International Law Meets Domestic Constitutional Law: A loss of Supremacy?

A great jurist, John Austin in his famous treatise 'The Province of Jurisprudence Determined' describes law as a command requiring obedience and eminating from a sovereign. On similar pretext, sovereignty has been described as an essential attribute of statehood wherein the unyielding powers are referred to as the State instrumentalities. In a given territorial set-up, with an identified king (or rule-making power in the context of a democratic set-up) this attribution of sovereignty is possible without much difficulty. However issues arise when this sovereign is also required to yield (even if in some limited aspects) to an external authority. International law has, therefore, been a source of a number of unrebutted scathing attempts diluting the sovereignty theory. 

In as much as a government, conferred with sovereign powers and rights under the constitution, is required to yield to an international body of norms and principles, scholars have been divided in contra-posing the attributes of a sovereign in the wake of development of international law. Nonetheless, in as much as international law is here to stay and aspired to continue, the loss of supremacy of the domestic law is bound to take place. On the similar theme is this recent article by a Professor of International law, which "analyses how domestic constitutional law in many countries responds to the increasing intrusiveness and regulatory claims of international law, notably by refusing to accept an unconditional supremacy of international law above domestic constitutional principles".

In the paper entitled "Supremacy Lost: International Law Meets Domestic Constitutional Law", Anne Peters has made an attempt to inter alia show "how international and domestic constitutional law are more and more converging", the "spreading practice of constitutional interpretation in conformity with international law", to analyze the claims of supremacy of international law to show that "[w]hile the international courts and tribunals claim supremacy over all domestic law, including constitutional law, this claim is rejected by more and more domestic actors. At the same time, more and more domestic courts claim the competence to scrutinize whether international rules and court decisions are in conformity with the domestic constitution."

Having examined the diverse constitutional practices in response to international law, the author concludes that "the examples of national constitutions and case-law have demonstrated that there is indeed a worldwide constitutional practice highly responsive to international law but jealous of safeguarding at least domestic core constitutional principles against international intrusion". He further resonates to note the development of pluralist theory explaining the dimension to state that "[t]he plurality of perspectives is accompanied by a plurality of legal orders, a plurality of legal actors claiming ultimate authority, and a plurality of rules of conflict. In this intellectual framework, there is no legal rule to decide which norm should prevail, in other words there is no supremacy. There is also no legal rule to resolve the competing claims to authority raised by the international and the domestic constitutional actors. Different legal actors, for example courts, necessarily belong to one of the various orders, therefore necessarily speak from their own perspective, and can only apply a rule of priority residing in their own legal system. In the absence of an overarching, institutionalized power which could decide a conflict, the different actors' perspectives are – in legal terms – equally valid and consistent. Conflicts can therefore not be decided by legal argument, but must be solved politically."

The author advocates that the resolution of the so-dubbed conflict can be attained in the scenario where "the fundamental idea is that what counts is the substance, not the formal category of conflicting norms. Such a flexible approach appears to correspond better with the current state of global legal integration than does the idea of a strict hierarchy, particularly in human rights matters. From this perspective, international law and state constitutions find themselves in a fluent state of interaction and reciprocal influence, based on discourse and mutual adaptation, but not in a hierarchical relationship."

In all, the paper provides meaningful insights on the issue and serves as a guide to maneuver the changing interactive dimensions between domestic and international law. Have a look.