Two Roads to Guantanamo: The Canadian and United States Supreme Courts’ Approaches to the Extraterritorial Application of Fundamental Rights

Abstract

Following Catherine Kellogg’s engagement with Hannah Arendt’s question of whether there are modes of non-nationalist belonging, I begin with the recognition that the moment when the “nation-state ... will nullify itself as such” still lies far in the future, if it ever occurs at all. Real (as opposed to ideal) history happens through incremental, fragile evolutionary change, not through sudden leaps from one fundamental paradigm to another. If the ideal of the self-nullifying nation-state is an intellectual fantasy, however, it is also an ideal in the Kantian sense, one that can motivate and orient political action. Indeed, it is precisely the contingency of actual history that makes space for real-world political movements of groups and individuals that change paradigms from within.