Überstaatliches Verfassungsrecht. Zur Konstitutionalisierung im Völkerrecht

In the discussion of global constitutionalisation several levels of reasoning must be distinguished. Starting from a historical examination of the development of constitutional norms in public international law and from the example given by the constitutionalisation of European Law, the contribution analyses the phenomenon of constitutionalisation in doctrinal terms. It tries to avoid the danger of reinterpreting certain norm categories as a constitution in an idealising and simplifying manner. The approach is based on a concept of constitution which combines formal and material features of constitutional law. On the one hand, there is a need for a law of a constitutional type in public international law. On the other hand, certain elements of constitutionalisation in a material sense can be elaborated. Yet, according to the chosen concept of constitution, constitutionalisation in a meaningful sense presupposes the formation of norms of public international law which combine formal and material elements of constitutionalisation. Conceiving the supremacy of the UN-Charter according to Art. 103 UNC and of jus cogens as a hierarchy turns out to be problematic. It seems to be preferable to regard Art. 103 UNC and the principle of jus cogens as a law of conflicts or as a value preference rooted in fundamental norms of a moral content. By contrast, formal and material elements of constitution can be found in constitutional norms of public international law which are both general principles of public international law in the sense of Art. 38 (1) lit. c ICJ Statute and principles in the terms of Dworkin's distinction between rules and principles. These fundamental norms are constitutional norms not only in a material but also in a formal sense because they cannot be changed so easily due to their generality.