I. INTRODUCTION
Can there be limits on constitutional amendment powers? Can a constitutional amendment be deemed ‘unconstitutional’? These vexing issues have attracted increased attention in recent years.Footnote 1 This article examines whether there are any limitations on the amendment powers that are external to the constitutional system and above it—‘supra-constitutional limits’. By the term supra-constitutional limits, I refer to principles or rules that might be placed ‘above’ the domestic constitutional order,Footnote 2 such as natural or supranational (international or regional) law. This investigation is imperative in light of recent arguments according to which in our globalized world, international law (especially international human rights law) and regional law (especially in Europe) may have a central role in the judicial assessment of constitutional amendments. The article thus considers the theory and practice of the relationship between natural law, international law or other supranational law, and the domestic constitutional law in a comparative prism.
Most existing literature on the issue of ‘unconstitutional constitutional amendments’ engages with explicit limitations on the amendment powers in the form of ‘unamendable provisions’ or implicit limitations, such as the Indian ‘basic structure doctrine’ according to which ‘the power to amend the constitution does not include the power to alter the basic structure, or framework of the constitution so as to change its identity’.Footnote 3 Whereas the global trend is indeed going towards accepting the idea of a limited (explicitly or implicitly) amendment powers,Footnote 4 these types of limits originate from within the constitutional order. As demonstrated in this article, the distinction between explicit, implicit, and supra-constitutional limits is not always clear, and some overlapping may exist between the three. For example, supra-constitutional limitations may be explicit. This is the case with the Constitution of Switzerland of 1999, according to which when there is a partial or even total revision of the constitution, ‘The mandatory provisions of international law must not be violated’ (Articles 193(4), 194(2)).Footnote 5 Similarly, Article 2(2) of the Constitution of Bosnia and Herzegovina of 1995 specifically provides that those standards set in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)Footnote 6 shall have priority over all other law, including constitutional amendments.Footnote 7 Likewise, some ‘supra-constitutional’ principles can be regarded as setting implicit limitations to the constitutional amendment powers when those principles are considered basic principles of the constitutional order. For instance, it has been argued that the Indian basic structure doctrine of implied limitations on the amendment power is linked to the concepts of natural law and natural rights.Footnote 8 However, these explicit and implied limitations originate from within the constitutional order itself. This article does not focus on such limitations, rather it examines those limitations to the constitutional amendment powers that derive either from a meta-legal acknowledgment (natural law) or a legal system external to the domestic legal order (international or regional law).
The term ‘supra-constitutional’ is often attributed to those principles that are considered unamendable. Serge Arne, for instance, defines supra-constitutionality as the explicit or implicit superiority of certain rules or principles to the content of the constitution.Footnote 9 Louis Favoreu distinguishes between ‘internal supra-constitutionality’—those constitutional principles with which the amendment power must comply—and ‘external supra-constitutionality’—those international or supranational standards with which the constitutional standard must comply.Footnote 10 I refer to supra-constitutionality to describe only the latter. The former constitutional principles might seem, at first, to carry supra-constitutional status, but this is inaccurate. They are not above the constitution; they are solely above the constitutional amendment power. They are unamendable, but they cannot limit the original constituent power of the people.Footnote 11 In that respect, supra-constitutional limits are unique. Simply put, if one were to accept supra-constitutional limitations, they would limit not only the amendment power (often termed the derived constituent power), but also the original constituent power.Footnote 12 If supra-constitutional limits may bar constitution-making power, it is all the more relevant to explore any supra-constitutional limitations that may exist on the constitutional amending power.
This article progresses as follows: Section II explores the idea of natural law limitations on constitutional amendments in theory and in practice, as applied and debated in various jurisdictions, most notably in German and Irish jurisprudence. It is argued that natural law theories are unfitted to serve as limitations on the constitutional amendment powers and that even when courts and academics attempt to use natural law arguments as enforceable limits on constitutional amendments, these limits should not be regarded as ‘supra-constitutional’ as they derive from the constitution itself. Section III explores the question of whether international law or regional law imposes limitations on the national constitutional amendment powers, from a theoretical and comparative perspective. While prima facie it seems that legal limitations are now imposed on the domestic constitutional amendment powers by supranational laws that might be enforced by supranational actors, it is argued that such limitation is mostly relevant in the external juridical space (ie between states) but not in the internal juridical space where state practice, at large, demonstrates a superiority of domestic constitutional law over other conflicting laws. Moreover, it is claimed that even when the superiority of supranational law is acknowledged within the domestic legal order, this superiority stems from the constitution itself and not from any external and separate legal order, therefore pointing to the continuing importance of the domestic constitutional law and the dependence of supranational law in the constitution for any claims of ‘supra-constitutionality’.
II. NATURAL LAW
A. General
This analysis begins with an examination of possible natural law constraints on the power to amend constitutions. A medieval understanding of natural law as a certain ‘divine will of god’ surely accepts the notion of unamendability since one of its characteristics is immutability.Footnote 13 As Thomas Aquinas wrote with regard to the revision of laws: ‘Human law is derived from the natural law … But the law remains immutable. Therefore, human law ought to remain immutable’, and later, ‘natural law has this immutability from the immutability and perfection of the divine reason that establishes human nature. But human reason is mutable and imperfect.’Footnote 14 However, the focus here is on modern ideas of natural law.Footnote 15 At the basis of natural law theory rests the relationship between law and morals. Natural law is not primarily concerned with the structure or form of law, but rather with its content. According to natural law theorists, law is a means to achieve certain absolute moral values, which can be discovered by reason.Footnote 16 This leads many natural law lawyers to argue in favour of a certain type of ‘dependence thesis’, according to which a legal norm with a moral defect is necessarily invalid or flawed.Footnote 17 From natural law derives the theory of natural rights.Footnote 18 The idea of the individual as bearing certain ‘natural’ and ‘inherent’ rights was central to early modern political philosophy. Indeed, ‘a good many of what we call Natural Rights today are derived from political theories as to the nature and function of the state’.Footnote 19
How is natural law related to the question of possible limitations on constitutional amendments? Importantly, as regards the issue of limitations to constituent power, natural law ‘is based on the premise that there is a higher law which is unamendable and thus is above the whims of the sovereign’.Footnote 20 This seems compatible with how early political writers conceived natural law. Even in Jean Bodin's theory of sovereignty, the power of the ‘sovereign prince’ was not unlimited, but was restricted by natural law.Footnote 21 If natural law is supreme, then it cannot be violated, not even by constitutional laws. Indeed, many great eighteenth- and nineteenth-century European thinkers such as Pufendorf, Vattel, Burlamaqui and Rutherforth believed that governmental power was limited by natural law and could not contradict it.Footnote 22 Even in Abbé Sieyès, one can infer that constituent power is in some ways conditioned by natural law: ‘The nation exists prior to everything; it is the origin of everything. Its will is always legal. It is the law itself. Prior to the nation and above the nation, there is only natural law’ (emphasis added).Footnote 23
The argument on ‘higher law’ also recurs in more contemporary literature regarding possible limitations on constitution-making and amending. As regards invoking ‘natural law’, many scholars hold the view that certain rights have a supra-constitutional status in that they cannot be altered even by constitutional means, such as constitutional amendments.Footnote 24 Illustrations of such arguments can be found in the United States and France. In the United States, it has frequently been suggested that some rights are ‘natural’ and therefore inalienable, even by means of a constitutional amendment. For example, EV Abbot claimed that the Eighteenth Amendment (which established the prohibition of alcoholic beverages) might violate the natural right to pursue happiness,Footnote 25 and more recently, Jeff Rosen has argued that constitutional amendments may only be used to secure rather than restrain individual's natural rights.Footnote 26 Roscoe Pound explained this approach in 1959: ‘there are rights in every free government beyond the reach of the state, apparently beyond the reach even of a constitution, so that there might be a constitutionally adopted but unconstitutional constitutional amendment’.Footnote 27 Similarly, Charles Rice took the position that in limited and extreme cases, a court may refer to natural law:
although it is the highest enacted law of the nation, the Constitution is itself a form of human law and is therefore subject to the higher standard of the natural law. That standard is supra-constitutional. It sets limits to what the legal system, however it is structured, can do even through constitutional provisions.Footnote 28
In France, the question of the existence of any supra-constitutional limits on the amendment power has received rather wide attention.Footnote 29 Authors such as Maurice Hauriou and Léon Duguit defend the view that the Declaration of the Rights of Man and the Citizen of 1789 has a supra-constitutional status, as it simply recognizes and proclaims pre-existing rights. They argue that the Declaration of Rights imposes limits on the state that rank higher than constitutional legislation and a fortiori ordinary legislation.Footnote 30 More recently, Stéphane Rials has claimed that certain principles—the nation as holder of the supreme power, separation of powers and fundamental rights—are supra-constitutional in that they are superior to the constituent will.Footnote 31 However, ideas of natural law limits to constitutional amendments have received the widest attention in Germany and Ireland.
B. Germany
Drawing on the writings of Maurice Hauriou,Footnote 32 it was the German Scholar Carl Schmitt who argued, during the Weimar period that certain basic freedoms ‘have, as an outstanding French theorist of public law, Maurice Hauriou has explained, a “superléegalitée constitutionelle”, which is raised not only above the usual simple laws, but also over the written constitutional laws …’.Footnote 33 This notion was revived after World War II. German jurisprudence in the post-Nazi regime era was characterized by the rejection of pure positivism and the endorsement of natural law ideas,Footnote 34 raising the possibility that even the constitutional amendment power is limited by certain supra-constitutional principles.Footnote 35 Of particular interest is Gustav Radbruch, the leading legal philosopher, who argued after World War II, and in contrast to his earlier writings, that certain ‘minimum standards of justice’ exist as a criterion for ‘right law.’Footnote 36 In 1945, Radbruch wrote that, ‘There are principles of law, therefore, that are weightier than any legal enactment, so that a law in conflict with them is devoid of validity. These principles are known as natural law or the law of reason.’Footnote 37 A year later, Radbruch further elaborated:
The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as ‘flawed law’ (‘unrichtiges Recht’), must yield to justice. … Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘flawed law’, it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice.Footnote 38
This notion was accepted in German Courts at that time. In 1950, the Bavarian Constitutional Court famously declared:
There are fundamental constitutional principles, which are of so elementary a nature and so much the expression of a law that precedes the constitution, that the maker of the constitution himself is bound by them. Other constitutional norms … can be void because they conflict with them.Footnote 39
The Federal Constitutional Court later cited and reaffirmed this paragraph in the 1951 Southwest case involving equal rights of men and women.Footnote 40 Two years later, in the Article 117 case, the Federal Constitutional Court acknowledged the possibility of invalid constitutional norms in the extreme case where positive constitutional laws severely transcend the limits of justice.Footnote 41 However, these statements were mere obiter dictum. The idea that supra-constitutional limits on the amendment power exist was best summarized and developed by Otto Bachof in his book Unconstitutional Constitutional Norms? published in 1951.Footnote 42 According to Bachof, natural law, which exists ‘above’ positive law, is an objective order. It is different from a personal conscience as the basis for validity or source of judicial decisions. Within the borderlines of this ‘higher law’, the legislator, and especially the constitution-maker, has leeway to establish an autonomous system of values. Bachof writes that not only should the reminders of the not-so-distant past warn us of limiting the constitution's legitimacy solely to its positivist characteristics, but also that the basic law itself forbids it through Articles 1, 3, 20, and 79(3) of the German Basic Law. The inclusion of a ‘higher law’ within the constitution has only a declarative significance, not a constitutive one. It does not create a law; rather, it solely recognizes its existence. Therefore, a constitution is valid only with regard to those sections within the integrative and positivist legal order that do not exceed the predetermined borders of ‘higher law’. In other words, the ‘higher law’, which is characterized as ‘natural law’, becomes a part of the constitution.Footnote 43 A constitutional amendment that violates ‘higher law’, as recognized by the constitution, would contradict both ‘natural law’ and the constitution, and would be invalid. Bachof further contends that in such a case, it should be in the power of the courts to declare constitutional amendments as unconstitutional and thus void.Footnote 44 Bachof's book, while not very familiar to English readers, was translated into PortugueseFootnote 45 and was quite influential in Portuguese-speaking countries.Footnote 46 Nevertheless, the ‘natural law’ arguments raised by scholars such as Bachof and Radbruch, and by the German courts, were rarely referred to in later years, as the Federal Constitutional Court declined to refer to supra-positive principles, concentrating on explicit limits to the amendment power as stipulated in Article 79(3). To date, no constitutional amendment has ever been invalidated for conflicting with that Article.Footnote 47
C. Ireland
The idea that natural law may set limits to the constitutional amendment power received considerable attention in Ireland.Footnote 48 The relationship between natural rights and constitutional amendments was first debated under the Irish Free State (Constitution) Act of 1922.Footnote 49 The Seventeenth Amendment added Article 2A (Emergency Powers) into the Constitution. This amendment conferred vast powers, such as detention without trial on the Executive whenever it believed its execution was required.Footnote 50 In State (Ryan) v Lennon involving a habeas corpus application, these emergency measures were contested. The plaintiff argued that the amendment itself was unconstitutional. The two majority judges of the Supreme Court (Justice FitzGibbon and Justice Murnaghan) rejected this claim. The majority held that as no explicit limitations exist on the amending power (with the exception not to violate the Anglo-Irish Treaty), the amendment was therefore formally valid and there can be no substantive judicial review of amendments. It is not for judges, the majority held, to decide whether constitutional provisions are valid or not and whether a hierarchy of constitutional norms exist.Footnote 51 Importantly, Chief Justice Hugh Kennedy, one of the constitution-drafters delivered a dissenting opinion according to which the court can substantially review constitutional amendments. The Seventeenth Amendment, Kennedy CJ states, is ‘no mere amendment … but effects a radical alteration of the basic scheme and principles of the Constitution’.Footnote 52 Kennedy CJ regarded the ‘spectacular assertion of natural law values’Footnote 53 as possible limitations to the amendment power:
The Constituent Assembly declared in the forefront of the Constitution Act … that all lawful authority comes from God to the people, and it is declared by Article 2 of the Constitution that ‘all powers of government and all authority, legislative, executive, and judicial, in Ireland are derived from the people of Ireland’. It follows that every act … in order to be lawful under the Constitution, must be capable of being justified under the authority thereby declared to be derived from God. From this it seems clear that if any legislation of the Oireachtas (including any purported amendment to the Constitution) were to offend against that acknowledged ultimate Source from which the legislative authority has come through the people to the Oireachtas, as, for instance, if it were repugnant to the Natural Law, such legislation would be necessarily unconstitutional and invalid, and it would be, therefore, absolutely null and void and inoperative.Footnote 54
The reference to God as the source of all authority, according to Kennedy CJ, is an implicit acknowledgement of natural law, and therefore any positive law—including a constitutional amendment—that violates natural law is unconstitutional.Footnote 55 The majority of the Supreme Court did not accept this minority view.
The issue rose again under the Constitution of 1937.Footnote 56 The 1937 Constitution came into force after the people approved the draft Constitution in a national plebiscite which was held on 1 July 1937. The 1937 Constitution has a clear Christian character. It was drafted with the participation of the Roman Catholic clergy; enacted in the name of the Most Holy Trinity; acknowledges ‘Almighty God’; and refers to man as a rational being with natural rights antecedent to positive law.Footnote 57 Therefore, the claim that there exists a higher law—natural law—superior to positive law is occasionally argued within Ireland's constitutional debate.Footnote 58 In 1992, two constitutional amendments guaranteeing the rights to obtain information about abortion services abroad and to receive such services, were adopted through a referendum. In response to these amendments, High Court Justice O'Hanlon, not wearing his judicial hat, argued that the constitutional amendment power is limited by basic natural rights, such as the right to life of the unborn. The Constitution's recognition of a superior and antecedent norm to positive law and the Constitution's references to ‘inalienability’ and ‘antecedent to positive law’ can be taken as ‘important indicators of the legal philosophy on which the Constitution is based and they must govern our understanding of Irish law’. Since the two amendments contradicted the natural right of the unborn to life, they should be invalidated.Footnote 59 In reply, Desmond Clarke claimed that such an argument could not be accepted for
[it] justifies members of the court using their own philosophical or religious convictions to rule that an amendment to the Constitution is unconstitutional—even when it is explicitly enacted by the people in accordance with Article 46.1 following widespread public debate—on the grounds that it is inconsistent with provisions of an unwritten Law which was implicitly enacted into the Constitution by those who voted, by a relatively small majority, for the original text in 1937.Footnote 60
Another reply came from Ruth Cannon who objected the invocation of natural law doctrine on textual grounds and urged the courts to treat cautiously any arguments calling ‘to look beyond the text itself at some extra-constitutional theory’ especially when such a theory might conflict with another explicit constitutional theory or make it redundant:
Courts should be wary of holding the Constitution to endorse specific pre-existing theories of rights in the absence of express endorsement. It may be taken that where a Constitution has gone to the trouble to lay down a comprehensive system of human rights protection, there is a strong argument against it having at the same time endorsed an extra-constitutional system which would either negate the Constitutional system or render it superfluous … The Irish Constitution should not be read as a document wholeheartedly endorsing natural law theory in the absence of any provision therein relating to the notion of an unconstitutional constitutional amendment.Footnote 61
Later, when the Supreme Court faced a challenge to the amendments in re Article 26 and the Information (Termination of Pregnancies) Bill, 1995, it rejected the claim that natural law was superior and antecedent to the Constitution. The Supreme Court held that the people, not God, are the creator of the Constitution and the supreme authority. Hence, constitutional amendments made by the people become the fundamental and supreme law of the land.Footnote 62 The Supreme Court's reasoning was not accepted without criticism. GF Whyte criticized the Court for not making clear how it arrived at the understanding of the Constitution in an exclusively positive sense.Footnote 63 Others, such as Oran Doyle and William Duncan have pointed to the contradiction that lies at the core of the debate. Duncan writes:
The difficulty here is that the theory that the natural law stands above the Constitution is being justified by the terms of a human instrument, the Constitution, which is itself subject to the natural law. The Constitution cannot be both subject to the natural law and the legal justification for that subjection. One or other, the natural law or the Constitution, must finally have priority over the other as the ultimate source of legal validity in any potential area of conflict. If indeed the natural law stands above the Constitution, it is necessary to find authority for this proposition outside the Constitution, perhaps within the natural law itself.Footnote 64
Similarly, pointing to the ‘paradox at the core of the legal validity problem’, Doyle observes that in order to legally enforce natural rights, they need to be recognized by positive law, which ‘diminishes their antecedent status’. This paradox is exacerbated when ‘an agent of positive law (the judge) determines what is superior to positive law’ and especially when ‘some judges at least relied on natural law as a source of implied rights’. The ‘deeper paradox’, according to Doyle, is that the claim of natural law as an external source to the Constitution is derived from ‘within the constitutional order itself’ and dependent on the positive Constitution.Footnote 65
Summarizing the existing legal situation in Ireland with regard to the constitutional amendment power and natural law, O'Sullivan and Chan write:
as Ireland is a sovereign democratic state the people are thus ‘paramount’, and the power of amending the constitution is an unfettered power of, and inheres in, the people under article 46. This power is unconstrained by any requirement to amend the constitution in accordance with natural law, which is indeterminable. … The non-superiority of natural law is therefore compatible with the unfettered right and capacity of the people to amend the constitution.Footnote 66
The Court repeated the superior right of the people to amend the Constitution in various other decisions.Footnote 67 This led one constitutional scholar to conclude that in Ireland, there is an ‘unlimited power to amend the constitution’.Footnote 68
D. Evaluation
A theory that recognizes natural law as a form of a superior ‘higher law’ must lead to the conclusion that the amendment powers are limited. As Lech Garlicki and Zofia A Garlicka recently wrote with regard to limitations on constitutional amendments, ‘[b]y definition, natural law constitutes an external and superior norm of reference that autonomously exists above all written laws (including constitutions and constitutional amendments)’.Footnote 69 However, both authors doubt the suitability of natural law ideas to function as limitations to constitutional amendments. Natural law, they assert, lacks several important factors required in order to function as a norm of reference for judicial review, such as systematic nature, precision, procedural accessibility, and effectiveness.Footnote 70
Indeed, natural law theories are inappropriate to serve as limitations on constitutional amendments. Even if one accepts the presupposition that binding, objective moral principles exist in every society (even a ‘minimal content’ of natural lawFootnote 71), there is no basis to regard them as the yardstick for determining the legal validity of an amendment.Footnote 72 Such a view would unnecessarily blur the distinction between what the law is and what it ought to be, and would be incompatible with the nature and value of the law as a social institution providing a certain measure of predictability.Footnote 73 Moreover, the definition of ‘moral’ is highly problematic and vague.Footnote 74 Subjecting the legal validity of constitutional norms to moral thresholds would undermine certainty in law and detract from its authoritative nature, since such subjection would necessitate the a priori resolution of contentious moral questions.Footnote 75 As Joseph Kunz, Hans Kelsen's international-law disciple, claims, natural law ‘is not a system of legal norms, but a system of highest ethical principles’. In that respect, ‘natural law’ can be used for a jurisprudential study of the foundations of law, to critically evaluate—from an ethical perspective—the law in force, and to normatively propose how law should develop, again, from an ethical point of view. But ‘natural law’ cannot be used to declare something to be law or not.Footnote 76 This applies to constitutional amendments as well, and indeed, both in Germany and in Ireland, courts have eventually rejected claims of natural law limitations on the amendment powers, focusing, whenever these exist, on explicit limitations.
Moreover, when analysing the existing arguments on natural law limitations on the amendment powers, one can clearly infer from the examples provided by Germany and Ireland that alleged limitations eventually derive from the constitution itself. Both in Germany and in Ireland, where possible ‘natural law’ limitations were seriously debated in court, it was, to use the words of Ivo Duchacek, the ‘supraconstitutional invocations’Footnote 77—ie, the constitutional referral to natural law or to ‘unamendable’ principles—that stood as the basic rational for arguing in favour of limited amendment powers. Admittedly, such arguments are flawed in their circularity. The common argument usually progresses as follows: natural law prevails over positive law (including constitutional amendments) due to the positive—implicit or explicit—recognition of natural law in the constitution. With regard to the Irish Constitution, Ralph Gaebler raises the question of ‘whether a constitution … can incorporate a source of law whose authority is completely external to the constitution?’Footnote 78 To which Walter Murphy replies that ‘by identifying the constitution's goal and values as those of the external authority, the constitutional document accepts (internalizes) that authority’.Footnote 79 This of course raises debate on the constitution as a ‘constituting’ versus ‘recognizing’ device. What if the positive constitution did not include such recognition? Would that mean that natural law is not superior to positive law? If natural law is indeed the authority from which positive law derives its authority, this does not require any positive recognition. If the argument rests on the constitution's explicit or implicit recognition of the priority of natural law, then the constitutional limitation derives from the constitution itself—as part of the implicit or explicit limits—rather than natural theories external to the constitution.
Instead of ‘natural law’, supra-constitutional limits might appear today in the form of international law. This is not to deny that international law is made by states; it is only to point, first, to the contribution of natural law to the development of international law,Footnote 80 and second—and more importantly, to this argument—to the idea of a universal or regional ‘higher law’, perhaps even higher than a state's constitution. The nexus between ideas of natural law and international law is well known,Footnote 81 especially with regard to international human rights law. The Preamble of the Universal Declaration of Human Rights of 1948 opens with the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’.Footnote 82 This Declaration ‘has demonstrated most clearly the tendency … to work out a system of international law conforming as closely as possible to natural law’, by recognizing certain human rights as beyond the power of human (and as such any state) authority to deny or annul.Footnote 83 Joseph Kunz explains the revival of natural law ideas:
Then there were the terrible experiences before, in and after the Second World War, the unheard-of cruelties toward men by totalitarian regimes, the abuse of law for purposes of injustice, torture and extermination, total war, the appearance of nuclear weapons, the bitter struggle in a world torn by an ideological abyss. Such periods of profound crisis foster a flight into natural law as ideas and values on which man can rely, as a barrier against the misuse of law. These events of our time are part of the explanation why Gustav Radbruch, at the end of his life, returned from relativism to natural law, why natural-law concepts appear in modern European Constitutions and in the decisions of the highest courts of Western Germany, as well as in documents of the ‘new’ international law.Footnote 84
This ‘revival’ in the form of international law brings us to the analysis of the modern conception of positive international law (and other kinds of supranational law) as a possible limitation on the constitutional amendment powers.
III. INTERNATIONAL LAW
A. General
In recent years, international law, alongside foreign law, has played an increased role within domestic constitutional discourse around the globe.Footnote 85 A transnational or global ‘judicial dialogue’ recently emerged,Footnote 86 one that is also relevant to limitations on constitutional amendments. As one constitutional judge of the German Constitutional Court writes, international and comparative law can be useful from the standpoint of the constitutional judge when addressing judicial review of constitutional amendments:
When the constitution limits the amending power by enshrining general principles like democracy, federalism, the rule of law, or the principle of human dignity, the standard cannot be taken from the constitutional system itself … A survey of the realizations of the relevant constitutional principles and an analysis whether the constitutional amendment remains within this framework appears to be the best solution. Here … the argument that the intended change is known in other constitutionalist democracies is a genuine legal argument.Footnote 87
The use of international law in constitutional interpretation and adjudication is itself highly controversial, and has given rise to some heated judicialFootnote 88 and academic discussions.Footnote 89 Nevertheless, there is a difference between binding and persuasive uses of international law.Footnote 90 International law can be relevant as a legal argument when adjudicating the substance of a constitutional amendment, even without carrying any binding force. Are the constitutional amendment powers limited, in any way, by international law? If so, this would carry crucial implications for any notions of ‘sovereignty’ and the ‘hierarchy of norms’.Footnote 91
Traditionally, the debate regarding the relationship between domestic and international law concerned two main approaches: monism and dualism.Footnote 92 Monism regards both international and domestic laws as forming one fused legal order. Domestic law automatically implements international law, as it is immediately and directly applicable within the domestic legal system. Moreover, monism regards domestic law as deriving its binding force from international law, and—in its extreme form—monism regards the former as inferior to the latter. In contrast, dualism views the two as distinct legal orders. International law has to be implemented through domestic measures in order to be applicable in domestic law. For dualists, international law, even if supreme in the international legal system, cannot claim supremacy within the domestic legal order, where, if the two systems conflicted, domestic law would prevail.
These terms are slightly confusing specially as regards the incorporation of international law wherein a dualist state could have a monist approach to the superiority of international law within the domestic legal system once international law has been incorporated within it. On the other hand a domestic legal system could (to some extent, or entirely) be monist wherein certain international treaties or customary rules are automatically incorporated into domestic law, without the need for domestic implementation, while still having a dualist approach to the relationship between international and domestic law, ie, in that the status of international law within the domestic sphere is determined by the domestic law.Footnote 93 Moreover, there might be different approaches towards different sources of international law, such as differences between customary law and treaty law. In that respect, states' incorporation of international law has not necessarily followed a strict or coherent monist or dualist approach.Footnote 94 Therefore, while this article contends that general state practice regarding the relationship between constitutional and international law is dualist in nature, ie, determined, eventually, by the domestic constitutional order, it does not broadly refer or adhere to these approaches.
It has been increasingly argued of late that the constitutional amendment powers are substantially limited by international law. Jorge Tapia Valdés, for instance, suggests that the globalization of fundamental rights and jus cogens norms set new limits on the amendment powers.Footnote 95 In international law, jus cogens are those ‘peremptory rules’ of international law which are non-derogable. They do not permit of any exceptions (whether through treaties, persistent objection, or the creation of special customary rules) and render void other conflicting non-peremptory rules.Footnote 96 Such rules include, for instance, the prohibitions on aggressive use of force, genocide, slavery, torture, and apartheid.Footnote 97Jus cogens norms override all other sources of law, both international and national.Footnote 98 Stephen Schnably points out that certain emerging international and supranational legal rules address matters such as constitutional amendments.Footnote 99 For instance, in the African Charter on Democracy, Governance and Elections of 2007Footnote 100 the State Parties agreed that ‘Any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government’ is deemed an ‘unconstitutional change of government’ which ‘shall draw appropriate sanctions by the Union’ (Article 23(5)). The Statute of the Council of Europe demands that all member states accept ‘the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’.Footnote 101 Larry Backer summarizes this idea of ‘supranational’, ‘global’, or ‘transnational’ constitutionalism:
Supra-national constitutionalism posited limits on national constitution—making grounded in an evolving set of foundational universal norms derived from the understandings of basic right and wrong developed by consensus among the community of nations … it was clear that no state could unilaterally opt out of the system, whatever its own views of the relationship between its internal constitutional system and that of the global legal order.Footnote 102
International human rights law demands special attention. Contrary to traditional international law, which was concerned with regulating the relations between states, international law is now increasingly interested in areas that were regulated solely by national constitutions, most notably fundamental rights. International human rights law now protects civil, political, social, economic, and cultural rights through various human rights instruments. To put it in different terms, in many states, fundamental rights carry a dual protection: first, via the state's constitution, and second, through human rights treaties to which the state is bound.Footnote 103 In fact, the constitutional protection of rights (such as Bills of Rights) is one way through which states seek to implement their international human rights' obligations.Footnote 104 One can certainly argue that even if a constitutional amendment removes or abridges a certain constitutional right, international human rights law still serves as a limit to such a constitutional change. Vincent Samar, for instance, argues that limitations on constitutional amendment must include human rights, which are universally recognized.Footnote 105 In a similar vein, Matthias Herdegen opines that those ‘standards of human rights flowing from peremptory international law (jus cogens)’, should act as ‘an objective criterion for the self-limitation of the State's domestic powers’, as such a focal point for limitations on the constitutional amendment powers ‘ensures and enhances rationality in the constitutional balance between the legislature and the courts’.Footnote 106
Indeed, as the International Criminal Tribunal for the former Yugoslavia (ICTY) notes, the violation of the jus cogens prohibition against torture has direct effects. The act authorizing torture (even if a constitutional act) would be delegitimizedFootnote 107 and would not obtain international legal recognition. Further, potential victims can initiate proceedings before a competent international body. Alleged perpetrators of torture might be held criminally accountable in an international tribunal or even in a domestic court of a foreign state that claims universal jurisdiction over violations of the prohibition against torture.Footnote 108 It therefore seems, as Garlicki and Garlicka write, that in the area of human rights, international law is clear and precise, has effective judicial review mechanisms through supranational human rights bodies, and is even accessible (procedurally) by often allowing individual petitions, to act as supra-constitutional reference for adjudicating constitutional amendments.Footnote 109
B. The Alleged Supremacy of Supranational Law
At first glance, the question of what is the legal status of a norm that breaches international law obligations seems simply irrelevant from an international law perspective. For international law, a state has to comply with its international obligations regardless of any conflicting domestic laws—be it primary legislation, secondary legislation or even a constitutional norm.Footnote 110 Certainly, if one follows Hans Kelsen's theory that international law is the basic norm from which the ultimate source of validity of national law derives, international law is considered supreme compared to national law.Footnote 111 This is the extreme monist position, as explained by Kunz: ‘The primacy of the Law of Nations means that … the pyramid of the law does not end with the basic norm of the juridical order of a given single state, but that at the top of the pyramid of law stands the international juridical order.’Footnote 112 Indeed, according to the principle of supremacy—‘one of the great principles of international law’Footnote 113— national law is subordinated to international law; the latter takes precedence over the former.Footnote 114 Thus, if international law is superior to domestic law, it is also superior to domestic constitutional laws.
This theoretical presupposition finds support in various international legal documents. Take, for example, international treaty law. At the heart of international law lies the Vienna Convention on the Law of Treaties 1969 (VCLT),Footnote 115 which regulates inter-states treaties. According to Article 27 of the VCLT: ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’.Footnote 116 Taking into account the principle of pacta sunt servanda, the reference to ‘internal law’ must include the constitution. This interpretation is supported by the VCLT's travaux préparatoires.Footnote 117 Moreover, international judicial practice may support this claim. In 1875, in the case of the Montijo, an international arbitrator stated that ‘a treaty is superior to the Constitution, which latter must give way’.Footnote 118 In its 1932 Advisory Opinion regarding Treatment of Polish Nationals in the Danzig Territory, the Permanent Court of International Justice stated that according to generally accepted principles: ‘a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force’.Footnote 119
The idea of the supremacy of supranational law covers not only international but also regional law.Footnote 120 This is most notable with regard to European Union law.Footnote 121 As the Court of Justice of the European Communities (ECJ) established, EU law is considered to take priority over the domestic law of the member states, and in case of inconsistency between the two, EU law prevails.Footnote 122 In a case that concerned a conflict between the German Basic Law and EU law, the ECJ stated that EU law must take precedence over any conflicting domestic law regardless of the normative status of that law:
The law, stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law … Therefore the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the Constitution of that State or the principles of a national constitutional structure.Footnote 123
Similarly, the European Court of Human Rights (ECtHR) established in several cases its authority to review even constitutional provisions—not merely ordinary legislation—and to assess their compatibility with the European Convention on Human Rights (ECHR).Footnote 124 In a recent case, the ECtHR criticized Article 70(5) of the Hungarian Constitution for indiscriminately depriving the right to vote from persons placed under total or partial guardianship.Footnote 125 In Sejdie and Finci v Bosnia and Herzegovina, the ECtHR held that a constitutional provision limiting the right to be elected in parliamentary and presidential elections to people belonging to Bosniaks, Croats, and Serbs (the ‘constituent peoples’ of Bosnia and Herzegovina) is discriminatory, and the disqualification of Jewish and Roma origin candidates constitutes a breach of the ECHR.Footnote 126 Therefore, as Dieter Grimm notes, the EU law may even ‘include an obligation to change the national constitution’ of member states.Footnote 127
Article 46 of the ECHR clearly states that the decisions of the ECtHR are binding and member states ‘undertake to abide by the final judgment of the court in any case to which they are parties’. Therefore, a supranational court, such as the ECtHR, can decide that a constitutional amendment breaches the ECHR and such a decision is binding upon the state under supranational law. This is perhaps why Jed Rubenfeld remarks that:
[W]hat makes the new European constitutionalism cohere—what gives European constitutional courts their claim to legitimacy—is the ideology of universal or ‘international human rights’, which we owe their validity to no particular nation's constitution, and which possess therefore a supranational and almost supraconstitutional character, making them close to unamendable.Footnote 128
The analysis above shows that, prima facie, supranational law may pose limitations to constitutional amendments. Legal limitations are now imposed on the constitutional amendment powers by international and regional laws and might be enforced by international and regional, rather than domestic, state actors. Nevertheless, as will be demonstrated in the next section, this alleged limitation encounters difficulties with regard to the internal espace juridique.
C. The Problem of External v Internal Espace Juridique
It can be argued that the principle of the superiority of supranational law over domestic constitutional law only means that for the purpose of a state's responsibility, a constitutional provision (including constitutional amendments) cannot be a ground for excusing such responsibility. It does not necessarily follow from Article 27 of the VCLT that an obligation exists to prioritize treaties over domestic laws within national juridical systems; rather, only to restate that international law has priority over domestic law in the international sphere—the external espace juridique.Footnote 129 This is what Myres McDougal terms ‘external v internal arenas’.Footnote 130 André Nollkaemper elaborates on this idea:
In principle, the claim to supremacy of international law is confined to the international level. It is at that level that states cannot invoke domestic law to justify the non-performance with an international obligation and it is at that level that international courts, by virtue of their establishment under international law, have to give precedence to international law over domestic law. This has no necessary legal consequences domestically … What is wrong in the international law sphere may be right in the national sphere, and what is unlawful in the national legal order may be perfectly legal in the international domain. While international courts can pronounce that legal restitution is due, they do not themselves effectuate such restitution. … The general understanding is that international law cannot itself realize supremacy at the domestic level.Footnote 131
Kemal Gözler takes a similar approach in his rejection of the idea of the superiority of international law over national constitutional law. Gözler claims that even if a judge finds a conflict between an international standard and an internal constitutional standard, the state can be found responsible and the constitutional standard unenforceable. Nevertheless, such unenforceability only applies in the international sphere. In other words, if a supranational court, for example the ECtHR, declares a domestic constitutional provision incompatible with the ECHR, under Article 50 of the ECHR it may grant the injured party just reparations. Nevertheless, under Article 53, it is up to the state to amend the domestic law that was declared incompatible with the ECHR. One has to distinguish between internal and external validity, since they do not always coincide.Footnote 132 As Garlicki and Garlicka acknowledge:
ECtHR's judgments do not have any direct effect on the continuation or validity of the national measure that was found to have breached the Convention. The ECtHR has neither the power to quash an individual decision nor the power to annul provisions of national legislation. Therefore, even if the Strasbourg Court has decided on the ‘unconventionality’ of a national legislative provision, the latter does not become null and void but continues until it is abolished by the national parliament.Footnote 133
Consequently, any inconsistency between binding international law and a constitutional provision might give rise to state responsibility, but the provision would still be valid under domestic national law.Footnote 134
True, the role that an international tribunal can play—where such tribunals exist—is significant. Nowadays, many national courts need to consider the prospect of their judgments being considered in international or regional courts, scrutinized with respect to international human rights, or even nullified if they deviate from certain international law standards. This is one of the possible influences of international law on national law. As Brun-Otto Bryde writes, the highest judicial authorities of countries are ‘no longer the highest authority’ in that respect.Footnote 135 This echoes Lord Rodger's famous dictum in Secretary of State for the Home Department v AF (No 3): ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’.Footnote 136 Nevertheless, as we shall see, the role of international tribunals is limited with regard to the domestic validity of laws, especially constitutional ones that contradict international law.
Take, for example, the constitutional crisis that occurred in Nicaragua in 2004–05. In general,Footnote 137 the Constitution of Nicaragua of 1987 allows for a ‘total’ and ‘partial’ reform in its amendment process. A partial reform demands a 60 per cent majority in the National Assembly and an approval in two successive sessions, while a total reform requires a two-thirds approval in the Assembly and a final approval by a special elected Constituent Assembly (Articles 192–4). In November 2004, the Assembly granted a first approval to a set of constitutional amendments that limited the president's power, deeming them to be a partial reform. The president, Enrique Bolaños, argued that these amendments undermined the balance of powers and therefore comprised a total reform. In December 2004, he filed petitions with the Nicaraguan Supreme Court and the Central American Court of Justice (CCJ). The CCJ accepted jurisdiction over the petition in January 2005 and called upon the National Assembly to suspend the amendment process until a final decision had been made. That same month, the Supreme Court of Nicaragua held that it—and not the CCJ—had jurisdiction over the dispute. Meanwhile, the National Assembly ignored the CCJ's interim order and approved the amendments. In March 2005, the CCJ ruled that the amendments would undermine the executive's independence. Since these amendments attempted to transform Nicaragua from a presidential system to a parliamentary one, such a transformation could be effected solely through the process of a ‘total reform’. The CCJ concluded that the amendments were therefore unconstitutional and invalid. However, that same day, the Supreme Court of Nicaragua delivered its ruling on the case, holding that the CCJ's decision was invalid. Nicaragua was left with ‘two constitutions’: valid nationally and invalid internationally.Footnote 138 Eventually, the president and the Assembly reached an agreement to reconsider the amendments by the next elections and to suspend their application until after that time. Indeed, after the elections, the new government suspended the implementation of the new amendments indefinitely.Footnote 139 Two important lessons can be learned from the Nicaragua crisis: first, a supranational tribunal can (and did) declare constitutional amendments to be unconstitutional; second, and perhaps more importantly, this declaration of unconstitutionality need not affect the validity of the amendments within the domestic sphere.
Another example is Security Council (SC) Resolution 554 of 1984, regarding the new Constitution of South Africa of 1983 that entrenched apartheid.Footnote 140 In that resolution, the SC declared that it ‘strongly rejects and declares as null and void the so-called “new constitution” ’, due to its contradiction of the principles of the UN Charter, mainly racial equality.Footnote 141 Ulrich Preuss considers this resolution an example of the changing roles of national constitutions: ‘No longer can we regard them as purely domestic instruments of government of a nation-bound population which exercises its right to national self-determination without concern of its regional or global surroundings.’Footnote 142 Whereas South Africa had to ‘accept and carry out’ this decision of the SC in accordance with Article 25 of the UN Charter,Footnote 143 South Africa condemned this resolution as ‘a gross interference in domestic affairs’.Footnote 144 Thus, one can claim that while South Africa took a rather extreme dualist approach, the SC asserted that international law itself—in a ‘self-contained regime of mandatory domestic implementation’—applies domestically regardless of any constitutional provisions to the contrary.Footnote 145 It is important to note, however, that although the Constitution was declared ‘null and void,’ it remained in force for ten years, until it was replaced by the Interim Constitution in 1994.
Lastly, it is necessary to revisit the Sejdie and Finci v Bosnia and Herzegovina case, in which the ECtHR declared a constitutional provision discriminating against minority groups in elections as violating the ECHR. Following that judgment, Bosnian authorities began proceedings to implement the decision. However, implementation is still the role of domestic institutions and so far no constitutional amendments regarding the discrimination against minority groups in elections have been made.Footnote 146
These three cases are not exhaustive. They certainly do not aim to deny the importance of international or regional legal systems.Footnote 147 Nonetheless, they help to exemplify a critical argument: all three demonstrate the awkward situation in which an action is illegal under supranational law but remains valid under domestic law. Therefore, it would perhaps be more accurate to use Brenda Hale's statement: ‘Argentoratum locutum: iudicium non finitum’: The word of a supranational tribunal is not the last one.Footnote 148
D. The Role of National Courts
The above analysis, even if correct at its core, is partial in its scope. It ignores the important potential and actual roles of national courts in enforcing international law.Footnote 149 Recently, André Nollkaemper explored how ‘across the world, national courts have been given or have assumed the power to review acts of the executive or legislative branches of their state against international law’,Footnote 150 arguing that ‘national courts can act as agents of the international legal order, in the service of the international rule of law’.Footnote 151 In case of a violation of international law, national courts can ensure, for example, that proper reparations are given or that a decision of an international tribunal is implemented.Footnote 152 If international or supranational law are to be enforced judicially by domestic courts, then the compliance of state organs with these laws is expected to increase.Footnote 153
While admitting that ‘international courts cannot pronounce on anything other than the (lack of) formal validity of a domestic legal act from the perspective of international law, and cannot pronounce on their actual effectiveness in the national sphere’, Nollkaemper argues that:
[National courts] can ‘domesticate’ the supremacy of international law, and significantly strengthen efficacy and the effectiveness of international law. It leads to a monist model where in the hierarchy of norms, international law features at the summit, and may generally enable courts to review the exercise of public power, even if this is lawful under the law of the forum state.Footnote 154
In the same vein, Dieter Grimm argues, with regard to Germany and EU law, that:
Because of the primacy of EU law, the domestic constitution, and its agent, the constitutional court loses its exclusive power to determine the validity of domestic law. … Every judge, even every civil servant can disregard a law enacted by the democratically elected national parliament if she deems it incompatible with EU law.Footnote 155
This can apply, at least in theory, to a review of constitutional amendments and even to their nullification by national courts where there is a contradiction between supreme international or supranational law and constitutional law.Footnote 156 Of course, such an exercise of power by courts depends on the power, independence and legitimacy of the judiciary within that national system.Footnote 157
Thus, it seems that the solution for the ineffectiveness of international law lies within national courts. This resembles Georges Scelle's doctrine of ‘dédoublement fonctionnel’ (‘role splitting’), according to which whenever a national court faces a conflict between national and international law, it acts in the capacity of international judicial body, an agent of international law, alongside its domestic role.Footnote 158 But, when national courts are asked to enforce international law vis-à-vis a contradictory constitutional amendment, they face what Yuval Shany terms ‘mixed loyalties’.Footnote 159 On the one hand, as a constituted organ, the judiciary must abide by the national constitution, the ‘supreme law of the land.’ On the other hand, since all organs of a state may not engage in conduct that constitutes a breach of an international obligation, national courts are bound to give effect to such an obligation as a matter of international law.Footnote 160 ‘Surely’, Shany notes, ‘the fact that international law—a system of law which binds the polity—requires a certain outcome, ought to be considered a relevant factor by the courts of the same polity’.Footnote 161 This puts the domestic judge in a highly uncomfortable position: either she must act contrary to international law or contrary to the constitution.Footnote 162 Pierre-Marie Dupuy remarks that Scelle's ‘dédoublement fonctionnel’ theory enables state organs to ‘kill two birds with one stone’. While still acting within the framework of their competence as it is defined in the national legal order, they also play a part in the application of international law.’Footnote 163 Whereas this remark is accurate with regard to a court that adjudicates on acts of other branches or ordinary acts, it encounters difficulties when one has to apply the ‘dédoublement fonctionnel’ theory to adjudication of constitutional amendments. In such a case, the judge might no longer act under her ‘framework of competence as defined in the national legal order’, but rather against the constitution, from which her competence stems.Footnote 164 Equally problematic is the postulation that ‘if national constitutional courts are willing to strike down laws passed by the national legislature, then they should have the institutional clout to do the same thing when enforcing international law’.Footnote 165 When the court invalidates a law passed by the legislature, it does so because that law is deemed unconstitutional. In its actions, the court guards the constitution. Then again that comparison seems inappropriate when it comes to judicial review of constitutional amendments. Arguably, by invalidating a constitutional amendment, properly enacted according to constitutional procedures, the court no longer guards the constitution but acts contrary to its provisions.
E. The Eventual Superiority of Domestic Constitutional Law
Certainly, a decision by a supranational tribunal that a constitutional provision is incompatible with international law grants the domestic court a powerful tool, for rationalization as well as legitimation, when adjudicating constitutional amendments that breach binding supranational law.Footnote 166 Moreover, such a decision (of a supranational tribunal) has a value ‘in the very process of exposing community practice and norms to self-reflection and justification as part of a shared reflexive practice of developing normative standards based on broadly held values’.Footnote 167 However, as Andreas Paulus remarks, ‘When domestic courts apply international law or implement international decisions, they do so because domestic law requires it, not because they are organs of the international community … When domestic courts apply international law, they use authority derived from their domestic law, in particular their constitution.’Footnote 168 Even with regard to EU law—the supremacy of which is widely recognized by the member states—national constitutional courts ‘regard supremacy as a concept rooted in the national constitutions, rather than deriving from the autonomous nature of the Community legal order’.Footnote 169 Paulus is correct in stating that ‘it is domestic constitutional law that determines the extent and the limits of the effects of international or supranational law in the domestic legal order’.Footnote 170 Despite the growing influence of supranational law, the ‘supranational rule of law’ ultimately depends on the domestic constitutional order.Footnote 171 Even Hans Kelsen, a notable monist, observes that:
The question as to whether in case of a conflict between national and international law the one or the other prevails can be decided only on the basis of the national law concerned; the answer cannot be deduced from the relation which is assumed to exist between international and national law.Footnote 172
True, modern constitutions, especially following World War IIFootnote 173, increasingly refer to international law.Footnote 174 Some even grant international law binding force within the domestic sphere and acknowledge the normative hierarchical superiority of international law, especially of human rights treaties (international or supranational), over domestic law.Footnote 175 This ‘constitutionalization of international law’ (or ‘internationalization of constitutions’Footnote 176), ie, the incorporation of international law (treaty or customary) within the constitution, may act as an important mechanism for states to pre-commit themselves to certain international obligations, by placing them at a constitutional level beyond the control of ordinary politics.Footnote 177 However, this superiority over domestic law is mostly restricted to ordinary, and not constitutional, law.Footnote 178 Even in modern constitutions, Judge Vladlen Vereshchetin remarks, there is ‘a clear tendency toward “de jure recognition” of the primacy of international law … but not above the constitution itself’.Footnote 179 Indeed, as Anne Peters recently demonstrated, whereas international courts and tribunals assert the supremacy of international law over domestic law, including constitutional law, most of the domestic actors reject such an assertion and do not award superiority to international or regional law over the national constitution. On the contrary, states commonly grant the constitution superiority over international law, even when international law is given superiority over ordinary legislation.Footnote 180 For example, in 2006 the Lithuanian Constitutional Court held that EU law is superior to ‘national legal acts (regardless of what their legal power is), save the Constitution itself’ (emphasis added).Footnote 181 In Italy, the Constitutional Court has recognized, in several decisions, that the ECHR is a ‘norma interposta’ (‘interposed law’); it has a supra-legislative status, ie, superior to ordinary legislation, yet infra-constitutional, ie, inferior to the Constitution.Footnote 182 Within the United States, where according to the Supremacy Clause of the Constitution, treaties generally prevail over inconsistent state laws,Footnote 183 there is a wide consensus—not without criticism—that the Constitution is supreme to international law.Footnote 184
One can identify a few exceptions to this denial of international or supranational superiority over domestic constitutional law. In some states, the relationship between domestic constitutional law and international law is still ambiguous. Take for instance the Constitutions of Romania of 1991 (Articles 11, 20), Slovakia of 1992 (Article 11), and the Czech Republic of 1992 (Article 10), which grant supranational human rights treaties priority over domestic ‘law’, but where it remains unclear whether this ‘law’ includes the constitution.Footnote 185 In Austria, EU law is superior to all domestic law, including the Constitution, inasmuch as it does not conflict with the ‘basic principles of domestic constitutional law’.Footnote 186 Conflicts between the Constitution and the ECHR are quite uniquely governed by the principle of lex posterior derogat legi priori.Footnote 187 In Argentina, the Constitution grants international treaties on human rights a constitutional hierarchy.Footnote 188 A clearer provision exists in Article 2(2) of the Constitution of Bosnia and Herzegovina of 1995, which specifically provides that those standards set in the ECHR shall have priority over all other law, including constitutional amendments.Footnote 189 Article 91(3) of the Constitution of the Netherlands of 1983 gives priority to international treaties over domestic statutes, which most scholars consider to include the constitution.Footnote 190 In Belgium, the Constitutional Court remarked, quite remarkably,Footnote 191 that the ECHR has priority over the Belgian constitution: ‘que la Convention de sauvegarde des droits de l'homme et des libertes fondamentales prime la Constitution.’Footnote 192
In some states, the superiority of jus cogens over domestic law, including the constitution, has been recognized. For example, in Planas v Comelec, a case before the Supreme Court of the Philippines in 1973, the Court stated that the sovereign people might amend the Constitution in any way it chooses, so long as the change is not inconsistent with jus cogens norms of international law.Footnote 193 In Russia, international treaty law is superior (with certain exceptions) to ordinary laws but not to the Constitution.Footnote 194 In a decision of 2003, the Russian Supreme Court held that those ‘generally recognized principles and norms of international law’ have direct effect within the national jurisdiction, and stated that ‘deviation from which is impermissible’.Footnote 195
The strongest example comes from Switzerland where 100,000 people eligible to vote have the right to propose revisions to the Constitution. This is referred to as a People's Initiative (Volksinitiative). In response to such an initiative, the Federal Council can issue a recommendation, based upon which the Federal Assembly (Bundesversammlung) reviews the initiative for its compliance with several elements as established in the Constitution. The double majority of voters and cantons must approve a Volksinitiative. In 1996, both chambers of the Federal Assembly declared a Volksinitiative to amend the Constitution to be invalid for violating the internationally recognized peremptory prohibition of refoulement.Footnote 196 According to this prohibition, states must refrain from deporting or extraditing persons to a country where they would face torture or inhumane or degrading treatment. This prohibition imposes on states the positive obligation to examine whether the deportation or extradition of an individual would have such an effect. According to the Volksinitiative, asylum seekers who enter the state unlawfully would be deported immediately and without the option of appeal. In its report to the Volksinitiative, the Federal Council noted the peremptory (or jus cogens) character of the non-refoulement principle. It further stated that the immediate deportation of illegal immigrants, as proposed in the initiative, would not allow an examination of whether the deported persons would face torture or inhumane or degrading treatment. Therefore, illegal immigrants who had fled their countries due to persecution might face similar treatment if returned. The proposed constitutional amendment thus violated the peremptory principle of non-refoulement. Interestingly, the Federal Council stated that respecting the fundamental norms of international law is inherent to the Rechtstaat principle of ‘rule by law’,Footnote 197 and violation of said norms would undermine the Rechtstaat and cause the state and the influenced individuals an irreversible damage. It therefore proposed that the Federal Assembly invalidate the Volksinitiative,Footnote 198 which it did on 14 March 1996; consequently, the Volksinitiative did not form the subject of a referendum.Footnote 199
In 1999, Switzerland granted explicit constitutional recognition to the proposition that jus cogens norms of international law were a limitation to constitutional amendments. According to the 1999 Constitution, in the case of a total revision of the Constitution, ‘mandatory provisions of international law must not be violated’ (Article 193(4)) and ‘partial revision must respect the principle of cohesion of subject matter and must not violate mandatory provisions of international law’ (Article 194(2)).Footnote 200 According to the Federal Assembly and Federal Council, ‘mandatory provisions’ of international law include the prohibitions on torture, genocide, slavery and refoulement, the core guarantees of international humanitarian law, and the non-derogable guarantees of the ECHR and the 1966 International Covenant on Civil and Political Rights.Footnote 201 What about other rules of international law? In a report of 2010 regarding the relationship between international and domestic law, the Federal Council states that when a new constitutional norm, which was enacted by a Volksinitiative, clearly aims to violate international law, the constitutional provisions should prevail over the older international law. The approval by the people and cantons should then be interpreted as a mandate to withdraw from the relevant international instrument.Footnote 202
At first glance, these examples demonstrate that in some jurisdictions, international law may be normatively positioned even above the constitution itself. However, one must be cautious when evaluating such alleged supremacy of international law within the domestic constitutional order. As Gerald L Neuman remarks:
Even if a constitutional provision accords supremacy to international law, that provision itself will be subject to amendment, if necessary by resort to the constitution-giving power of the people. Similarly, in their consensual aspect, constitutional provisions recognizing the inviolability of international human rights represent voluntary national value choices.Footnote 203
The first section of this observation demands clarification. An ordinary constitutional provision granting international law supremacy can indeed be subject to future amendments. However, if such a constitutional provision would be drafted as an ‘unamendable’ provision, it would bind the amendment powers.Footnote 204 Hence, an explicit limitation that amendments should not violate certain rules of international law would also apply to the constitutional amendment powers. Of course, a similar unamendable provision would not limit or bind the original constituent power. Therefore, Neuman is correct that through the ‘constitution-giving power of the people’, any constitutional provision granting superiority to international law may be changed. Moreover, the final section of this observation is also important as it emphasizes, in a somewhat Oppenheimian way,Footnote 205 that even when the constitution grants international law a supra-constitutional status, ie, superiority over constitutional provisions, and thereby possible limits upon the constitutional amendment powers, such limitation derives not from international law as a separate legal order but, rather, from the constitution itself.
IV. CONCLUSION
Constitutionalists have long sought a high law to refer to when assessing legal norms, for instance, primary legislation when assessing secondary legislation, or constitutional legislation when assessing primary legislation. But what if the norm to be assessed is a constitutional one? When it comes to constitutional amendments, these ‘higher norms’ can be basic constitutional principles—explicit or implicit. These are often termed ‘internal supra-constitutional’ principles. Arguments of a higher norm can also be made in reference to external supra-constitutional principles, designed as a set of natural law or international law standards that bind national constitutional standards. As has been argued in this article, natural law theory seems inadequate to function as a limitation to constitutional amendments. Nevertheless, there is a growing tendency to argue for supra-constitutional limitations on amendments in the form of international or regional law.
Supra-constitutional limits are manifestations of the phenomena of globalization, multilateralism, and transnationalism which exert a growing influence on domestic law and domestic legal institutions. As we have seen, in many cases this influence goes beyond merely supplementing or complementing domestic law. Today, supranational law seems to serve as an autonomous limitation to constitutional amendments. States are bound by certain supranational rules. When those rules are breached—even by constitutional legislation—they can be enforced in supranational bodies and tribunals. From this perspective, supra-constitutional limits on the constitutional amendment powers do exist. This appears to overcome the traditional dualism between international law and domestic law by identifying certain supremacy of supranational law over the national legal order.
This alleged supremacy finds its limit when it comes to a state's constitution. It seems that these supra-constitutional limits are themselves limited and deficient. They find their boundaries when they attempt to enter the internal espace juridique and overcome the highest hierarchical norm. As Garlicki and Garlicka recently wrote, the main problem with international law is its enforceability, mainly due to a conflict between two perspectives:
From the perspective of international law, each and every domestic regulation, including regulations of constitutional rank, must respect the priority of binding international norms. The same position is adopted by the supranational law … Constitutional law adopts an entirely opposite approach. The national constitution is regarded as the supreme law of the land and any ‘unconstitutional’ international (supranational) regulation therefore cannot be applied by the domestic authorities. In several European countries, constitutional courts have explicit jurisdiction to decide on the conformity of international undertakings with the national constitution. As a result, any regulation that may be qualified as an ‘unconventional’ constitutional norm from the perspective of international law … would be qualified as an unconstitutional international norm from the perspective of constitutional law.Footnote 206
The inconsistency between these two approaches is, to borrow from Anne Peters, ‘a fact with which academics will have to learn to live’.Footnote 207 So how, then, can supranational limitations, such as international human rights law and jus cogens principles, be enforced within a domestic legal system? In the case of a constitutional amendment that breaches international or regional law, domestic courts can—at least in theory—have recourse to supranational avenues in order to annul the conflicting constitutional provision.Footnote 208 This is especially the case for a powerful court that enjoys great legitimacy. But this still seems unlikely to occur—the rare exception rather than the rule—since when facing ‘mixed loyalties,’ the national judge will usually choose the national constitutional law over international law.Footnote 209 Even if it is clear, from an international law perspective, that international law prevails over national law; state practice does not demonstrate general approval of international supremacy over the domestic constitutions.Footnote 210 In fact, in most countries, international law (contrary to EU and ECHR law) is still relatively neglected or dismissed in constitutional litigation.Footnote 211 Moreover, any judicial reference to supra-constitutional norms in order to invalidate constitutional amendments would likely earn harsh criticism.Footnote 212
Today, any alleged primacy of supranational law is still qualified. Ultimately, it would be subject to the highest hierarchical normative national norm—the constitution.Footnote 213 Furthermore, in the internal espace juridique (contrary to the external one) any arguments that supranational law prevails over domestic constitutional law are commonly based on the constitution itself, which may grant to certain international or regional law a normative status higher than domestic law.Footnote 214 However, that constitution may be amended or replaced by a new constitution, so as to loosen or even exclude such superiority. More important is the acknowledgment that this superiority is based not on any supra-constitutional theory, but rather on limitations within the constitutional order itself. This is well demonstrated in the clearest example of an international limitation within a domestic legal system: the Swiss case regarding the deportation of asylum seekers. Even in Switzerland, where the Federal Council recognized jus cogens as an implicit limitation on constitutional amendments, the reasoning was based upon the national constitutional order. It was derived from the principle of Rechtstaat, which constitutes a basic principle of the domestic legal order, rather than from an autonomous external legal order. As Erika de Wet writes, ‘the (Swiss notion of) Rechtstaat itself contains certain peremptory and unalterable norms, including the prohibition of refoulement and that this national origin of the most elementary norms of international law would suffice for applying the concept of jus cogens to national legislation’.Footnote 215
This is not to deny the importance of supranational law. Ultimately, these principles that may act as valid limitations on the constitutional amendment powers (such as jus cogens and international human rights) form part of international and regional laws. Nevertheless, they require some domestic anchoring. Therefore, a better approach—taking cue from Anne-Marie Slaughter and William Burke-White's slogan ‘the future of international law is domestic’Footnote 216—is to use explicit and implicit limitations as means to enforce international law. This might seem, in theory, like taking a step backwards rather than a step forwards. Already 90 years ago, Quincy Wright concluded his enquiry into ‘what, if any, limitations international law places upon the capacity of a state to make and alter its constitution’Footnote 217 by stating that:
While conflicts remain, national authorities are bound by the constitution and since international law relies in first instance upon enforcement by national authorities, it will suffer, but in the long run, as Pillet justly remarks, international law must be respected ‘on the penalty of exposing the state to a responsibility which may paralyze its sovereignty and put obstacles to the reign of its national law’.Footnote 218
However, one must remember that national constitutions remain essential in any process of global or European constitutionalization.Footnote 219 As Ximena Fuentes Torrijo recently remarked:
if international law does not provide tools for preventing States from enacting norms incompatible with treaties, then, the solution should be sought within domestic law … rules contained in international treaties had to be placed somewhere beyond the reach of domestic law. How can this be accomplished? By placing international treaties at a higher level internally. This pre-eminence may sometimes correspond to a constitutional hierarchy. In other cases, a supraconstitutional hierarchy is recognised, while an intermediate solution would be to grant the supralegal but infraconstitutional hierarchy.Footnote 220
Therefore, not only does ‘the emergence of an international public power … not render the constitution obsolete or ineffective,’Footnote 221 but also the constitution remains essential for supra-constitutional law. This dependency on domestic ‘sovereignty’ to enforce norms that attempt to transcend sovereignty is the ‘paradox of cosmopolitanism’.Footnote 222
Once having acknowledged the limited nature of the amendment powers (contrary perhaps to the original constituent power), resorting to supra-constitutional theories in order to limit the constitutional amendments may be superfluous.Footnote 223 Limitations within the constitution itself may be used in order to render supranational standards valid limitations on the amendment powers. For instance, an explicit unamendable provision may refer to international laws such as jus cogens principles or international human rights law. Similarly, jus cogens principles may form part of the (universal) basic principles of the domestic constitutional order.Footnote 224 Such explicit and implicit limitations are binding upon the constitutional amendment powers. Contrary to this approach, De Wet contends that ‘one could claim that such an explicit intra-state commitment to peremptory norms of international law could have counter-productive effects, as it would imply that the legislature would not be bound to customary law that does not constitute jus cogens, but could follow it at its own discretion’.Footnote 225 In light of other popular initiatives to amend the Constitution in Switzerland, this evaluation seems correct.Footnote 226 Of course, a relatively wider explicit limitation provision that includes more than just jus cogens, such as important human rights treaties, may solve, or at least, assuage this problem. Besides, from an international law perspective, is it not better to have an unamendable provision which would protect core principles than not having any protection whatsoever?
This article has examined the notion of supra-constitutional limits on the constitutional amendment powers. It has both summarized current debates on their use and explained what is in fact meant when talking about supra-constitutional limits. It has demonstrated that existing practice dispels a genuine notion of supra-constitutionality, which requires for its application, or is dependent upon, limitations on the amendment powers within national constitutions. Matthias Herdegen claims that ‘defining the constitution's core by reference to the law of nations and its peremptory protection of human rights will strengthen the normative force of international law in the community of States’.Footnote 227 Indeed, not only do explicit and implicit limits on the amendment powers describe the existing national practice regarding arguments relating to the superiority of supranational law over domestic constitutional law but, by focusing on explicit and implicit limits, rather than on external legal orders, international and supranational laws may be strengthened and pose enforceable limitations on the constitutional amendment powers. ‘The government undoubtedly has a variety of legitimate means at its disposal to modify its international legal obligations or to deprive them of domestic applicability’, William Carter reminds us, and ‘Ignoring the Constitution is not one of them.’Footnote 228
