Fidelity to constitutional democracy and to the rule of international law
Until recently, international law was almost exclusively concerned to regulate the behaviour of states toward one another. In contrast, what may be called robust international law (RIL) claims the authority to regulate matters within states and even to prescribe how the state is to treat its own citizens within its own territory. International human rights law is RIL par excellence, but international criminal law and some international environmental and trade law also regulate conduct previously thought to be reserved for state control. In this chapter, we focus on a fundamental question: Is the commitment to (domestic) constitutional democracy compatible with the commitment to robust international law? In the first section, we examine the question of whether RIL is compatible with democracy, examining claims that a state’s recognition of the supremacy of RIL is inconsistent with democratic principles. We then go on to ask the same question about constitutionalism that we asked in the first section about democracy: Is recognition of the supremacy of RIL consistent with the principles that comprise the political ideal of constitutional government?