FK - FS paper Rome 140604

law, and function as a transmission channel by greatly
facilitating the import of the new international law into
national law.
European Union law is a body of law with supranational
characteristics and therefore with a higher degree of
penetration in national law than classical international law.
There can be no question that the national laws of each of the
Member States of the European Union will be profoundly
affected by the Constitution, which, when adopted, will be at
the top of their hierarchy of legal norms. Whereas the role
of constitutional rights-based litigation has so far remained
limited, it can be advanced with a high degree of certainty
that the Constitution, for the various reasons explained
above, will be an engine for expansion of this type of
litigation.
Such a “constitutional common law” approach will offer
extraordinary opportunities for the importation and
transmission of the new international law, which the Union
will “strictly observe”. In practice, it will become
sufficient for a court to refer to some human right (a
“fundamental international right") to render obsolete any
provision of national law, even a posterior legislative act.
The scope and the undefined and vague nature of many new human
rights lead to a loss of power and legal authority by the
political branches of government in favor of this
international legal order.
If courts and tribunals can be pulled into the dynamics
between the "international community" and "civil society", the
alliance between international bodies and NGO's, this new
legal, and eventually also political, order can be made
dominant. Such a development will inevitably extend into and
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