current discourses, concerning ethical legitimacy and constitutional theory, as they grapple with justifications for and the doctrinal viability of an expanding public order globally. Additionally, examples drawn from the activation of the crime of aggression in the Rome Statute, and the Kadi case, will be considered for the critical light they throw on innate cosmopolitan theory.

Kadi – Autonomy – Supremacy – EU legal order – Relationship between EU and UN – Terrorism – (National) Freezing Measures – Effects of annulment – Fundamental Rights – Right to effective legal protection – Right to property – Substantive versus formal hierarchy of norms – Comity – Relationship between Court of Justice and General Court – Bosphorus – Solange – Role and function of the Court of Justice

Relationships between international, EU, domestic law – Different legal orders – Different jurisdictions – Validity, rank, effects of international law in EU legal order – Kadi – Court of First Instance in Kadi – Advocate-General in Kadi – European Court of Justice in Kadi – Pluralism concept of AG Maduro – European legal pluralism reconsidered

Constitutionalism – Kadi ruling of EU Court of First Instance – Erosion of ‘total’ constitutional order by reallocation of public power – Constitutional vision challenge of networks approach – Emerging human rights hierarchy – Rudimentary international value system – Ius cogens and erga omnes – Barcelona Traction – Core human rights elements – Enforcement through regional and domestic courts – Review of Security Council resolutions

Judicial dialogue – protection of fundamental rights – common constitutional principles – judicial activism – Charter of Fundamental Rights – pluralistic nature of Europe – national particularism – preliminary reference procedure – duty of constitutional courts to participate in dialogue – protection of national constitutional values and traditions – judicial style of European Court of Justice

UN human rights binding on states; binding on UN organs? – Sanctions mechanism as implemented in EU – Kadi and others – Ruling Court of First Instance – Relation between UN law and EC law – Human rights obligations – Exception, political question, etc. – Solange – Monism and dualism – Questions remain

The difference

On 13 December 2007, after a remarkable acceleration of the process under the German and Portuguese presidencies, representatives of the member states put pen to paper and signed the Treaty of Lisbon. Much of the ensuing debate, both in legal circles and among the general public, has centred on its abandonment of the ‘constitutional concept’.

No competence to review EC regulations implementing Security Council resolutions, according to the Court of First Instance – Worst of both worlds: critique from the perspectives of international law and Community law – Alternative approach on the basis of the firmly established European solange tradition.