The Internationalisation of Constitutional Law: A View from the Venice Commission

151 Pages·2020·5.227 MB·English

by  Sergio Bartole

THE INTERNATIONALISATION OF CONSTITUTIONAL LAW
In this book, one of the longest-standing members of The Venice Commission reflects on
the work of the institution to show how constitutional law in Europe (and beyond) has
become increasingly borderless.
The book tracks the work of the Commission, illustrating the law both in action and
in its broader political and historical context. It looks at its treatment of the judiciary and
judicial conflicts, including the present crisis of the rule of law among Member States in the
region of central eastern Europe. Finally it suggests how all this can only be sensibly under-
stood as a feature of the broader trend towards the internationalisation of constitutional law.
Volume 5 in the series Parliamentary Democracy in Europe
Parliamentary Democracy in Europe
The European Union is founded on the idea of ‘representative democracy’. Its citizens are
directly represented in the European Parliament, but Union democracy is equally based on
indirect forms of representation especially through the European Council and the Council –
two Union institutions whose members will be democratically accountable to their national
parliaments. The good functioning of the Union democracy assumes, therefore, the good
functioning of the democratic institutions of each Member State.
What is the role and relationship between the European and the national parliaments
in the democratic functioning of the Union? Do they exercise distinct or complementary
functions? Has the European Parliament adopted a structure similar to national parliaments;
and how do national parliaments assume their ‘European’ functions? These questions have
gained particular relevance in recent years. Not only has the Lisbon Treaty conferred new
functions upon national parliaments, especially concerning the scrutiny on the compli-
ance with the subsidiarity principle (the so called ‘Early Warning System’), the coordination
of fiscal and economic policies at the European level has led to significant restrictions of
national parliamentary powers.
The new Hart Series on ‘Parliamentary Democracy in Europe’, encompassing both mono-
graphs and edited collections, aims to answer some of these questions. The series offers new
insights into rules and conventions shaping parliaments and parliamentary democracy in
Europe. Its aim is to provide a better understanding of the role parliaments are playing in
European constitutional law and its idea of ‘representative democracy’.
Series Editors
Nicola Lupo
Robert Schütze
Interparliamentary Cooperation in the Composite European Constitution
Edited by Nicola Lupo and Cristina Fasone
The Italian Parliament in the European Union
Edited by Nicola Lupo and Giovanni Piccirilli
The Principle of Subsidiarity and its Enforcement in the EU Legal Order:
The Role of National Parliaments in the Early Warning System
Katarzyna Granat
Parliamentary Oversight of the Executives: Tools and Procedure in Europe
Elena Griglio
The Internationalisation
of Constitutional Law
A View from the Venice Commission
Sergio Bartole
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Names: Bartole, Sergio, author.
Title: The internationalisation of constitutional law : a view from the Venice Commission / Sergio Bartole.
Other titles: Internationalization of constitutional law
Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing, 2020. |
Series: Parliamentary democracy in Europe; volume 5 | Includes bibliographical references and index.
Identifiers: LCCN 2020031740 (print) | LCCN 2020031741 (ebook) | ISBN 9781509941476
(hardback) | ISBN 9781509941490 (ePDF) | ISBN 9781509941483 (Epub)
Subjects: LCSH: Constitutional law—International unification. | Constitutional law—European Union
countries. | European Commission for Democracy through Law. | Law and globalization.
Classification: LCC K3165 .B37475 2020 (print) | LCC K3165 (ebook) | DDC 342—dc23
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LC ebook record available at https://lccn.loc.gov/2020031741
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FOREWORD
The Venice Commission is now 30 years old and it is time to write the first volume of its
memoirs – or, in other words, to assess the success of the principles it has developed, in
order for more successes to take place in the future.
The Venice Commission started as a tool of emergency constitutional assistance in
the time when constitutional developments took place overnight in Eastern Europe. Now
changes are not so quick, and the Venice Commission has contributed to the dissemination
of the values of the European constitutional heritage in hundreds of reports and opinions on
national law, not to mention multilateral and bilateral seminars.
What are these values, or principles? How are they put into practice through interna-
tional standards? Stemming from the constitutional traditions of Western Europe, how
were they received in the rest of the continent and beyond? On paper, most of them are
universal; and in real life? From a purely legal point of view, are they international law,
and, if so, are they hard or soft law? Or, to be somewhat provocative, are they comparative
law – if this is law?
All these questions are in the background of the book. It is not intended to answer them
all, but, rather, to provide guidelines for reflection. The author, Professor Bartole, is particu-
larly well placed for such an exercise. He has been one of most long-serving and active
members of the Venice Commission, which he joined after its creation. He is therefore
particularly well qualified to evaluate the progress made, but also the difficulties and the
steps backwards which have occurred during its three decades. He has dealt with nearly all
aspects of the work of the Commission, in particular in the fields of the organisation of the
state, federalism, protection of minorities, ordinary and constitutional justice, referendums,
fundamental rights and the rule of law.
Professor Bartole is therefore the right person to evaluate the contribution of the Venice
Commission to constitutionalism in the world, with realism, not with complacency.
This book’s contribution is particularly precious because it is not intended to give
good or bad marks, but to see where the problems arise and their cause. This is, of
course, essential to finding a solution. A solution which should not be uniform. The
main principles are to be complied with, but the situation of each state in the field has to
be taken into account. The European Court of Human Rights, and even national courts,
especially in federal states, recognise a margin of appreciation to domestic, respec-
tively federate, regional or local authorities. As a specialist of, inter alia, the federal
and regional states, as well as of the protection of minorities, Professor Bartole will not
deny this.
Despite its adolescence being long over, the Venice Commission is still young. For a
long time, it has been, and still is, called upon to assess the progress – and, unfortunately,
from time to time, the regression – of democracy through law in Europe and beyond. This
is a perennial task, since our world is not expected to become perfect. All of its citizens, and
vi Foreword
not just members of international bodies or high-ranking public officials, are called upon
to contribute to the implementation of democracy, human rights and the rule of law. This
should be the main message to be retained from this contribution to the science of consti-
tutional law.
Dr Gianni Buquicchio
President of the Venice Commission
ACKNOWLEDGEMENTS
This book draws inspiration from my experience as a member of the Venice Commission.
The book is a result of a substantial rewriting and new drafting of many papers I wrote
during that experience. I am deeply indebted to Antonio La Pergola, founder and first
President of the Commission, and to Gianni Buquicchio, the incumbent President, for his
foreword. During my more than fifteen years at the Venice Commission, I greatly prof-
ited from the exchanges of view with my colleagues Kaarlo Tuori, Hanna Suchocka, Jeffrey
Jowell, Jean Claude Scholsem, James Hamilton and Giorgio Malinverni, as well as with the
members of the Secretariat of the Commission Simona Granata-Menghini, Schnutz Dürr,
Pierre Garrone.
I am very grateful to Nicola Lupo and Robert Schütze who accepted to propose this
book to Hart Publishing, where I met an excellent team: especially Sinead Moloney,
Sasha Jawed, Chris Myers, and Tom Adams who have been very helpful in the editorial work.
Eventually, I cannot forget the generous and intelligent support that my young colleague
Pietro Faraguna gave me in dealing with the digital difficulties of the process of publica-
tion, and the supportive contribution of Alessia-Ottilia Cozzi in cooperating in the editorial
work. Roberto Bin stimulated the planning of this book when he invited me to introduce
a seminar at the University of Ferrara on the internationalisation of the constitutional law.
I thank the board of the European Constitutional Law Review for authorising the
publication in Appendix 2 of this book of my article ‘Comparative Constitutional Law –
an Indispensable Tool for the Creation of Transnational Law’, originally published in
volume 13 (2017) of the Review.

TABLE OF CONTENTS
Foreword ���������������������������������������������������������������������������������������������������������������������������������������v
Acknowledgements ���������������������������������������������������������������������������������������������������������������������vii
Introduction ....................................................................................................................................1
1. The Development of the Role of the Venice Commission ..............................................8
I. The Transition to Democracy and Rule of Law
in Central and Eastern Europe .....................................................................................8
II. The Take-Off of the Activity of the Venice Commission ........................................10
III. Rule of Law and Separation of Powers ......................................................................13
IV. Forms of Government .................................................................................................15
V. Judicial Review .............................................................................................................18
2. European Conditionality, Living Constitution and Constitutional Drafting ..........21
I. The Many Faces of Conditionality .............................................................................21
II. From the Council of Europe
to the EU – The Living Constitution .........................................................................24
III. Accession of New Member States to the EU ............................................................27
IV. Post-Accession Conditionality and Compliance .....................................................29
V. Constitutional and Legislative Drafting ....................................................................31
3. The European Constitutional Heritage as a Yardstick for
the New Democracies ..........................................................................................................33
I. The Research of a Parameter ......................................................................................33
II. Paradoxes and History of the Concept
of the European Constitutional Heritage ..................................................................34
III. Comparing Western and Eastern Europe Traditions ..............................................38
IV. The Impact of the Western Tradition ........................................................................42
4. The Epiphany of the International Constitutional Law ................................................43
I. Constitutionalism and International Law ................................................................43
II. International Law, Transnational Law and National Law .......................................45
III. The Making of International Constitutional Law:
The Role of the Venice Commission .........................................................................47
IV. Precedents and Examples............................................................................................51
5. International Constitutional Law: Sources and Materials ...........................................57
I. International Law and Transnational Law ................................................................57
II. The Research of the Historical Roots ........................................................................60