Supranational Constitutional Courts
Federico Fabbrini, Miguel Poiares Maduro
- Supraconstitutional authority — Supranational constitutional courts — Comparative constitutional law — Decisions of international courts
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. A defining feature of the contemporary world is the existence of a plurality of courts and tribunals tasked to adjudicate disputes beyond and above the jurisdiction of nation states (see Slaughter). Whereas the creation of new international adjudicatory bodies constituted a cornerstone of the liberal world order created after the end of the Second World War, it is particularly since the end of the Cold War and the beginning of globalization that supra-state courts and tribunals have mushroomed in all areas of international and regional public life (see Tomuschat). According to Sabino Cassese (at 27), a summary calculation reveals that 112 transnational courts exist in the world at time of writing (transnational constitutional law). These institutions operate at different levels: some are regional and some are global; they adjudicate in multiple fields, which span from human rights to trade, from criminal law to the law of the seas; and they vary in terms of institutional consolidation, from permanent courts established in the context of projects of economic and/or political integration, to temporary arbitration panels set up simply to settle ad hoc disputes between investors and states.
2. The emergence of a thick layer of courts and tribunals operating on a transnational scale has increasingly attracted the attention of scholars and analysts. In fact, new institutions—including iCourts (the Center of Excellence for International Courts) at the University of Copenhagen, or the Centre for Judicial Cooperation at the European University Institute—have been established to specifically study the field of international courts; new projects—such as the ‘Public Authority of International Courts’ at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg—have been developed to understand how supranational courts reason and rule (see von Bogdandy and Venzke); and a swath of literature has dissected the context and content of international adjudication—including through the creation in 2001 of brand new journals like ‘The Law and Practice of International Courts and Tribunals’ (Brill). Thanks to this scholarship, there is now a sociologically informed knowledge of who international judges are (see Madsen), an institutionally sound appreciation of how international courts function (see Helfer and Voeten), and a sophisticated understanding of the role that international courts play in an ever more interconnected global world (see Shany).
3. Nevertheless, the literature on transnational adjudication has so far mostly examined all international courts and tribunals as a single genus (see Romano, Alter and Shany). Yet, it is by all means clear that not all supra-state adjudicatory bodies are analogous in terms of power and constitutional position within their respective regimes. In fact, international courts and tribunals vary profoundly in terms of institutionalization, autonomization, and legitimation (see Klabbers, Peters and Ulfstein). The purpose of this article, therefore, is to identify within the broader genus of supra-state courts a species of supranational constitutional courts. Section B defines the criteria and features which, in the authors’ view, distinguish supranational constitutional courts from ordinary international courts. Section C analyses what the authors regard as the leading example of a supranational constitutional court: the Court of Justice of the European Union (ECJ) (European Union, Court of Justice and General Court). Section D then surveys whether other regional and global courts can be classified as supranational constitutional courts. Section E, finally, concludes with some thoughts on the future potential development of this species of transnational courts.
B. Defining Supranational Constitutional Courts
4. In the authors’ view, it is possible to identify within the broader family of international courts a sub-group of tribunals which will here be called ‘supranational constitutional courts’. But what conditions effectively justify the labelling of such institutions as ‘constitutional courts’? What makes a supranational court a constitutional court? As is often the case in social science, the authors’ classificatory effort is driven both by inductive and deductive considerations. This analytical exercise departed from the empirical examination of the law and practice of several existing transnational adjudicatory bodies; but that experience was then abstracted into a set of general criteria regarded as necessary to conceptually distinguish a supranational constitutional court from other transnational judicial bodies. In the authors’ view, six conditions are compelling in order for a supranational court—established on the basis of a treaty between states—to be regarded as a supranational constitutional court.
5. First, the supranational court must have jurisdiction beyond mere inter-states disputes. The supranational court must be able to rule either on proceedings directly brought by individuals and private entities who claim a violation of their rights or upon request by another judicial body (usually a state court), along the model of indirect referral provided in a number of domestic constitutional jurisdictions. Courts which only umpire conflicts between states or between states and international organizations (despite the fact that these conflicts might have been triggered by the requests of natural or legal persons) cannot aspire to the status of constitutional courts.
6. Second, the supranational court must be endowed with ‘judicial powers’ analogous or equivalent to those of domestic constitutional courts. These include, among others: the power to pronounce binding decisions which command the resolution of a case rather than merely recommend or advise parties on how to settle a dispute; the power to review the lawfulness of the legal measures pending before it for their conformity with the higher standard set by a treaty or another supra-national legal act; and the power—whenever the court finds an incompatibility between a legal measure under review and a treaty—to set aside the act (either with erga omnes or simply with inter partes effects) or to determine another court to do so, or to adopt other effective measures of compensation or just satisfaction.
7. Third, the supranational court must interpret the founding treaty on the basis of which it exercises its jurisdiction as granting rights directly upon the individuals and as empowering them to effectively invoke these rights (if the case may be, even against acts of their own states). This process—which is usually defined as the ‘subjectivation’ of an international treaty—entails a shift from a state-centred to an individual-centred interpretation of a treaty. The supranational court must construe the treaty upon which it adjudicates not simply as an agreement between states, but rather as a charter created for the ‘peoples of the states’ which are parties to the agreement.
8. Fourth, the supranational court must develop a hermeneutic which is autonomous from international law. Whereas an international court essentially conceives of its treaty as a normal international pact, governed by the general rules of interpretation of international law, a supranational constitutional court reconceptualises its founding document as an act of a new legal kind, endowed with interpretive rules of its own. This epistemological understanding of the system created by the treaty as an autonomous legal order, to be looked at through the concepts and the hermeneutics of constitutional law, is a conditio sine qua non for the transformation of a supra-state court into a supranational constitutional court.
9. Fifth, and directly following from the above, the supranational court must elaborate judicial doctrines which reflect principles customarily regarded as core features of constitutional law. This includes, inter alia, ideas of horizontal and vertical separation of powers, and the protection of fundamental rights. Whereas international law regulates the relationship between states, constitutional law regulates the relationship between the citizens and defines how their sovereignty is to be expressed in the political community. A supranational court becomes a constitutional court, therefore, when it embraces constitutionalism as its guiding theory of adjudication.
10. Sixth, a supranational court must enjoy a meaningful degree of effectiveness vis-à-vis the other institutional actors operating within the legal system, as well as be legitimated by that epistemic community. In this respect, one can add that part of the character of a supra-state court as a supranational constitutional court depends upon the recognition of this status by the epistemic community in which it operates. This does not require a formal recognition as a constitutional court, but the recognition of the features highlighted above that make of it a constitutional court. The success of a constitutional court in commanding respect for its interpretations and decisions upon legal actors and society at large has been the object of both empirical analysis and theoretical studies, and it is not the purpose of this chapter to dwell on this issue at length. It appears to be out of discussion, however, that a supranational court whose determinations would be systematically (rather than merely incidentally) disregarded could not raise a plausible claim to be described as a constitutional court.
11. In the authors’ view, these six conditions are present in the ECJ—the highest court of the legal order of the European Union (EU). In fact, the ECJ may be regarded as the paradigmatic model of a supranational constitutional court (see ceteris paribus Duverger, defining a new model of form of government, semi-presidentialism, by starting from analysis, and the conceptualization, of the institutional experience of France). According to the Article 19 of the Treaty on European Union (signed 7 February 1992, entered into force 1 November 1993)  OJ C191/1 (‘TEU’), ‘the Court of Justice shall ensure that in the interpretation and application of the Treaties the law is observed’. And in interpreting and applying the law of the EU, the ECJ has developed a constitutional architecture for the EU—distinguishing, since the very beginning, the law of the EU from international law. The creation of this constitutional system included the principles of supremacy and direct effect of EU rules on national legal orders, the protection of fundamental rights, the expansion of EU competences, the definition of a balance between the EU institutions, and the understanding of the EU as a ‘community of law’.
12. Nevertheless, the EU example, and the successful evolution of the ECJ into a supranational constitutional court is not unique. The model of supranational constitutional court can be used as a standard to assess other experiences of regional integration and international adjudication. In particular, the European Court of Human Rights (ECtHR), established by the Council of Europe’s European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR) can also be regarded as increasingly featuring the role of a constitutional court. Outside the European multilevel constitutional context, in contrast, the present status of development of other international courts does not yet allow their classification as supranational constitutional courts. It remains to be seen whether future transformations in the global legal order will prompt other international adjudicatory bodies to acquire the defining features of a supranational constitutional court.
C. The European Court of Justice as a Model of Supranational Constitutional Court
13. It is well known how the ECJ, beginning almost half a century ago, developed a constitutional construction of the founding treaties of the EU (see Maduro and Azoulai xii). In the famous words of Eric Stein, ‘[t]ucked away in the fairyland Duchy of Luxemb[o]urg and blessed with benign neglect by the powers that be and the mass media[,] the [European] Court of Justice created a new legal order with a federal architecture’ (Stein). In this section, the analysis will focus on the dynamics that allowed the ECJ to accomplish the constitutionalization of EU law and, simultaneously, to transform itself from a traditional international court into a supranational constitutional court. Joseph HH Weiler has remarkably explained these transformations (Weiler (1991) 2403): here we will try to re-assess them by following the six-step analytical structure advanced in the previous paragraph.
1. Constitutional Jurisdiction
14. The first element that favoured the transformation of the ECJ into a constitutional court is the purview of its jurisdiction, which is not limited to controversies between states—as is proper of international courts—but also extends to disputes involving individual parties and to questions of law referred by national courts—as is typical of constitutional courts (see Cappelletti; and Dorsen, Rosenfeld, Sajo and Baer). One traditionally draws a distinction in the ECJ jurisdiction between direct actions and preliminary references. Direct actions are those brought before the ECJ by a Member State, an EU institution, or a private individual or undertaking. Preliminary references, in contrast, are sent to the ECJ by national judicial bodies which, in proceedings before them, encounter a problem of interpretation or application of EU law.
15. Among the direct actions, the infringement procedure regulated by Articles 258, 259, and 260 of the Treaty on the Functioning of the European Union (signed 13 December 2007, entered into force 1 December 2009)  OJ C115/47 (‘TFEU’) (Lisbon Treaty) can only be activated by the EU Commission or by a Member State against another Member State that is failing to comply with its EU law obligations. Nonetheless, private individuals and entities—just like the EU institutions and the Member States—can commence proceedings before the EU judiciary either to challenge the legality of acts adopted by an EU institution (under Art. 263 TFEU) or to complain for the failure of an EU institution to act (under Art. 265 TFEU). Article 340 of the TFEU then allows private parties to sue for compensation for damages arising from contractual or non-contractual liability of the EU.
16. In particular, through the action for annulment, individual parties can directly contest the legality of an act adopted by an institution of the EU, within two months from its enactment, if the contested measure is of direct and individual concern to them. Given these standing (locus standi) requirements, it has been argued that the action for annulment resembles more a means of administrative review than a constitutional complaint along the lines of the Verfassungsbeschwerde or the recurso de amparo (amparo). Nevertheless, even at the state level, only few legal systems Europe-wide permit individuals to raise a general and abstract constitutional challenge against statutes (see de Visser). Furthermore, the Lisbon Treaty’s revision of Article 263(4) of the TFEU has introduced the possibility for private parties to institute proceedings ‘against a regulatory act which is of direct concern to them and does not entail implementing measures’, thus widening the conditions for an individual’s direct recourse to the EU judiciary.
17. Beside the competence over direct actions, the ECJ rules on preliminary references raised by national courts. This is one of the key instruments in securing the application of EU law in national legal orders. Under Article 267 of the TFEU, a national court may refer a question to the ECJ on the interpretation of an EU rule whenever it considers it necessary to give a judgment in a case pending before it. Courts against whose decisions there are no appeals, in contrast, are obliged to stay the case (save in limited circumstances: Case 283/81 CILFIT v Ministry of Health  ECR 3415) and refer the question to the ECJ. When national proceedings require, instead, the national court to determine the validity of a EU act, those national courts (including those whose decisions are subject to appeal) are obliged to refer the question to the ECJ. Only the ECJ can decide on the validity of an EU act (Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost  ECR 4199).
18. The preliminary reference procedure—which closely resembles the incidenter proceeding through which constitutional courts in countries such as Austria, Italy, Germany, and now France (Fabbrini (2008)) are called to review the constitutionality of legislation—was fundamental both in promoting the development of the European legal order and in securing its legitimacy (see Weiler (1993); and Shapiro 321). The role played by national courts in requesting rulings from the ECJ and in applying these rulings, indeed, has provided ECJ decisions with the same authority as national judicial decisions. This created a dynamic that Mary Volcansek has characterized as ‘a pattern of positive reinforcement for national courts seeking preliminary rulings’ (Volcansek 265). This dynamic promoted cooperation and discourse with national courts, and helped in establishing the autonomy and authority of EU law.
2. Judicial Powers
19. A second feature explaining the constitutional role of the ECJ is the nature of its judicial powers, which are largely akin to those of domestic constitutional courts (see eg Marbury v Madison Case (US) (1803) (US), establishing the power of judicial review). The ECJ offers protection against acts or wrongful omissions of the EU institutions; it can review the legality of decisions of the EU institutions and may annul them or declare them invalid if they are not in conformity with higher rules of EU law; and in addition, it has an important role in enforcing EU law in the Member States by guiding the domestic courts in their assessment of the compatibility between national law and EU law. All the decisions of the ECJ—even the opinions that the ECJ delivers under Article 218(11) of the TFEU, when asked to decide about the a priori compatibility of an international treaty with EU law—are binding and must be respected by the other EU institutions as well as by the legislative, executive, and judicial organs of the Member States.
20. An object of heated debate among constitutional scholars has been whether the decisions of the ECJ, especially those delivered in the context of a preliminary reference procedure, have erga omnes effects as opposed to mere inter partes effects. Nevertheless, the issue is largely overstated and reflects the influence of a Kelsenian frame of mind, according to which constitutional courts are negative legislators entrusted with the power to void legislation with the same erga omnes effects which are connected with the enactment of a statute. From a broader comparative perspective, however, it appears that the decisions of other constitutional jurisdictions—for example, the United States (US) Supreme Court—do not technically have erga omnes effects, but reach essentially the same result because of the doctrine of the binding precedent.
21. A much more relevant question appears to be, rather, to what extent the ECJ can review the legislation of the Member States for its compatibility with EU law. As the law now stands, the ECJ does not enjoy an appellate review over state measures. In the context of the preliminary reference procedure, then, the role of the ECJ is restricted to the interpretation of the relevant EU provisions. However, this interpretation will often turn into an assessment (even if made in abstract) of the compatibility of national measures and rules with the relevant EU provisions, and the preliminary referral mechanism has fostered the establishment of a decentralized judicial architecture in which national courts are de facto responsible for the effective incorporation of EU law into the national legal orders in cooperation with the ECJ and are, therefore, bound by the assessment by the ECJ. Hence, judicial review of the conformity with EU law of states’ legislative and executive measures is exercised, at the local level, by national courts—which operate as ‘courts of first instance’ of the EU legal order under the guidance of the ECJ.
22. When the ECJ delivers a decision in the context of an Article 267 of the TFEU proceedings, it generally sets a series of more or less concrete or broad standards which funnel the activity of the national court and largely pre-determine the procedural or substantive outcome of the case. At the same time, under the preliminary reference procedure, the function of the ECJ is not solely that of helping national courts to decide individual cases. The ECJ also states the law, thus providing a thicker normative understanding of the law beyond the decision in the case at hand. In the EU decentralized system of review, this is capable of guiding national courts in interpreting and applying EU law in the large majority of EU law cases which never reach the ECJ.
23. From this point of view, therefore, the ECJ is entrusted with a set of pervasive instruments of judicial review: on the one hand, the ECJ can scrutinize the action of the EU institutions; on the other, through its jurisdiction to interpret and apply EU law in cooperation with the states’ judiciary, the ECJ can also effectively umpire the resolution of conflicts of authority between national and European norms. Moreover, as pointed out by Alec Stone Sweet (2003), the ECJ is less exposed than other courts to the classical ‘counter-majoritarian’ criticism, since its powers of judicial review are explicitly provided for in the text of the EU treaties (majoritarianism).
3. Constitutional Autonomy, or the Subjectivation of International Treaty
24. Beyond the two abovementioned structural elements, two other interconnected factors have been essential in the judicial transformation of Europe and in the constitutionalization of the ECJ: these are the ‘subjectivization’ of the EU founding treaties, and the development of an ‘autonomous hermeneutic’ in the interpretation of EU law. In its path-breaking decisions in Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend and Loos v Netherlands Inland Revenue Administration  and Case 6/64 Costa v ENEL  the ECJ established the principles of direct effect and supremacy of EU law, claiming that EU law granted rights which were directly effective upon the individuals of the Member States (rather than merely binding the Member States in their capacity as subjects of international law) and which would prevail against any domestic conflicting act (regardless of the rules for the conflict of laws provided by the Member States’ constitutions).
25. This constitutional construction was legitimised by the ECJ on the basis of what one could call an epistemological shift in the understanding of EU law, and the source of its normative authority. The ECJ assumed EU law to be an autonomous legal order, directly related to the peoples of Europe. As Bruno de Witte (at 181 and 209) has explained, the principles of supremacy and direct effect, usually identified as the cornerstones of the constitutionalisation of EU law, could be developed and generally applied without changing, in a substantial manner, the character of the EU treaties as norms of public international law. However, this vision was not the one embraced by the ECJ. On the contrary, the ECJ, supported by national courts, founded the direct effect and supremacy of EU law on a direct relation between EU norms and the people of Europe.
26. In the ECJ’s view, the EU founding treaties were presented as much more than a simple agreement between states: they were an agreement between the people of Europe. The tragic memory of the Second World War and the awareness that the EU was a peace-pact, making Europeans no longer foes to each other, loomed large in this judicial vision. At the same time, the establishment of a political link between the people and the treaties, providing a source of direct legitimacy for the EU (at the time, the European Communities), authorized a claim of independent normative authority. This meant that the EU was, in the words of the ECJ (Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend and Loos v Netherlands Inland Revenue Administration  at sII.B), endowed with sovereign rights. And this normative authority entitled the European legal order to set its borders with regard to national legal orders. It further granted to the EU rules the authority to derogate from the application of national rules, corresponding, de facto, to an attribution of constitutional authority vis-à-vis those national rules.
4. Constitutional Hermeneutics
27. This vision profoundly influenced the methods of interpretation and the legal reasoning of the ECJ, which discarded the traditional rules of interpretation of international law in favour of an hermeneutic reflecting the canons of interpretation of constitutional law (see Barber and Fleming). In the same Van Gend decision, the ECJ indicated its commitment to interpret the EU treaties in light of ‘the spirit, the general scheme[,] and the wording’ of its provisions (Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend and Loos v Netherlands Inland Revenue Administration  at sII.B). In particular, teleological interpretation of EU law—ie a construction of EU provisions in light of the purpose of the founding treaties—acquired major importance in the activity of the ECJ. In the jurisprudence of the ECJ, teleological interpretation refers to a particular systemic understanding of the EU legal order that permeates the interpretation of all its rules in light of its ‘constitutional telos’.
28. The interpretation methods of the ECJ, and particularly its reliance on teleological interpretation, have been the object of criticism (see Rasmussen). Some perceive teleological interpretation as a source of judicial activism. However, the fact that courts benefit from a different legitimacy from the legitimacy of the political process does not mean that they benefit from a lower legitimacy. Moreover, as already mentioned, in the EU context the judicial legitimacy of the ECJ flows directly from the EU treaties that attribute to the ECJ powers of judicial review over the acts of the political branches—and is not the result of an act of aggrandizement by the ECJ itself. Whether courts should defer or not to the political process has therefore to be a function of a more sophisticated theory: the theory of constitutional adjudication that is embodied in the constitution.
29. In addition, the teleological method of interpretation is the most appropriate in the EU legal order (see Maduro (2009) 356). On the one hand, reasoning through telos is an increased necessity in the context of a pluralistic legal order like the EU; one in which, as a consequence of its plurality of languages and different legal traditions, it is not uncommon for the same legal rule to be susceptible to rather different textual interpretations depending on the linguistic version one appeals to. In this context, teleological interpretation is the hermeneutic rule that can best guarantee a uniform application of EU law at the national level by guiding state courts as the ‘first instance’ courts of EU law. It not only provides a specific legal outcome for the case at hand, but offers a broader normative ‘lesson’ with which to address future cases.
30. On the other hand, teleological interpretation fits well with the ‘open character’ of the EU political and legal instruments, which pursue the project of increased European integration through the formulation of universal principles. In the EU, the appeal to universal principles allows agreement on delicate and controversial political questions, and provides an instrument for the continuous adaptation of the EU legal order to its fast-moving context of application. As with constitutions, the EU treaties are based on principles so as to be open to the future (see Ackerman (2007)). Any interpretation that would freeze them in time would go against la raison d’être of the constitutional project and would risk imprisoning current generations in the decisions of those of the past. Ironically, it would also go against the original intent of the founding fathers of the EU, which clearly conceived the project of European integration as an expanding process. As Jean Monnet (one of the founders of the EU and the architect of its functionalist method) famously remarked: in the EU ‘nous ne coalisons pas des États, nous unissons des hommes’ (Monnet). In this light, teleological interpretation is just a faithful means to achieve the end of an ever closer Europe (see also Glencross and Trechsel).
5. Constitutional Doctrines
31. The epistemological shift in the understanding of the EU treaties and the identification of a direct relationship between the people of Europe and EU law were fundamental in the constitutionalization of the EU treaties and the transformation of the ECJ into a constitutional court. Once this direct political relationship was established, in fact, it followed that the basic legal framework of the EU would be grounded on constitutional law rather than on international law. The ECJ reflected this assumption in its celebrated Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament  by stating that the EU founding treaties are ‘the basic constitutional charter of a community based on the rule of law’.
32. It is worth noticing that, as Bruce Ackerman ((1997) at 776) has argued, the evolution which took place in the EU context is not sui generis: ‘the (uncertain) transformation of a treaty into a constitution is at the [centre] of the European Union today [as] it was also at the [centre] of the American experience between the Revolution and the Civil War’. Much like the US Supreme Court did in the US constitutional context, the ECJ contributed to the promotion of legal integration in Europe by developing a series of judge-made ‘constitutional doctrines’ (see Cappelletti, Seccombe and Weiler). This is the fifth essential element in the transformation of the ECJ into a fully-fledged constitutional court for the EU. In a series of celebrated pronouncements, the ECJ complemented the principles of direct effect and supremacy of EU law with the adoption of constitutional law concepts such as fundamental rights, implied competences, state liability, enforcement mechanisms, institutional balance, proportionality, and, broadly, the notion of a community of law—the EU equivalent of Staatsrecht or the rule of law (see Lenaerts; Mancini). In particular, it is worthwhile recalling here the EU principles of vertical and horizontal separation of powers and the protection of fundamental rights, which represent the cornerstones of any contemporary federal constitutional architecture.
33. On the question of the vertical division of competences between the EU and the Member States, the ECJ developed a substantial case law arbitrating the conflicting claims of supranational uniformity and local diversity. Especially in its reading of the EU economic constitution, the ECJ favoured the establishment first and the maintenance later of an integrated market in which free movement of goods, services, people, and capital was guaranteed (see Maduro (1998)). Regulations of the Member States were subject to judicial scrutiny when they were hindering—directly or indirectly, actually or potentially—intra-community trade (see Case 8/74 Procureur du Roi v Benoît and Gustave Dassonville  ECR 837; and Joined Cases C-267/91 and 268/91 Criminal Proceedings against Bernard Keck and Daniel Mithouard  ECR 6097). At the same time, the ECJ also, albeit seldom, subjected to review the exercise of regulatory powers by the EU institutions, to ensure that the limited allocation of competences to the EU would not be easily abused (see Case C-376/98 Germany v European Parliament and Council  ECR I-8419).
34. On the issue of the horizontal separation of powers among EU institutions, then, the ECJ derived from the system established by the EU treaties a principle of institutional balance, preventing each branch from encroaching upon the powers conferred on the others (Jacqué). Whereas the founding treaties did not set up a strictly equal distribution of powers between the various institutions but clearly assigned to each of them specific tasks, the ECJ took care to ensure that no institution could extend its powers unilaterally to the detriment of another organ. At the same time, the ECJ interpreted the principle of institutional balance in a dynamic way—for instance by empowering the European Parliament, beyond the language of the treaties, to raise an action for annulment against a decision of the European Council—in order to also safeguard its content in light of the institutional changes taking place in the EU (see Case C–70/88 European Parliament v Council of the European Communities  ECR I-4529).
35. In the field of fundamental rights, finally, the ECJ very soon began to fill the gap which the EU treaties had originally left open (see Fabbrini (2014)). Whereas the founding documents contained only a few scattered human rights provisions (such as equal pay for equal work between men and women, and the prohibition of discrimination on the basis of nationality) but no coherent bill of rights, the ECJ already in the late 1960s—at a time when the protection of fundamental rights was still much underdeveloped within the Member States (see Bryde 119, 121)—acknowledged that human rights were general principles of EU law, the protection of which the ECJ would ensure (see Case 29/69 Stauder v City of Ulm, Sozialamt  ECR 419; and Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel  ECR 1125). In its jurisprudence, the ECJ took inspiration from the constitutional traditions common to the Member States, as well as from the international treaties to which the EU states were signatory—notably, the ECHR (see Case 4/73 Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities  ECR 491; and Case 36/75 Rutili v Minister for the Interior  ECR 1219)—and largely anticipated the effects of the introduction of a binding EU Charter of Fundamental Rights (see Charter of Fundamental Rights of the European Union (2000)).
6. Constitutional Effectiveness
36. This synthetic assessment of the major doctrinal pillars developed by the ECJ in its foundation of a constitutional order for the EU led to the examination of the sixth and final element that renders the ECJ a supranational constitutional court. This element is what may be described as the ‘success and effectiveness’ of the ECJ; that is, the capacity of the ECJ to persuade the European legal community and society at large of the validity of its theses, and to command widespread respect for its positions among other institutions, both at the EU level and within the legal systems of the Member States. ‘Success and effectiveness’ are certainly a consequence of the constitutionalization of the ECJ but they are, at the same time, a precondition for its fuller evolution into a supranational constitutional court, since—arguably—only a judicial body whose decisions enjoy legitimacy and meaningful compliance can be considered a constitutional court.
37. The section will start by sketching out some of the main evidence of the success of the ECJ, and then try to explain the reasons for this success. To begin with, the ECJ has benefited from extensive respect at the supranational level from the other EU institutions. Indeed, there does not seem to be any circumstance in which a decision of the ECJ has been defied or disregarded by the EU political branches—be it the Commission, Parliament, Council, or other EU agencies. This is significant because it contrasts with the experience of other states’ constitutional courts, whose decisions have on occasions been disobeyed by the other branches of government. What is more, there have hardly been any cases in which an interpretation or a ruling of the ECJ has been explicitly overruled through the process of treaty revision, which allows the Member States in their capacity as master of the treaties to amend the constitutional arrangement of the EU.
38. It is sometimes stated that an example of that is the choice of the Member States to amend the EU founding treaties in order to permit the accession of the EU to the ECHR. As is well known, in 1996 the ECJ ruled that the EU treaties as they then stood did not allow the EU to accede the ECHR (see Opinion 2/96 In re Accession of the EU to the ECHR  ECR I-1759). However, that ruling was delivered under (now) Article 218(11) of the TFEU, which empowers the ECJ to review a priori the compatibility of an international treaty with the EU treaties. EU Member States responded to this ruling by explicitly introducing via the Lisbon Treaty an amendment to Article 6 of the TEU. Yet, the EU Member States also put forward in Protocol No 8 specific conditions which should accompany accession to the ECHR, and, in a more recent ruling, the ECJ has declared once again that the draft accession agreement negotiated by the EU Commission did not comply with the constitutional requirements of the EU treaties (see Opinion 2/13 In re Accession of the EU to the ECHR ). While this ruling has been controversial, it is precisely the duty of the ECJ to state whether the conclusion of a treaty by the EU would require a further revision of the founding treaties.
39. Otherwise, the relationship between the ECJ and the states institutions has been extremely successful. Whereas the executive and the legislative branches of the Member States have generally given faithful execution to the decisions of the ECJ, the national judiciaries have also strongly supported the action of the ECJ. Arguably, a partial exception to this trend is represented by some national constitutional courts—as has been explained, several states’ constitutional courts have challenged the theoretical assumption of the autonomy of the EU legal order and contested the constitutional doctrines of the ECJ, on the basis of an alternative account grounded on domestic constitutional law (see Kumm; Baquero Cruz). Nevertheless, it has to be emphasized that the opposition against the ECJ has actually come from only a handful of constitutional courts—notably the Federal Constitutional Court of Germany (Bundesverfassungsgericht) (see Claes). Moreover, it has to be underlined that—in contrast, for example, with the US constitutional experience with states’ nullification and interposition of Supreme Court decisions—no direct challenge to the legitimacy of the ECJ or to the validity of its jurisprudence has ever been made, even by the most assertive national constitutional court (see Fabbrini (2015)).
40. A number of reasons may explain this pattern of consistent respect and support (or, at least, acquiescence) for the activity of the ECJ at any level of governance. One explanation is the bedrock independence which has always surrounded the work of the ECJ and which over time has strengthened its ‘corporate identity’. As Trevor Hartley (at 56) remarks:
[N]o one who has any acquaintance with the Court can doubt the complete independence of its members from their national governments … There is in fact a remarkable sense of corporate identity and solidarity among the judges and advocates general and, though they may be influenced by the different traditions of their respective legal systems, they have never been accused of taking national advantage into account; on the contrary, the [ECJ] is generally regarded as one of the most ‘European-minded’ institutions in the [EU].
41. Another explanation has to do with the well-known dynamic of empowerment by EU law of national courts and litigants. The ECJ is one actor in a community of actors. The success of the EU legal order was the product of cooperation between the ECJ and the different national legal actors (see Weiler (1994)). On the one hand, EU law granted rights to which litigants could appeal to—as Anne-Marie Burley and Walter Mattli have put it: ‘the [ECJ] created a pro-community constituency of private individuals by giving them a direct stake in promulgation and implementation of [EU] law’. On the other hand, EU law strengthened the position of national judiciaries vis-à-vis the other branches of government at the state level (see Stone Sweet (2000)). National courts, in turn, helped to shape EU law by feeding the preliminary reference mechanism and providing the ECJ’s decisions with the same legitimacy and authority as national judicial decisions (Alter).
42. The auctoritas of the ECJ and the legal and social dynamics of support for its activities—coupled with the widespread respect that decisions of courts receive in democratic countries based on the rule of law—has ensured the wide success of the ECJ. This is not to deny that specific decisions of the ECJ were subjected to criticism or dissenting views: judicial choices, as any other exercise of power, should be subject to the scrutiny of public opinion and to the checks and balances of other institutions (see Adams, de Waele, Meeusen and Straetmans). However, the effectiveness of the ECJ was never seriously put into question, much less jeopardized by systematic defiance by EU institutions or Member States. It seems possible to conclude, therefore, that the ECJ has certainly enjoyed the degree of effectiveness that is necessary to be considered a fully operative supranational constitutional court.
D. Other International Courts and Tribunals
43. While the previous section has examined the case of the ECJ as a model of supranational constitutional court, this section will explore to what extent other international courts and tribunals match the six criteria previously identified as distinguishing supranational constitutional courts from ordinary international courts. The process of constitutionalization of regional and global legal regimes has certainly progressed significantly over the last decade, enhancing the importance of transnational adjudicatory bodies worldwide (see Alter, Helfer and Madsen). Nevertheless, of the more than one hundred international courts and tribunals currently existing globally, as well as in Europe, the Americas, the Middle-East, and Africa (on Asia, see Baik), only the ECtHR has acquired the features that were here regarded as necessary conditions for the transformation of the ECJ into a full-fledged constitutional court. In what follows, some of the most well-known supra-state adjudicatory bodies will be considered, explaining why, with the exception of the ECtHR, all these courts do not meet the threshold for being regarded as supranational constitutional courts.
44. First, a number of relevant courts have an extremely limited jurisdiction, which extends only to classical inter-states disputes, with no possibility for direct individual recourse or preliminary referral by a domestic judge; and hence lacking the first criteria of constitutionalization. This is the case, for instance, for the International Court of Justice (ICJ). Although the Charter of the United Nations (UN) has arguably begun a process of transformation into a kind of world constitution (see Fassbender), the ICJ can only arbitrate disputes among State Parties and deliver advisory opinions on their request. The same is true of the Dispute Settlement Mechanism established within the World Trade Organization, which sets up a quasi-constitutional framework for global free trade (see Trachtman (2006)): only states, albeit often under the pressures of powerful national economic individual or group interests, can start proceedings before the panels and appeal the panels’ decisions before the Appellate Body.
45. Second, several international adjudicatory bodies lack the powers of review which are typical of constitutional courts, including the power to pronounce ‘binding judicial decisions’. The Inter-American Commission of Human Rights (IACommHR)—established by the Charter of the Organization of American States (signed 30 April 1948, entered into force 13 December 1951) 119 UNTS 3, and exercising jurisdiction on those states which are not simultaneously party to the American Convention on Human Rights (1969) (ACHR)—can examine complaints by individuals who claim an infringement of a right proclaimed in the American Declaration of the Rights and Duties of Man; but, if it finds a violation, the IACommHR can only make recommendations to the defendant state in order to bring about more effective observance of human rights (see Goldman). The same is true for the Committee set up under the Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 302 (ICCPR), which can hear communications by private individuals, but can only adopt concluding observations against state parties (see De Schutter).
46. Third, the ‘subjectivization’ of the treaty has not yet been achieved by courts recently established within organizations for regional integration, such as the Andean Community (CAN), the Caribbean Community (CARICOM), Mercosur, or the Economic Community of West Africa (ECOWAS). In the CAN, for instance, since the coming into force of the 1996 Protocol amending the Cartagena Agreement, the Court of Justice (CJ) has been endowed with powers analogous to the ECJ—among others, the powers to annul, upon request of a Member State or individual party, the decision of CAN institutions, and the powers to deliver preliminary judgments on the interpretation of the CAN treaty upon request of a national court. So far, however—also because of the difficulties surrounding the project of integration in the CAN, which has experienced the recent withdrawal of a Member State, Venezuela—the CJ has not taken the conceptual step of offering an individual-centred understanding of the founding treaty, and so a traditional international law framework still governs cooperation within the CAN (see Alter and Helfer).
47. The lack of an ‘autonomous hermeneutic’ in the interpretation of the treaty—a fourth essential factor in the constitutionalization process—emerges, otherwise, in the case law of the Inter-American Court of Human Rights (IACtHR) established by the ACHR. As with most human rights treaties, the ACHR grants subjective rights to individuals and allows them to directly invoke these rights (see Henkin). The IACtHR, in fact, can hear individual petitions against states which are parties to the ACHR, although only after the exhaustion of domestic remedies and upon referral by the IACommHR, which exercises a filter of admissibility. The IACtHR can also deliver binding decisions, condemning, if it finds a violation of the ACHR, the defendant state to restitutio in integrum or to compensatory damages. Nevertheless, given also the erratic support that it has (until recently) received from the signatory states, the IACtHR has not come to interpret the ACHR as a sui generis treaty establishing an autonomous legal order of a constitutional nature (see Pasqualucci). Similar considerations also apply for the newly established African Court on Human and Peoples' Rights (ACtHPR) (see Viljoen).
48. Fifth, a more complex case is that of the Court of the European Free Trade Agreement (EFTA) which reviews actions by the European states which are not members of the EU but participate to its free market zone through the European Economic Agreement (EEA). The EFTA Court has taken inspiration from the ECJ and followed its jurisprudence to recognize the principles of direct effect and supremacy of EEA law, even where the EEA would not have independently allowed it. The EFTA Court has also stated that the EEA constitutes a sui generis international treaty which contains a distinct legal order of its own. Nonetheless, the different context of the EEA—which aims at establishing only a common market between sovereign states rather than an ever closer political union among the people of Europe—has prevented the EFTA Court from pursuing a complete constitutionalization of the EEA along the lines of the ECJ, and few constitutional law doctrines have emerged in the jurisprudence of the EFTA Court (see Hannesson).
49. In this context, the only other supranational court which has substantially acquired the features of a constitutional court is the ECtHR. Scholars have long debated the constitutionalization of the ECtHR (Greer and Wildhaber). Arguably, however, the examination of the ECtHR in the light of the six-step analytical structure defined in this article allows us to conclude that the ECtHR is a supranational constitutional court. In the last two decades, as membership of the ECHR has steadily expanded to the countries of Central and Eastern Europe, the ECtHR has undergone tremendous transformations. The reforms of the ECHR institutional devices for the protection of fundamental rights have enhanced the jurisdiction and powers of review of the ECtHR. An overview of its jurisprudence highlights how the ECtHR has extended the subjective entitlement contained in the ECHR and developed new pervasive techniques of adjudication (such as proportionality analysis) premised on a quasi-constitutional reading of the ECHR and of its relationship with national legal systems.
50. Since the enactment of the 11th Additional Protocol to the ECHR in 1998, the ECtHR can directly hear applications lodged by individuals who claim to be victims of a violation of the rights guaranteed in the ECHR and who have unsuccessfully exhausted national remedies. The ECtHR reviews the action of the contracting party and if it finds a violation of the ECHR it cannot directly quash the contested domestic measure; however, it can condemn the defendant state to pay compensatory damages (see Ichim). Moreover, although judgments of the ECtHR usually have inter partes effects, the ECtHR has increasingly experimented with the technique of so-called ‘pilot judgments’ to address problems of a systemic nature. When it appears that a plurality of cases are generated by the same structural problem at the national level, the ECtHR requires the State Party concerned to enact appropriate domestic measures to terminate the systemic violation (see Broniowski v Poland (ECtHR) Reports 2005-IX 1).
51. Whereas the ECHR grants rights directly to the ressortissants of the signatory states, the ECtHR has consistently recognized that the ECHR ‘is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’ (Airey v Ireland (ECtHR) Series A No 32 at s24) and, at the same time, has ensured that the ECHR as a ‘living instrument’ (Tyrer v United Kingdom (ECtHR) Series A No 26 at s31) be interpreted in an expanding fashion to protect new fundamental rights emerging from evolving individual and social practice. Furthermore, since Loizidou v Turkey (Preliminary Objections) (ECtHR), the ECtHR has advanced a clear constitutional hermeneutic to interpret the ECHR, by describing it as the ‘constitutional instrument of European public order’ (at s75). The jurisprudence of the ECtHR, in fact, discloses the existence of a number of doctrines which reflect a constitutional vision of the ECHR and of its relationship with the national legal orders. Among these, of particular relevance is the ‘margin of appreciation’ doctrine, which addresses a typical constitutional concern in federal systems: that of the vertical separation of competences between the Member States and the central supervisory authority (see Resnik).
52. Lastly, the jurisprudence of the ECtHR enjoys substantial success within the legal system of a majority of Contracting Parties, and the ECtHR has largely been able to consolidate its position (see Christoffersen and Madsen). Certainly the ECHR has on occasion met with strong forms of resistance—with even countries like the United Kingdom (UK) systematically refusing to comply with a ruling of the ECtHR (see Hirst v the United Kingdom (ECtHR) Reports 2005-IX, granting felons the right to vote). Nevertheless, it can be claimed that, at least within ECHR Contracting Parties which are also Member States of the EU—as well as in Switzerland and a few other non-EU countries—, the ECtHR enjoys the same legitimacy and commands the same degree of respect and compliance as does the ECJ. In contrast, in some of the remaining signatory states, serious and systematic problems of disregard for the decisions of the ECtHR persist, raising questions about their commitment to the values enshrined in the ECHR. To some extent, therefore, the constitutional role of the ECtHR appears consolidated in the EU states (including in the UK, although this is now withdrawing from the EU), whereas it is still a work in progress in other countries.
53. The reasons for the great success of the ECtHR in the EU Member States are many. The independence of the ECtHR and the authoritativeness of its jurisprudence have insured that—although specific rulings may be subject to domestic criticism—a general social consensus surrounds the activity of the ECtHR. The same dynamics of empowerment which have been at play in the constitutionalization of the ECJ, then, have also worked in the context of the ECHR (see Martinico and Pollicino). At the same time, respect for the rule of law and for judicial decisions is a common feature in the legal systems of EU Member States. Moreover, most EU Member States—under threat of losing cases before the ECtHR—have proceeded to incorporate the ECHR within their national legal systems, often with a quasi-constitutional status, thus bolstering the impact of the ECtHR’s case law on the legal practice of domestic courts (see Keller and Stone Sweet). All in all, therefore, the ECtHR seems to meet the six criteria to be identified as a supranational constitutional court, at least in a large number of its Member States—together with the ECJ being the only international tribunal to fall within this category.
54. This contribution has framed the notion of supranational constitutional courts. While the establishment and expansion of international courts and tribunals is a defining feature of the contemporary global world, this article has sought to identify within the broader genus of transnational adjudicatory body a narrower class of international courts, here termed supranational constitutional courts. It has been argued that six features are essential to define a court established by a treaty between states as a supranational constitutional court: a jurisdiction extending beyond mere inter-states disputes; a set of substantive powers of review; the subjectivization of the treaties; the development of an hermeneutic autonomous from international law; supported by the adoption of doctrines of constitutional law; and widespread social and institutional support.
55. As acknowledged above, the ECJ represents the model of a supranational constitutional court, and the authors certainly drew lessons from its experience in order to conceptualize the sub-category of supranational constitutional courts. Nevertheless, the ECJ is not the only transnational tribunal which can be defined as a supranational constitutional court. On the contrary, the ECtHR is also increasingly featuring (at least for the EU Member States) in the role of a supranational constitutional court. Other international and regional supra-state courts and tribunals, however, do not currently presents the six features identified above, and it remains to be seen whether some of them will over time acquire these features. On the one hand, globalization, technological developments, and the logic of interconnection have profoundly transformed the international community (see Trachtman (2013)). Legal orders increasingly communicate both horizontally and vertically among each other through forms of mutual dialogue and engagement (see Jackson). In this pluralist framework the role of courts becomes ever more important in order to ensure coordination and avoid conflict, and this increases pressures to establish adjudicatory bodies of a constitutional nature at the supranational level.
56. On the other hand, however, new challenges are emerging against the architecture of global governance and the role of international courts. While criticisms of regional and global courts are not new (see Herzog), rapid shifts in political and cultural attitudes are producing new threats to the growth and development of supra-state courts. Nothing proves this better than the fate of the International Criminal Court (ICC). Originally established in 1999 by a large majority of UN countries—albeit with the exception of the US, China, and Russia—as an enlightened forum for the prosecution of genocide, war crimes, crimes of aggression, and crimes against humanity (see Schabas), the ICC has recently come under fierce attack, and has been significantly weakened as a result of the 2016 decision by several African countries, including South Africa, to withdraw from the Rome Statute of the International Criminal Court (see Alter, Gathii and Helfer).
57. In conclusion, while the experience of the ECJ and ECtHR proves the validity of defining a species of supranational constitutional courts within the broader genus of international courts and tribunals–, this analysis cannot and does not make any prediction as to whether the classificatory model of supranational constitutional courts will be able to capture other transnational adjudicatory bodies in the future, or even if it will survive the current cultural and social turmoil challenging the promise of even closer integration. Indeed, the expansion or retrenchment of international courts and tribunals will depend on the trajectory that globalization—and the politics raged against it—takes over the coming years at the national, supranational, and international level.
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