Volume 3, Fall 2023, Issue 3

Special Symposium Issue:

International Law and Constitution-Making

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DOES THE WORLD NEED AN INTERNATIONAL CONSTITUTIONAL COURT?

Richard Albert

Today democracy is declining around the world, and so is faith in domestic institutions. Many strategies have been suggested to fight back against the tide of authoritarianism, but the idea of creating an International Constitutional Court has yet to catch fire among defenders of democracy. In this lecture—delivered as the Edward J. Bloustein Jurisprudence Lecture at Rutgers University on May 18, 2022—I explore the origins of the proposal for an International Constitutional Court, I discuss the structure and powers of this proposed tribunal, and I evaluate how to design an International Constitutional Court for success. I conclude that the Court, if ever it is created, should be limited to issuing only advisory rulings. To be sure, creating this International Constitutional Court is a Hail Mary Play. But it may be needed now more than ever.

LEGAL ORIGINS AND HUMAN RIGHTS LAW

Adam Chilton & Mila Versteeg

A widely studied topic in comparative law is the extent to which countries’ legal origins—and especially whether they are a civil or common law system—are associated with the substance of their contemporary laws. We contribute to this line of research by using data from a range of sources to explore whether common law and civil law countries have different substantive legal commitments in an area where the enduring influence of legal origins remains unclear: human rights law. We specifically explore differences between common law and civil law countries along five dimensions. We find that, compared to countries with common law legal origins, countries with civil law legal origins enumerate more constitutional rights, ratify more human rights treaties, enumerate more citizen duties, and are more likely to have legal regimes that incorporate international human rights treaties into their domestic legal order.

INTERNATIONAL LAW AND CONSTITUTION-MAKING IN CHILE: OPPORTUNITIES AND LIMITS

Domingo A. Lovera Parmo & Pable Contreras Vásquez

International law impacts constitution-making processes: international agencies act as advisors or observers in constitutional replacement mechanisms, along with the global dialogue between international law and domestic law, whereby constitutions expressly incorporate international law (especially, on human rights), enact norms with international law in mind, or straightforwardly constitutionalize international human rights treaties. This Article explores the impact of international law on the constituent process in Chile, which took a different and untrodden path, by expressly establishing a duty to ensure that the future constitutional text “respect…the international treaties ratified by Chile and currently in force.” Although such duty was political rather than legal in nature, international law—in particular, human rights law—played a key role in the work of the first Constitutional Convention. While the literature often depicts international human rights law as being “the floor not the roof,” Chile’s constituent process shows that international human rights law can also operate as a limit to constitutional innovations.

AUTHORITARIANISM BETWEEN CONSTITUTIONALISM AND INTERNATIONAL LAW: A CORNER CASE IN LIBERAL DEMOCRATIC PARAMETER SPACE

Dolunay Bulut

Authoritarianism today does not float in an extralegal space; its rise, spread, and consolidation are deeply embedded in a multilateral institutional architecture, within which legitimacy cannot be merely reserved to a sovereign people or its state apparatus. This new authoritarianism re-institutes the society by slow but steady self-alterations to the hegemonic liberal script, which leads to a new, hybrid constitutional-political project that proposes prescriptive and descriptive knowledge of social organization. This Article concentrates on how some autocracies solidify themselves more successfully than others by readjusting the borders and orders in a liberal democratic society to redefine the goals and rules for legitimation and consolidation of authoritarianism. To explore the conceptual and practical boundaries of this new authoritarian script, the Article comparatively examines the strategic hybridization of constitutional democratic systems and originally liberal institutions, primarily but not only through the cases of Hungary (Fiatal Demokraták Szövetsége, or FIDESZ) and Turkey (Adalet ve Kalkınma Partisi, or AKP).

INTERNATIONAL LAW AND DE-OCCUPATION LEGISLATION

Antal Berkes

Recently, various states elaborated constitutional laws on the status and reintegration of parts of their territory under military occupation. “De-occupation” is understood as the (purported or actual) takeover of effective control over a temporarily occupied territory by the territorial state having the sovereign title over the area. After de- occupation, the classical concept of postliminium holds that it is a matter for domestic law to determine what legal status, rights, and duties shall attach to inhabitants, territory, and personal property restored to the jurisdiction of a state. As a main rule, contemporary international law still maintains this view: any measure carried out by the occupying power does not survive unless the territorial state so wishes. However, due to its expansion, international law restricts postliminium by requiring the territorial state to allow certain legal effects of the occupant’s acts and policies, and to enhance local ownership in the de-occupied territory. By analyzing the international obligations and domestic law of Georgia, the Republic of Moldova, Ukraine and Azerbaijan, selected as case studies on actual or prospective de-occupation, this Article identifies certain rules of international law that require the territorial state to enact its domestic law with a view to humanize and democratize transition.