Abstract
AbstractConstitutions are social and historical artefacts that take part in the government of humans. Based on a comparison of how contemporary ‘global’ and historical ‘local’ constitutional documents establish power relations between ‘humans’ and their ‘government’, this article suggests that both types of documents involve different constitutive logics. Global constitutional documents create a ‘new normativity’ – a reversed constitution – that turns the historical relationship betweenpouvoir constituantandpouvoir constituéon its head. Such documents shift the primary responsibility for human rights from governments to humans. Research in the academic field of global constitutionalism omits this constitutional reconfiguration. By offering a more historically sensitive and reflexive account of constitutionalization, the field of global constitutionalism can realize an as yet unexplored critical potential.
Highlights
We, the Heads of State and Government and High Representatives ... (GCM 2019, A/RES/73/195) From a constitutionalist perspective, these opening words of the Global Compact for Safe, Orderly and Regular Migration (GCM) strike a discordant note
This article draws a comparison between the UN Charter, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR, as global constitutional documents, and the Virginia Bill of Rights (VBR), the Declaration of Independence, the Constitution of the United States of America (US Constitution), its Bill of Rights, the Declaration of the Rights of Man and the Citizen (DRMC) and the first French Constitution (FC), as eighteenth-century constitutional documents
Global constitutionalism is ‘an interdisciplinary ... research field’ (Wiener et al 2012: 6), which responds to the challenges of globalization as well as the related transformation of the nation-state and law (e.g. Dobner and Loughlin 2010; Klabbers 2009; Wiener et al 2012: 6)
Summary
The Heads of State and Government and High Representatives ... (GCM 2019, A/RES/73/195) From a constitutionalist perspective, these opening words of the Global Compact for Safe, Orderly and Regular Migration (GCM) strike a discordant note. 438 friederike kuntz modern constitutional texts from the eighteenth century, more recent global constitutional landmarks – such as the United Nations Charter (UN Charter), the Universal Declaration of Human Rights (UDHR) and human rights treaties, like the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) – follow a different logic These documents reverse the historical relationship between pouvoir constituant and pouvoir constitué. This article draws a comparison between the UN Charter, the UDHR, the ICCPR and the ICESCR, as global constitutional documents, and the Virginia Bill of Rights (VBR), the Declaration of Independence, the Constitution of the United States of America (US Constitution), its Bill of Rights, the Declaration of the Rights of Man and the Citizen (DRMC) and the first French Constitution (FC), as eighteenth-century constitutional documents These texts are analysed as historically situated statements of the relations between humans and their government. The conclusion calls for scholars to undertake further comparative historical analysis of constitutional practice since the eighteenth century, with particular sensitivity to modes of governance
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