Constitutional Democracy Encounters International Law: Terms of Engagement

Abstract

There is a tension inherent to the idea of constitutional self-government, as it is understood by many constitutional lawyers, and the claims to authority made by international law. As International law has expanded its scope, loosened its link to state consent and strengthened compulsory adjudication and enforcement mechanisms, this tension has become increasingly difficult to ignore by constitutional lawyers. Not surprisingly one of the most pressing and most written about questions of contemporary constitutional law is how to think about and doctrinally manage the relationship between the national constitution and international law.

These debates have long moved away from the unhelpful dichotomy between monism and dualism and generally favor more pragmatic contextual analysis. What has generally been missing, however, is the reflection on the commitments of principle that underlie the tradition of democratic constitutionalism and connecting these to the constitutional doctrines that define the terms of engagement between national and international law. The first part of the article provides such a framework. The second part provides some examples that show how this framework can help explain, assess and guide the practice of national courts when they confront the question how they should engage international law. These examples focus on recent cases in the European Union addressing the relevance of human rights Treaties to domestic rights litigation as well as the domestic enforcement of Security Council decisions.