Part I Comparative Constitutional Unamendability, 3 Supra-constitutional Unamendability
3 Supra-constitutional Unamendability
The previous two chapters demonstrate that the global trend is leaning towards accepting the idea of limited amendment powers, either explicitly or implicitly—limits that originate from within the constitutional order. This chapter examines limitations on constitutional amendment powers that are external to the constitutional system and above it, or in other words ‘supra-constitutional limits’.1 The term supra-constitutional limits refers to principles or rules that might be placed above the domestic constitutional order, such as natural or supranational international or regional law. This investigation is imperative in light of recent arguments according to which, in our globalized world, international law—especially international human rights law—and regional law, particularly in Europe, may have a central role in the judicial assessment of constitutional amendments.
The distinction between explicit, implicit, and supra-constitutional unamendability is not always clear, and some overlap may exist between the three. For example, supra-constitutional unamendability may be explicit. This is the case with the Constitution of Switzerland of 1999, according to which when there is a partial or even total revision of the Constitution, ‘the mandatory provisions of international law must not be violated’ (Arts 193(4), 194(2)).2 Similarly, Article X(2) of the Constitution of Bosnia and Herzegovina of 1995 specifically provides that amendments cannot eliminate or diminish any of the rights and freedoms set in the European Convention for the Protection of Human Rights and Fundamental Freedoms, as referred to in Article 2(2).3 Likewise, some ‘supra-constitutional’ principles can be regarded as setting implicit limitations to the constitutional amendment powers when those principles are considered basic principles of the constitutional order. For instance, it has been argued that the Indian ‘Basic Structure Doctrine’ of implied limitations on the amendment power is linked to the concepts of natural law and natural rights.4 Indeed, the term ‘supra-constitutional’ is often attributed to explicit or implicit superiority of certain rules or principles over the content of the constitution.5 Louis Favoreu distinguishes between ‘internal supra-constitutionality’, meaning those constitutional principles with which the amendment power must comply, and ‘external supra-constitutionality’, meaning those international or supranational standards with which the constitutional standard must comply.6 However, supra-constitutionality in this chapter describes only the latter. The former constitutional principles might seem, at first, to carry supra-constitutional status, but this is inaccurate. They are not above the constitution; they are solely above the constitutional amendment power (see Chapter 4). In that respect, supra-constitutional limits are unique. Simply put, if one were to accept supra-constitutional limitations, they would limit not only the amendment power, but also the original constituent power.7
This chapter also demonstrates that, in theory, legal limitations are now imposed on domestic constitutional amendment powers by supranational legal norms that might be enforced by supranational actors. Nonetheless, comparative state practice still demonstrates a superiority of domestic constitutional law over other conflicting supranational laws. Moreover, even when the superiority of supranational law is acknowledged within the domestic legal order, this superiority stems from the constitution itself and not from any external and separate legal order, therefore pointing to the continuing importance of the domestic constitutional law and the dependence of supranational law on the constitution for any claims of ‘supra-constitutionality’.
A medieval understanding of natural law as a certain ‘divine will of god’ surely accepts the notion of unamendability, since one of its characteristics is immutability. As Thomas Aquinas wrote with regard to the revision of laws, ‘Human law is derived from the natural law … But the natural law remains immutable. Therefore, human law ought to remain immutable.’ Aquinas later adds: ‘natural law has this immutability from the immutability and perfection of the divine reason that establishes human nature. But human reason is mutable and imperfect.’8 However, the focus here is on modern ideas of natural law.9 At the basis of natural law theory rests the relationship between law and morals. Natural law is not primarily concerned with the structure or form of law, but rather with its content. According to natural law theorists, law is a means to achieve certain absolute moral values that can be discovered by reason.10 This leads to the ‘dependence thesis’, according to which a legal norm with a moral defect is necessarily invalid or flawed.11 The theory of natural rights is derived from natural law.12 The idea of the individual as bearing certain ‘natural’ and ‘inherent’ rights was central to early modern political philosophy.
How is natural law related to the question of possible limitations on constitutional amendments? Natural law is based on the premise that there is an unamendable higher law that is beyond sovereign power. This seems compatible with the way in which early political writers conceived natural law. Even in Jean Bodin’s theory of sovereignty, the power of the ‘sovereign prince’ was not unlimited; rather, ‘every earthly prince is subject to the laws of God and of nature and to various human laws that are common to all peoples’.13 If natural law is supreme, then it cannot be violated, not even by constitutional laws. Indeed, many great eighteenth- and nineteenth-century European thinkers, such as Pufendorf, Vattel, Burlamaqui, and Rutherforth, believed that governmental power was limited by natural law and could not contradict it.14 One can even infer, as does Abbé Emmanuel Joseph Sieyès, that constituent power is in some ways conditioned by natural law: ‘The nation exists prior to everything; it is the origin of everything. Its will is always legal. It is the law itself. Prior to the nation and above the nation, there is only natural law’ (emphasis added).15
The argument on ‘higher law’ also recurs in more contemporary literature regarding possible limitations on constitution-making and amending. Invoking ‘natural law’, many scholars hold the view that certain rights have a supra-constitutional status in that they cannot be altered even by constitutional means such as constitutional amendments.16 In the United States, it has frequently been suggested that some rights are ‘natural’ and therefore inalienable, even by means of a constitutional amendment. For example, Everett Abbot asserts that the Eighteenth Amendment, which established the prohibition of alcoholic beverages, violated the natural right to pursue happiness,17 and more recently, Jeff Rosen has argued that constitutional amendments may only be used to secure rather than restrain individuals’ natural rights.18 Roscoe Pound also explained this approach in 1959: ‘there are rights in every free government beyond the reach of the state, apparently beyond the reach even of a constitution, so that there might be a constitutionally adopted but unconstitutional constitutional amendment.’19 Similarly, Charles Rice took the position that in limited and extreme cases, a court may refer to natural law as follows:
… although it is the highest enacted law of the nation, the Constitution is itself a form of human law and is therefore subject to the higher standard of the natural law. That standard is supra-constitutional. It sets limits to what the legal system, however it is structured, can do even through constitutional provisions.20
In France, the question of supra-constitutional unamendability has received rather wide attention.21 Authors such as Maurice Hauriou and Léon Duguit defend the view that the Declaration of the Rights of Man and the Citizen of 1789 has a supra-constitutional status, as it simply recognizes and proclaims pre-existing rights. They argue that the Declaration of Rights imposes limits on the State that rank higher than constitutional legislation and a fortiori ordinary legislation.22 More recently, Stéphane Rials has claimed that certain principles, namely the nation as holder of the supreme power, separation of powers, and fundamental rights, are supra-constitutional in that they are superior to the constituent will.23 However, ideas of natural law limits to constitutional amendments have received the widest practical attention in Germany and Ireland.
Drawing on the writings of Maurice Hauriou, the German scholar Carl Schmitt argued, during the Weimar period, that certain basic freedoms have, ‘as an outstanding French theorist of public law, Maurice Hauriou has explained, a “superlegalite constitutionelle”, which is raised not only above the usual simple laws, but also over the written constitutional laws, and excludes their replacement through laws of constitutional revision’.24 This notion was revived after the Second World War. German jurisprudence in the post-Nazi regime era was characterized by the rejection of pure positivism and the endorsement of natural law ideas, raising the possibility that even the constitutional amendment power is limited by certain supra-constitutional principles.25 Of particular interest is Gustav Radbruch, the leading legal philosopher, who argued after the Second World War—in contrast to his earlier writings—that certain ‘minimum standards of justice’ exist as a criterion for ‘right law’.26 In 1945, Radbruch wrote that ‘There are principles of law … that are weightier than any legal enactment, so that a law in conflict with them is devoid of validity. These principles are known as natural law or the law of reason.’27 A year later, Radbruch further elaborated:
The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as ‘flawed law’ (‘unrichtiges Recht’), must yield to justice. … Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘flawed law’, it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice.28
This notion was accepted in German courts at that time. On 10 June 1949, the Bavarian Constitutional Court famously declared:
There are constituent principles so basic, so elementary, so very much the expression of a justice which every constitution must presuppose, that they are binding even upon the author of the constitution. Those constitutional provisions which go against these principles may actually be held invalid.29
The Federal Constitutional Court later cited and re-affirmed this paragraph in the famous 1951 Southwest case.30 Two years later, in the Article 117 case, the Federal Constitutional Court acknowledged the possibility of invalid constitutional norms in the extreme case where positive constitutional laws severely transcend the limits of justice.31 However, these statements were mere obiter dictum. The idea of supra-constitutional unamendability was best summarized at the time by Otto Bachof in his book Unconstitutional Constitutional Norms?, published in 1951. According to Bachof, natural law, which exists above positive law, is an objective order. It is different from a personal conscience as the basis for validity or source of judicial decisions. Within the borderlines of this ‘higher law’, the legislator, and especially the constitution-maker, has leeway to establish an autonomous system of values—but only within these borderlines. Bachof writes that not only should the reminders of the not-so-distant past warn us about limiting the constitution’s legitimacy solely to its positivist characteristics, but also that the basic law itself forbids it through Articles 1, 3, 20, and 79(3) of the German Basic Law. In other words, the ‘higher law’, which is characterized as ‘natural law,’ becomes a part of the Constitution. The inclusion of a higher law within the Constitution has only a declarative significance, not a constitutive one. It does not create a law; rather, it solely recognizes its existence. Therefore, a constitution is valid only with regard to those sections within the integrative and positivist legal order that do not exceed the predetermined borders of higher law. A constitutional amendment that violates higher law, as recognized by the Constitution, would contradict both natural law and the Constitution and would be invalid. In such a case, it should be in the power of the courts to declare constitutional amendments as unconstitutional and thus void.32 Nevertheless, after 1953, the Federal Constitutional Court declined to refer to supra-positive principles and concentrated on explicit unamendability, as stipulated in Article 79(3).33 To date, no constitutional amendment has ever been invalidated for conflicting with that Article.
The idea that natural law may set limits to the constitutional amendment power received considerable attention in Ireland.34 The relationship between natural rights and constitutional amendments was first debated under the Irish Free State (Constitution) Act of 1922. The Seventeenth Amendment added Article 2A (Emergency Powers) into the Constitution, which conferred vast powers on the Executive, such as detention without trial, whenever it believed its execution was required. In State (Ryan) v. Lennon, a habeas corpus application, these emergency measures were contested. Justice FitzGibbon and Justice Murnaghan, two majority judges of the Supreme Court, held that because no explicit unamendability exists, with the exception that the Anglo-Irish Treaty cannot be violated, the Amendment was therefore formally valid and there could be no substantive judicial review of amendments. It is not for judges, the majority held, to decide whether constitutional provisions are valid or not and whether a hierarchy of constitutional norms exist.35 Importantly, Chief Justice Hugh Kennedy, one of the constitution-drafters, delivered a dissenting opinion stating that the Court can substantially review constitutional amendments. The Seventeenth Amendment, Chief Justice Kennedy states, is ‘no mere amendment … but effects a radical alteration of the basic scheme and principles of the Constitution’.36 Chief Justice Kennedy invoked that assertion of natural law values to the Constitution as possible limitations to the amendment power:
The Constituent Assembly declared in the forefront of the Constitution Act … that all lawful authority comes from God to the people, and it is declared by Article 2 of the Constitution that ‘all powers of government and all authority, legislative, executive, and judicial, in Ireland are derived from the people of Ireland…’ It follows that every act … in order to be lawful under the Constitution, must be capable of being justified under the authority thereby declared to be derived from God. From this it seems clear that if any legislation of the Oireachtas (including any purported amendment to the Constitution) were to offend against that acknowledged ultimate Source from which the legislative authority has come through the people to the Oireachtas, as, for instance, if it were repugnant to the Natural Law, such legislation would be necessarily unconstitutional and invalid, and it would be, therefore, absolutely null and void and inoperative.37
The reference to God as the source of all authority, according to Chief Justice Kennedy, is an implicit acknowledgement of natural law; therefore, any positive law including a constitutional amendment that violates natural law is unconstitutional.38
The issue rose again under the Constitution of 1937, which came into force after the people approved the draft Constitution in a national plebiscite which was held on 1 July 1937. The 1937 Constitution has a clear Christian character. It was drafted with the participation of the Roman Catholic clergy and was enacted in the name the Most Holy Trinity. Also, it acknowledges ‘Almighty God’ and refers to man as a rational being with natural rights antecedent to positive law.39 Therefore, the claim that there exists a higher law, or natural law, superior to positive law is occasionally argued within Ireland’s constitutional debates. In 1992, two constitutional amendments guaranteeing the rights to obtain information about abortion services abroad and to receive such services were adopted through a referendum. In response to these amendments, High Court Justice O’Hanlon, not wearing his judicial hat, argued that in light of the Constitution’s recognition of a superior and antecedent norm to positive law and the Constitution’s references to ‘inalienability’ and ‘antecedent to positive law’, the positive constitutional amendment power is limited by basic natural rights, such as the right to life of the unborn. In his opinion, since the two amendments contradicted the natural right of the unborn to life, they should be invalidated.40 In reply, Desmond Clarke claimed that such an argument could not be accepted, as
It justifies members of the court using their own philosophical or religious convictions to rule that an amendment to the Constitution is unconstitutional—even when it is explicitly enacted by the people in accordance with Article 46.1 following widespread public debate—on the grounds that it is inconsistent with provisions of an unwritten Law which was implicitly enacted into the Constitution by those who voted, by a relatively small majority, for the original text in 1937.41
Another reply came from Ruth Cannon, who objected to the invocation of the natural law doctrine on textual grounds and urged the courts to treat cautiously any arguments calling ‘to look beyond the text itself at some extra-constitutional theory’, especially when such a theory might conflict with another explicit constitutional theory or make it redundant. In the absence of any constitutional provision relating to the notion of an unconstitutional constitutional amendment, the Irish Constitution should not be read as endorsing natural law theory.42
Later, when the Supreme Court faced a challenge to the amendments in re Article 26 and the Information (Termination of Pregnancies) Bill, 1995, it rejected the claim that natural law was superior and antecedent to the Constitution, holding that the people, not God, are the creators of the Constitution and the supreme authority. Hence, constitutional amendments made by the people become the fundamental and supreme law of the land.43 The Supreme Court’s reasoning was not accepted without criticism. For example, G. F. Whyte criticized the Court for not making clear how it arrived at the understanding of the Constitution in an exclusively positive sense.44 Others, such as Oran Doyle and William Duncan, have pointed to the contradiction that lies at the core of the debate. According to Duncan:
The difficulty here is that the theory that the natural law stands above the Constitution is being justified by the terms of a human instrument, the Constitution, which is itself subject to the natural law. The Constitution cannot be both subject to the natural law and the legal justification for that subjection. One or other, the natural law or the Constitution, must finally have priority over the other as the ultimate source of legal validity in any potential area of conflict, if indeed the natural law stands above the Constitution. It is necessary to find authority for this proposition outside the Constitution, perhaps within the natural law itself.45
Pointing to a similar paradox, Doyle observed that in order to legally enforce natural rights, they need to be recognized by positive law, which ‘diminishes their antecedent status’. This paradox is exacerbated when ‘an agent of positive law (the judge) determines what is superior to positive law’, and especially when ‘some judges at least relied on natural law as a source of implied rights’. The ‘deeper paradox’, according to Doyle, is that the claim of natural law as an external source to the Constitution is derived from ‘within the constitutional order itself’ and is dependent on the positive Constitution.46
The Court repeated the superior right of the people to amend the Constitution in various other decisions.47 Thus, the existing legal situation in Ireland with regard to the constitutional amendment power and natural law is that the people’s amendment power under Article 46 is unlimited by natural law and the judiciary will not interfere in an amendment adopted by the people in a referendum.
A theory that recognizes natural law as a form of a superior higher law must lead to the conclusion that the amendment powers are limited. As Lech Garlicki and Zofia Garlicka recently wrote regarding unamendability, natural law is an external and superior norm to positive law, including in the case of constitutional laws. However, the authors doubt the suitability of natural law ideas to function as limitations to constitutional amendments. Natural law, they assert, lacks several important factors required in order to function as a norm of reference for judicial review, such as a systematic nature, precision, procedural accessibility, and effectiveness.48
Indeed, natural law theories seem inappropriate to serve as limitations on constitutional amendments. Even if one accepts the presupposition that binding, objective moral principles exist in every society, even those with a ‘minimal content’ of natural law,49 there is no basis to regard them as the yardstick for determining the legal validity of an amendment. Such a view would unnecessarily blur the distinction between what the law is and what it ought to be, and would be incompatible with the nature and value of the law as a social institution providing a certain measure of predictability. Moreover, the definition of ‘moral’ is highly problematic and vague. Subjecting the legal validity of constitutional norms to moral thresholds would undermine certainty in law and detract from its authoritative nature, since such subjection would necessitate the a priori resolution of contentious moral questions.50 As Josef Kunz, Kelsen’s disciple, claims, natural law ‘is not a system of legal norms, but a system of highest ethical principles’. In that respect, natural law can be used for a jurisprudential study of the foundations of law to critically evaluate the law in force and to normatively propose how law should develop from an ethical point of view. At the same time, natural law cannot be used to declare something to be law or not.51 This applies to constitutional amendments as well, and indeed, both in Germany and in Ireland, courts have eventually rejected claims of natural law unamendability, focusing, whenever it exists, on explicit unamendability.
Moreover, when analysing the existing arguments on natural law unamendability, one can clearly infer from the examples provided by Germany and Ireland that alleged the limitations on the amendment power eventually derive from the Constitution itself. Both in Germany and in Ireland, where possible natural law unamendability was seriously debated in court, it was, to use the words of Ivo Duchacek, the ‘supraconstitutional invocations’52—that is, the constitutional referral to natural law or to ‘unamendable’ principles—that stood as the basic rationale for arguing in favour of limited amendment powers. Admittedly, such arguments are flawed in their circularity; arguably, natural law prevails over positive law even when it comes to constitutional amendments, due to the positive implicit or explicit recognition of natural law in the Constitution. With regard to the Irish Constitution, Ralph Gaebler raises the question of ‘whether a constitution … can incorporate a source of law whose authority is completely external to the constitution?’53 In answer to Gaebler, Walter Murphy replies: ‘by identifying the constitution’s goal and values as those of the external authority, the constitutional document accepts, or internalises, that authority.’54 This of course raises debate on the Constitution as a constituting versus recognizing device and asks: what if the positive constitution did not include such recognition? Would that mean that natural law is not superior to positive law? If natural law is indeed the authority from which positive law derives its authority, this does not require any positive recognition. If the argument rests on the Constitution’s explicit or implicit recognition of the priority of natural law, then the constitutional limitation comes from the Constitution itself rather than natural theories external to it.
Instead of natural law, supra-constitutional unamendability might appear today in the form of international law. This is not to deny that international law is made by States; it is only to point, first, to the contribution of natural law to the development of international law,55 and second—and more importantly—to the idea of a universal or regional law which is higher than domestic constitutional law. The nexus between ideas of natural law and international law is well known,56 especially with regard to international human rights law. The Preamble of the Universal Declaration of Human Rights of 1948 opens with the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’.57 By recognizing certain human rights as beyond the power of human and State authority to deny or annul, this declaration exhibits a propensity to create a framework of international law which imitates natural law.58 Kunz explains the revival of natural law ideas as follows:
Then there were the terrible experiences before, in and after the Second World War, the unheard-of cruelties toward men by totalitarian regimes, the abuse of law for purposes of injustice, torture and extermination, total war, the appearance of nuclear weapons, the bitter struggle in a world torn by an ideological abyss. Such periods of profound crisis foster a flight into natural law as ideas and values on which man can rely, as a barrier against the misuse of law. These events of our time are part of the explanation why Gustav Radbruch, at the end of his life, returned from relativism to natural law, why natural-law concepts appear in modern European Constitutions and in the decisions of the highest courts of Western Germany, as well as in documents of the ‘new’ international law.59
This ‘revival’ in the form of international law brings us to analysis of the modern conception of positive international or supranational law as a possible limitation to constitutional amendment powers.
In recent years, international law, alongside foreign law, has played an increased role within domestic constitutional discourse around the globe.60 A transnational or global ‘judicial dialogue’ has recently emerged61 that has relevance to unamendability. As one former judge of the German Constitutional Court writes, international and comparative law can be useful from the standpoint of the constitutional judge when addressing judicial review of constitutional amendments:
When the constitution limits the amending power by enshrining general principles like democracy, federalism, the rule of law, or the principle of human dignity, the standard cannot be taken from the constitutional system itself … A survey of the realizations of the relevant constitutional principles and an analysis whether the constitutional amendment remains within this framework appears to be the best solution. Here…the argument that the intended change is known in other constitutionalist democracies is a genuine legal argument.62
Rosalind Dixon and David Landau claim that the application of the unconstitutional constitutional amendment doctrine should be tied to transnational constitutional norms in order to limit its scope, so as to apply it when it can be truly used to guard democracy rather than in unnecessary cases.63 In a similar vein, Matthias Herdegen opines that a constitution’s unamendable core ought to be defined by reference to the law of nations and its peremptory protection of human rights. This would provide an objective criterion for the self-limitation of the State’s domestic powers, strengthen the normative force of international law, and enhance rationality in the balance between the legislature and the courts.64
The use of international law in constitutional interpretation and adjudication is itself highly controversial and has given rise to heated judicial and academic discussions.65 Nevertheless, there is a difference between binding and persuasive uses of international law.66 International law can be relevant as a legal argument when adjudicating the substance of a constitutional amendment even without carrying any binding force. One may ask if the constitutional amendment powers are limited, in any way, by international law. If they are, this would carry crucial implications for any notions of ‘sovereignty’ and the ‘hierarchy of norms’.67
Traditionally, the debate regarding the relationship between domestic and international law concerned two main approaches, namely monism and dualism.68 Monism regards both international and domestic laws as forming one fused legal order. In other words, domestic law automatically implements international law, as it is immediately and directly applicable within the domestic legal system. Moreover, monism regards domestic law as deriving its binding force from international law, and in its extreme form, monism regards the former as inferior to the latter. In contrast, dualism views these two types of law as distinct legal orders. International law has to be implemented through domestic measures in order to be applicable in domestic law. For dualists, international law, even if supreme in the international legal system, cannot claim supremacy within the domestic legal order. Rather, if the two systems conflict, domestic law shall prevail.
These terms are slightly confusing with regard to the incorporation of international law, as a dualist state could have a monist approach to the superiority of international law within the domestic legal system once international law has been incorporated within it. At the same time, a domestic legal system could, to some extent or in its entirety, be monist, meaning that certain international treaties or customary rules would be automatically incorporated into domestic law without the need for domestic implementation, while still maintaining a dualist approach to the relationship between international and domestic law. In the latter case, the status of international law within the domestic sphere would be determined by domestic law.69 Moreover, there might be different approaches towards different sources of international law, due, for example, to the differences between customary law and treaty law. In that respect, States’ incorporation of international law has not necessarily followed a strict or coherent monist or dualist approach; therefore this chapter does not broadly refer or adhere to these approaches.
Of late, it has been increasingly argued that constitutional amendment powers are substantially limited by international law. Jorge Valdés, for instance, suggests that the globalization of fundamental rights and jus cogens norms set new limits on the amendment powers.70 In international law, jus cogens are those ‘peremptory rules’ which are non-derogable. Such rules include, for instance, the prohibitions on aggressive use of force, genocide, slavery, torture, and apartheid. These rules do not permit any exceptions, whether through treaties, persistent objection, or the creation of special customary rules, and render other conflicting non-peremptory rules void.71 Jus cogens norms override all other sources of law, both international and national.72 Indeed, as the International Criminal Tribunal for the former Yugoslavia notes, the violation of the jus cogens prohibition against torture has direct effects. Even if an act authorizing torture is a constitutional act, it would be delegitimized and would not obtain international legal recognition. Further, potential victims can initiate proceedings before a competent international body. Alleged perpetrators of torture might be held criminally accountable in an international tribunal or even in a domestic court of a foreign state that claims universal jurisdiction over violations of the prohibition against torture.73
Additionally, certain emerging international and supranational legal rules address matters such as constitutional amendments.74 For instance, in the African Charter on Democracy, Governance and Elections of 2007, the State Parties agreed that ‘Any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government’ is deemed an ‘unconstitutional change of government’ which ‘shall draw appropriate sanctions by the Union’ (Art. 23(5)).75 The Statute of the Council of Europe demands that all Member States accept ‘the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’.76
International human rights law demands special attention. Contrary to traditional international law, which was concerned with regulating the relations between States, international law is now increasingly interested in areas that were regulated solely by national constitutions, most notably fundamental rights. International human rights law now protects civil, political, social, economic, and cultural rights through various human rights instruments. To put it in different terms, in many States, fundamental rights carry a dual protection: first, via the State’s constitution, and second, through human rights treaties to which the State is bound.77 In fact, the constitutional protection of rights is one way through which States seek to implement their international human rights obligations.78 One may argue that if a constitutional amendment removes or abridges a certain constitutional right, international human rights law still serves as a limit to such a constitutional change.79 Vincent Samar, for instance, argues that unamendability must include human rights, which are universally recognized.80 Also, Matthias Hartwig claims that constitutional provisions must comply with international human rights law obligations and that, nowadays, international law provides a criterion of legitimacy for constitutions.81 Moreover, in the area of human rights, international law is clear and precise, has effective judicial review mechanisms through supranational human rights bodies, and is even procedurally accessible by often allowing individual petitions, to act as a supra-constitutional reference for adjudicating constitutional amendments.82 Supranational constitutionalism, Larry Backer summarizes, ‘posited limits on national constitution making grounded in an evolving set of foundational universal norms derived from the understandings of basic right and wrong developed by consensus among the community of nations’.83
The alleged supremacy of supranational law
At first glance, the question of the legal status of a norm that breaches international law obligations seems simply irrelevant from an international law perspective. With regard to international law, a state has to comply with its international obligations regardless of any conflicting domestic law, be it primary legislation, secondary legislation, or even a constitutional norm. Certainly, if one follows Kelsen’s theory that international law is the basic norm from which the ultimate source of validity of national law is derived, international law is considered supreme to national law.84 This is the extreme monist position, as explained by Kunz: ‘The primacy of the Law of Nations means that … the pyramid of the law does not end with the basic norm of the juridical order of a given single state, but that at the top of the pyramid of law stands the international juridical order.’85 Indeed, according to the principle of supremacy, national law is subordinated to international law and the latter takes precedence over the former.86 If international law is superior to domestic law, then it is also superior to domestic constitutional laws.
This theoretical presupposition finds support in various international legal documents. According to Article 27 of the Vienna Convention on the Law of Treaties 1969 (VCLT), which regulates inter-State treaties, ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’.87 Taking into account the principle of pacta sunt servanda, the reference to ‘internal law’ must include the Constitution. This interpretation is supported by the VCLT’s travaux préparatoires.88 Moreover, international judicial practice may support this claim. In 1875, in the case of the Montijo, an international arbitrator stated that ‘a treaty is superior to the Constitution, which latter must give way’.89 In its 1932 Advisory Opinion regarding Treatment of Polish Nationals in the Danzig Territory, the Permanent Court of International Justice stated that according to generally accepted principles, ‘a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force’.90
The idea of the supremacy of supranational law covers not only international but also regional law, most notably with regard to European Union law.91 As the Court of Justice of the European Communities (ECJ) established, EU law is considered to take priority over the Member States’ domestic laws, and in the case of inconsistency between the two, EU law prevails.92 In a case that concerned a conflict between the German Basic Law and EU law, the ECJ stated that EU law must take precedence over any conflicting domestic law, including the national Constitution, regardless of the normative status of that law.93 Similarly, in several cases, the European Court of Human Rights (ECtHR) established its authority to review not only ordinary legislation, but also constitutional provisions, and to assess their compatibility with the European Convention on Human Rights (ECHR). In a recent case, the ECtHR criticized Article 70(5) of the Hungarian Constitution for indiscriminately depriving persons placed under total or partial guardianship of the right to vote.94 In Sejdie and Finci v. Bosnia and Herzegovina, the ECtHR held that a constitutional provision limiting the right to be elected in parliamentary and presidential elections to Bosniaks, Croats, and Serbs (the ‘constituent peoples’ of Bosnia and Herzegovina) is discriminatory, and the disqualification of Jewish and Roma-origin candidates constitutes a breach of the ECHR.95 In the Anchugov and Gladkov case, two Russian applicants who were convicted for murder challenged their ban from voting in an election, based upon Article 23(3) of the Russian Constitution. The government claimed that the ECtHR had no jurisdiction over the case in light of the constitutional nature of the provision. Yet, the Court rejected this claim, pointing to Article 1 of the ECHR that does not exclude any part of the domestic law from its jurisdiction.96 In other words, the ECHR is increasingly functioning as ‘minimum constitutional guarantees’.97 Therefore, as Dieter Grimm notes, supranational laws in Europe may even ‘include an obligation to change the national constitution of member states’.98
Article 46 of the ECHR clearly states that the decisions of the ECtHR are binding and Member States must ‘undertake to abide by the final judgment of the court in any case to which they are parties’. Therefore, a supranational court, such as the ECtHR, can decide that a constitutional amendment breaches the ECHR and such a decision will be binding upon the State under supranational law. This is perhaps why Jed Rubenfeld remarked:
[W]hat makes the new European constitutionalism cohere … is the ideology of universal or ‘international human rights’, which we owe their validity to no particular nation’s constitution, and which possess therefore a supranational and almost supraconstitutional character, making them close to unamendable…99
The analysis above shows that, prima facie, supranational law may form another type of unamendability. Legal limitations are now imposed on the constitutional amendment powers by international and regional laws and might be enforced by international and regional state actors. Nevertheless, this alleged unamendability encounters difficulties with regard to the internal espace juridique.
The problem of external v. internal espace juridique
Arguably, the principle of the superiority of supranational law over domestic constitutional law only means that for the purpose of a state’s responsibility, a constitutional provision cannot be a ground for excusing such responsibility. It does not necessarily follow from Article 27 of the VCLT that an obligation exists to prioritize treaties over domestic laws within national juridical systems; rather, it restates that international law has priority over domestic law in the international sphere, namely the external espace juridique.100 André Nollkaemper elaborates on this idea and states the following:
In principle, the claim to supremacy of international law is confined to the international level. It is at that level that states cannot invoke domestic law to justify the non-performance with an international obligation and it is at that level that international courts, by virtue of their establishment under international law, have to give precedence to international law over domestic law. This has no necessary legal consequences domestically … What is wrong in the international law sphere may be right in the national sphere, and what is unlawful in the national legal order may be perfectly legal in the international domain. … The general understanding is that international law cannot itself realize supremacy at the domestic level.101
Kemal Gözler takes a similar approach in his rejection of the idea of international law’s superiority over national constitutional law. Gözler claims that, even if a judge finds a conflict between an international standard and an internal constitutional standard, the State can be found to be responsible and, hence, the constitutional standard would be unenforceable. Nevertheless, such unenforceability only applies in the international sphere. In other words, if a supranational court declares a domestic constitutional provision incompatible with a supranational instrument, it may grant the injured party just reparations. Nevertheless, it is up to the State to amend its incompatible domestic law. Also, one has to distinguish between internal and external validity, since they do not always coincide.102 As Garlicki and Garlicka acknowledge:
[The] ECtHR’s judgments do not have any direct effect on the continuation or validity of the national measure that was found to have breached the Convention. The ECtHR has neither the power to quash an individual decision nor the power to annul provisions of national legislation. Therefore, even if the Strasbourg Court has decided on the ‘unconventionality’ of a national legislative provision, the latter does not become null and void but continues until it is abolished by the national parliament.103
Consequently, any inconsistency between binding international law and a constitutional provision might give rise to state responsibility, but the provision would still be valid under domestic national law.
True, the role that an international tribunal, wherever it exists, can play is significant. Nowadays, many national courts need to consider the prospect of their judgments being considered in international or regional courts and being scrutinized with respect to international law standards. As Brun-Otto Bryde writes, the highest judicial authorities of countries are ‘no longer the highest authority’ in that respect.104 This echoes Lord Rodger’s famous dictum in Secretary of State for the Home Department v. AF (No 3) stating ‘Argentoratum locutum: iudicium finitum—Strasbourg has spoken, the case is closed’.105 Nevertheless, the role of international tribunals is limited with regard to the domestic validity of constitutional laws.
Take, for example, the constitutional crises that occurred in Nicaragua from 2004 to 2005.106 In general, the Constitution of Nicaragua of 1987 allows for a total and partial reform in its amendment process. A partial reform demands a 60 per cent majority in the National Assembly and an approval in two successive sessions, while a total reform requires two-thirds approval in the Assembly and a final approval by a special elected Constituent Assembly (Arts 192–194). In November 2004, the Assembly granted first approval to a set of constitutional amendments that limited the President’s power, deeming them to be a partial reform. The President, Enrique Bolaños, argued that these amendments undermined the balance of powers and therefore comprised a total reform. In December 2004, he filed petitions with the Nicaraguan Supreme Court and the Central American Court of Justice (CCJ). The CCJ accepted jurisdiction over the petition in January 2005 and called upon the National Assembly to suspend the amendment process until a final decision had been made. That same month, the Supreme Court of Nicaragua held that it, and not the CCJ, had jurisdiction over the dispute. Meanwhile, the National Assembly ignored the CCJ’s interim order and approved the amendments. In March 2005, the CCJ ruled that the amendments would undermine the executive’s independence. Since these amendments attempted to transform Nicaragua from a presidential system to a parliamentary one, such a transformation could be effected solely through the process of a total reform. The CCJ concluded that the amendments were therefore unconstitutional and invalid. However, that same day, the Supreme Court of Nicaragua delivered its ruling on the case holding that the CCJ’s decision was invalid. Nicaragua was left with two constitutions—one that was valid nationally and another that was invalid internationally. Eventually, Bolaños and the Assembly reached an agreement to reconsider the amendments by the time of the next elections and to suspend their application until after that time. Indeed, after the elections, the new government suspended the implementation of the new amendments indefinitely. Two important lessons can be learned from the Nicaragua crises: first, a supranational tribunal can, and did, declare constitutional amendments to be unconstitutional, and second, this declaration of unconstitutionality need not affect the validity of the amendments within the domestic sphere.
Another example is Security Council (SC) Resolution 554 of 1984 concerning the new Constitution of South Africa of 1983 that entrenched apartheid.107 In that Resolution, the SC declared that it ‘strongly rejects and declares as null and void the so-called “new constitution”’ due to its contradiction of the principles of the UN Charter, mainly that of racial equality.108 Ulrich Preuss considers this Resolution an example of the changing roles of national constitutions and states: ‘No longer can we regard them as purely domestic instruments of government of a nation-bound population which exercises its right to national self-determination without concern of its regional or global surroundings.’109 Whereas South Africa had to ‘accept and carry out’ this decision of the SC in accordance with Article 25 of the UN Charter, it condemned this Resolution as ‘a gross interference in domestic affairs’.110 Thus, while South Africa took a rather extreme dualist approach, the SC asserted that international law itself applies domestically regardless of any constitutional provisions to the contrary.111 Importantly, however, although the Constitution was declared null and void, it remained in force for ten years, until it was replaced by the Interim Constitution in 1994.
Last, it is necessary to revisit the Sejdie and Finci v. Bosnia and Herzegovina and Anchugov and Gladkov cases. In the former case, the ECtHR declared that a constitutional provision discriminating against minority groups in elections violated the ECHR. Following that judgment, Bosnian authorities began proceedings to implement the decision. However, implementation is still the role of domestic institutions, and so far no constitutional amendments regarding discrimination against minority groups in elections have been made. In the latter case, the ECtHR held that the Russian Constitution’s blanket ban on convicted prisoners’ voting rights was incompatible with the ECHR.112 Yet, in response, Russia adopted a constitutional amendment which granted the Constitutional Court the power to declare as ‘impossible to implement’ judgments of a human rights body, on the ground that its interpretation of international treaty provisions is inconsistent with the Russian Constitution. On 19 April 2016, Russia’s Constitutional Court ruled that it was ‘impossible to implement’ the judgment of Anchugov and Gladkov. The Court ruled that the right to vote could not be understood so widely as to cover that of convicted prisoners and that such interpretation is contrary to the Russian Constitution. Thus, this confirmed the supremacy of the Russian Constitution over judgments of the ECtHR.113
These cases are not exhaustive. They certainly do not aim to deny the importance of international or regional legal systems. Nonetheless, they exemplify a critical argument and demonstrate the awkward situation in which an action is illegal under supranational law but remains valid under domestic law. Therefore, it would perhaps be more accurate to use Brenda Hale’s statement: ‘Argentoratum locutum: iudicium non finitum’—the word of a supranational tribunal is not the last one.114
The role of national courts
The above analysis, even if correct at its core, is partial in its scope. It ignores the important potential and actual roles of national courts in enforcing and developing international law.115 Recently, Nollkaemper explored how ‘across the world, national courts have been given or have assumed the power to review acts of the executive or legislative branches of their state against international law’, arguing that ‘national courts can act as agents of the international legal order, in the service of the international rule of law’.116 In the case of a violation of international law, national courts can ensure, for example, that proper reparations are given or that a decision of an international tribunal is implemented.117 If international or supranational law are to be enforced judicially by domestic courts, then state organs’ compliance with these laws is expected to increase.118 While admitting that international courts can only pronounce the lack of validity of the domestic law from the perspective of international law and cannot affect its validity in the national sphere, Nollkaemper argued that national courts can ‘domesticate’ the supremacy of international law and strengthen its effectiveness, thus bringing international law to the summit of the hierarchy of norms.119 In the same vein, Grimm argued, with regard to Germany and EU law, that due to the primacy of EU law, the domestic constitution and the Constitutional Court no longer hold exclusive powers in determining the validity of national law, since every judge can disregard a domestic law which is incompatible with EU law.120
This power of judicial review of domestic laws vis-à-vis international obligations may apply to a review of constitutional provisions by the domestic court.121 Of course, since the use of international law by domestic courts is likely to intensify institutional tensions between the judiciary and governmental branches, such an exercise of power by courts depends on the power, independence, and legitimacy of the judiciary within that national system.122
Therefore, it seems that the solution to the ineffectiveness of international law lies within national courts. This resembles Georges Scelle’s doctrine of ‘dédoublement fonctionnel’ or role splitting, according to which, whenever a national court faces a conflict between national and international law, it acts in the capacity of an international judicial body, which is an agent of international law, alongside its domestic role.123 But when national courts are asked to enforce international law vis-à-vis a contradictory constitutional amendment, they face ‘mixed loyalties’.124 On the one hand, as a constituted organ, the judiciary must abide by the national constitution considered the ‘supreme law of the land’. On the other, since all organs of a State may not engage in conduct that constitutes a breach of an international obligation, national courts are bound to give effect to such an obligation as a matter of international law. As Yuval Shany notes: ‘Surely the fact that international law—a system of law which binds the polity—requires a certain outcome, ought to be considered a relevant factor by the courts of the same polity.’125 This puts the domestic judge in a highly uncomfortable position—either to act contrary to international law or contrary to the constitution.126 Pierre-Marie Dupuy remarks that Scelle’s ‘dédoublement fonctionnel’ theory enables State organs to ‘“kill two birds with one stone”. While still acting within the framework of their competence as it is defined in the national legal order, they also play a part in the application of international law.’127 Whereas this remark is accurate with regard to a court that adjudicates on acts of other branches or ordinary acts, it encounters difficulties when one has to apply the ‘dédoublement fonctionnel’ theory to adjudication of constitutional amendments. In such a case, the judge might no longer act under the ‘framework of competence as defined in the national legal order’, but rather against the constitution from which this competence stems.
Equally problematic is the postulation that ‘if national constitutional courts are willing to strike down laws passed by the national legislature, then they should have the institutional clout to do the same thing when enforcing international law’.128 When the Court invalidates a law passed by the legislature, it does so because that law is deemed unconstitutional. In its actions, the Court guards the constitution, yet that comparison seems inappropriate when it comes to the judicial review of constitutional amendments. Arguably, by invalidating a constitutional amendment that is properly enacted according to constitutional procedures, the Court no longer guards the constitution and, instead, acts contrary to its provisions.
The eventual superiority of domestic constitutional law
Certainly, a supranational tribunal’s decision that a constitutional provision is incompatible with international law grants the domestic court a powerful tool for rationalization as well as legitimation when adjudicating constitutional amendments that breach binding supranational law.129 Moreover, such a decision of a supranational tribunal has value ‘in the very process of exposing community practice and norms to self-reflection and justification as part of a shared reflexive practice of developing normative standards based on broadly held values’.130 However, as Andreas Paulus remarks, domestic courts apply international law because this is the requirement of the domestic law rather than because they are organs of the international community. Additionally, when domestic courts apply international law, they use authority derived from their constitution that regulates the extent to which international or supranational law applies domestically.131 Even with regard to EU law, national constitutional courts, unlike the ECJ, view the principle of its supremacy as deriving not from the autonomy of the Community legal order, but rather from the national constitution. This, therefore, rejects the hierarchal superiority of Community laws over the constitution.132 Despite the growing influence of supranational law, the ‘supranational rule of law’ ultimately depends on the domestic constitutional order.133 Even Kelsen, a notable Monist, observes:
The question as to whether in case of a conflict between national and international law the one or the other prevails can be decided only on the basis of the national law concerned; the answer cannot be deduced from the relation which is assumed to exist between international and national law.134
It is true that modern constitutions, especially following the Second World War, increasingly refer to international law.135 Some even grant international law binding force within the domestic sphere and acknowledge the normative hierarchical superiority of international or supranational law, especially that of human rights treaties over domestic law.136 This ‘constitutionalization of international law’ or ‘internationalization of constitutions’137—that being the incorporation of international law, either treaty or customary, at a constitutional level beyond the control of ordinary politics—may act as an important mechanism for States to pre-commit themselves to certain international obligations.138 However, this superiority over domestic law is mostly restricted to ordinary, not constitutional, law. Even in modern constitutions, Judge Vladlen Vereshchetin remarks, there is ‘a clear tendency toward “de jure recognition” of the primacy of international law by new constitutions … but not above the constitution itself’.139 Indeed, as Anne Peters demonstrates, whereas international courts and tribunals assert the supremacy of international law over domestic law which includes constitutional law, most of the domestic actors reject such an assertion and do not award superiority to international or regional law over the national constitution. On the contrary, States commonly grant the constitution superiority over international law, even when international law is given superiority over ordinary legislation.140 For example, in 2006 the Lithuanian Constitutional Court held that EU law is superior to ‘national legal acts (regardless of what their legal power is), save the Constitution itself’.141 In Italy, the Constitutional Court has recognized, in several decisions, that the ECHR is a ‘norma interposta’, meaning it has a supra-legislative status, or is superior to ordinary legislation, yet it is infra-constitutional, or inferior to the Constitution.142 Within the United States, where, according to the Supremacy Clause of the Constitution, treaties generally prevail over inconsistent state laws,143 there is wide consensus—although not without criticism—that the Constitution is supreme to international law.144
One can identify a few exceptions to this denial of international or supranational superiority over domestic constitutional law. In some States, the relationship between domestic constitutional law and international law is still ambiguous. Take for instance the Constitutions of Romania of 1991 (Arts 11, 20), Slovakia of 1992 (Art. 11), and the Czech Republic of 1992 (Art. 10), which grant supranational human rights treaties priority over domestic law, but where it remains unclear whether this law includes the constitution.145 In Austria, EU law is superior to all domestic law, including the Constitution, inasmuch as it does not conflict with the ‘basic principles of domestic constitutional law’.146 Conflicts between the Constitution and the ECHR are quite uniquely governed by the principle of lex posteriori derogat legi priori.147 In Argentina, the Constitution grants constitutional hierarchy to international treaties on human rights.148 A clearer provision exists in Article 2(2) of the Constitution of Bosnia and Herzegovina of 1995, which specifically provides that those standards set in the ECHR shall have priority over all other law, including constitutional amendments.149Article 91(3) of the Constitution of the Netherlands of 1983 gives priority to international treaties over domestic statutes, which most scholars agree include the Constitution.150 In Belgium, the Constitutional Court remarked, quite remarkably, that the ECHR has priority over the Belgian Constitution: ‘que la Convention de sauvegarde des droits de l’homme et des libertes fondamentales prime la Constitution.’151
In some States, the superiority of jus cogens over domestic law, including the constitution, has been recognized. For example, in Planas v. Comelec, a case before the Supreme Court of the Philippines in 1973, the Court stated that the sovereign people might amend the Constitution in any way it chooses, so long as the change is not inconsistent with jus cogens norms of international law.152 In Russia, with certain exceptions, international treaty law is superior to ordinary laws but not to the Constitution.153 In a decision of 2003, the Russian Supreme Court held that those ‘generally recognized principles and norms of international law’ have a direct effect on the national jurisdiction and ‘deviation from which is impermissible’.154
Most significant is the example of Switzerland, where 100,000 people who are eligible to vote have the right to propose revisions to the Constitution. This is referred to as a People’s Initiative (Volksinitiative). In response to such an initiative, the Federal Council can issue a recommendation, based upon which the Federal Assembly (Bundesversammlung) reviews the initiative for its compliance with several elements as established in the Constitution. The double majority of voters and cantons must approve a Volksinitiative. In 1996, both chambers of the Federal Assembly declared a Volksinitiative to amend the Constitution invalid, for violating the internationally recognized peremptory prohibition of refoulement. According to this prohibition, States must refrain from deporting or extraditing persons to a country where they would face torture or inhumane or degrading treatment. This prohibition imposes on States the positive obligation to examine whether the deportation or extradition of an individual would have such an effect. According to the Volksinitiative, asylum-seekers who enter the State unlawfully would be deported immediately and without the option of appeal. In its report to the Volksinitiative, the Federal Council noted the jus cogens or peremptory character of the non-refoulement principle. It further stated that the immediate deportation of illegal immigrants, as proposed in the initiative, would not allow an examination of whether the deported persons would face torture or inhumane or degrading treatment. Therefore, illegal immigrants who had fled their countries due to persecution might face similar treatment if returned. The proposed constitutional amendment thus violated the peremptory principle of non-refoulement. Interestingly, the Federal Council stated that respecting the fundamental norms of international law is inherent to the Rechtstaat principle of ‘rule by law’, and violation of said norms would undermine the Rechtstaat and cause the State and the influenced individuals irreversible damage. It therefore proposed that the Federal Assembly invalidate the Volksinitiative, which it did on 14 March 1996. Consequently, the Volksinitiative did not form the subject of a referendum.155
In 1999, Switzerland granted explicit constitutional recognition to the proposition that jus cogens norms of international law were a limitation to constitutional amendments. According to the 1999 Constitution, in the case of a total revision of the Constitution, ‘mandatory provisions of international law must not be violated’ (Art. 193(4)) and ‘partial revision must respect the principle of cohesion of subject matter and must not violate mandatory provisions of international law’ (Art. 194(2)).156 According to the Federal Assembly and Federal Council, ‘mandatory provisions’ of international law include the prohibitions on torture, genocide, slavery, and refoulement; the core guarantees of international humanitarian law; and the non-derogable guarantees of the ECHR and the 1966 International Covenant on Civil and Political Rights. Yet, one wonders about other rules of international law. In a 2010 report regarding the relationship between international and domestic law, the Federal Council stated that when a new constitutional norm enacted by a Volksinitiative clearly aims to violate international law, the constitutional provisions should prevail over the older international law. Approval by the people and cantons should then be interpreted as a mandate to withdraw from the relevant international instrument.157
At first glance, the above examples demonstrate that, in some jurisdictions, international law may be normatively positioned even above the constitution itself. However, one must be cautious when evaluating such alleged supremacy of international law within the domestic constitutional order; as Gerald Neuman remarks, ‘even if a constitutional provision accords supremacy to international law, that provision itself will be subject to amendment, if necessary by resort to the constitution-giving power of the people’.158 This observation demands clarification. An ordinary constitutional provision granting international law supremacy can indeed be subject to future amendments. However, if such a constitutional provision were to be drafted as an ‘unamendable’ provision, it would bind the amendment powers. Hence, an explicit unamendability to not violate certain rules of international law would also apply to constitutional amendment powers. Of course, a similar unamendable provision would not limit or bind the original constituent power (see Part II of this book). Therefore, Neuman is correct that through the ‘constitution-giving power of the people’, any constitutional provision granting superiority to international law may be changed. Moreover, this observation is important in another aspect, as it emphasizes that even when the constitution grants international law a supra-constitutional status, namely superiority over constitutional provisions, such unamendability derives not from international law as a separate legal order, but rather from the constitution itself.
Already ninety years ago, Quincy Wright asked the question of ‘what, if any, limitations international law places upon the capacity of a state to make and alter its constitution’.159 Constitutionalists have long sought a higher law to refer to when assessing legal norms—for instance, primary legislation when assessing secondary legislation, or constitutional legislation when assessing primary legislation. But what if the norm to be assessed is a constitutional one? As noted in earlier chapters, when it comes to constitutional amendments, these ‘higher norms’ can be basic constitutional principles, either explicit or implicit. These are often termed ‘internal supra-constitutional’ principles. Arguments of a higher norm can also be made in reference to external supra-constitutional principles, designed as a set of natural law or international law standards that bind national constitutional standards. As has been argued in this chapter, natural law theory seems inadequate to function as unamendability. Nevertheless, there is a growing tendency to argue for supra-constitutional unamendability in the form of international or regional supranational law.
Supra-constitutional unamendability manifests the phenomena of globalization, multilateralism, and transnationalism which exert a growing influence on domestic law and domestic legal institutions. In many cases, this influence goes beyond merely supplementing or complementing domestic law. Today, states are bound by certain supranational rules. When those rules are breached, even by constitutional legislation, they can be enforced in supranational bodies and tribunals. From this perspective, supra-constitutional unamendability does exist. The identification of a certain supremacy of supranational law over the national legal order appears to overcome the traditional dualism between international law and domestic law.
This alleged supremacy finds its limit when it comes to a State’s constitution. It seems that these limitations are themselves limited. They find their boundaries when they attempt to enter the internal espace juridique and overcome the highest hierarchical norm. From the perspective of international law, constitutional legislation is bound to international norms and must respect them. From the perspective of domestic constitutional law, the constitution, as the supreme law of the land, prevails over conflicting international or supranational norms. Thus, a norm may be ‘unconventional’ (contradicts an international convention) from the perspective of international law, but constitutional from the domestic constitutional law perspective. The inconsistency between these two approaches is, to borrow from Anne Peters, ‘a fact with which academics will have to learn to live’.160
So, then, how can supranational unamendability be enforced within a domestic legal system? In the case of a constitutional amendment that breaches international or regional law, domestic courts can, at least in theory, have recourse to supranational avenues in order to annul the conflicting constitutional provision. This is especially the case for a powerful court that enjoys great legitimacy. But this still seems unlikely to occur and is the rare exception rather than the rule, since, when facing ‘mixed loyalties’, the national judge will usually choose the national constitutional law over international law.161 Even if it is clear, from an international law perspective, that international law prevails over national law, state practice does not demonstrate general approval of international supremacy over the domestic constitutions.162 In fact, in most countries, international law, unlike EU and ECHR law, is still relatively neglected or dismissed in constitutional litigation.163 Moreover, any judicial reference to supra-constitutional norms in order to invalidate constitutional amendments invites judicial activism and would likely earn harsh criticism.164
Today, any alleged primacy of supranational law is still qualified. Ultimately, it would be subject to the constitution, the highest hierarchical normative national norm. Furthermore, in the internal espace juridique, any arguments that supranational law prevails over domestic constitutional law are commonly based on the constitution itself, which may grant certain international or regional laws a normative status that is higher than domestic law.165 However, that constitution may be amended or replaced by a new constitution, so as to loosen or even exclude such superiority. More important is the acknowledgment that this superiority is based not on any supra-constitutional theory, but rather on limitations within the constitutional order itself. This is well demonstrated in the clearest example of an international limitation within a domestic legal system, that being the Swiss case regarding the deportation of asylum-seekers. Even in Switzerland, where the Federal Council recognized jus cogens as an implicit unamendability, the reasoning was based upon the national constitutional order. It was derived from the principle of Rechtstaat, which constitutes a basic principle of the domestic legal order, rather than from an autonomous external legal order.166 This is not to deny the importance of supranational law. Instead, it emphasizes the importance of domestic anchoring.
Anne-Marie Slaughter and William Burke-White phrased the slogan ‘the future of international law is domestic’.167 It similarly appears that national constitutions remain essential in any process of global constitutionalization and that the best description of supranational unamendability is through explicit and implicit unamendability.168 In other words, existing practice dispels a genuine notion of supra-constitutionality, which requires for its application, or is dependent upon, limitations on the amendment powers within national constitutions. It is unamendability within the constitution itself that is used in order to render valid limitations on amendment powers affecting supranational standards. For instance, an explicit unamendable provision may refer to international laws such as jus cogens principles or international human rights law. Similarly, jus cogens principles may form part of the universal basic principles of the domestic constitutional order.169 Therefore, explicit and implicit unamendability describe the existing national practice regarding arguments relating to supra-constitutional unamendability, and it is through these limitations, either explicit and implicit, that international and supranational norms may pose enforceable limitations on the constitutional amendment powers. Therefore, the rest of this book focuses on explicit and implicit unamendability. ‘The government undoubtedly has a variety of legitimate means at its disposal to modify its international legal obligations or to deprive them of domestic applicability’, William Carter reminds us; ‘Ignoring the Constitution is not one of them.’170
1 An earlier version of this chapter appeared as Yaniv Roznai, ‘The Theory and Practice of “Supra-constitutional” Limits on Constitutional Amendments’ (2013) 62(3) ICLQ 557–97. A different, but related, question is whether within supranational arrangements themselves there are certain rules of principles that cannot be changed. See, for example, Reijer Passchier and Maarten Stremler, ‘Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision’ (forthcoming 2016) 5(2) Cambridge J. Int’l & Comp. L., <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561209>
3 Nico Mol, ‘Implications of the Special Status Accorded in the General Framework Agreement for Peace to the European Convention on Human Rights’ in Michael O’Flaherty and Gregory Gisvold (eds), Post-war Protection of Human Rights in Bosnia and Herzegovina (Martinus Nijhoff Publishers 1998) 27, 30–1.
4 Aishwarya Deb and Prithwish Roy Chowdhury, ‘A Critical Analysis of the Proximity of Natural Law to the Indian Constitution’ (2015) 20(8) Journal of Humanities and Social Science 24–9; V. R. Jayadevan, ‘Interpretation of the Amending Clause: The Brawl between the Spirit of Natural Law and the Ghost of Analytical Positivism—A Comparative Overview of the American and Indian Experiences’ (2010) 33 Hamline L. Rev. 243, 268–80; Navajyoti Samanta and Sumitava Basu, ‘Test of Basic Structure: An Analysis’ (2008) NUJS L. Rev. 499, 516.
7 C. V. Keshavamurthy, Amending Power under the Indian Constitution—Basic Structure Limitations (Deep & Deep Publications 1982) 87, n. 29; Markku Suksi, Bringing in the People: A Comparison of Constitutional Forms and Practices of the Referendum (Martinus Nijhoff Publishers 1993) 25–6; Gérard Cahin, ‘Limitation du pouvoir constituant: le point de vue de l’internationaliste’ (2014) 32 Civitas Europa 55.
12 See, for example, John Finnis, Natural Law & Natural Rights (2nd edn, Oxford University Press 2011) 198–226; Francis Oakley, Natural Law, Laws of Nature, Natural Rights (Continuum International Publishing Group 2005) 87–109.
14 Jean Jacques Burlamaqui, The Principles of Natural and Politic Law Vol. I (2nd edn, J. Nourse 1763) 157; Thomas Rutherforth, Institutes of Natural Law (2nd edn, W. & J. Neal 1832) 373; Emer de Vattel, The Law of Nations (7th edn, T. & J. W. Johnson 1849) 20; Samuel von Pufendorf, On the Law of Nature and Nations (Clarendon Press 1934) 1133.
16 See Alec Stone Sweet, ‘The Politics of Constitutional Review in France and Europe’ (2007) 5 Int’l J. Const. L. 69, 84, at n. 40: ‘the position of many scholars and constitutional judges, is that rights possess a kind of supraconstitutional status (their contents cannot be altered by constitutional revision).’
17 Everett V. Abbot, ‘Inalienable Rights and the Eighteenth Amendment’ (1920) 20 Colum. L. Rev. 183. Challenges against the Eighteenth Amendment were rejected in United States v. Sprague, 282 U.S. 716, 717 (1931).
21 See, for example, Georges Vedel, ‘Souveraineté et supra-constitutionnalité’ (1993) 67 Pouvoirs 76; Kemal Gözler, Le pouvoir de révision constitutionnelle (PhD Thesis, Université Montesquieu - Bordeaux IV 1995) 287–350.
24 Carl Schmitt, Legality and Legitimacy (Jeffrey Seitzer tr., Duke University Press 2004) 58–60. Schmitt claimed that Hauriou’s work on institutions was the ‘first systematic attempt of a restoration of concrete-order thinking since the dominance of juristic positivism’. See David Bates, ‘Political Theology and the Nazi State: Carl Schmitt’s Concept of the Institution’ (2006) 3(3) Modern Intellectual History 415, 424.
25 Gottfreid Dietze, ‘Unconstitutional Constitutional Norms? Constitutional Development in Postwar Germany’ (1956) 42 Virginia L. Rev. 1; more generally, Edgar Bodenheimer, ‘Significant Developments in German Legal Philosophy since 1945’ (1954) 3 Am. J. Comp. L. 379; Taylor Cole, ‘The West German Federal Constitutional Court: An Evaluation after Six Years’ (1958) 20(2) J. Politics 278, 302–4; Heinrich Rommen, ‘Natural Law in Decisions of the Federal Supreme Court and of the Constitutional Courts in Germany’ (1959) 4 Natural Law Forum 1.
29 See also decision of 25 April 1950; quoted in Ernst von Hippel, ‘The Role of Natural Law in the Legal Decisions of the German Federal Republic’ (1959) 4 Natural Law Forum 106, 114. Interestingly, based upon this para., Judge Sussman of the Israeli Supreme Court recognized the existence of supra-constitutional norms steaming from natural law which are supreme to any law. See E.A. (Election Appeal) 1/65, Yeredor v. Chairman, Central Election Committee for the Sixth Knesset, 19(2) PD 365, 390  (Isr); Shlomo Guberman, ‘Israel’s Supra-constitution’ (1967) 2(4) Isr. L. Rev. 455, 458. The question of limitations on the Knesset’s constituent power has since arisen a number of times in the jurisprudence of the Supreme Court and judges’ obiter statements reflect a general inclination towards the idea that the Jewish and democratic principles are implicitly unamendable. Yet, the doctrine of unconstitutional constitutional amendments has not been fully accepted or applied by the Israeli Supreme Court. See HCJ 6427/02 The Movement for the Quality of Governance in Israel v. The Knesset, 61(1) PD 619 ; HCJ 4908/10 Knesset Member Bar-On v. The Knesset (7 April 2011) [Isr.]; Mazen Masri, ‘Unamendability in Israel—A Critical Perspective’ in Richard Albert and Bertil Emrah Oder (eds), An Unconstitutional Constitution? Unamendability in Constitutional Democracies (Springer, forthcoming 2017).
30 (1951) 1 BverfGE 14, 32; Dobrinka Taskovska, ‘General Principles as Sources of Law in the Major Legal Systems’ (2010) 1(1) Iustinianus Primus L. Rev. 1, 4. See, generally, Gerhard Leibholz, ‘The Federal Constitutional Court in Germany and the “Southwest Case”’ (1952) 46(3) Am. Pol. Sci. Rev. 723.
32 Otto Bachof, Verfassungswidrige Verfassungsnormen? (J.C.B. Mohr 1951) 29–57. Bachof’s book was translated into Portuguese and was quite influential in Portuguese-speaking countries. For example, in 1975 in post-dictatorship Portugal, the Council of the Revolution issued the constitutional Law 8/75 which declared the dictatorship political police, which was abolished after the revolution, to be a terrorist organization. On this basis, former prime ministers and home ministers were incriminated. Law 8/75 had a constitutional status which allegedly prevented any claim of unconstitutionality. However, in one case, a military court with the authority to adjudicate crimes based upon this law invoked Bachof’s theory to find that the law, due to its retroactive nature, contradicted supra-constitutional norms. This argument was nevertheless rejected by the Supreme Military Court. See Opinion No. 9/79 of the Constitutional Commission (Pareceres da Comissão Constitucional, vol. 8, 3 ff). See also Miguel Galvão Teles, ‘Ex Post Justice, Legal Retrospection, and Claim to Bindingness’ in Augusto Silva Dias et al. (eds), Liber Amicorum de José de Sousa Brito (Almedina 2009) 425, 430–1.
34 See Aileen Kavanagh, ‘Unconstitutional Constitutional Amendments from Irish Free State to Irish Republic’ in Eoin Carolan (ed.), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury Professional 2012) 331–54; Aisling O’Sullivan and Phil C. W. Chan, ‘Judicial Review in Ireland and the Relationship between the Irish Constitution and Natural Law’ (2006) 15 Nottingham L. J. 18–36; V. Bradley Lewis, ‘Natural Law in Irish Constitutional Jurisprudence’ (1997) 2 Catholic Soc. Sci. Rev. 171.
47 Riordan v. An Taoiseach,  IESC 1, 4: ‘There can be no question of a constitutional amendment properly placed before the people and approved by them being itself unconstitutional’; Hanafin v. Minister of the Environment,  2 ILRM 61, 183: ‘No organ of the State, including this Court, is competent to review or nullify a decision of the people … The will of the people as expressed in a referendum providing for the amendment of the Constitution is sacrosanct and if freely given, cannot be interfered with. The decision is theirs and theirs alone’; cited in Gary J. Jacobsohn, ‘An Unconstitutional Constitution? A Comparative Perspective’ (2006) 4(3) Int’l J. Const. L. 460, 469.
50 Adi Parush, ‘Judicial Activism, Natural Law and Legal Positivism—Judge Barak and “the Omnipotent Knesset” Doctrine’ (1992) 17 Tel-Aviv Univ. L. Rev. 717, 729–30 [Heb.]; Ernest Van den Haag, ‘Not Above the Law’ (1991) 43(18) National Review 25, 27.
59 Kunz (n. 51) 954.
60 See, for example, Ruti Teitel, ‘Comparative Constitutional Law in a Global Age’ (2004) 117 Harv. L. Rev. 2570; Rosalind Dixon and Vicki C. Jackson, ‘Constitutions Inside Out: Outsider Interventions in Domestic Constitutional Contests’ (2013) 38 Wake Forest L. Rev. 149; Vicki C. Jackson, Constitutional Engagement in a Transnational Era (Oxford University Press 2013).
61 See, for example, Anne-Marie Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 U. Rich. L. Rev. 99; Anne-Marie Slaughter, ‘Judicial Globalization’ (1999–2000) 40 Va. J. Int’l L. 1103; Melissa A. Waters, ‘Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law’ (2005) 93 Geo. L. J. 487; Melissa A. Waters, ‘The Future of Transnational Judicial Dialogue’ (2010) 104 Am. Soc’y Int’l L. Proc. 465.
65 See, for example, Giuliana Ziccardi Capaldo, The Pillars of Global Law (Ashgate Publishing Ltd. 2013) 209–10 and the references therein. For a recent survey, see Tania Groppi and Marie-Claire Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Bloomsbury Publishing 2013).
71 See Art. 53 of The Vienna Convention on the Law of Treaties 1969, UN, Treaty Series, Vol. 1155, 331 (VCLT); Michael Byers, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules’ (1997) 66 Nordic J. Int’l L. 211, 219–23.
73 Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, paras 155–157 (dictum), <www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf>. One may wonder about the ICTY’s choice of words, as a distinction exists between illegality and illegitimacy: see, generally, Anthea E. Roberts, ‘Legality vs. Legitimacy: Can Uses of Force be Illegal but Justified?’ in Philip Alston and Euan Macdonald (eds), Human Rights, Intervention, and the Use of Force (Oxford University Press 2008) 206–8.
75 African Union, African Charter on Democracy, Elections and Governance, 30 January 2007, <www.africa-union.org/root/au/Documents/Treaties/text/Charter%20on%20Democracy.pdf>
76 Art. 3 of the Statute of The Council of Europe 1949, 87 U.N.T.S. 103, E.T.S. 1, <http://conventions.coe.int/Treaty/en/Treaties/Html/001.htm>
77 Gerald L. Neuman, ‘Human Rights and Constitutional Rights: Harmony and Dissonance’ (2003) 55(5) Stanford L. Rev. 1863. For a comparison between international and constitutional rights see Stephen Gardbaum, ‘Human Rights as International Constitutional Rights’ (2008) 19(4) EJIL 749, 750–3, 764–8.
78 Patricia Hyndman, ‘Constitutions, Constitutionalism and the Effective Implementation of the International Standards of Human Rights’ (2000) 21 Aus. YBIL 95, 106; Christof Heyns and Frans Viljoen, ‘The Impact of the United Nations Human Rights Treaties on the Domestic Level’ (2001) 23(3) Hum. Rts. Q. 483, 500. But see David S. Law and Mila Versteeg, ‘The Declining Influence of the United States Constitution’ (2012) 87 NYU L. Rev. 762, 850 (empirical analysis ‘uncovers no clear evidence that transnational human rights instruments are shaping global or even regional trends in constitution writing’), contra Zachary Elkins, Tom Ginsburg, and Beth Simmons, ‘Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice’ (2013) 54(1) Harv Int’l L. J. 61, 64–5 (the empirical evidence exhibits that ‘international instruments have a powerful coordinating effect on the contents of national constitutions’).
79 On this tension, see Eyal Benvenisti and Alon Harel, ‘Embracing the Tension between National and International Human Rights Law: The Case for Discordant Parity’ (forthcoming 2017) Int’l J. Const. L., <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2592869>
81 Matthias Hartwig, ‘What Legitimises a National Constitution? On the Importance of International Embedding’ in Armin von Bogdandy and Pál Sonnevend (eds), The European Constitutional Area—Theory, Law and Politics in Hungary and Romania (Hart Publishing 2015) 311, 324–7.
82 Garlicki and Garlicka (n. 48) 359–63.
85 Josef L. Kunz, ‘The “Vienna School” and International Law’ (1934) 11 NYU L. Q. Rev. 370, 402. See also Michael P. Socarras, ‘International Law and the Constitution’ (2010–11) 54.4(2) Fed. Cts. L. Rev. 185.
86 Michael B. Akehurst and Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th edn, Routledge 1997) 63; Gerald Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’ (1957) 92 Recueil Des Cours 85.
87 VCLT (n. 71). See also United Nations Declaration of the Rights and Duties of States, Annex to U.N. Gen. Ass. Res. No. 375 (IV), U.N. Gen. Ass. Off. Rec. 4th Sess., Resolutions, (1949) 67, Art. 13: ‘Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty’; Restatement (Third) of the Foreign Relations Law of the United States, s. 155 cmt.b (1987): ‘A State cannot adduce its constitution or its laws as a defense for failure to carry out its international obligations.’
88 André de Hoogh, ‘The Relationship between National Law and International Law in the Report of the Georgia Fact-Finding Mission’, EJIL: Talk! (4 January 2010), <www.ejiltalk.org/the-relationship-between-national-law-and-international-law-in-the-report-of-the-georgia-fact-finding-mission/>
89 Case of the ‘Montijo’: Agreement between the United States and Colombia of 17.08.1874, award of 26.7.1875, cited in Anne Peters, ‘Supremacy Lost: International Law meets Domestic Constitutional Law’ (2009) 3 ICL 170, 183–4.
90 Avis Consultatif du 4 février 1932, Série A/B n°44, 24. See Manley O. Hudson, ‘International Engagements and Their Interpretation by the Permanent Court of International Justice’ in Alexander Marsden Kidd and Max Radin (eds), Legal Essays: In Tribute to Orrin Kip McMurray (University of California Press 1935) 190.
91 The question of the relationship between international and regional law, especially EU law, seems even more complicated. See, for example, Grainne de Búrca, ‘The European Court of Justice and the International Legal Order after Kadi’ (2010) 51(1) Harv. Int’l L. J. 1.
93 Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1970) E.C.R. 1125, 1134, para. 3, <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61970CJ0011:EN:PDF>
94 Alajos Kiss v. Hungary, App. No. 38832/06, Eur. Ct. H. R., Judgment of 20 May 2010. See also Rekvenyi v. Hungary, App. No. 25390/94, Eur. Ct. H. R., Judgment of 20 May 1999 and Victor-Emmanuel de Savoie v. Italy, App. No. 53360/99, Eur. Ct. H. R., Judgment of 24 April 2003, in which the ECtHR examined the compatibility of constitutional provisions with the ECHR but did not establish a breach.
97 Tilmann Altwicker, ‘Convention Rights as Minimum Constitutional Guarantees? The Conflict between Domestic Constitutional Law and the European Convention of Human Rights’ in von Bogdandy and Sonnevend (n. 81) 331–50.
98 Dieter Grimm, ‘The Achievement of Constitutionalism and Its Prospects in a Changed World’ in Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism (Oxford University Press 2010) 15. See also Didier Maus, ‘The Influence of Contemporary International Law on the Exercise of Constituent Power’ in Antero Jyrank (ed.), National Constitutions in the Era of Integration (Kluwer 1999) 50.
103 Garlicki and Garlicka (n. 48) 363.
104 Bryde (n. 62) 210.
106 For a detailed review, see Schnably (n. 74) 461–73.
107 Goler Teal Butcher, ‘Legal Consequences for States of the Illegality of Apartheid’ (1986) 8 Hum. Rts. Q. 404, 433; Xia Jisheng, ‘Evolution of South Africa’s Racist Constitutions and the 1983 Constitution’ (1987) 16(1) A Journal of Opinion 18.
108 S. C. Res. 554, U.N. Doc S/RES/554 (17 August 1984), <http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/487/84/IMG/NR048784.pdf?OpenElement>
111 For such interpretation of the decision, see Rosalie P. Schaffer, ‘The Inter-relationship between Public International Law and the Law of South Africa: An Overview’ (1983) 32 ICLQ 277; Andreas Zimmermann, ‘Is It Really All About Commitment and Diffusion—A Comment on Commitment and Diffusion: How and Why National Constitutions Incorporate International Law’ (2008) U. Ill. L. Rev. 253, 257–8.
113 Natalia Chaeva, ‘The Russian Constitutional Court and its Actual Control over the ECtHR Judgement in Anchugov and Gladkov’, EJIL: Talk! (26 April 2016), <http://www.ejiltalk.org/the-russian-constitutional-court-and-its-actual-control-over-the-ecthr-judgement-in-anchugov-and-gladko/>
115 Francesco Francioni, ‘International Law as a Common Language for National Courts’ (2001) 36 Tex. Int’l L. J. 587; Anthea Roberts, ‘Comparative International Law? The Role of National Courts in International Law’ (2011) 60(1) ICLQ 57.
116 Nollkaemper (n. 101) 7–8.
117 Ibid, 200.
119 Nollkaemper (n. 101) 166–77.
120 Dieter Grimm, ‘The Basic Law at 60—Identity and Change’ (2010) 11(1) German L. Rev. 33, 45. But see the German Constitutional Court Cases BVerfGE 37, 327 (Solange I), BVerfGE 73, 339 (Solange II), VerfGE 89, 255 (Maastricht) (the Constitutional Court’s authority to adjudicate individual complaints is restored if the EU gives a lack of attention to fundamental rights).
123 Georges Scelle, Precis du droit des gens, Principes et systematique (vol I., Librarie du Recueil Sirey 1932) 43, 54–6. On Scelle’s theory, see Hubert Thierry, ‘The Thought of Georges Scelle’ (1990) 1 EJIL 193; Antonio Cassese, ‘Remarks on Scelle’s Theory of “Role Splitting” (dedoublement fonctionnel) in International Law’ (1990) 2 EJIL 210, 212–13.
124 Yuval Shany, ‘Dédoublement fonctionnel and the Mixed Loyalties of National and International Judges’ in Filippo Fontanelli, Giuseppe Martinico, and Paolo Carrozza (eds), Shaping Rule of Law through Dialogue—International and Supranational Experiences (Europa Law Publishing 2010) 29.
125 Yuval Shany, ‘How Supreme Is the Supreme Law of the Land? Comparative Analysis of the Influence of International Human Rights Treaties upon the Interpretation of Constitutional Text by Domestic Courts’ (2005–6) 31(2) Brook. J. Int’l L. 341, 399.
126 Add to this the claim that national courts hesitate to apply international or regional laws if they cannot be assured that other national courts will act similarly. See Eyal Benvenisti, ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts’ (1993) 4 EJIL 159, 175; Joseph H. H. Weiler, ‘A Quiet Revolution: The European Court of Justice and Its Interlocutors’ (1994) 26 Com. Pol. Stud. 510, 521–2.
127 Pierre-Marie Dupuy, ‘Unity in the Application of International Law at the Global Level and the Responsibility of Judges at the National Level: Reviewing Georges Scelle’s “Role Splitting” Theory’ in Laurence Boisson de Chazournes and Marcelo G. Kohen (eds), International Law and the Quest for Its Implementation (BRILL 2010) 421.
128 Kumm (n. 118) 24.
129 Garlicki and Garlicka (n. 48) 364.
131 Andreas Paulus, ‘National Courts and the International Rule of Law—Remarks on the Book by André Nollkaemper’ (2012) 4 JRSLM Rev. Legal Stud. 9, 16. Cf. Görgülü Case 2 BvR 1481/04 (14 October 2004) BVerfGE 111, 307 at para. 34, <www.bundesverfassungsgericht.de/entscheidungen/rs20041014_2bvr148104en.html>: ‘The Basic Law is clearly based on the classic idea that the relationship of public international law and domestic law is a relationship between two different legal spheres and that the nature of this relationship can only be determined from the viewpoint of domestic law only by domestic law itself.’
132 Anneli Albi, ‘Supremacy of EC Law in the New Member States—Bringing Parliament into the Equation of Co-operative Constitutionalism’ (2007) 3 Eur. Const. L. Rev. 2, 5; Roman Kwiecień, ‘The Primacy of European Union Law over National Law under the Constitutional Treaty’ (2005) 6(11) German L. J. 1479, 1487–8.
133 Nollkaemper himself recognizes that in order for international claims to be adjudicated in domestic courts, ‘international law has to be valid in national law’. Nollkaemper (n. 101) 68–74.
134 Kelsen (n. 84) 420.
135 Eric Stein, ‘International Law in Internal Law: Toward Internationalization of Central-Eastern European Constitutions?’ (1994) 88 AJIL 427. For earlier accounts, see David R. Deener, ‘International Law Provisions in Post-World War II Constitutions’ (1950–1) 36 Cornell L. Rev. 505, 522–8; Robert R. Wilson, ‘International Law in New National Constitutions’ (1964) 58 AJIL 432; Charles Pergler, ‘Constitutional Recognition of International Law’ (1944) 30(2) Va. L. Rev. 318.
136 Antonio Cassese, ‘Modern Constitutions and International Law’ (1985) 192 Recueil des cours 331; Thomas Buergenthal, ‘Modern Constitutions and Human Rights Treaties’ (1998) 36 Colum. J. Trans’l L. 211.
138 See Tom Ginsburg, ‘Locking in Democracy: Constitutions, Commitment and International Law’ (2006) 38 NYU J. Int’l L. 707; Tom Ginsburg, Svitlana Chernykh, and Zachary Elkins, ‘Commitment and Diffusion: How and Why National Constitutions Incorporate International Law’ (2008) U. IIl. L. Rev. 201, 207–10.
140 Anne Peters, ‘The Globalization of State Constitutions’ in Janne E. Nijman and André Nollkaemper (eds), New Perspectives on the Divide between National and International Law (Oxford University Press 2007) 259–66. See also Pierre-Hugues Verdier and Mila Versteeg, ‘International Law in National Legal Systems: An Empirical Investigation’ (2015) 109 Am. J. Int’l L. 467.
141 Constitutional Court of Lithuania, Case No. 17/02-24/02-06/03-22/04 on the limitation of the rights of ownership in areas of particular value and in forest land, ruling of 14 March 2006, para. 9.4, <www.lrkt.lt/dokumentai/2006/r060314.htm>
142 Corte cost. Judgment Nos 348/2007; 349/2007; 311/2009; 317/2009, <http://www.cortecostituzionale.it/ActionPagina_328.do>. See Francesca Biondi Dal Monte and Filippo Fontanelli, ‘Decisions No. 348 and 349/2007 of the Italian Constitutional Court: The Efficacy of the European Convention in the Italian Legal System’ (2008) 9 German L. J. 889; Silvia Mirate, ‘The Role of the ECHR in the Italian Administrative Case Law: An Analysis after the Two Judgments of the Constitutional Court No. 348 and No. 349 of 2007’ (2009) 1 Italian J. Pub. L. 260; Gianluca Gentili, ‘A Comparison of European Systems of Direct Access to Constitutional Judges: Exploring Advantages for the Italian Constitutional Court’ (2012) 4(1) Italian J. Pub. L. 159, 205–6.
144 See Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (dictum); Carlos Manuel Vázquez, ‘Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties’ (2008–9) 122 Harv. L. Rev. 599, 611. But see Remy Z. Levin and Paul Chen, ‘Rethinking the Constitution–Treaty Relationship’ (2012) 10(1) Int’l J. Cons. L. 242, 243 (characterizing the relationship between the Constitution and treaties by ‘mutual adjustment’).
145 See Michal Bobek and David Kosař, ‘Report on the Czech Republic and Slovakia’ in Giuseppe Martinico and Oreste Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws—A Comparative Constitutional Perspective (Europa Law Publishing 2010); Ioana Pelin Raducu, ‘Report on Romania’ in Giuseppe Martinico and Oreste Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws—A Comparative Constitutional Perspective (Europa Law Publishing 2010) 369. A different question is whether the unamendable provision in the Czech Constitution may work against the development and superiority of European law. See Ladislav Vyhnánek, ‘The Eternity Clause in the Czech Constitution as Limit to European Integration—Much Ado about Nothing?’ (2015) 9(2) ICLJ 240. This protection of core identity against integration by Member States appears to be the recent trend in the EU. See Pietro Faraguna, ‘Taking Constitutional Identities away from the Courts’ (2016) 41(2) Brook. J. Int’l L. 491.
146 Philipp Cede, ‘Report on Austria and Germany’ in Martinico and Pollicino, ibid, at 61.
147 Helen Keller and Alec Stone Sweet, ‘Assessing the Impact of the ECHR on National Legal Systems’ in Helen Keller and Alec Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press 2008) 684.
148 Constitucion De La Nacion Argentina (1994), Art. 75, para. 22. See Héctor Fix-Fierro and Sergio Lopez-Ayllón, ‘The Impact of Globalization on the Reform of the State and the Law in Latin America’ (1996–7) 19 Hous. J. Int’l L. 785, 799.
150 Grondwet [Gw.] [Constitution] Art. 91(3) (Neth.) See Evert A. Alkema, ‘Constitutional Law’ in Jeroen Chorus, Piet-Hein Gerver, and Ewoud Hondius (eds), Introduction to Dutch Law (4th edn, Kluwer Law International 2006) 327–30; Elaine Mak, ‘Report on the Netherlands and Luxembourg’ in Martinico and Pollicino (n. 145) 301.
151 Belgian Cour de cassation, Dutch Section, 2nd Chamber, Vlaamse Concentratie, Decision of 9 November 2004, para. 14.1, cited in Peters (n. 89) 184.
153 The Constitution of the Russian Federation, 1993, Part 6, Art. 125. See, generally, Sergei Y. Marochkin, ‘International Law in the Courts of the Russian Federation: Practice of Application’ (2007) 6(2) Chinese JIL (2007) 329.
154 Supreme Court of Russian Federation (plenum), decision No. 5 of 10 October 2003, ‘on application of the universally recognized principles and norms of the international law and the international treaties of the Russian Federation by courts of general jurisdiction’, para. 1. An English translation is available in Anton Burkov, The Impact of the European Convention on Human Rights on Russia Law (ibidem-Verlag 2007) 124–34.
155 See Erika de Wet, ‘The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law’ (2004) 15(1) EJIL 97, 101–5. De Wet notes that this opinion of the Swiss Federal Council was somewhat contrary to a prior decision of 1953, in which it held that no external limitations exist upon the constitutional process that can be deemed superior to the people’s will. In its later opinion, the Federal Council distinguished between treaty obligations, which State parties can legally terminate and which were at issue in the 1953 initiative, and jus cogens norms, which were at issue in the 1994 initiative.
156 Biaggini (n. 2) 316–17. On whether the Supreme Court in Switzerland could potentially adopt a dialogic model of the unconstitutional constitutional amendment doctrine, which would empower the Swiss Parliament to impose limitations on popular revisions, see Rosalind Dixon and Felix Uhlmann, ‘The Swiss Constitution and a Weak-form Unconstitutional Amendment Doctrine?’ (unpublished paper, 2016).
157 See Daniel Moeckli, ‘Of Minarets and Foreign Criminals: Swiss Direct Democracy and Human Rights’ (2011) 11(4) Hum. Rts. L. Rev. 774, 781–2, 785. Moeckli provides examples of initiatives to amend the Constitution which conflict with international law; with regard to the initiative to ban the construction of minarets, the federal authorities did not find any violation of peremptory norms, claiming that the freedom to exercise one’s religion and the prohibition on discrimination do not form part of jus cogens. Similarly, with regard to the initiative requiring the automatic expulsion of foreign nationals convicted of certain criminal offences specified by law, it was argued that it could be implemented in a way that respects the prohibition on refoulement. It therefore seems that de Wet (n. 155) 104 was correct in contending that ‘one could claim that such an explicit intra-state commitment to peremptory norms of international law could have counter-productive effects, as it would imply that the legislature would not be bound to customary law that does not constitute jus cogens, but could follow it at its own discretion’.
158 Neuman (n. 77) 1875–6.
160 Anne Peters, ‘The Bananas Decision (2000) of the German Federal Constitutional Court: Towards Reconciliation with the European Court of Justice as Regards Fundamental Rights Protection in Europe’ (2000) 43 Ger. YBIL 276, 282.
161 Compare with David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Hart Publishing 1998) 14–15 (criticizing the South African judiciary who, according to him, should have confronted the government and resisted apartheid. While those judges saw themselves bound by domestic law, they could have invoked common-law rights and freedoms to protect members of the society).
162 Anne Peters and Ulrich Preuss, ‘International Relations and International Law’ in Mark Tushnet, Thomas Fleiner, and Cheryl Saunders (eds), Routledge Handbook of Constitutional Law (Routledge 2012) 36–9.
163 See, for example, Keun-Gwan Lee, ‘From Monadic Sovereignty to Civitas Maxima: A Critical Perspective on the (Lack of) Interfaces Between International Human Rights Law and National Constitutions in East Asia’ (2010) 5(1) National Taiwan Uni. L. Rev. 155.
164 See Michel Rosenfeld, ‘Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts’ (2004) 2 Int’l J. Const. L. 633, 655; Robert H. Bork, The Tempting of America (Free Press 1990) 66.
165 But see Giuseppe Martinico, ‘Is the European Convention Going to Be “Supreme”? A Comparative-constitutional Overview of ECHR and EU Law before National Courts’ (2012) 23(2) EJIL 401, 424: ‘today, the issue of the ECHR’s primacy and direct effect does not depend just on what is written in the constitutions, it is something that seems to go beyond the full control of national constitutions.’ On the general landscape of global law independent of State consent see, generally, Neil Walker, Intimations of Global Law (Cambridge University Press 2014).
166 de Wet (n. 155) 103: ‘the (Swiss notion of) Rechtstaat itself contains certain peremptory and unalterable norms, including the prohibition of refoulement and that this national origin of the most elementary norms of international law would suffice for applying the concept of jus cogens to national legislation.’
168 Compare with Ximena Fuentes Torrijo, ‘International Law and Domestic Law: Definitely an Odd Couple’ (2008) 77(2) Rev. Jur. UPR 483, 491 (the solution for the superiority of international law lies in the incorporation of international treaties at a supra-constitutional hierarchy internally).
169 Cf. the German Constitutional Court Lisbon Case, BVerfG, 2 BvE 2/08, 30 June 2009, para. 218, <http://www.bverfg.de/entscheidungen/es20090630_2bve000208en.html>: ‘Through what is known as the eternity guarantee, the Basic Law … makes clear … that the Constitution of the Germans, in accordance with the international development which has taken place in particular since the existence of the United Nations, has a universal foundation which cannot be amended by positive law.’