International Covenant on Economic

The Role of International Law in Shaping Domestic Constitutions 22 jan 2025 1. Introduction The interplay between international law and domestic constitutions is a significant component of contemporary legal systems. International law, consisting of treaties and conventions and customary legal rules, shapes national constitutions by developing ideas about human rights protections, structures of governance, or legal standards of behaviour. Functionally, this occurrence describes the conditional and dynamic interplay concerning the interaction of international law, international norms, and domestic legal traditions: both peaceful, cooperative interactions and reactionary confrontation when one or more participants see it as moralizing. This paper looks at examples of how international law animates domestic constitutions. I will discuss its influence on legal structures, the constitutional reform process, judicial engagement with rights, and the development and practice of human rights protections. 2. Obtaining Inspiration from International Law a. Human Rights Frameworks One of the most plainly observable ways in which international laws influence domestic constitutions is through inspiration supplied by international human rights frameworks. The Universal Declaration of Human Rights (UDHR) provides one of the foundational documents for drafting other national constitutions. It states fundamental rights and freedoms such as the right to life, freedom of speech, and fair trial. Many domestic legal systems utilize UDHR principles of lived experience as a basis for constitutional provisions and embracing national legislative aspirations. The South African Constitution of 1996 illustrates the degree of international human rights standards’ influence. In written form, the South African Constitution states extensive protections for civil, political, economic, and social rights as a function for those aspirations and blessings of the international community like those found in instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). In Germany, the Basic Law (Grundgesetz) distinguished itself from earlier arrangements to disallow the cataclysmic abuses of rights prevalent as a result of the intoxicated Nazi-era human rights abuse, by solidifying protections for the rights of individuals influenced by other international norms. b. Environmental Protection International treaties addressing environmental issues also have an impact on domestic constitutions. One example is the 1992 Earth Summit, held in Rio de Janeiro, which yielded the Rio Declaration on Environment and Development and Agenda 21, both of which laid out the principles for sustainable development. Those international legal instruments have inspired constitutional amendments and revisions that bear a public commitment about environmental protection, environmental conservation, and sustainable development. Likewise, the Constitution of Ecuador—reformed in 2008—stands out because it incorporates the “Rights of Nature” creating a recognition of the environment in constitutional law, following international environmental principles and the impact of the sustainable development paradigm. Indian constitutional law’s directive principles of state policy accept international convention and accommodate public environmental protection obligations that stem from international treaties-inspired amended constitutional rules. Examples such as these confirm new norms of international environmental law in a public statutory domestic constitutional context.  3. Incorporation of International Law into Domestic Legal Systems  a. Self-Executing Treaties In some jurisdictions, domestic law automatically incorporates international treaties from the time of ratification. Such treaties are defined as self-executing meaning they have legal effect without any additional enabling domestic legislation. In a species-specific example, in the United States certain treaties become part of the “supreme law of the land” following ratification pursuant to Article VI of the Constitution. The incorporation of treaties such as this, can create new legal norms changing domestic law. The Convention on the Elimination of All Forms of Discrimination Against Women is an illustrative case. In jurisdictions that affiliate to characterize CEDAW as a self-executing treaty, the principles of gender equality and non-discrimination express the CEDAW provisions in domestic law and domestic constitutional provisions. Additionally, CEDAW’s incorporation to specific domestic law represents international norms of gender equality and non-discrimination obligations; acknowledgment of CEDAW provides the basis for person’s gender equality standards. b. Legislative Incorporation In several countries, international treaties necessitate an act of legislation to incorporate them into national law. This incorporates the passing of legislation that brings national law into harmony with international obligations. For instance, the United Kingdom’s method for the incorporation of international treaties relies upon Parliament passing legislation to fulfil treaty obligations. The UK’s Human Rights Act 1998 as an example of legislative incorporation, seeks to incorporate the European Convention on Human Rights (ECHR) into UK national law. Likewise, Australia’s mechanism for the incorporation of international treaties involves the passing of enabling legislation. Although not directly incorporated into Australian domestic law, the Australian Constitution allows for the effectuation of international treaties through legislative action. The Australian Parliament has passed legislation that ensures compliance with international human rights obligations, such as the Australian Human Rights Commission Act 1986. 4. Influence on Judicial Interpretation  a. Constitutional Interpretation International law can influence the construction of provisions in domestic constitutions. Courts may construct domestic constitutional rights and principles based on international legal standards; thereby ensuring that national law is consistent with global standards. This occurs in jurisdictions where treaties have been incorporated into national law; however, it may applies more broadly than domestic incorporation of international treaties. In South Africa, for example, the Constitutional Court often referred to international human rights documents when it interprets the Bill of Rights. South Africa’s method of constitutional construction ensures that national provisions are interpreted in keeping with international human rights standards. In similar fashion, the Supreme Court of India has used international treaties and conventions to guide its construction of fundamental rights, as set out in the Indian Constitution. In doing so, India has aligned its national law with international law. b. Human Rights Adjudication International human rights treaties present numerous opportunities for adjudication of cases involving fundamental human rights. In many events, courts and human rights tribunals utilize international human rights norms in adjudicating cases addressing discrimination, freedom of expression, and the right to a fair trial. Many courts and tribunals have found this practice useful in ensuring that domestic legal standards comply with international human rights