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And Comparative Constitutional Law Volume 10 Issue 2 Article 4 6-2-2020 International "Constitutions" and Comparative Constitutional Law Michael Da Silva McGill University Follow this and additional works at: https://scholarship.law.nd.edu/ndjicl Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Michael Da Silva, International “Constitutions” and Comparative Constitutional Law, 10 NOTRE DAME J. INT’L & COMP. LAW 139 (2020). This Article is brought to you for free and open access by the Notre Dame Journal of International & Comparative Law at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of International & Comparative Law by an authorized editor of NDLScholarship. For more information, please contact [email protected]. International "Constitutions" and Comparative Constitutional Law Cover Page Footnote Canadian Institutes of Health Research Banting Fellow, Institute for Health and Social Policy and Faculty of Law, McGill University. An earlier version of this piece was presented at a meeting of the Younger Comparativists Committee (YCC) of the American Society of Comparative Law. I thank the audience at that meeting and the editors of this journal for helpful feedback that helped me refine the scope of (and hopefully improve) my argument. This article is available in Notre Dame Journal of International & Comparative Law: https://scholarship.law.nd.edu/ ndjicl/vol10/iss2/4 INTERNATIONAL “CONSTITUTIONS” AND COMPARATIVE CONSTITUTIONAL LAW MICHAEL DA SILVA* INTRODUCTION ............................................................................................... 140 I. RELEVANT PHENOMENA .............................................................................. 142 II. SCOPE ......................................................................................................... 145 III. FEATURES OF CONSTITUTIONAL ORDERS ................................................. 149 IV. THE CASE FOR THE CHARTER AS INTERNATIONAL CONSTITUTION .......... 151 A. THE FORMAL SUPERIORITY ARGUMENT .................................................. 151 B. THE SHARED PROJECT ARGUMENT ......................................................... 152 C. THE SIMILARITY ARGUMENT ................................................................... 152 V. THE CASE AGAINST USING THE CHARTER IN DOMESTIC CONSTITUTIONAL COMPARISONS .............................................................. 153 A. THE CHARTER LACKS KEY CONSTITUTIONAL FEATURES ......................... 154 1. Constituent Authority ....................................................................... 154 2. Hierarchy ......................................................................................... 155 3. Entrenchment ................................................................................... 156 4. Enforcement ..................................................................................... 157 5. Bindingness ...................................................................................... 158 B. THE LARGER INTERNATIONAL ORDER IS STRUCTURALLY DISSIMILAR FROM CONSTITUTIONAL ORDERS ........................................................... 159 1. Authoritativeness ............................................................................. 159 2. A Unity of Laws ................................................................................ 160 3. Separation of Powers ....................................................................... 162 C. FUTURE INTERNATIONAL CONSTITUTIONAL ORDERS ARE LIKELY TO DIFFER FROM DOMESTIC EQUIVALENTS ................................................ 163 D. DOMESTIC LEGAL PRACTICE UNDERMINES THE CASE FOR COMPARISON ......................................................................................... 165 E. COMPARISON IN MONIST STATES MAY JUST BE APPLICATION OF DOMESTIC LAW ..................................................................................... 166 F. THE CHARTER ALONE DOES NOT SUPPORT OVERLAP ARGUMENTS ......... 166 G. THE SHARED PROJECT ARGUMENT HAS LIMITED APPLICATION .............. 167 VI. OBJECTIONS AND REPLIES ........................................................................ 168 CONCLUSION .................................................................................................. 171 * Canadian Institutes of Health Research Banting Fellow, Institute for Health and Social Policy and Faculty of Law, McGill University. An earlier version of this piece was presented at a meeting of the Younger Comparativists Committee (YCC) of the American Society of Comparative Law. I thank the audience at that meeting and the editors of this journal for helpful feedback that helped me refine the scope of (and hopefully improve) my argument. 140 NOTRE DAME J. INT’L & COMP. L. vol. 10:2 INTRODUCTION Many scholars discuss a “constitutionalization” of international law.1 Some look for a document or set of documents that can be the “constitution” in this constitutionalizing or constitutionalized system.2 Common candidates include the Charter of the United Nations (Charter),3 all or parts of the “International Bill of Rights” (the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Cultural, Social, and Economic Rights (ICESCR)),4 and the Vienna Convention on the Law of Treaties (VCLT).5 Comparisons between international law and domestic constitutional orders help determine whether this process of constitutionalization is taking place or complete.6 Some domestic courts use international law to decide cases and understand legal phenomena.7 Some conduct constitutional comparisons to decide cases.8 These phenomena combine to raise an intriguing question: To what extent can the kinds of comparisons between the international legal order and domestic constitutional legal orders that have provided information about international law and the constitutionalization thereof now shed light on domestic constitutional laws? This Article provides a response. It proposes caution in conducting such comparisons to address constitutional issues and argues that at least most valid comparisons to fulfill constitutional law purposes likely do not qualify as forms of comparative constitutional law but are instead examples of other kinds of (often clearly useful) analysis. “Constitutional” comparisons to decide constitutional cases in one’s state are legitimate where the foreign legal order is sufficiently similar to one’s domestic constitutional legal order such that we can 1 See, e.g., RULING THE WORLD? CONSTITUTIONALISM, INTERNATIONAL LAW, AND GLOBAL GOVERNANCE (Jeffrey L. Dunoff & Joel P. Trachtman eds., 2009) [hereinafter RULING THE WORLD]; JAN KLABBERS, ANNE PETERS & GEIR ULFSTEIN, THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW (2009). 2 Blaine Sloan, The United Nations Charter as a Constitution, 1 PACE Y.B. INT’L L. 61, 62 (1989); See also, Pierre-Marie Dupuy, The Constitutional Dimension of the Charter of the United Nations Revisited, 1 MAX PLANCK Y.B. U.N. L. 1, 19 (1997); Bardo Fassbender, The United Nations Charter as Constitution of The International Community, 36 COLUM. J. TRANSNAT’L LAW 529, 558, 567, 593, 618 (1998); Stephen Gardbaum, Human Rights as International Rights, 19 EUR. J. INT’L LAW 749, 759 (2008). 3 U.N. Charter art. 102. On its candidacy see Sloan, supra note 2, at 61; Dupuy, supra note 2, at 12; CHRISTIAN TOMUSCHAT, THE UNITED NATIONS AT AGE FIFTY: A LEGAL PERSPECTIVE IX (Kluwer Law Int’l 1995) [hereinafter Tomuschat]. 4 G.A. Res. 217 (III) Universal Declaration of Human Rights, (Dec. 10, 1948) [hereinafter UDHR]; International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Covenant on Economic, Social and Cultural Rights, Dec. 16 1966, 993 U.N.T.S. 3 [hereinafter ICESCR]. On the status and joint candidacy of this “International Bill of Rights,” see Gardbaum, supra note 2, at 750. 5 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT]. On its candidacy (and that of other documents), See KLABBERS, PETERS & ULFSTEIN, supra note 1, at 23–25. 6 RULING THE WORLD, supra note 1, at 18. See also, Sloan, supra note 2, at 63. 7 Baker v. Canada (Minister of Citizenship and Immigration) (1999) 2 S.C.R. 817, 47 (Can.) (see para. 70 for other transnational case law). Some courts are bound to use it. See, e.g., S. AFR. CONST., 1996, § 39(1)(b). 8 See, e.g., THE MIGRATION OF CONSTITUTIONAL IDEAS 5–10 (Sujit Choudhry ed., 2006) [hereinafter Choudhry]. 2020 INTERNATIONAL CONSTITUTIONS AND COMPARATIVE CONSTITUTIONAL LAW 141 plausibly understand the foreign legal order as constitutional and capable of providing insight into the nature of constitutions, constitutionalism, and constitutional phenomena. Yet, there is reason to question whether the international legal order has enough features of domestic constitutional orders to justify this form of judicial comparison between the international legal order and domestic constitutional orders. The ongoing constitutionalization process is unlikely to produce an international legal order with sufficiently similar features to domestic constitutional orders. To make this clear, I address the case of a Charter-based international “constitutional” order. I explore whether the Charter is an international constitution and whether the system that it anchors is a constitutional legal order, providing negative responses to both inquiries. I further detail other
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