The Making of International Constitutional Law: The Role of the Venice Commission
It is evident that the final purpose of legal and political actors is the adoption of internal legislation by the state in conformity with the recommendations of the monitoring technical bodies insofar as these recommendations are supported by their reception by political bodies of supranational institutions.
Both political and technical bodies participate in the exercise of the lawmaking. The statements of the technical bodies only rarely acquire the status of international constitutional law without ratification by the superior political bodies. These statements cannot be compared with the judgments of the supranational judges even if the members of those bodies are experts (lawyers, economists, political scientists, etc) who have to be neutral and do not have a political mandate.The legal relevance of the results of these interpretative elaborations is strengthened by their reiterated and frequent adoption in the monitoring processes concerning even different Member States of a supranational institution (the Council of Europe or the European Union, for instance). The Venice Commission pays special attention to its precedents. In this way, it ensures the coherence and continuity of the results of its work, which can erroneously look arbitrary and discordant to some observers.[129] Therefore, the basis of the binding force of Venice Commission precedents could eventually be identified as a product of customary lawmaking. The reiteration of these processes opens the way to the normative expansion of international constitutionalism. The politicians, the diplomats and the experts who take part in these exercises interpret and elaborate the theories and doctrines that make up the content of the constitutional heritage. The consequent compliance by the concerned states confirms the functioning of the machinery of the conditionality.
Simultaneously, however, the content of the legal rules binding the members of the concerned institutions is enriched.In this way, it is possible to identify the practical consequences of the observance or violation of the adopted yardstick. The actors of these developments are at the same time authors and executors of the international constitutional law whose elaboration is part of their mandate. In this role, they take part in a public forum and make a substantial contribution to a communitarian process that is at the base of the establishment of new relations between European countries. There are exchanges of ideas and opinions that start from the constitutional experiences of the states, the relevant internal legislation and the constitutional case law. These materials are evoked in the light of the traditional theories and doctrines of European constitutionalism and enable the spreading of the relevant legal culture. The mentioned materials acquire international relevance as far as the relations between the states, and between the supranational institutions and the states that are or plan to become their members, are affected. The importance of the results can be compared to that of the international formal documents providing for the protection of human rights and fundamental freedoms, thus contributing to shaping a new dimension of constitutional law.
These developments promote the discussion of a new form of lawmaking; however, the matter requires further thought. The results of the elaboration of the mentioned materials by the technical advisory bodies are rarely directly applied to the concerned facts. They have to be adopted by the political bodies of the interested supranational institutions. In the case of the Venice Commission, the final adoption depends on the will of the Parliamentary Assembly of the Council of Europe and its monitoring committee or of the Committee of Ministers of the Council of Europe. This final step is decisive. In fact, the political bodies may require a more or less strict observance of the conclusions adopted in the technical phase of the monitoring process.
In this final step of the process, political considerations may play a crucial role. Moreover, subsequent effects depend on the rational choices of the states that play a concurrent role as far as the addition of new content to the adopted yardstick by the technicians is concerned. If states comply, the legal binding effect depends on the principle of conditionality. If that conditionality is not observed, the legal normative relevance will depend on the decision of the competent bodies to sanction the behaviour of the states or to recur to a supranational judge, as in the recent cases concerning Hungary and Poland. However, international negotiation implies the concurrence of an internal bargain between governing authorities of the states concerned and opposition, including possible veto, players.[130] Therefore, the reaction of European authorities is not always foreseeable insofar as they may take into consideration internal political conflicts in the implementation of the establishment of democracy in those states.The legal and political aspects of these developments do not preclude the attention their cultural dimension deserves. Even if the comparative constitutional perspective is not a novelty, the new expansion of the public international discussion is connected with the rise of constitutionalism, as described in a seminal contribution.[131] In recent times, successive waves of adoption of new constitutions have emerged, which have certainly enriched the international constitutional debate. These developments were followed by a large circulation of ideas insofar as the constitutional processes affected not only the internal transformations of the states, but also the relations between the states and the supranational institutions.
The European point of view on constitutionalism is especially important. Western Europe, together with the Eastern Coast of the USA, was the cradle of constitutionalism. However, this area of ‘Western constitutionalism' has also been concerned with the modern, contemporary innovative implementation of constitutional principles developed through the different experiences of the old and new democracies.
Following the Second World War, the Council of Europe and the European Union contributed to the evolution of international constitutionalism. The support of these supranational institutions had a decisive impact on the adoption of new constitutional legislation in new democracies. The support of technical bodies was offered, as is widely illustrated in this book.In the context of the frame described in chapter one, the experience of the Venice Commission is a typical example of the illustrated developments. The Venice Commission was designed as a consultative body on issues of constitutional law, the functioning of democratic institutions, fundamental freedoms and rights, electoral legislation and constitutional justice. Its members are in office in a personal capacity, without any representative link with the governing bodies of their states. Therefore, the Commission can provide technical input to the political deliberations of the authorities that seek its opinion on relevant cases. The coincidence of its creation with the fall of the Berlin Wall and the dissolution of the Soviet Union and the Federative Republic of Yugoslavia facilitated the involvement of the Commission in the growth of new democracies in Central and Eastern Europe. The Venice Commission has helped these states with the preparation of the constitutional and legislative reforms needed to move them towards alignment with, and ultimately accession to, the Council of Europe and the European Union.
The Commission exercises its main function of constitutional assistance at the request, for instance, of concerned states or of the Secretary General and the Parliamentary Assembly of the Council of Europe.[132] Its Opinions deal with drafts and amendments of constitutions and ordinary legislation on the matter. The purpose is the monitoring of the conformity of these documents with the engagements accepted by the states at the moment of their accession to, or during their continued membership of, the Council.
As previously discussed, this exercise of monitoring implies the reference to the principles and values that have to be observed by members of the supranational institution. The elaboration of those principles and values is at the centre of the activity of the Commission. The Commission is required to determine the actual meaning of vague and ambiguous provisions of the treaties and agreements. The final function of the Commission is the creation of a yardstick of evaluation that is commonly accepted and shared. When the Commission began its work, this general yardstick was summarily identified in the European constitutional heritage. The concrete application of this yardstick to specific cases, however, required the identification of specific guidelines and standards. The Commission has slowly developed principles and rules that integrate the generic content of the initial yardstick and concretise the content of the bonds whose observance is mandatory for the Member States.Obviously, the Commission did not invent ex nihilo the rules that have enriched the provisions of the treaties and agreements. It has drawn inspiration from the constitutional experience of the Western European States. Comparing different national experiences requires a complex intellectual and interpretative activity and the identification of their consequences. As discussed above, according to the main legal doctrine, the historical developments of the Central and Eastern European countries are not always taken into consideration in this investigation. Some of those states have significant traditions in the field of constitutionalism. However, they have been substantially marginalised in the progress of the European constitutional traditions. Therefore, these countries did not have the continuity of adhesion to the principles of constitutionalism that was required in the formation of the European constitutional heritage.[133] Simultaneously, the mentioned Western materials needed to be updated in the light of the emergence of new questions and problems connected to the advent of the contemporary post-industrial society.
For instance, new problems and questions were not always covered by the ECHR. At times, the most important international documents only provided a starting point of general principles, underpinning suggestions and guidelines. According to Dworkin, principles are not ‘applicable in [an] all-or-nothing fashion', as they ‘do not set out' the consequences of their application.[134] Therefore, the interpreters are engaged in an effort of concretisation of the law that is needed to arrive at the solution for the cases at stake.[135] The Commission is tasked with providing constitutional answers that become part of the experience of European constitutionalism through the machinery of conditionality. The proposed solutions are helpful to other international bodies as well. For instance, quotations of Opinions and Reports of the Venice Commission are found in the case law of European judges and the documents of the bodies of the European Union. This highlights the contribution made by the Commission to the formation of international constitutional law, the basic content of which is integrated and enriched by the Opinions of the Commission. These results not only have cultural relevance; they also have binding effects. Insofar as they are not limited to the cultural dimension, they can eventually be qualified as true expressions of lawmaking activity.The dialogue between the Commission and states' constitutional courts is an exemplary model of these developments. Since the beginning of its activity, the Commission has devoted particular attention to constitutional justice. In fact, the establishment of constitutional courts was constantly supported by the advice and recommendations of the Commission. Its interventions have affected not only the preparation and adoption of national legislation, but also judgment in some cases. Constitutional judges have frequently asked the cooperation of the Commission, which answers in the form of amicus curiae briefs. The Commission does not pretend to substitute its Opinions for the interpretation of national constitutional law whose guarantee is the mandate of the courts. The construction of a state's internal constitution is a task for the state's judges. The Commission only offers its advice by suggesting the correct interpretation of the principles of the international constitutional law that have to be complied with by national authorities and make up the frame of the deliberations of these authorities.
IV.