There are a variety of ways in which international law and actors might be engaged in constitutional transformation.
International actors may be other states or groupings of states, international institutions, non-government organisations, and individual expert advisers. The nature and form of international involvement in constitutional transformation depends on the context. International involvement may begin before constitutional transformation, for example as part of conflict resolution or peacebuilding. International actors may be present during constitution-making as advisers and technical experts. Constitutional choices on such fundamental questions as levels of private property protection (and by extension the power of a state to engage in redistribution without invoking general powers of taxation) can even be shaped by, or stand in tension with, international law commitments in trade and investment treaties. Supra-national courts increasingly play a role in monitoring and enforcing how constitutional provisions are implemented. The significant involvement of the international community in contemporary constitutional transformation is not adequately captured in current theoretical understandings of constitutions as made principally by and for the people of the state.
International norms also influence the process, substance and implementation of new or amended constitutions. International laws may be imported into domestic constitutions in a number of different ways, for example in the text of constitutional rights provisions, by picking up various international conventions, or through constitutional interpretation by the courts. The interaction between the constitutional laws of a state and legal regimes at the regional and international level raises significant questions about the hierarchy of laws, legitimacy and sovereignty.
The Network’s work in this theme seeks to develop a more complete picture of constitutional transformations by better understanding impact of international law, international relations and international organisations and personnel on constitutional transformation.
How does ‘transnational practice’ affect the very concept of a Constitution? This question is the subject of ongoing research by Cheryl Saunders. The final paper will be written for a volume on ‘Constitution-making as Transnational Practice’, edited by Gregory Shaffer and Tom Ginsburg.
What effect does the appointment of foreign judges to domestic courts have on Pacific constitutions? Anna Dziedzic’s PhD thesis considers how the participation of foreign judges in constitutional interpretation and adjudication affects understandings of Pacific constitutions and conceptions of the judicial role in the Pacific region.
Submission to the Australian Government Foreign Policy White Paper
On 28 February 2017, the Constitution Transformation Network made a submission to the inform the Australian Government as it prepares a new Foreign Policy White Paper, the first since 2003. The submission argues that Australia’s national interest requires more effective use of Australian soft power, in the Indo-Pacific region and globally. Specifically, it argues that policies and practices across the whole of Australian Government need to be based on and responsive to an understanding of the diversity of systems of government around the world, in both form and context, in order to provide assistance that works, in a way that is respected by other state parties. Such an understanding necessarily also must take account of the varying impacts of the multiple manifestations of globalisation on the national constitutional systems of the world. Equally importantly, in the face of growing resistance to many of the effects of globalisation, it should be informed by a consistent and carefully considered view about where the boundaries of authority and responsibility ideally should lie between national constitutional arrangements on the one hand and regional and international orders on the other.
Dialogues between International and Public Law
A conference on Dialogues between International and Public Law was held in London in June 2016, jointly organised by the British Institute for International and Comparative Law and Melbourne Law School. The Dialogue explored the connections, influences and relationships between public international law and domestic public law. Cheryl Saunders and Michael Crommelin, both of the Constitution Transformation Network, were involved. In her remarks Cheryl Saunders explored the interdependence of the two branches of law and its implications for the concept of a Constitution.
Sovereignty and Legitimacy of International Actors in the Guatemalan Constitutional Reform: The Role of the CIGIC
Carlos Arturo Villagrán Sandoval
Carlos Arturo Villagrán Sandoval, ‘Soberanía y Legitimidad de Actores Internacionales en la Reforma Constitucional Guatemalteca: El Rol de la CICIG’ / ‘Sovereignty and Legitimacy of International Actors in the Guatemalan Constitutional Reform: The Role of the CIGIC’ (2016) 1:1 Política Internacional 36
This paper discusses the legitimacy of the role of the Comisión International Contra la Impunidad en Guatemala, or the International Commission against Impunity in Guatemala (CICIG) in the current constitutional reform process underway in Guatamala. This process started in April 2016 and it has been driven by the Commission’s leadership. The leadership of the CIGIC and the influence of foreign actors in constitutional change calls for new inquiry in the role of foreign actors in domestic constitution making and the impact on sovereignty. This paper provides a new construction of sovereignty based on Guatemalan state-building experience and the nation’s current needs, analyses the role of the CICIG within this constitutional reform process and, lastly, attempts to draw out conditions on its role as a constitutional reform agent.
A Reflection on the “Dualism within Dualism” in the Interaction between International Law and Domestic Law in Guatemala
Carlos Arturo Villagrán Sandoval, ‘A Reflection on the “Dualism within Dualism” in the Interaction between International Law and Domestic Law in Guatemala’ [Una reflexión sobre el "dualismo dentro del dualismo" en la interacción del derecho internacional con el doméstico en Guatemala] in Paola Andrea Acosta (ed.) Serie Documentos de Trabajo no.9, Sociedad Latinoamericana de Derecho Internacional, 2016.
‘Dualism within dualism’ characterises the interaction and hierarchy of international and constitutional norms in Guatemala. It refers not only to the domestic publication and application of international laws in Guatemala, but also to the recognition of different hierarchies of international laws when introduced within the domestic sphere. The evolution of ‘dualism within dualism’ has resulted in a tension and dialogue between Guatemala’s Constitutional Court and Supreme Court, which differently interpret the hierarchy of international laws and their effects. This paper therefore explores a distinctively Latin-American feature of constitutional transformation, namely the reception of international norms, particularly human rights norms, as part of the constitution. [Article is in Spanish]
Designing and Operating Constitutions in Global Context
Cheryl Saunders, ‘Designing and Operating Constitutions in Global Context’ in Mark Elliott and David Feldman (eds), The Cambridge Companion to Public Law (Cambridge University Press, 2015) 256-274.
The Impact of Internationalisation on National Constitutions
Cheryl Saunders, ‘The Impact of Internationalisation on National Constitutions’, Albert HY Chen (ed) Constitutionalism in Asia in the Early 21ist Century (Cambridge University Press, 2014), 391-415.
Internationalisation has caused significant convergence of the national constitutional systems of the world. Internationalisation occurs along vertical lines through the influence of international and supranational norms, institutions and processes on national constitutions as well through the horizontal movement of constitutional principles and practices across states. This chapter identifies the principal paths along which internationalisation occurs and how they contribute to convergence. It shows, however, that while internationalisation has reduced some differences between the constitutions of an increasing range of states, it has not eradicated difference altogether. Rather, internationalisation affects countries and constitutions to different degrees, and constitutions continue to have a distinctive relationship with the states for which they were made that affects their form and operation in practice. The chapter concludes by considering the implications of internationalisation for comparative constitutional method. It argues that despite internationalisation, comparative tools are as necessary as ever to understand national constitutional arrangements. Using Asia as an example, the chapter suggests that regional groupings of states may offer a useful taxonomy for the purposes of constitutional comparison and accommodate the twin realities of convergence and difference.
Towards a Global Constitutional Gene Pool
Cheryl Saunders, ‘Towards a Global Constitutional Gene Pool’ (2009) 4 National Taiwan University Law Review 1-38.
This essay aims to develop the methodology of comparative constitutional law in a way that draws more comprehensively on world constitutional experience. The first part identifies key methodological challenges for comparative constitutional law, drawing on the literature of comparative law, while taking account of the distinctive character of constitutional law. The challenges examined here are the dichotomy between similarity and difference; the approach to the task of comparison; taxonomy; the impact of culture; and pluralism. The second part of the argument considers the impact on comparative constitutional method of the conditions in which Constitutions operate in the early 21st century, including internationalisation, globalisation and advances in information technology. This part of the essay aims to show that, while there are considerable contemporary pressures for convergence, with implications for comparative method, other forces foster difference and pluralism, creating new methodological challenges. The essay concludes with a series of propositions for the methodology of comparative constitutional law, as a platform for further research and dialogue.