International Constitutional Law – Inclusive, but Still Selective?

Abstract

Abstract Developing international constitutional law, apart from difficulties concerning its definition, faces certain well-known problems – ranging from its pluralistic mode of creation to its enforceability, but has also to scrutinise its aims. If its aim is to at least provide a global reference framework for constitutional principles and concepts – since serving as a common set of values does reach its own limits rather quickly eg concerning fundamental issues such as the role of women in society or sustainability – it has to be inclusive in nature. Certain areas of international law, such as human rights – via Universal Periodic Review or treaty monitoring bodies such as CAT – or WTO law interact closely with national constitutional and/or regional international law (ECHR) and or regional constitutional/public law (eg EU Law). Therefore, their ideas may be taken up – voluntarily through courts or academia, due to examination mechanisms through governments or tribunals – be modified (if necessary to fit into a national constitutional system or supranational constitutional framework) and transported back into the global community (eg as feedback within a WTO case or an UPR). This, however, is event driven. Therefore, it cannot be a carefully conceptualised coherent law such as national constitutions. National (and land constitutions, which may also provide important ideals) constitutions in general serve several functions: as set of values eg in the area of fundamental rights, for structuring the state functions by setting up institutions and modes of operation, and as reference for the interpretation of norms eg in court cases. Their overall purpose is to provide a coherent inner regime. Nevertheless, by promoting certain selected ‘institutionalisable’ constitutional ideas (for example through the rule of law initiative) we can aim to strive from a fragmented towards a more coherent global framework.