Supremacy Lost: International Law Meets Domestic Constitutional Law

Abstract

This article analyses how domestic constitutional law in many countries responds to the increasing intrusiveness and regulatory claims of international law, notably by refusing to accept an unconditional supremacy of international law above domestic constitutional principles. The method is empirical without claiming to offer a systematic account of all 192 or so constitutions of the world. Moreover, the special problem of constitutional adaptation of EU member states to EU law is left aside. The article does not bother with the specific domestic techniques of incorporating of international law into domestic legal orders, be they called adoption or transformation. While the paper avoids labels such as monism and dualism and seeks to overcome them, it can hardly be denied that the concept of pluralism diagnosed and appraised in the conclusions is 'dualist' to the extent that it presupposes the existence of multiple legal orders. The paper is structured as follows: Part A shows that state constitutons increasingly refer to international law and offers some explanations for this trend. Part B demonstrates how international and domestic constitutional law are more and more converging, which also implies that the diverse state constitutions share more and more commonalities. Part C deals with the spreading practice of constitutional interpretation in conformity with international law. Part D argues that in some constitutional orders, international human rights norms assume a para-constitutional function by serving as a standad for judicial review even where constitutional review is not allowed. Part E analyses the supremacy of international law. While the international courts and tribunals claim supremacy over all domestic law, including constitutional law, this claim is rejected by more and more domestic actors. At the same time, more and more domestic courts claim the competence to scrutinize whether international rules and court decisions are in conformity with the domestic constitution. The survey of constitutional provisions and case law reveals that although domestic constitutions have, especially in the recent decades, been intensely