17
The impact of internationalisation
on national constitutions
Cheryl Saunders*
i. introduction
Over at least the past thirty years there has been a degree of convergence of the
national constitutional systems of the world, for reasons that are attributable to a
variety of transnational forces, which I characterise collectively as international-
isation. The purpose of this chapter is to examine more closely how international-
isation affects constitutional arrangements, the extent of its impact and the
implications of this development for comparative constitutional law.
It is convenient here to provide a further explanation of the concept of internation-
alisation as I use it. On any view, internationalisation describes the impact of
international and supra-national norms, institutions and processes on domestic
constitutional arrangements.
1
Understood in this way, the international or any rele-
vant supra-national sphere is treated as a distinct order and its relationship with
domestic constitutional systems is vertical, although not necessarily hierarchical, in
character and operation. I also use the term, however, to refer to the constitutional
effects of a multitude of forms of horizontal interaction between states, between state
institutions or between their respective peoples. There is considerable cross-
fertilisation between the constitutional arrangements of states through, for example,
judicial engagement or the practices compendiously described as transplants.
2
* I am grateful to Anna Dziedzic for her assistance with this chapter, in both research and
editing.(^1) This is the sense in which Albert Chen uses the term in ‘International human rights law
and domestic constitutional law: internationalisation of constitutional law in Hong Kong’
( 2009 ) 4 National Taiwan University Law Review 237 at 240. Cf Anne Peters, ‘The
globalization of state constitutions’, in J. Nijman and A. Nollkaemper (eds.),New Perspec-
tives on the Divide between National and International Law(Oxford: Oxford University
Press, 2007 ), p. 251 at 252 – 4.
(^2) Both the vertical and this horizontal relationship are described as ‘transnational’ in Jiunn-
Rong Yeh and Wen-Chen Chang, ‘The emergence of transnational constitutionalism: its