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| [discom10.htm] |
A Constitution is the body of rules which establishes and regulates the Government and can provide private rights and duties. These rules are partly legal in the sense that courts are able to apply them. They are also partly extra-legal, or unwritten, but not less effective in regulating Government than the law strict senses. This corpus is called an unwritten constitution and can be found e.g. in the constitutional system of Great Britain. The main characteristic of this Constitution is that any rule drafted by Parliament can modify it; there is no formal supremacy of constitutional law over any other inconsistent kind of law. It can be said that a Constitution is in a particular time what the particular political will wants it to be. Therefore, the rights of persons with disabilities will be protected if the Parliament chooses to do so. Otherwise, persons with disabilities can try to claim their rights.
In almost every country all over the world the word, the meaning of Constitution is used, however, in a narrower sense. The Constitution is a selection of legal rules which governs the government of a country and which has been embodied in a document. In this sense, when the rights of disabled persons have been recognised within the Constitution, the political powers of the nation must respect them, as long as the Constitution is not modified. There is, therefore, a supremacy of Constitutional Law over any other inconsistent law which voids any law or any act of Government which violates the Constitution.
The choice between one type of Constitution or another is mainly a question of constitutional tradition. Therefore, as the restricted conception of the word Constitution is the most extended, this is the conception that will be used in this study.
Focusing on the relationship between Constitution and International Law, one finds that there are two extreme models of constitutional organisation. On the one hand, there is the constitutional model, which is understood in its extreme expression as a self-contained social compact based on the exclusive values of a national society. On the other hand, there is the international model represented by a system open to the values of the international society and subject to the primacy of international law.
The British Constitution is clearly an example of the extreme constitutional model. In the United Kingdom, the capacity to conclude treaties is a matter of the Crown. It has the sole right to negotiate and enter a treaty. Ratification is also a matter of the Crown and will generally be delayed for 21 days so that Parliament can be apprised of the intentions of the Government. The performance of a treaty obligation is also a matter of the Crown. Thus, no individual can, unless it is a human rights treaty, claim before the courts that a treaty is not being performed correctly.
Treaties are not directly received into the English Law. A treaty has no effect in English domestic law, unless it is made part of it. Once a treaty is incorporated into English Law, it is fully cognisable in the courts. But the fact that a treaty is part of the English Law will not necessarily mean that individuals have a cause of action arising from the treaty. There will only be incorporation if the treaty changes domestic law, or if it requires the raising of revenue or alteration of taxation. As of many treaties in the field of foreign relations, ratification is a formality and incorporation is not required. When incorporation is required, it can occur - in the case of primary legislation- as a first and second formal reading (a Committee and a Rapport stage without receiving the attention of Parliament). An unincorporated treaty has no formal standing in English Law. If it conflicts with statute or common law, the latter will prevail. An incorporated treaty becomes part of the law of the land, but it has no special position. The relationship between incorporated treaties and other legislation is the same as the relationship of two statutes to each other. Parliament is supreme in the sense that it can pass legislation that is inconsistent with any international treaty obligation which, nevertheless, continues to bind the United Kingdom at the international level.
Only very occasionally have matters of international law arose for judicial review in England. There is no Crown prerogative that will always be correct on international law. It is a matter, which is in principle revisable.
To the contrary, an example of an international model is the Constitution of the Netherlands. According to the operation of treaties, the Netherlands adheres to a monistic system: for the operation of treaties and the orders of international organisations within the national legal system, no national order is required to convert international law into national law. International law operates automatically, as such, within the national legal system. Therefore, certain treaties are considered constitutional law where they limit or extend the powers of Dutch offices based on national constitutional law. Examples of this are the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights.
The Constitution does not actually state which authority is competent to enter into treaties. From constitutional history, however, it can be drawn that this power rests with the Government. Generally, the Government may not commit the United Kingdom to binding provisions under international law without the approval of the States General.
Section 91 of the Constitution contains a rare construction compared to other European countries: treaties which conflict with the Constitution may nevertheless be entered into, but a treaty which departs from the Constitution has to be approved by an act of the Parliament voted by both Chambers, with at least a two-thirds majority. The question of whether a treaty conflicts with the Constitution or not is decided by simple majority. The judiciary may not review the constitutionality of treaties.
Finally, between these two extreme models there are a number of variants; however, many of them are only theoretical constructions. In the United States, for instance, treaties are expressly supreme law of the land and can be self-operative, creating individual rights and duties in domestic legal processes. Customary international law has a similar constitutional base and can also operate directly.
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