Constitutional Law Encounters International Law: Terms of Engagement
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There is a tension inherent to the idea of constitutional self-government, as it is understood by many constitutional lawyers, and the claims to authority made by international law. That tension has long been covered up by the fact that international law covered merely a relatively narrowly circumscribed domain of foreign affairs, was solidly grounded in state consent, and generally left questions of interpretation and enforcement to states. Much of contemporary international law no longer fits that description. International law has expanded its scope, loosened its link to state consent, and strengthened compulsory adjudication and enforcement mechanisms. Not surprisingly, one of the most pressing questions of contemporary constitutional law is how to think about the relationship between the national constitution and international law. In the first decades of the twentieth century, jurisprudential debates among international lawyers thinking about the relationship between national and international law focused on whether the legal world exhibits a monist or a dualist structure. Under a monist conception of the legal world, international and national law constitute one vertically integrated legal order in which international law is supreme. Dualists insist on the conceptual possibility, historical reality, and normative desirability of a non-monist conception of the legal world. Under a dualist (or pluralist) conception of the legal world, different legal systems on the national and international levels interact with one another on the basis of standards internal to each legal system. The debates between monists and dualists have generally subsided. As is often the case with academic debates, the debate did not end with victory for one side by way of a generally recognized knock-down argument. The debate just withered away, as doubts arose about the fruitfulness of the question. After the Second World War a more pragmatic, doctrinally focused approach gained ground. Most post Second World War international law textbooks spend a couple of pages providing a historic overview of debates concerning monism and dualism, point out that practice is pragmatic and not adequately described by a radical version of either, and then move on to engage with specific aspects of domestic practice. This post-Second World War pragmatic style of thinking about the relationship between national and international law is mostly focused on an analysis of constitutional doctrine as it has emerged as a matter of domestic legal practice. But the emphasis on doctrine and practice as opposed to jurisprudential theory should not obfuscate the fact that the approach taken is in an important sense dualist. The relationship between national and international law is generally taught and written about as the foreign relations law of the state, as it has been set out in the constitution and reflected in constitutional practice. The very idea that that the national constitution is decisive for generating the doctrines that structure the relationship between national and international law is dualist. This is true, even where the constitution determines that international law is part of the law of the land. How the constitution manages the interface between national and international law varies across constitutional jurisdictions. But notwithstanding significant variance across constitutional democracies, the basic structure of post-Second World War constitutional doctrines tends to be similar. National constitutions typically assign a status to international law within the domestic hierarchy of norms giving rise to specific conflict rules. Typically international law is assigned a lower status than the constitution but is at least on par with ordinary statutes. This means that a statute enacted prior to the entry into force of a duly ratified treaty, for example, is trumped by the treaty, but the treaty in turn is trumped by a provision of constitutional law. Furthermore these doctrines tend to assign a status to international law that depends on its source. Treaties are assigned one rule, customary international law is assigned another. Furthermore there are typically judicially developed rules determining whether a treaty is self-executing or directly effective and can thus be judicially enforced without further implementing legislation. There are also rules of construction typically requiring domestic statutes to be interpreted so as to avoid a conflict with international law if possible.
Source Publication
The Migration of Constitutional Ideas
Source Editors/Authors
Sujit Choudhry
Publication Date
2006
Recommended Citation
Kumm, Mattias, "Constitutional Law Encounters International Law: Terms of Engagement" (2006). Faculty Chapters. 1072.
https://gretchen.law.nyu.edu/fac-chapt/1072
