Constitutionalism and International Law

Many recent contributions in the field of public law are devoted to the internationalisation of constitutional law. Neil MacCormick correctly concluded an important contribution by underlining that ‘the time is...

An example of the internationalisation of constitutional law is the tendency of constitu­tional courts to look ‘for guidance from the decisions in other countries dealing with similar issues’³ Even inside the US Supreme Court, this tendency was the object of a controversial debate, with important contributions from its members, especially Justice Antonin Scalia.⁴ The legal relevance of this use of foreign precedents is evident, but it pertains more to the cultural background of judicial interpretation than to the legal dimension of lawmaking. Courts are using precedents issued in other jurisdictions as materials for the construction of national law. Moreover, scholars have used the expression ‘internationalisation of constitu­tional law' with regard to the progressive submission of activities and reciprocal relations of subjects of the international legal order to the principles and doctrines of constitutionalism. Sabino Cassese recently dealt with this phenomenon,⁵ underlining the fact that the rigid separation between constitutional law and international law is decreasing and we are now confronted with so-called international constitutionalism.

¹ N MacCormick, ‘Beyond the Sovereign State' (1993) 56 MLR 1.

² K Tuori, ‘Transnational Law. On Legal Hybrids and Perspectivism' in M Maduro, K Tuori and S Sankari (eds), Transnational Law. Rethinking European Law and Legal Thinking (Cambridge, Cambridge University Press, 2014) 17.

³ H Schwartz, ‘The Internationalization of Constitutional Law' (2003) 10(2) Human Rights Brief 10. See also J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (Oxford, Oxford University Press 2009).

⁴ An overview of the position of Scalia is provided in MA Waters, ‘Justice Scalia on the Use of Foreign Law in Constitutional Interpretation: Unidirectional Monologue or Co-Constitutive Dialogue' (2004) 12 Tulsa Journal of Comparative & International Law 149.

⁵ S Cassese, Oltre lo Stato. Verso una nuova costituzione globale? (Naples, Editoriale Scientifica, 2006). guidelines of constitutionalism, including the separation of powers and judicial guarantees of personal rights. Furthermore, in these cases, when we are faced with cultural develop­ments, we can observe the translation of models of legal organisation from one field of law to another.^[113] Therefore, notwithstanding the difference of subjects, the relevant international law has to be interpreted in the light of the elaboration of the models of internal organisa­tion of the different states. Finally, some authors have adopted another point of view, and looked at different developments in the internationalisation of constitutional law. They have studied the incorporation of international human rights treaties into national legal orders through special constitutional provisions, the convergence of national constitutions due to international bonds and the progressive transformation of treaties in supranational constitutions.^[114] According to a recent systematisation, ‘international law can be divided into three [...] broad subcategories’ (fundamental rules of the international legal system at large, constitutions of international organisations and norms affecting domestic law).^[115]

The study of the above new trends has to be connected to the analysis of the estab­lishment of new international institutions aimed at ensuring the uniformity of internal legal regulations through cooperation between states.

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