Constitutional Courts and International Law

A recent Note in the Harvard Law Review examines the differences between US and European judicial treatment of international law.  In particular, the Note analyzes two recent constitutional court decisions, Kadi v. Council of the European Court of Justice (ECJ), and Judgment 238/2014 of the Constitutional Court of Italy (CCI), contrasting the approaches there with, for example, the US Supreme Court’s decision in Medellin v. Texas.  The Note concludes that although European courts generally share the US’ approach to constitutional supremacy, there are important differences.  In particular, “whereas U.S. jurisprudence makes no distinction between different constitutional provisions vis-à-vis international law,  the CCI and ECJ have designated fundamental rights as ‘extraordinary’ constitutional principles that — unlike ‘normal’ constitutional principles, necessarily supersede constitutional norms.”