International Law and Transnational Law

The Venice Commission takes part in international constitutional monitoring and participates in the elaboration of international constitutional law through the machinery of conditionality.¹ Conditionality is an essential feature of these developments.

These developments may be especially observed when the Commission draws inspiration from the constitutional experience of Member States. At times, the work of the Commission implies the operational interpretation and elaboration of the content of specific normative texts.³ In this case, there is a written point of reference and the activity of the Commission favours the formation of the interpretative doctrines of the relevant documents in coop­eration with other authorities (for instance, political bodies of the interested country;

¹S Bartole, ‘International Constitutionalism and Conditionality.

² For similar conclusions but with regard to the advisory opinions of the international judges, see K Oellers-Frahm, ‘Lawmaking through Advisory Opinions of the International Judges’ (2011) 12 German Law Journal 1033.

³ Treaties or conventions on human rights and fundamental freedoms; see, in particular, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 29 June 1990. the European authorities that asked the advice of the Commission; and international judges frequently quoting the Commission’s Opinions).

According to some authors,^[154] it is possible to classify these developments as epiphanies of the internationalisation of constitutional law. This is an expression that, on the one side, correctly emphasises the extension of constitutionalism beyond the nation state and, on the other side, underlines the large scope of the phenomenon. The expression covers the incor­poration or implementation of different legal sources in domestic constitutions. Among these, the most important are: (i) international treaties aimed at safeguarding human rights and fundamental freedoms; (ii) treaties establishing European institutions that bind Member States to the main principles of constitutionalism; and (iii) the internal rules of global regulatory institutions, such as the World Trade Organization. However, a recent contribution^[155] has taken a position on the distinction between transnational law and inter­national law, and has claimed that the evolution of transnational law is strictly linked to phenomena of the disconnection of legal transborder experiences from their international law foundations. Thus, normative and institutional structures of transnational law are based on international law but have distanced themselves from the background of treaty-based international law. They are progressively getting significant autonomy where the existence of supranational institutions is concerned.

An important example of these developments is the system of the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR), which is seen as a true instance of international/transnational law making. Insofar as the results of the activity of the Venice Commission concern the safeguarding of human rights and draw inspiration from the elaboration of the precedents of the ECtHR, we could argue in favour of their inclusion in the developments of transnational law. However, where the institutional organisation of states is concerned, the reference to ECtHR case law becomes more tenuous. Within this picture, the international law system could regain new space and relevance through reference to the specific provisions of treaties binding the interested actors to adopt, for example, a peculiar organisation of the judicial institu­tions (see Article 6 ECHR). Also, in these cases, the final developments of the concerned processes affect the internal order of the states. In short, there is a convergence of the results of the processes of internationalisation and transnationalisation of domestic constitutional law. Both of these processes can be considered as constitutive elements of a progressive tendency to an extension of the area of constitutional law.^[156]

In fact, we find at the core of the experience of the Venice Commission its advisory acts (Opinions) on the drafts of adoption or reform of national constitutions submitted to its examination by countries interested in accession to international or supranational institutions, or in maintaining their membership thereof. The Venice Commission is also entrusted with the institutional duty to respond to requests initiated by the governing bodies of the Council of Europe and the European Union (the Parliamentary Assembly of the Council of Europe and its Monitoring Committee, for instance).^[157] By adopting the acts which are typical of its functions, the Commission concurs in the identification and elaboration of principles, standards and guidelines whose observance is relevant to the goals pursued by interested countries.

This chapter deepens the understanding of the interpretative process of the participation of the Venice Commission in the formation of international constitutional law by address­ing two questions concerning the activity of the Commission. First, it is certainly urgent and necessary to ascertain the geographical extension of the effectiveness of the principles elaborated by the Venice Commission. Nowadays, it is common to connect the growing importance of international constitutional law with developments in so-called globalisation. Therefore, we should investigate whether the activity of the Commission is affected by the expansion of globalisation, and consequently whether the Commission’s activity impacts a worldwide legal space, or whether its relevance has to be restricted to the European regional area (as could be suggested by the original institutional connection of that body with the Council of Europe). Even if the Council of Europe claims to pursue universal values.

Secondly, it is important to identify the sources of guidelines and principles, the obser­vance of which the Commission requires from the states that seek its advice and help. The identification of these sources emphasises the historical matrices of the constitutional doctrines taken into consideration by the Commission. The two questions are connected, as the geographic dimension of the Commission’s ‘case law’ is closely related to the historical developments of constitutionalism. The phenomenon depends on the historical formation of European constitutionalism in the frame of the old nation states, even if it implies the extension of constitutionalism beyond nation-state confines.^[158]

The rationale of the analysis this chapter develops favours starting with the second question, as the identification of the historical sources of constitutionalism indirectly gives sufficient indication of the geographical extension of the materials taken into considera­tion in the activity of the Commission.

II.