is increasing their number, bringing them in closer contact with each other
and cutting across lines of traditional influence in ways that may encourage
convergence of both principle and process.^41
Convergence
The varied processes of internationalisation thus contribute to a significant degree
of constitutional convergence. This section provides an overview of what might be
said to have converged as a result of this complex phenomenon and of the extent to
which it has done so. It draws on the perception that any constitutional system
operates at multiple levels: constitutional theory, principles or values, text and
structure, institutional design, and operation in practice.
First, there is evident convergence of constitutional principles at the highest level
of generality: democracy, the rule of law, separation of powers, judicial independ-
ence, human rights protection and constitutionalism, including the need for
constitutional control through judicial review or a mechanism of some other kind.
Convergence at this level can co-exist with significant constitutional difference at
others. Its effect, nevertheless, is to narrow the range of competing constitutional
models.
Second, there is considerable convergence of human rights standards, extending
beyond the particular rights that attract protection to the terms in which they are
expressed and their meaning and scope. The widespread reliance on
proportionality to determine the legality of a limitation on a constitutional right
is an example, which nevertheless may take different form in different states.^42
The expansion of constitutional rights-bearers beyond citizens to people also
reflects the ascendancy of international human rights norms.^43
Third, there is now a relatively standard suite of familiar options from which to
choose for key aspects of constitutional design.^44 Options for the form of govern-
ment typically range between presidentialism on the one hand and parliamentary
government on the other, with two relatively distinct approaches to semi-
presidentialism in between.^45 Electoral systems are variations on proportional
(^41) Others that now exercise considerable influence, if they did not do so before, include the
Supreme Court of Canada, the Constitutional Court of South Africa, the Supreme Court
of India and the Constitutional Court of Korea. The list is not intended to be exhaustive.
(^42) Aharon Barak,Proportionality: Constitutional Rights and Their Limitations(Cambridge:
Cambridge University Press, 2012 ), Chapter 7.
(^43) David Weissbrodt, ‘Prevention of discrimination: the rights of non-citizens’, Report of the
Special Rapporteur to the United Nations Subcommission on the Promotion and Protec-
tion of Human Rights, E/CN. 4 /Sub. 2 / 2003 / 23.
(^44) For a critique, see Gu ̈nter Frankenberg, ‘Constitutional transfer: the IKEA theory revisited’
( 2010 ) 8 International Journal of Constitutional Law 563.
(^45) Matthew Søberg Shugart, ‘Semi-presidential systems: dual executive and mixed authority
patterns’ ( 2005 ) 3 French Politics 323.