Transnational Constitution-Making: The Contribution of the Venice Commission on Law and Democracy

Abstract

This article examines the contribution to transnational constitution-making of the European Commission for Democracy through Law, better known as the Venice Commission. It is part of the Council of Europe, but much less understood than the European Court of Human Rights, ECtHR, notwithstanding the existing literature. This chapter therefore seeks to explicate and evaluate. It begins by explicating the organizational foundations of the Venice Commission, followed by analysis of its remit and role. The focus then shifts to triggering and working methodology.

The remainder of the article is concerned with an evaluation of the Commission’s role in relation to constitution-making broadly conceived, the analysis being situated within the literature concerning transnational legal orders, TLOs. There is an overview of the central elements of TLO theory, the reasons why the Venice Commission can be conceptualized within this theoretical frame, and its distinctive contribution to constitution-making. TLOs are increasingly prevalent across diverse fields, including those concerned with constitutions, democracy, human rights and the rule of law. It renders it all the more important that they are subject to the same searching evaluation that we commonly bring to bear when analyzing national norms. To this end there is more detailed analysis of the process rights and procedure afforded to the state that is the subject of a Venice Commission opinion, and the substantive criteria and standards that the Commission brings to bear when producing its opinions. The chapter concludes with a discussion of implementation by the addressee of the opinion, and the broader impact of the Commission through sharing best practice and cooperation.

Keywords: Transnational Legal Orders, Venice Commission, Constitutions, Human Rights, Rule of Law, Democracy