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 norms.
The European Court of Human Rights (ECtHR) is one of the best examples of a fundamental human rights body tasked with the interpretation of European human rights standards as outlined in the European Convention on Human Rights (ECHR) and adjudicating human rights violations. Member states of the Council of Europe are obligated to follow the judgments of the ECtHR, which frequently leads to constitutional and legal reforms at the country level to fulfil human rights obligations and enhance domestic protection of human rights.
5. Constitutional Reforms Influenced by International Law
a. Pressure for Reform
International bodies and treaties can pressure states to amend their constitutions pursuant to international law norms. States can be pressured to comply with international obligations or, at times, simply to enhance domestic fundamental human rights protections in property law, contract law, manufacturing law, or other forms of regulation, or to remedy weaknesses and defects in domestic legal systems.
For example, states often engage in the renegotiation of constitutions in the approval sequence of becoming a candidate country for the European Union (EU), where candidate countries are compelled to align their constitutions and legal systems with EU standards for a prospect of membership in the EU and standards for human rights protection and the rule of law, and to protect democracy governance. Countries in Central and Eastern Europe engaged in substantial constitutional reform because of EU accession reforms.
b. Benchmarking and Best Practices
Nations often look to global standards as yardsticks for changing their constitutions aiming to bring their legal systems in line with worldwide norms. Global groups and specialists offer advice and proven methods that shape how constitutions are written and changed.
International law has an impact on how constitutions change in countries coming out of conflict or moving towards democracy. Take the 2005 Iraqi Constitution as an example. It includes global human rights standards and principles, thanks to input from international groups and experts during its creation. In a similar way, Tunisia’s 2014 Constitution has parts about human rights and gender equality, which were shaped by international norms and tried-and-tested approaches.
6. Human Rights Protections and International Law
a. Incorporation of Human Rights Standards
International human rights treaties often have an influence on the addition of human rights safeguards into national constitutions. These safeguards might include assurances of civil, political, economic, social, and cultural rights mirroring the tenets laid out in global agreements.
Take the Kenyan Constitution, for example. Adopted in 2010, it includes a wide-ranging Bill of Rights that safeguards civil, political, economic, and social rights. This addition shows how international human rights documents, like the UDHR and ICCPR shape national laws. It marks a big step forward in protecting human rights in Kenya.
b. Enforcement Mechanisms
International law has an impact on creating local bodies or systems to safeguard and advance human rights. These systems might include human rights boards, watchdog offices, and special courts. The aim is to make sure constitutional rights are enforced and international rules are followed.
The 1996 Constitution of South Africa created the South African Human Rights Commission. This organization shows how global human rights standards shape local institutions. The Commission’s key tasks include standing up for human rights looking into complaints and pushing for policy shifts. In a similar way, India set up its National Human Rights Commission under the Protection of Human Rights Act 1993. This body also follows international guidelines and helps enforce human rights protections.
7. Challenges and Conflicts
a. Sovereignty vs. Compliance
When international law meets domestic constitutions, it can cause problems with national sovereignty and following international rules. Countries often struggle to balance their own legal customs and practices with what international law requires.
Take, for example how some countries push back against adopting certain global rules. They might see these rules as clashing with their own values or political goals. This pushback often sparks debates about a country’s right to make its own decisions and how much international law should shape local legal systems.[i]
b. Putting Laws into Action
Even when international law has an impact on what’s in a constitution, there can be gaps when it comes to putting these laws to work or enforcing them. Local legal systems might find it tough to line up with global standards. This can create a mismatch between what the constitution promises and what happens in real life.
While many constitutions provide for gender equality, their practical implementation may be hindered in real life by discrimination, violence, and merger mechanism of enforcement. Closing gaps in implementations needs continuous painstaking work to bring domestic practices in line with the international standards and to provide proper enforcement of constitutional provisions.[ii]
8. Conclusion
International law plays a major role in shaping the domestic constitution and provides models, frameworks, and standards that influence national legal systems. All these reflect the dynamic interaction between the global and national legal regimes: the incorporation of international norms into national law, an impact on judicial interpretation, and the impetus for constitutional reforms. Difficulties of sovereignty and enforcement notwithstanding, international law remains a strong catalyst for the advancement of human rights, environmental protection, and democratic governance. As the face of international law and domestic constitutions continues to evolve, so too will the future of the legal system.[iii]
[i] [i] K. J. Keith, International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion
[ii] National Human Rights Commission, About NHRC.
[iii] Republic of Ecuador, Constitution of the Republic of Ecuador, 2008.
1 Comment
This article has really made it clear that what is the role of international law in shaping the constitution? Can you please give more insights on the 2005 Iraqi Constitution and also other countries constitutions?