Global constitutionalism, an idea neither necessarily rooted in nor emerging specifically from international law, has captured the imagination of public international lawyers. Rather than adding to the plethora of suggestions of what a global constitution would and should look like, this article is about why international lawyers are interested in this idea. The literature so far has largely omitted a stocktaking of what it is that is so appealing about constitutionalism and who is particularly partial to it. When discussing global constitutionalism, international lawyers commonly assume one of two orientations: either a normative orientation (this is the type of constitutionalism we should have) or a descriptive orientation (this is the type of constitutionalism we already have). The former mostly concerns visions for “a global constitution” while the latter often concerns ideas of the process that will at some point culminate in “a global constitution;” this process is commonly referred to as “constitutionalization.” The recent co-authored book by Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law, sets out to go further. It aims to see “what a constitutional international legal order could look like.” In a sense, they have therefore adopted a third orientation: one that takes the descriptive case of constitutionalism as a given and theorizes about further normative aspects in regard to the international legal order.

Constitutional patriotism is on the ascent among contemporary constitutional theories. Its objective is to re-orient the loyalty of citizens away from particularistic attachment to a Nation, and towards the Constitution. In promoting political justice, constitutional patriotism relies on citizens’ acceptance of a particular constitutional order not as an embodiment of particularistic ethnocultural, or even statist values, but rather as an expression of universal political principles. In other words, a constitutional order ought not to be seen as an instrument for a nation's political self-actualization, but rather as a framework for institutions and a repository of values that enable a diverse body of citizens to critically rework their particular traditions in light of universalist principles of political justice.

Since the 1990s it is possible to witness, in the multiplication of inter- and transnational actors, an increasing diversity in international norm-making processes as well as a growing variation in enforcing these norms, generically labeled under the term “global governance.” The actions of these private, hybrid or intergovernmental actors on the global level are increasingly seen as equivalent to the exercise of political authority formerly reserved for the state. As in the domestic context, the exercise of such authority raises questions about the procedural guarantees that anyone affected by this action should enjoy. The Organization for Economic Cooperation and Development (OECD) has evaded intensive scholarly attention from the global governance perspective thus far, although by now it is evident that it strongly contributes to this phenomenon through its various activities. The OECD Guidelines for Multinational Enterprises (Guidelines) are but one area in which the OECD is said to assume global governance functions by strongly influencing corporate behavior.

My motivation in putting together this Human Rights Symposium for the German Law Journal (GLJ) is based on a number of events in the news this year: recent outbreaks of political protests in Libya and Egypt, on-going wars in Iraq and Afghanistan and natural disasters in Haiti and Japan, that have re-opened questions about human rights in the 21st century on a global scale.

The reference for preliminary ruling concerns the validity of Article 5(2) of Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment between men and women in the access to and supply of goods and services (hereinafter “Directive 2004/113”). The legal issue is the hotly debated question of whether and to what extent the sex of an insured person can be taken into account as a risk factor in the formulation of private contracts in insurance and related financial services.

On 29 September 2008, the United Kingdom High Court of Justice referred to the European Court of Justice of the European Union (ECJ) for a preliminary ruling in Karen Murphy v. Media Protection Services Limited. This referral concerned the use of foreign decoder cards in the United Kingdom in order to gain access to encrypted satellite transmissions of live English Premier League football matches. Karen Murphy, a pub owner in Southsea, had allegedly been using the much cheaper Greek satellite decoder card to receive and screen live Premier League matches in public.