Cork 2-3 Marzo 2012
Convegno Cork

Professor Giuseppe Franco Ferrari, Dipartimento di Studi Giuridici, Università Bocconi, Milan:

“The use of foreign law Constitutional Courts”

 di Giuseppe Franco Ferrari

Summary: 1.Introduction; 2. Fundamental rights in the domestic dimension; 3. Human rights in the international perspective; 4. Some conclusions.

1.Rights have definitely been the strongest idea in the evolution of public law in the XXth century, at least after World War II, and are going to be at least as much important in the new millennium. They have been the real engine of the transformation both of constitutional and international law. They are the ground of interplay of constitutional law and international law and work as the main factor of the creation of the so called “multilevel constitutionalism”, formula which is generally assumed to describe the contemporary structure of public law, not only in Europe.

Yet the culture of rights is furrowed by debates, heterogeneous viewpoints, tensions, inconsistencies, but also simplifications, trivializations, conscious or even unaware misunderstandings that tend to mislead the public opinion, which is supposed to be able to play an important role in the definition of the balance of values and principles that found the co-existence of different rights and types of rights.

The domestic level of rights goes back to the ancient world, though in the face-to-face society of the old republics they used to be conceived and enjoyed only in their social dimension, not in an individualistic fashion, as Benjamin Constant had been the first not to understand but to incisively summarize. In the version of the rights of the modern, the national level develops its model in the British history between the Magna Charta and the Bill of rights and finds its natural environment in modern European States after the Westphalia treaty, even if it is only with the American and French revolutions that it is able to achieve a general positivization and to work out different generations of claims. World War II demonstrates that the national shell is no longer able to guarantee a full protection from abuses to the rights of the individual. The new shaping of liberal-democratic constitutionalism in Western Europe and beyond is the answer to the gaps and lapses of the recent past: the constitutionalization of values and principles, with the dignity of man on top, systematically balanced by constitutional or supreme courts in strict dialectic correspondence with public opinion, is the contemporary recipe that after the fall of the Soviet empire and the disintegration of formerly communist countries spreads Eastward and becomes one of the symbols of Western civilization, independently of the U.S. model.

The dimension of human rights is probably as old, if one looks back at Sophocles’ Antigone, the ius gentium of the Roman tradition, the Christian medieval doctrine of human dignity expressed by Saint Thomas, the natural rights theory of William of Ockham and the Italian legal and humanistic scholarship of the Renaissance, the Spanish theology concerning the condition of the American Indians, the vindication of the right of man to self-determination by John Milton. But the true “invention” of human rights is datable between the age of Grotius, proposing a list of natural right applicable to the whole humanity beyond State borders and domestic legal traditions, and Pufendorf, with the idea of an ethically free man, equal in dignity to all others, and the Enlightenment and the two Declarations of 1776 and 1789, when Tom Paine’ s successful The Rights of Man, described on one side as the most brilliant and powerful political rocket ever thrown in English political history and on the other as an attack to monarchy, religion and the recognized forms of government, offers an efficient synthesis of the new concept. Yet, the idea is almost obliterated in the age of romanticism and positivism due to the emerging of imperialism and the strengthening of the States as exclusive holders of sovereignty. However, the subscription of the two Geneva conventions of 1864 and 1906 and the two Hague conventions of 1899 and 1907 marks the birth of humanitarian international law, somehow tempering the role of the State or at least putting the premises of an international order, reinforced by the foundation of the Society of Nations and the International Labor Office in the aftermath e of World War I. Finally, the positivization of human rights starts with the creation of the United Nations in June 1945 and the approval of the Universal Declaration of Human Rights on December 10, 1948.

The positivisation of human rights and the co-existence of two kinds of rights on two different levels and the availability of two different sets of guarantees have greatly enriched the human condition in the contemporary age but at the same time has raised enormous problems, by now unsolved, in terms of relocating or even redefining sovereignty, of coordinating domestic constitutional law in the revised post World War II fashion with international law whose evolution is under way as well, of defining a new statute for non-citizens in the age of mass migrations, of elaborating regional systems for the protection of rights combining traditional domestic guarantees and supra-national institutions, of reconciling political and economic constitutionalisms.

Lecture I, 1 con correzioni e spostando le note a fondo pagina, da pag. 1 a pag. 5 inclusa, salvo aggiustamenti minori

3. The flourishing of the human rights culture after World War II is not necessarily attributable to the clash of civilizations and to the possible prevailing of Western values later in the century: there are in fact authoritative theories asserting oriental origins of such an ideology.

With the advent of the cluster of phenomena known as globalization, the progressive incorporation of human rights in international conventions of global or continental scope has increased its pace towards the completion of the process. A growing number of human rights have been positivized; their recognition has become growingly wide; their scope has been first enlarged and then some of them have been re-particularized, as it previously happened to civil liberties in the domestic sphere; their protection has been made more efficient even if several problems remains to be solved; the role of the international organizations in their protection has been strengthened through new means, like missions of peace keeping or peace restoring, the creation of international tribunals for the judgement of crimes against humanity and more generally the transformation of international law from set of rules governing relations between States to system of norms applicable to and actionable by private individuals. This evolution is sometimes described as the constitutionalization of international law and is co-responsible, together with the opening of national constitutional law systems to sources or systems of sources of international or supra-national level, of the creation of a two-tier system of constitutional law, which in some regional areas, where continental conventions for the protection of rights are ratified and put into operation, tends to become a multi-level system.

Obviously the concrete efficacy of such complex sets of instruments, most incisively operating on the ground of individual rights, depends on factors that fall outside the perimeter of normative prescriptions and belongs to the factual dimension: the relevance of such circumstances depends on socio-economic contexts, most of all in countries that have only recently got rid of authoritarian regimes. Therefore, when the level of protection guaranteed to rights is measured according to conventional parameters, sensible to factual conditions, not necessarily does the quality of the formal structure of legal sources correspond to the rating of a country in terms of efficiency of the protection afforded. However, public law scholars need to limit themselves to the strictly legal evaluation of normative systems: as a consequence, the national reports and this general report generally leave aside considerations based on sheer output results and their classification.

Some questions should be initially identified in order to select the areas of interest that help to measure the recognition and protection of human rights at the State level.

First, the level of integration between domestic constitutional law and international law must be measured: does a constitution simply impose on national judges and eventually the constitutional court an obligation to conform to the case-law of international courts? Or does it contain precepts concerning the position of international law in the internal system of legal sources, and, in the affirmative, is this position comparable to that of ordinary statutes or of constitutional status? And is such a position recognized on equal foot to international customary law and bi- or multilateral conventions or does the constitution or the case-law of the supreme or constitutional court distinguish between the two or isolate a jus cogens as the only binding part of international law? In such a case, do human rights conventions enjoy a special status in comparison with other international treaties?

Second, the level of integration between constitutional and international law, measured on the above parameters, has concrete consequences inside the domestic legal sources system: in case of difference in content, or even discordance or clash between norms concerning rights and belonging to different systems, how is the solution of the conflict regulated? Is a preference for the international standard prescribed and how is the possible prevalence carried out? Is the internal source declared void or simply deprived of effects? And is such prevailing of the international norm provided by any judge, in a diffuse way, or by a constitutional or supreme court in a concentrated way?

Third, in the areas where two systems of international or supranational agreements coexist, and each contains principles and rules concerning the protection of individual rights, are both of them afforded the same treatment in domestic constitutional law or do they deserve different status, with varying effects? This problem is of particular importance in Europe, where the ECHRs and EU (formerly EC) law overlap, two regional courts are at work at the same time covering much the same space, though elaborating different sets of values. The treatment that every source system in each member State reserves to the Convention and to EU law is a conditioning factor of the protection afforded rights, and the two-party dialogue between domestic judges and an upper level court becomes a three-party network: the Strasbourg court works within an axiological framework where rights are the only aim to achieve, while the Luxembourg court, besides having discovered rights only at the beginning of the ‘70s as a response to some constitutional courts’ resistance to the supremacy of EC law, carves values and principles out of the acquis of Strasbourg and the common constitutional traditions of the member States, using a wide discretion instead of adopting a real comparative method, and its axiological guide is represented not only by the values now incorporated in art.6 of the Treaty but also by the economic principles underlying the free circulation of goods, services and workers. Things can get even more complicated if the attribute of fundamentality is introduced in the list of rights recognized and protected by regional systems: in that case there may be not only a difference in the density of the legal definition of a claim, but even a difference in fundamentality, with concrete downfalls in terms of means of protection.

Fourth, the domestic treatment of international law for the purpose of protecting human rights can be compared with the use, or at least some of the possible uses, of foreign law aiming at an analogous end. This practice, which in the last decade or so has come under the focus of public law scholars all over the world, is only exceptionally imposed or authorized in written constitution or anyway formalized in legal sources, while in the average depends on more or less explicit choices of ordinary or constitutional judges. The recourse to foreign law, in terms of court precedents, scholarship, or even statutes, is ideologically neutral, because it does not imply any value choices, but is practically most suitable for the aim of a more efficient protection of claims neglected or understated in the domestic context. It also offers rich and interesting materials to the attention of comparatists. It has been noted that, when a Supreme Court recalls the practice of civilized nations or the standards of decency in a civilized society or the notion of justice of English-speaking peoples, echoing the decent respect of the opinions of mankind mentioned in par.1 of the American Declaration of independence, though the argument is twofold, it makes no real difference between the recourse to foreign law and to international law for the better protection of a given claim: for instance, in the U.S. case law, in order to distinguish claims afforded ordinary guarantees and preferred or fundamental freedoms, worth being included in the “honor roll” of incorporated rights and destined to be protected in case of violation by the federal judge even toward or against State authorities.

These are just a sample of the numerous problems arising from the overlapping of systems of protection of rights or in other words from the gradual conversion of domestic rights into human rights. Several others stem out of the same matrix, but belong to a second level, even if they are no less important in the practice of the new constitutionalism.

It has to be mentioned, inside this category, the question of the so called standards of protection. Every claim positivised as right first at the national and later at the international level or sometimes in the opposite order has a given content and certain limits, either coessential to it or deriving from the balancing process with other rights or principles, depending on the acceptance of either one of the theories that the German, Italian and Spanish constitutional scholarship calls the absolute and relative theories of the core of rights. Each supreme or constitutional court reaches (albeit slightly) different conclusions, often at conclusion of long chains of precedents: such variations may depend on historical conditions or on the normative density of the specific constitutional provision or on the different formulation of constitutional principles. It is hard to say which solution comparatively corresponds to a better standard, both because such a choice presupposes a value statement and because the preference for either solution depends on the combination with other rights. Anyway the search for the better standard or even for the best standard is one of the favorite arguments of constitutional and international law scholars since the dawn of the idea of multilevel governance. The openness of a domestic constitutional system to international (or foreign) law is coextensive with the practicability of converting a national into a human right, whenever the protection standard of the outer system is apparently better than the domestic one. All constitutional systems, even when founded on homogeneous cultural premises, confront with this problem in different ways: the degree of openness towards international law depends on the epoch to which a constitution belongs, because since World War II it has continuously increased on the occasion of every constitutional cycle, like in ‘70s with the Portuguese, the Spanish and the Greek constitutions and at the beginning of the ’90 with the wave of post-Soviet constitutions. Furthermore, every constitutional system is naturally jealous of its prerogatives, including its principles and their safeguards, and tends to resist the penetration of rules from outside, lest it might jeopardize the democratic structure of the State itself: the reaction of the German Verfassungsgerichthof to the supremacy of European law is the most representative example of this reaction, but the French Conseil constitutionnel’s confrontation with the European Court of justice has not developed on too different premises.

A second very important area of quick transformation of public law, the conclusion of which is not yet foreseeable, is the treatment of non-citizens. The universalization of human rights throws shadow on the traditional prerogatives of citizenship, at the same moment when unprecedented mass migrations seem to render national borders less important than ever. Yet considering thousands and sometimes millions of immigrants fully entitled to political and social rights under the shelter of the protection of human rights means first of all setting at risk the survival of welfare states built up over at least a century and secondly endangering the structure of democracy, since the Westphalian treaty founded on citizenship. Submerging domestic rights in the human rights in the name of a still non-completely defined global identity is something close to a fascinating reductionism very similar to utopia, at least till the implementation of a worldwide democratic State seriously looms on the horizon. On the contrary, celebrating the ethnic or religious belonging to micro-units, either by exalting the naturality of a unique affiliation or rediscovering communitarian identities, is a different form of reductionism, that Amartya Sen defines plural monoculturalism. Democratic constitutionalism, already put to a severe test by the radical changes in economics, like financial deregulation, liberalizations and privatizations, is still looking for a new formula, before the eventual realization of the so called societal constitutionalism. When citizenship becomes flexible and fragmented, between disarticulation of State sovereignty, growing supranational systems evolving in the direction of federalism and international agreements for the protection of human rights, democratic constitutionalism suffers from tensions between the global and cosmopolitan potentiality of rights and the exigencies of State unities politically legitimated by their demos and bound to define its distinctive line. There is apparently no immediate solution to this kind of problem. The only possible approach is to conceive of the demos not as a closed entity self-posing in a constituent procedure once for all, like in the old-fashion constitutionalism, but self-regenerating and self-defining gradually through progressive reciprocal adjustments of demos and ethnos: democratic processes, which necessarily keep on being internal to the State community, both deliberate admission and naturalization policies and at the same time open themselves to international and supranational dialogue, being increasingly available to the penetration of superior systems of norms.

Singling out some areas of problematic interest in the field of codification of human rights is unfortunately only the beginning of the task, which is much more demanding. Most of the comparative work still has to be made. The ways the codification is implemented are numerous, and, as we have seen, imply different relationships between the national and international levels.

In the domestic sphere, it is initially important to check whether the internal legal sources, and first of all the written constitution, recognize rights or at least some categories of rights to each person or human being or to the contrary confine them only in ambit of citizenship. The first choice is definitely rare, and it is normally to be found in else-directed constitutional charters, adopted in special circumstances, like after the end of an international conflict or of a civil war. Such is e.g. the case of Japan, where art. 11, and possibly arts.13 and 97 Const., apparently do not distinguish between man and citizen: the national report illustrates the prevailing scholarly position favoring the wide interpretation of the pertinent provisions and the court cases suggesting the limitation to Japanese nationals only of claims by nature hard to be enjoyed by non-citizens, including most political rights, but not social rights. The same choice is made by the Bosnia-Erzegovina constitution, which ***

Other charters, belonging to different historical contexts or drafted by constituent assemblies more worried about the preservation of national characters, systematically reserve some rights to citizens, while extend others to all. This is for instance the case of Italian constitution, where some essential civil rights, like personal freedom, domicile and correspondence belong to all, while rights to peacefully assemble and to associate, being presupposed by political activities, are reserved to citizens: however, the constitutional language does not prevent the legislator from extending some rights not constitutionally guaranteed to other categories of subjects.

The incomplete constitutional transformation of domestic into human rights brings with it the problem of the treatment of aliens and stateless persons. The responses to it vary widely. The United States solution consists in leaving full discretion with Congress, with special reference to conditions of naturalization (art.I, §8, cl.4), to immigration policy, implicitly grounded on sovereignty, and to conditions of expulsion, though previous application of the due process and equal protection tests to different concrete conditions. The German case law moves from the distinction between human rights globally recognized and rights reserved to German citizens, among which those guaranteed by art. 116 GG; there is, however, a trend toward balancing dignity, equality, freedom to personality development and intangible core of the rights, in order to make some more rights available to non-citizens. The Spanish constitutional Tribunal applies the principle of equality of art.14 only to Spaniards and extends foreigners the public liberties discretionally recognized by the Cortes or by international treaties according to art.13.1; yet personal dignity of art.10.1 can be used in order to enlarge the statute of foreigners with rights concerning the person. Art.15 of the Portuguese constitution excludes resident aliens from political rights, with the possible exceptions of residing Portuguese speakers from other countries, nationals of Union states, other foreigners under conditions of reciprocity.

The condition of aliens and stateless persons is even more important in the field of social services where, as recalled earlier, the conservation of the welfare State in its traditional shape is at stake. There are significant differences in the treatment of immigrants even in regional areas supposedly governed by uniform principles, like Europe. Portugal, for instance, implements art.15 Const. by recognizing vocational education, social insurance and assistance, health services and access to housing facilities to all regular immigrants; France guarantees even irregular immigrants urgent health services (Aide médicale d’État, AME), education of minors, coverage of work accidents; Great Britain requires fees for the access to national health services by immigrants, excluding urgent assistance and sexually transmissible diseases but and Immigration and Naturalization Department (IND) in case of fruition of social benefits has been introduced. In Germany the Asylbewerberleistungsgesetz contemplates health assistance for illness, pregnancy and childbirth, though not free of costs, with compulsory communication of irregular situations to the Ausländerbehörde. Rumania and Greece put regular immigrants on same foot as citizens, while in Bulgaria art. 51 Const. imposes a reservation of social services to citizens only. Luxembourg excludes foreigners from social rights while Holland denies them to irregular immigrants. Outside Europe, Argentina is very generous toward immigrants in terms of social services, traditionally favoring immigration.

A typically critical point of junction between constitutional law and international law is the ranking of international legal sources in the Constitutions, with possible distinctions between customary law and treaties, with the eventual addition of a core of jus cogens, and a possible special state for conventions and agreement concerning human rights. The rate of openness of a domestic source system parallels its availability to fully incorporate human rights trickling down from an upper system, whether truly international or supranational. On one extreme of the spectrum of formulas is the Dutch model, traditionally most open to any kind of international law: arts.93 and 94 Const. declare treaties and resolutions by international institutions binding in the domestic context, under the only condition of having been published, and prevailing over statutory regulations. Such provisions, therefore, do provide for the direct efficacy of conventional international law in the Dutch legal system, and put it on top of the sources system, but ignore customary law, even jus cogens, and decisions of international tribunals, which are devoid of such force, though some statutory provisions refer to international law in general and can be interpreted as to indirectly authorize the precedence over domestic law of international self-executing provisions other than those mentioned in arts.93 and 94. The Dutch system is described as moderately monist by domestic scholars, but in fact it is likely the first in Europe in terms of openness toward upper sources, also because courts deem obvious that when a basic right is enshrined both in the Consitution and in treaty law, the prevailing provision is the most conducive to the better protection of the right.

On the other extreme is the U.S. model, where Congress very seldom ratifies human rights instruments, whenever Presidents do subscribe them, or impose reservations, understandings and declarations (the so called RUDs) in order to make treaties hardly enforceable in US courts or in international courts, like the Inter-American Court of Human Rights of San José de Costarica. As far as the federal case law is concerned, the Supreme Court has been eager to consider international treaties prevailing over State law, due to obvious reasons of supremacy, but much less disposed to consider human rights treaties binding on federal authorities, absent an express executing legislation by Congress. Such an approach, possibly strengthened after 9/11 and the Patriot Act, is often defined exceptionalist: the triumph of the American political model in 1989, which was shortly presented as the end of history, has paved the way to a bi- directional circulation of values and patterns, while till recently legal scholars and public opinion were accustomed to a one-way export of ideas and doctrines typical of the American identity. As a consequence, much debate has been aroused, in the U.S. in the public law scholarship and inside the Supreme Court about the forms and limits of the recourse to foreign law, most of all in the field of human rights; around the world, about the difficulty of reaching a new definition of sovereignty in the age of globalization through international law, due to the American position. Canadian constitutional law somehow resembles the U.S. formula, at least from a practical viewpoint, though the theory is quite different. No guiding the principles are present at the constitutional level on the ranking of international law, either customary or conventional: therefore it is usually treated as a material source, i.e. a mix of unwritten principles, helping the judge and the interpreter to fill gaps in domestic law or to integrate its construction. It is most interesting that, being the authoritativeness of international sources left with the federal Supreme Court, a non-ratified treaty is compared to foreign law.

Many other national systems, in a halfway position, treat customary law and conventions or treaties differently. Such is the case, for instance, of the Portuguese constitution, whose art. 8 is interpreted as involving a full reception of general international law directly by the Constitution, while both scholarship and constitutional case law qualify conventional law as infraconstitutional but supralegal, and violations of conventional law by statutes are within the competence of the Tribunal constitucional. The Japanese report explains how, absent clear provisions in constitution as well as Asian regional conventions, scholarship and government policies have been able to locate international law at a level higher than statutes and to single out established law of nations, treaties defining the territory and conditions of surrender as jus cogens.