Many legal scholars and jurists see a particular document or a collection of documents as a means of constitutionalizing international law. The Charter of the United Nations is a prime example. Based on this, comparisons are made between international law and domestic constitutional orders, and these comparisons are sometimes used to decide cases. However, there is reason to question whether the international legal order has enough features of domestic constitutional orders to justify judicial comparison between the international legal order and domestic constitutional orders. The ongoing constitutionalization process is unlikely to produce an international legal order with sufficiently similar features to domestic constitutional orders. Thus, this Article proposes caution when comparing international and domestic law to address constitutional issues and argues that at least most valid comparisons to fulfill constitutional law purposes likely do not qualify as forms of comparative constitutional law but are instead examples of other kinds of (often clearly useful) analysis.
Da Silva, Michael
"International "Constitutions" and Comparative Constitutional Law,"
Notre Dame Journal of International & Comparative Law: Vol. 10
, Article 4.
Available at: https://scholarship.law.nd.edu/ndjicl/vol10/iss2/4