International Law, Transnational Law and National Law
The content of the relevant engagements of stipulating parties are frequently extremely vague and ambiguous. They concisely refer to constitutional and economic theories and doctrines that can be elaborated according to subjective attitudes and orientations.
According to Kaarlo Tuori, ‘political consensus among States is easy to reach' ‘the vaguer the provisions under regulation are’.[117] [118] The peculiar structure of those provisions opens the way to the lawmaking of international judges and monitoring bodies in the field of international constitutional law. For instance, Article 2 TEU states that the European Union is founded ‘on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’ The preamble to the European Convention on Human Rights (ECHR) proclaims, inter alia, the respect of human rights and fundamental freedoms, the existence of a democratic political regime and the primacy of law. The specific characteristics of these provisions have a direct effect on the functioning of the conditionality as far as they require the interposition of a monitoring machinery. The machinery must check the compliance of states with those provisions if those states are looking to accede to, and continue their membership of, the relevant institutions. The competent monitoring bodies must elaborate specific yardsticks to evaluate the concrete measures adopted by those states. This elaboration frequently requires the construction and implementation of binding principles and values through apposite guidelines and standards. These standards and guidelines may become generally mandatory, when they are adopted repeatedly to settle specific conflicts concerning different states. Here we have the ‘epiphany' of international constitutional law that ‘transcends national frontiers' - it is transnational law.11 The relevant lawmaking is strictly connected with the application of the basic constitutional principles. Therefore, the content of the principles is no longer restricted to a generic reference to the European constitutional heritage or to the cultural circulation of the constitutional models.[119] The practice implies additional elements that may be inspired by the case law of European judges and by the European constitutions.[120] The difficult task of the political and legal actors is to fill the ‘open texture' of international documents.The relations between international law and transnational law are approached on the basis of different constructions. While, for instance, Avbelj qualifies ‘international law... [as] an example of public transnational law',[121] Tuori distinguishes between the two fields and concludes that all examples of transnational law have international law as their ‘background’[122] This position is focused on the making of transnational law by supranational judges and monitoring bodies, whose activities affect matters usually reserved to the competence of the internal authorities of the concerned states. According to the traditional opinion, public international law does not interfere in the domestic legal order. However, twentieth-century
46 The Epiphany of the International Constitutional Law developments have shown that international law allows transnational lawmaking to touch on national constitutional organisation and the states' treatment of human rights. Therefore, studying the transnational results of the activity of some supranational bodies in the frame of international law is correct. This is a phenomenon of international law. The distinction between international law and transnational law is not just a terminological one, it reflects their different operational levels. This clarification suggests that we should be very careful when distinguishing between national law, international law and supranational law.[123] According to this differentiation, the existence of an autonomous legal order that is separate from national and international law generates the distinct phenomenon of supranational law.
This chapter deals mainly with these kinds of phenomena. Nevertheless, the terminological differentiation may unfortunately cause misunderstanding insofar as it makes it easy to disregard the dependence of transnational law on international law.[124]This raises questions about the monitoring machinery of transnational law: Who has the authority to fill the open vagueness of the expressions used by the signatories of the treaties? Who is allowed to refer to the traditional theories and doctrines of legal thought and their contemporary construction? The common idea that states are always behind the expansion of international law is controversial today. There is a tendency to look further into the spontaneous horizontal expansion of international law and the increasing public relevance of the international community. The above-described developments can be observed even when the existence of supranational institutions which are supported by the states is at stake.[125] From this perspective, many scholars underline the important role played by international judges. We certainly cannot forget the contributions to international law made by the case law of the ECJ and the ECtHR. A crucial new question arose recently: In whose name do judges of international courts decide? The answer is that their legitimacy derives not from the Member States of supranational institutions, but from the existence of international or supranational fora, which give the citizens a ‘cosmopolitan identity’.[126] This answer confirms the usefulness of a horizontal approach.
These conclusions base the claim of authority of international judges on the guarantee of the values of personal rights and freedoms and of democracy. Therefore, this approach is coherent with the purposes of the treaties and conventions that direct the developments of international law towards the implementation of the principles of constitutionalism. However, this approach allows a conception of the legitimacy of international judges, founded on the circulation of the legal culture within the international community.
Minor attention is paid by the observers to the relevance of the political decisions of the states. The formal establishment of an institutionalised and distinct body entrusted with legislative power could be paradoxically absent. Even if the epiphany of the mentioned cultural communitarian process is normally linked to the activity of international judicial bodies, we will not always see a unidirectional development. In fact, circularity of relations between international actors is always possible.[127] As the international operators draw inspiration from international case law, international judges also look at the activity of other international authorities. For instance, the home page of the Venice Commission’s website highlights more than 200 judgments and decisions of international judges who have quoted the Opinions of the Venice Commission. There are many ways for constitutionalism to expand in the international field. If the relevant treaties and conventions offer references that require further hermeneutic elaboration, a common effort is needed to identify the possible contents of the bounds provided for by documents on the matter. Choices and interpretative orientations can derive from different sources. However, they are always the fruit of an interpretative construction. The meaning of the treaties and conventions may be clarified beyond any strict textual interpretation. It is this reasoned and justified approach that offers grounds for finding and working out new principles and rules.[128]Special attention should be paid to conditionality in view of its effects on the expansion of international constitutional law. Conditionality does not necessarily imply the intervention of a judge and the exercise of a judicial function. Frequently, compliance with rules providing for conditionality is connected with the adhesion to an international or supranational institution that requires the observance of specific obligations by its members.
The machinery works through the presence of special bodies entrusted with the task of monitoring the conformity of Member States with the purposes of the institution. The shaping of the internal state’s organisation or the establishment of the main elements of an economic free market are at stake. One of the competent bodies is usually a political body whose deliberations are frequently supported by the reports and opinions of technical (ie nonpolitical) advisory bodies. Statements that have apparently only political relevance produce important legal normative effects, thanks to the reiterated adoption of similar decisions. Through the elaboration of the values and principles stated in the documents establishing the concerned institution, advisory and technical bodies fill the vagueness of the relevant provisions. The content of these provisions is integrated and completed through an exercise of what eventually appears as a true exercise of lawmaking. And this result is eventually transferred into the deliberations of the competent political authorities.III.