Domestic Judicial Non-Application of International Law in a Comparative Constitutional Law Perspective: Identitarian and Structural

This project is concerned with non-application of international law by domestic courts. It aims to discuss, from a comparative legal perspective, the reasoning that domestic courts develop to justify non-application of the international legal obligations binding on the state and whether and how such reasoning is influenced by the conception of statehood endorsed by the constitution. In doing so, an alternative between structural and identitarian conflicts between national and international law is introduced. In cases of structural conflicts, the substance of the law is not considered and the conclusion that international law is inapplicable to the domestic sphere is determined by formal criteria only: grounds for such findings are, for example, that a treaty is unincorporated, that the Government is deemed to have acted ultra vires in ratifying it, or that its provision are found not to be self-executing. Conversely, in cases of identity-based resistance, the same conclusion is based on the finding of the axiological incompatibility of the international law norms at issue with the fundamental values of the national constitution, once their abstract applicability has been positively established by formal reasoning. This alternative between structural and identitarian non-compliance is discussed in the light of conceptions of the state and its relationship with international law, and more specifically in the light of the alternative between modern and postmodern open statehood. In particular, it is asked whether the principle of open statehood has any bearing on how judicial non-compliance is framed and justified. Such an alternative between modern and postmodern open statehood is understood through the lens of the legal tradition, as an evolution of the idea of the state, which, in light of the current globalised state of affairs, can either reaffirm a modern conception of statehood in a conservative stance, or ‘adapt’ and reform it by incorporating an open conception of it. The present project seeks to show that there is a correlation between modern statehood and structural conflicts, on the one hand, and post-modern, open statehood and identitarian conflicts, on the other. Indeed, modern statehood reaffirms the centrality of the state as the sole source of legal authority within the domestic legal system, and thus allows for the application of international law only insofar as it is authorised by the competent institutional actors through the relevant legal procedures: conflicts between national and international law are thus framed as structural conflicts, since the incorporation of international law becomes strictly conditional on the respect of said procedures. Conversely, openness to international law is characterised by a greater and more flexible, though not unlimited, penetration of international law within the domestic legal system, which is considered to be more permeable to non-state sources, at least in areas of law that show a marked cosmopolitan attitude (e.g., the protection of fundamental rights and the fight against climate change). As a result, the incorporation of international law goes beyond strict compliance with formal requirements and increasingly becomes a matter of axiological compatibility, if not continuity, with the domestic constitution. Thus, cases of judicial non-compliance with international law are mainly due to the axiological incompatibility between the two levels, rather than to the lack of formal requirements. This research adopts a comparative method and looks specifically at the jurisdictions of the United Kingdom, Germany and Colombia, which are seen as prototypical representatives of modern (the United Kingdom) and post-modern, open statehood (Germany and Colombia).