This document explores the relationship between international law and domestic law within the context of constitutional justice, introducing Hans Kelsen's theories on constitutional justice in the European model. It discusses the varying legal nature of the European Union and its jurisprudence, particularly in relation to the European Convention on Human Rights, and examines the classification of constitutional justice systems. The paper emphasizes the principle of subsidiarity and the legal framework that governs the interaction between national and international legal norms.

1. The relationship between international law and domestic law, in the context of
constitutional justice
This paper puts forward the idea of theorist Hans Kelsen, about the conception and form of
constitutional justice as a notion, arguing in general for constitutional justice within the European
continental model and system, since this line of argument has a considerable number of theories
regarding to (constitutional justice) as a notion, so it is necessary in this concrete report to
mention in a common space it as a jurisdictional and constitutional guarantee and in the last
analysis as a notion that aims to guarantee the distribution of competencies between the ordinary
and the constitutional legislation, through a positive normative system which builds,
systematizes and sanctions the relations and practices of the political and social institutions of a
democratic state, while gradually below we will present some analytical and professional
reviews on the relationship between domestic law which we presented above in the introduction
in the context of constitutional justice and it’s legal relationship with international law, which
allows me to make a systematic research with qualitative (case study) and comperative method,
which I will address in the following paragraphs through some legal theories and arguments.
This review, from a formal-legal point of view, usually builds the premises on the idea of
constitutional supremacy and the international "barriers" that can effectively be set against the
constitutional law of European countries; the jurisprudence of the Strasbourg Court of Human
Rights and the legal order of the European Union. The main instrument of control of the
Strasbourg Court are the autonomous notions of the Convention and the Jurisprudence.
When we talk about basic legal notions, it should be understood that they do not have exactly the
same meaning as the respective notions in the member states of the Convention. Although the
European Court of Human Rights does not have the right to repeal any national legal act, this
court, within its jurisdiction, can make binding decisions only for the states parties to the
Convention, creating a praetorian jurisprudence. In different countries, the Convention has the
nature of norms with higher power than the constitution, in some others, it is equal to the
Constitution; somewhere it qualifies on laws, for articles Constitution, and in some other
countries it is equal to these legal acts.
So in this way the control of conventionality is a concept that stands above the control of
constitutionality. In this perspective, related to the legal consequences that may occur in practice,
it does not matter the fact that some states do not recognize the European Convention as having a
lower legal force than the constitutions of national countries. They conform to the decisions of
the Strasbourg Court in the same way as states which recognize this Convention as having the
highest or equivalent power over their constitutions.

2. Whilst, regarding the legal order of the European Union, there are different theories about its
legal nature. One theory describes it as an intergovernmental link between sovereign states
because the EU was established by contract/agreement. Another theory considers the EU as a
federal state where the ratio of national rights to that of the EU is the same as that of the federal
states to the federation.
But these theories can’t be taken as absolute theories because European integration has not yet
reached such a stage where such analogies can be made. In the general opinion, the EU is a
subject with its own legal order sui generis because it stands between the state in the traditional
sense and an international organization, due to several factors that characterize the special legal
nature of the EU, such as: institutional structure, which ensures that EU action is characterized
by the general European interests, regarding to that EU actions are reflected in or influenced by
the general interests of the Union, as set throughout objectives, the transition of competencies to
the institutions of the Union to a certain extent greater measure than in other international
mechanisms and their extension to those areas in which States normally retain their sovereign
rights, the establishment of a legal order which is independent of the legal orders of the Member
States, the direct implementation Community law, which guarantees the full and uniform
application in all Member States of Community provisions which foresee rights and impose
obligations on both Member States and their nationals, the supremacy of Union law, which
guarantees that Community law cannot be revoked or changed by the domestic law and that if in
a case of a conflict, it takes precedence over domestic legislation.
Referring to the object of review of this topic, due to the complexity in content, to determine the
legal nature in terms of clarification of this report which implies extensive interpretations in
various study issues, in the final observations in this relationship between domestic law and to
the international one, I will mention some summary arguments that are valid and have an
extension in most of the states with consolidated democracy and the rule of law in the modern
sense, considering the fact that we are referring to several different models of functioning of
constitutional justice, although as a concept it will not appear as homogeneous in all cases.
Therefore, this review sends us to the analysis, which is based on the classification of legal
models and notions based on some criteria.
From the analysis and preliminary reviews it can be concluded on two main planes. Although a
somewhat difficult classification due to some different features which in detail may have
common points of common legal construction, in theory it is generally accepted that there are
two basic models of constitutional justice.
So, depending on the criteria which can be taken as a basis for study, the nature of the
classification also varies. If the criterion is the body that exercises constitutional justice, then we
will have the two models mentioned above (American and European). In the American model,
the control of constitutionality is entrusted to all ordinary courts, while in the European model (a
concept built by Kelsen according to which democracy could function only if there was an
independent mechanism that controls the constitutionality of laws enacted by parliament) a
single specialized court, respectively the constitutional court as a body independent of the
judiciary.

3. Consequently, the constitutional court is a body which defends constitutionality and makes the
final interpretation of the constitution, through the exercise of its jurisdiction on the basis of
which it is modeled in advance. If we take as another classification criterion the effects of
constitutional justice we find opposite sides within a variable (model), from where we establish
and support the above-mentioned argument for classifying different models of the constitutional
justice system. In some European countries, the constitutional court obliges all other regular
courts and other state bodies to respect the decisions of the constitutional court which are valid
erga omnes, while in European countries take precedence.
Therefore, various authors have proposed another classification based on the concrete procedure
followed in constitutional justice. In this regard, the review of constitutionality presents
combinations in different measures of concrete and abstract review, objective and subjective.
And the second and last plane that we will address in relation to constitutional justice, which is
an abstract concept, but aims at an objective goal for the functioning of the state according to the
principles and standards of legal norms for the realization of constitutionalism as a means of
expressing a state of law, which according to Kelzen's view is "a complete legal order"
consequently, international law has legal supremacy over the domestic law of the state. Thus, the
legal rules of international law derive from the highest legal norm, which is the top of the
pyramid and the embodiment of the idea and dimensions of law.
Lastly but not least, in the context of the "eventual legal conflict" between these two rights, the
national and the international, this legal paradigm is reformulated and treated within the principle
of subsidiarity that finds its beginnings in the Maastricht treaty, while today it is sanctioned on
Article 5 and Protocol No. 2 of the Treaty on European Union, concerning the competences of
the Union in those fields where there is no exclusive competence.
The Principle of Subsidiarity on the one hand prohibits the Union from intervening in cases
where Member States can act effectively on a matter which is outside the exclusive competence
of the Union, but on the other hand justifies its intervention in cases where Member States have
impossible to meet the objectives of an action or proposal.
Thus according to Article 5 of the TEU there are three preconditions that the Union can intervene
based on these principles; non-exclusive competences: the field in question is not included in the
exclusive competences of the Union; necessity: the objectives of the proposed action cannot be
achieved by single Member States; value added and the action affected by the effects and its
degree of action would be more successfully implemented at Union level against actions that
could be determined by the nation states independently. Taking tha fact that, theories on
international and domestic law, in the context of constitutional justice, present an abstract
content, they are defined and functionalized within the legal system chosen by states, through
their autonomous mechanisms.

4. References:
 European Convention on Human Rights
(https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c)
 European Court of Human Rights (ECHR) – (https://ijrcenter.org/european-court-of-
human-rights/)
 Two Models of Constitutionalism and The Legitimacy of Law: Dicey or Marshall
(https://www.tandfonline.com/)
 The European model of constitutional review of legislation (1)
 The Fundamentals of Constitutional Courts
(https://www.idea.int/sites/default/files/publications/the-fundamentals-of-constitutional-
courts.pdf)
 Constituional Review: Study of American model and European model (ILI-LAW-
REVIEWS)
 Kelsen’s “pure theory (https://www.britannica.com/)
 European Integration (Center for strategic & International Studies)
 European Union, the principle of subsidiarity (Summaries of European Legislation)
 The Treaty of Lisbon (Summaries of European Legislation)
 The Conventionality control of domestic law (research//constitutional-function-human
rights adjudication)
 The relationship between Domestic and International Law (/thestudentlawyer.com/)
Author of this paper:
Egzon Musa,
4th
year law student.