On the Relationship between International Law and International Constitutionalism

ICL Journal ◽  
2017 ◽  
Vol 11 (1) ◽  
pp. 1-10
Author(s):  
Frederick Schauer
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
International Constitutionalism ◽  
The Relationship

Abstract In some circles the idea of international constitutionalism, or international constitutional law, appears to provoke a considerable and perhaps unexpected degree of resistance, and indeed animosity. My goal on this occasion is to try to figure out why this attitude of scorn might exist, and in the process also to say something about the relationship between international law and international constitutionalism.

Part II Sources, Ch.14 National Constitutions and Refugee Protection

2021 ◽  
Author(s):  
Lester Eve
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Critical Dimension ◽  
Methodological Framework ◽  
Human Rights Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
International Refugee Law ◽  
The Relationship

This chapter explores how national constitutional frameworks add a critical dimension to refugee protection. Given the variability in the protective value of national constitutions for refugees, it considers how States draw strength from their constitutions in response to refugee movements and why they do so in particular ways. The chapter seeks to elucidate some of the complexities in the relationship between constitutional law and international refugee and human rights law, considering the relevance of constitutional text and context, State perspectives on the place of international law, and the extent to which constitutional law has shaped, and continues to shape, international law. The chapter offers a taxonomy as a methodological framework for differentiating these complexities, which suggests that the relationship between constitutional law and international refugee law might be understood in one of three ways: as symbiotic, ambivalent, or antagonistic. It then applies this framework to three case studies. It suggests that this approach may help us to think more strategically about how to harness the protective possibilities of constitutional law as well as wrestle more productively with constitutional law’s limitations.

THE THEORY AND PRACTICE OF ‘SUPRA-CONSTITUTIONAL’ LIMITS ON CONSTITUTIONAL AMENDMENTS

2013 ◽  
Vol 62 (3) ◽  
pp. 557-597 ◽  
Author(s):  
Yaniv Roznai
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Legal Order ◽  
Theory And Practice ◽  
Constitutional Amendment ◽  
Constitutional Amendments ◽  
National Courts ◽  
Constitutional System ◽  
The Relationship

AbstractThis article examines whether there are any limitations on constitutional amendment powers that are external to the constitutional system and above it—‘supra-constitutional’ limits. It considers the theory and practice of the relationship between natural law, international law or other supranational law, and domestic constitutional law in a comparative prism. After considering the alleged supremacy of supranational law over constitutional amendments, the author explores the problem of the relationship between the different legal orders in the external/internal juridical spheres, and the important potential and actual role of national courts in ‘domesticating’ supranational law and enforcing its supremacy. It is claimed that despite the growing influence of supranational law, state practice demonstrates that constitutional law is still generally superior to international law, and even when the normative hierarchical superiority of supranational law is recognized within the domestic legal order, this supremacy derives not from supranational law as a separate legal order, but rather from the constitution itself. Therefore, it is claimed that existing practice regarding arguments of ‘supra-constitutional’ limitations are better described by explicit or implicit limitations within the constitution itself, through which supranational standards can be infused to serve as valid limitations on constitutional amendment powers.

scholarly journals TEN GOOD PRACTICES IN ENVIRONMENTAL CONSTITUTIONALISM: STRUCTURE, TEXT AND JUSTICIABILITY

2017 ◽  
Vol 22 (3) ◽  
pp. 964
Author(s):  
James R. May ◽  
Erin Daly
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Positive Impact ◽  
Environmental Law ◽  
The United States ◽  
Constitutional Courts ◽  
Good Practices ◽  
Structure Text ◽  
Proper Subject ◽  
The Relationship

Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. This chapter posits ten “good practices” – those attributes that make effective outcomes more likely, but not assured – in environmental constitutionalism for advancing positive environmental outcomes considering energy, and governance and sustainability. Good practices in environmental constitutionalism can serve as a useful construct for considering the relationship between sustainability, energy and governance. Accordingly, Section A examines the ten practices that are consequential for effectuating environmental constitutionalism and positive environmental outcomes. Section B then explains how the Robinson Township decision out of the Commonwealth of Pennsylvania in the United States provides a recent example just how good practices can have a positive impact on environmental outcomes in practice.

Constitutional Mindset: The Interrelations between Constitutional Law and International Law in the Extraterritorial Application of Human Rights

2017 ◽  
Vol 50 (2) ◽  
pp. 139-176
Author(s):  
Smadar Ben-Natan
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Control Agent ◽  
European Model ◽  
Cross Border ◽  
American Model ◽  
Legal Concepts ◽  
The Relationship ◽  
Dynamic Formation

Applying human rights beyond state borders is thorny. Which law governs the property rights of a Palestinian whose orchard lies across the Israeli border, or the cross-border shooting of a Mexican citizen by a United States border control agent? This article explores the relationship between constitutional law and international law in the extraterritorial enforcement of human rights by offering a typology of models: the American, European and Israeli models. These models are analysed comparatively, highlighting their chosen legal source of rights: the American model applies constitutional law, the European model uses international law, and Israel combines the two.The article argues that the choice between constitutional and international law is important as it affects the nature and scope of rights, and reflects the relationship between the state and the territory it controls or within which it acts. The dynamic formation process of the Israeli model demonstrates the multiple possible ways to combine these two sources of law and formulate the relationship between them.All three models share a ‘constitutional mindset’: the use of basic legal concepts and reasoning in legally grey zones. However, these transnational processes are not deterministic and could result in original concepts, contradictions and discrepancies, as well as serve different political visions.

scholarly journals Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures

2006 ◽  
Vol 19 (3) ◽  
pp. 579-610 ◽  
Author(s):  
ANNE PETERS
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Sole Source ◽  
Legal Order ◽  
World Government ◽  
Global Constitutionalism ◽  
International Legal Order ◽  
International Constitutionalism ◽  
The Many ◽  
Domestic Level

The article conceives international (or global) constitutionalism as a legal argument which recommends and strengthens efforts (legal and political) to compensate for ongoing de-constitutionalization on the domestic level. Although the notions ‘international constitution’ and ‘international constitutionalism’ have in recent years served as buzzwords in various discourses, the many meanings of those concepts have not yet been fully explored and disentangled. This paper suggests a specific understanding of those concepts. It highlights various aspects and elements of micro- and macro-constitutionalization in international law, and identifies anti-constitutionalist trends. On this basis, the paper finds that, although no international constitution in a formal sense exists, fundamental norms in the international legal order do fulfil constitutional functions. Because those norms can reasonably be qualified as having a constitutional quality, they may not be summarily discarded in the event of a conflict with domestic constitutional law. Because the relevant norms form a transnational constitutional network, and cannot be aligned in an abstract hierarchy, conflict resolution requires a balancing of interests in concrete cases. Finally, because constitutionalism historically and prescriptively means asking for a legitimate constitution, a constitutionalist reading of the international legal order provokes the question of its legitimacy. This question is pressing, because state sovereignty and consent are – on good grounds – no longer accepted as the sole source of legitimacy of international law. International constitutionalism – as understood in this paper – does not ask for state-like forms of legitimacy of a world government, but stimulates the search for new mechanisms to strengthen the legitimacy of global governance.

The Netherlands Constitution and International Law

1953 ◽  
Vol 47 (4) ◽  
pp. 537-558 ◽  
Author(s):  
Jonkheer H. F. van Panhuys
Keyword(s):  
The Netherlands ◽  
International Law ◽  
Constitutional Law ◽  
Foreign Affairs ◽  
Municipal Law ◽  
The Relationship

On June 22 of this year important amendments to the Netherlands Constitution concerning the administration of foreign affairs came into force. As those amendments will not only be of interest to students of Netherlands constitutional law but also to those who are interested in the problem of the relationship between international and municipal law and modern tendencies in national constitutions in this respect, it might be useful to give a brief survey of these amendments and their background.

Self-Determination and Territorial Integrity: Southern Cameroons and the Republic of Cameroun

2019 ◽  
Vol 27 (4) ◽  
pp. 629-653
Author(s):  
Valerie Muguoh Chiatoh
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Third World ◽  
Self Determination ◽  
Territorial Integrity ◽  
Present Issue ◽  
The Republic ◽  
The Relationship

African states and institutions believe that the principle of territorial integrity is applicable to sub-state groups and limits their right to self-determination, contrary to international law. The Anglophone Problem in Cameroon has been an ever-present issue of social, political and economic debates in the country, albeit most times in undertones. This changed as the problem metamorphosed into an otherwise preventable devastating armed conflict with external self-determination having become very popular among the Anglophone People. This situation brings to light the drawbacks of irregular decolonisation, third world colonialism and especially the relationship between self-determination and territorial integrity in Africa.

America's Lone Star Constitution

2018 ◽  
Author(s):  
Lucas A. Powe Jr.
Keyword(s):  
Supreme Court ◽  
Capital Punishment ◽  
School Finance ◽  
Constitutional Law ◽  
Civil Liberty ◽  
Voting Rights ◽  
The Rich ◽  
The Relationship

Texas has created more constitutional law than any other state. In any classroom nationwide, any basic constitutional law course can be taught using nothing but Texas cases. That, however, understates the history and politics behind the cases. Beyond representing all doctrinal areas of constitutional law, Texas cases deal with the major issues of the nation. This book charts the rich and pervasive development of Texas-inspired constitutional law. From voting rights to railroad regulations, school finance to capital punishment, poverty to civil liberty, this book provides a window into the relationship between constitutional litigation and ordinary politics at the Texas Supreme Court, illuminating how all of the fiercest national divides over what the Constitution means took shape in Texas.

Hubungan Kemendagri dan Kemendes dalam Tata Desa dan Administrasi Desa

2020 ◽  
Vol 3 (2) ◽  
pp. 81-97
Author(s):  
Sarip Sarip ◽  
Nur Rahman ◽  
Rohadi Rohadi
Keyword(s):  
Constitutional Law ◽  
Administrative Law ◽  
Point Of View ◽  
Legal Research ◽  
The Government ◽  
The Village ◽  
The Relationship

This article aims to explore the relationship between the Ministry of Home Affairs (Kemendagri) and the Ministry of Villages (Kemendes) from theconstitutional law and state administrative law point of view.The second concerns of this research is the disharmony and problem between the two ministries.From the constitutional law point of view, it turns out that what the Ministry of Home Affairs is doing, is closer to the object of its discussion. The method used in this research is normative legal research bycomparingthe constitutional law and state administrative law to obtain clarity regarding the Ministry of Home Affairs and Ministry of Village. The result shows that the Ministry of Village approached the science of state administrative law, namely to revive or give spirits to the village. Disharmonization began to exist since the inception of the Ministry of Village. The root of disharmony itself was the improper application of constitutional foundations in the formation of the Village Law. It would be better if the government reassess the constitutional foundation for the village.

Domestic Anti-Avoidance Legislation in Relation to Tax Treaty Law

2017 ◽  
Vol 6 (2) ◽  
pp. 312
Author(s):  
Shkumbin Asllani
Keyword(s):  
International Law ◽  
Tax Avoidance ◽  
International Taxation ◽  
Main Principle ◽  
Legal Practice ◽  
Tax Treaties ◽  
International Tax ◽  
Tax Payers ◽  
The Relationship ◽  
Domestic Law

In today’s international taxation most of the developing countries enter into tax treaties which are drafted in line with the OECD MC to eliminate double taxation. Yet, is well-known fact that tax treaties in practice are abused by tax payers, therefore, majority of states have introduce legislation specifically designed to prevent tax avoidance and protect their domestic interests. In legal practice and literature the act of overriding international tax treaties and denying treaty benefits in favour of domestic law provisions threatens main principle of international law and therefore is questionable to what extend the relationship between domestic law and international tax treaty agreements bridges the international norms.

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