Academic journal article Harvard Law Review

Constitutional Courts and International Law: Revisiting the Transatlantic Divide

Academic journal article Harvard Law Review

Constitutional Courts and International Law: Revisiting the Transatlantic Divide

Article excerpt

Conventionally, scholars and pundits have depicted a deep transatlantic divide in domestic legal systems' receptivity to international law. On one shore lie the European states and European Union, associated with an attitude of respect for, and fidelity to, international law and institutions. Commentators have widely portrayed Europe as amenable to incorporating international norms and tribunal decisions into its legal systems. (1) On the opposite shore lies the United States, projecting an attitude of "exceptionalism, unilateralism, and general distrust of international law and institutions." (2) Commentators have roundly described the United States as rejecting external mechanisms of accountability and as adopting an "unapologetically pick-and-choose approach to international law." (3)

Two recent constitutional court decisions have called into question the traditional depiction of Europe as far more international law-friendly than the United States. First, in Kadi v. Council, (4) the European Court of Justice (ECJ) held that EU regulations that implement UN Security Council resolutions are void if incompatible with fundamental principles of the European constitutional order. (5) Second, in Judgment 238/2014, (6) the Constitutional Court of Italy (CCI) held that the rule of international customary law on jurisdictional immunities of states, to the extent that it is incompatible with the Italian Constitution, is inapplicable in Italian courts. (7)

These two unequivocal refusals to give domestic effect to international obligations elicited impassioned reactions from international law scholars. (8) A wide swath of commentators discredited the approaches of both courts, condemning their alleged "dualist" treatment of the international and domestic legal systems as fundamentally separate orders. (9) For some, the decisions debunked the myth of a transatlantic divide, revealing that Europe and the United States harbor similar (if not identical) stances vis-a-vis international law. In the wake of Kadi, Professors Jack Goldsmith and Eric Posner asserted that "Europe's commitment to international law is largely rhetorical," (10) concluding that the ECJ is just as guarded and reticent as the United States to admit international obligations into its legal system. (11) Then, in reaction to Judgment 238/2014, Professor Eugene Kontorovich argued in a blog post entitled Italy Adopts [U.S.] Supreme Court's View of ICJ Authority that the CCI's upfront dismissal of international custom marked the end of America's judicial exceptionalism toward the International Court of Justice (ICJ). (12)

Referring primarily to commentary surrounding Kadi and Judgment 238/2014, this Note argues that the scholarship to date has failed to provide a nuanced assessment of the European approach to controlling the domestic effects of international law. Rejecting commentators' indeterminate references to traditional paradigms of "monism" and "dualism," the Note distinguishes two variables for characterizing how national courts treat international obligations: (1) the procedural mechanism by which international law becomes domestically enforceable; and (2) the substantive hierarchy established within a domestic legal order between the constitution and international law. It first draws attention to the fact that Europe and the United States still maintain contrasting procedures for incorporating international norms. It then shows that although Kadi and Judgment 238/2014 signal that at a general level Europe shares the United States' understanding of constitutional supremacy over international law, a significant divide remains: whereas U.S. jurisprudence makes no distinction between different constitutional provisions vis-a-vis international law, the CCI and ECJ have designated fundamental rights as "extraordinary" constitutional principles that--unlike "normal" constitutional provisions --necessarily supersede incompatible international norms. …

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