I. Introduction
In A Cosmopolitan Legal Order,Footnote 1 Alec Stone Sweet and Clare Ryan define the eponymous object of their study as a multi-level transnational system of rights protection that, through judicialization, confers on all persons the entitlement to challenge, by virtue of their shared humanity, the decisions of public officials regarding their rights.Footnote 2 I admire their study and agree with its ably presented Kantian analysis of the European Convention on Human Rights.Footnote 3 The present contribution, which is legal rather than philosophical in its outlook, concerns two aspects of their theory: what Kantian legal cosmopolitanism means for an international court and what it means for the holders of the rights that flow from the cosmopolitan legal order. I deal first with the extent to which the European Court of Human Rights (ECHR), as compared with the Court of Justice of the European Union (CJEU), in its capacity as an international jurisdiction, can be said to deserve the epithet ‘cosmopolitan’. I then turn to the extent to which, in order to be considered a truly cosmopolitan legal order, the European Convention needs not only to make non-citizens free of rights equal to those of citizens, but also at times to give them stronger rights than those enjoyed by citizens.
In a cosmopolitan legal order, every public act must be capable of being judicially reviewed as regards its conformity with rights. As Stone Sweet and Ryan explain, this is required for the system to be considered complete.Footnote 4 In turning to the process through which legislative sovereignty is, as the authors see it,Footnote 5 undermined by European law, they set out aspects of the law of the European Union. The doctrine of supremacy, which emerged in the case law of the CJEU in the 1960s and 1970s,Footnote 6 contributed to the constitutionalization of the regime of EU law.Footnote 7 The authors state:
While it may be argued that the supremacy doctrine constituted a sovereignty claim on the part of the CJEU, no national constitutional court has accepted supremacy as the EU court understands it. The CJEU, in effect, holds that all national judges are agents of the EU legal order, not the national order, whenever they act in domains that fall within the scope of EU law. The CJEU further asserts that it alone has the ‘final word’ when it comes to determining the compatibility of EU law – as well as national law that implements EU law – with rights.Footnote 8
The notion that the CJEU has the final word – which as far as it goes in the situation set out above is entirely sensible – has, however, been taken somewhat further by the CJEU. The CJEU has done so in the name of the ‘constitutional structure of the EU and the nature of [EU] law’.Footnote 9 One example of this is the decision by the CJEU regarding the accession of the EU to the European Convention,Footnote 10 a decision the authors criticize (in diplomatic terms) as being based on concerns on the part of the CJEU for the fate of its own constitutional authority.Footnote 11 It was in this constitutional vein that the CJEU held in Achmea that the concept of supremacy, broadly conceived, meant that other international tribunals, such as investor–state tribunals pronouncing themselves on the basis of bilateral investment treaties, will not have jurisdiction to do so in the event that the dispute at issue is an intra-EU one – that is, where the state of the claimant and the respondent state are both EU Member States.Footnote 12 The judgment in Achmea is of vital importance for the relationship between EU law and international law, and has been welcomed by leading EU law commentatorsFootnote 13 and disapprobated by international investment tribunals.Footnote 14
It is interesting to compare the approach of the ECHR with that of the CJEU in this regard. The ECHR, like the CJEU, considers its own treaty instrument – the European Convention – to be of a constitutional nature, ‘a constitutional instrument of European public order’.Footnote 15
On the one hand there is Article 32 and the jurisprudence of the ECHR applying that provision. Article 32 of the European Convention stipulates that the ECHR has jurisdiction over ‘all matters concerning the interpretation and application of the Convention’. The ECHR has held that ‘it alone is competent to decide on its jurisdiction to interpret and apply the Convention and its Protocol (Article 32 of the Convention), in particular with regard to the issue of whether the person in question is an applicant within the meaning of Article 34 of the Convention and whether the applicant fulfils the requirements of that provision’.Footnote 16 On the other hand, Article 55 of the Convention (formerly Article 62) states:
The High Contracting Parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention.
As explained by Sir Samuel Hoare during the drafting of this provision, a consideration that weighed with the drafters was the ‘proliferation of organs with tremendous difficulties for the definition of their respective jurisdiction’.Footnote 17 As explained more recently by William Schabas, however, ‘Article 55 does not entirely exclude the possibility that human rights issues as well as related matters are addressed in other fora’;Footnote 18 further, the Strasbourg organs – including the ECHR – have, despite the broader constitutionalist framework in which the Court considers itself to be operating, taken a more broadminded, or at least less jealous, approach to the question than the CJEU.
Two examples bear this out. First, regarding the matter of Süd Tirol/Alto Adige, Italy and Austria, having initially submitted an interstate application to the Commission,Footnote 19 reached a subsequent agreement, which contained a compromissary clause in which the parties agreed to submit disputes not to the CJEU but rather to the International Court of Justice. No Strasbourg organ registered any misgivings, then or later.Footnote 20
Second, in the dispute between Georgia and Russia relating to South Ossetia and Abkhazia, Georgia relied upon the compromissory clause in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)Footnote 21 to bring a proceeding before the International Court. In 2011, that Court granted in a preliminary objection filed by Russia, finding that, under the conditions set out in the compromissory clause in the CERD, Georgia had failed to exhaust the route of negotiation before seising the Court.Footnote 22
During the pendency of the proceeding before the International Court, however, Georgia had in parallel filed a proceeding before the ECHR.Footnote 23 The rule against similar proceedings set out in Article 35 of the European Convention does not apply to interstate proceedings. As the case before the International Court had been rejected, no problem of lis pendens arose. But what of Article 55? While the ECHR did not explicitly touch on Article 55,Footnote 24 Schabas has wisely observed that:
Georgia may well have breached article 55 of the Convention, although it is hard to see what consequence this could have in judicial proceedings. Jurisdiction before either the International Court of Justice or the ECHR could not be defeated merely because one of the States had failed to respect Article 55 of the Convention.Footnote 25
If one compares the two European Courts regarding the question of how each court, in its husbandry of its self-proclaimed constitutional order, relates to other courts and tribunals, the approach of the ECHR plainly comes across as more Kantian than that of the CJEU. If, as Stone Sweet and Ryan argue, a cosmopolitan legal order is a composite regime in which transnational systems of constitutional justice evolve symbiotically,Footnote 26 where at the international level there needs to be a measure of constitutional pluralism between international courtsFootnote 27 and where the watchwords are ‘mutual regard’ and ‘respect’ between international courts,Footnote 28 then it seems obvious that the ECHR is more Kantian in its outlook than the CJEU.Footnote 29 It is, to appropriate the words of a celebrated internationalist, ‘an open system’Footnote 30 when compared with the closed system of the CJEU.
II. Nationals and strangers
The elements of a cosmopolitan legal order demand that rights are held by individuals and that, within the domestic legal orders that make up the transnational legal system, all public officials bear the obligation to fulfil the fundamental rights of every person within their jurisdiction, without any discrimination as to nationality or citizenship.Footnote 31
Kant took the view in Perpetual Peace that hospitality entails that a stranger has, on arrival in another’s country, the right not to be treated in a hostile manner.Footnote 32 Sweet Stone and Ryan explain that Kant saw this normative duty as an obligation of all within the state to provide hospitality to strangers.Footnote 33 They quote Kant to this effect: ‘Hospitality means the right of a stranger not to be treated as an enemy when he arrives in the land of another.’Footnote 34
There is a long and well-known history in international law of the obligations of general international law, as well as particular international law in the form of treaties, as to the protection of a stranger (or in the terminology of traditional international law: an alien) in a host state. One of the principles underlying these obligations has been the fact that strangers traditionally have lacked the political rights of citizens and would therefore be more exposed than citizens to ‘arbitrary actions of the host State and may thus, as a matter of legitimate policy, be granted a wider scope of protection’.Footnote 35 The general international law principles just mentioned were incorporated into the treaty text of Article 1(1) of Protocol I of the European Convention, which stipulates:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
In James v United Kingdom and Lithgow v United Kingdom, both of which concerned British nationals,Footnote 36 the ECHR observed that ‘the general principles of international law’ to which Article 1 of Protocol 1 makes explicit reference, while they could not apply in respect of nationals, ‘are incorporated into that Article … as regards those acts to which they are normally applicable, that is to say acts of a State in relation to non-nationals’.Footnote 37 The fact that these general principles do indeed apply to non-nationals was also emphasized by the Committee of Ministers of the Council of Europe when it opened the Protocol for signature:
Reconnaissant, en ce qui concerne l’article Ier du Protocole, que les principes généraux du droit international, dans leur acceptation actuelle, comprennent l’obligation de verser aux non-nationaux une indemnité en cas d’expropriation. Footnote 38
For the British applicants in James v United Kingdom and Lithgow v United Kingdom, that meant they could find no succour in general international law; however, the ECHR made it clear that the general principles of international law would apply to acts of a state in relation to non-nationals. There can be no cavil with what the Court concluded in relation to non-nationals: there is no doubt, according to the wording of Article 1, that the article does incorporate general international law into its scope and that non-nationals must be able to benefit from that incorporation.
The ECHR explained in some detail why it would be correct as a matter of principle to treat non-nationals and nationals differently in the context of expropriation. The Court determined that Article 14 of the Convention and its prohibition of discrimination did not pose a problem in this connection: ‘the Court has consistently held that differences of treatment do not constitute discrimination if they have an “objective and reasonable justification”’,Footnote 39 which the Court held to be the case with difference of treatment in connection with compensation for expropriation. The ECHR continued:
Especially as regards a taking of property effected in the context of a social reform, there may well be good grounds for drawing a distinction between nationals and non-nationals as far as compensation is concerned. To begin with, non-nationals are more vulnerable to domestic legislation: unlike nationals, they will generally have played no part in the election of designation of its authors nor have been consulted on its adoption. Secondly, although a taking of property must always be effected in the public interest, different considerations may apply to nationals and non-nationals and there may well be legitimate reason for requiring nationals to bear a greater burden in the public interest than non-nationals.Footnote 40
In respect of expropriation of the property of non-nationals, the principles of general international law require full compensation, not just the ‘appropriate’ compensation that the ECHR has been content to demand in relation to expropriation of the property of nationals. In Biloune v Ghana the Arbitral Tribunal held that, ‘Under the principles of customary international law, a claimant whose property has been expropriated by a foreign state is entitled to full … compensation.’Footnote 41 As one distinguished arbitral tribunal put it in Bank for International Settlements, ‘it is true that the jurisprudence of the European Court has adopted a flexible standard, described as one of “appropriate” compensation for taking by a state of the property of its nationals’, but ‘the general relevance of Human Rights law aside, the mainstream of general international law has required full compensation’.Footnote 42
For the reasons given by the ECHR in James, the general principles of international law give a higher level of protection to non-nationals than the ECHR gives to nationals. This means that there is no disconnect or conflict between the international jurisprudence demanding full compensation for non-nationals and the Strasbourg jurisprudence that gives less than full compensation for nationals. The two sets of case law complement each other, as James acknowledges, with each legal system taking the correct approach within its respective sphere.
But when, as will almost certainly come to pass, a case comes before the European Court concerning a non-national, or a stranger in the Kantian idiom, what should the Court do to adhere most closely to the exigencies of cosmopolitan legal order? Should the stranger, under Article 1 of Protocol I, receive the full protection that general international law affords strangers in a host state, or would it be wrong in Kantian terms to treat the stranger better than the national?
The award given by the arbitral tribunal in the case of Joseph Charles Lemire v Ukraine makes a compelling argument that, if it is not couched in Kantian terms, cannot be far off the Kantian ethos:
this unequal treatment is not without justification: justice is not to grant everyone the same, but suum cuique tribuere. Foreigners, who lack political rights, are more exposed than domestic investors to arbitrary actions of the host State and may thus, as a matter of legitimate policy, be granted a wider scope of protection.Footnote 43
The obligation within a properly Kantian cosmopolitan legal order to provide such hospitality so that the stranger is not only treated as well as a citizen but better than them must be the only Kantian-congruent approach. As a matter of general international law, the right is based simply on state sovereignty, in the sense that, as Vattel put it, ‘Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen.’Footnote 44 The idea is that if a host state expropriates the property of a non-national without giving them full compensation, it is indirectly breaching the rights of their state of nationality (whereas no such internationally wrongful act would arise if the host state expropriated, without full compensation, the property of its own nationals).
Beyond that, is there not something almost instinctively decent about the idea that, at times, the visiting stranger must be treated better than the locals (witness all the societies in the world where pride is taken in letting the guest be served first and have the juiciest bit of the local delicacy). Further, as a matter of the exigencies of cosmopolitan legal order, the idea that the non-national needs stronger rights than the national surely goes beyond the protection of property?
The ECHR is indeed a cosmopolitan legal order, and it is in this writer’s view the only international legal order ever properly to have attained such characteristics. It is tempting in that regard to conclude with one of the ideas on which the authors end their study: the meaning of the European Convention beyond its European context. In relation to the French Revolution, Kant said in The Contest of Faculties Footnote 45 that, if it was difficult to prove progress in history, the study of history nevertheless allowed the observer to discern signs that real progress was possible.Footnote 46 The French Revolution was such a sign, in that what eventuated in France in 1789 had until then been entirely unthinkable. More important than the reality of the Revolution, however, was the enthusiasm engendered by the fact that it came into being:
The recent Revolution of a people which is rich in spirit, may well either fail or succeed, accumulate misery and atrocity, it nevertheless arouses in the heart of all spectators (who are not themselves caught up in it) a taking of sides according to desires which borders on enthusiasm and which, since its very expression was not without danger, can only have been caused by a moral disposition within the human race.Footnote 47
This applies to the European Convention on Human Rights and its Court, in that the European system for the protection of human rights and fundamental freedoms may well either fail or succeed, and in any event might be thought to be imperfect and capable of maturing.Footnote 48 But the enthusiasm this ‘single most active and important rights-protecting body in the world’Footnote 49 has created in bystanders, and the very fact that it came into being at all, combine to demonstrate that real progress is possible. This may well, in the long run, be its greatest accomplishment.
