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Domestic Courts and the Interpretation of International Law

Methods and Reasoning Based on the Swiss Example

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Odile Ammann

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Giovanni Boggero

Abstract

In the second Chapter the intertwinement between the international and domestic legal orders will first be outlined from the point of view of the Charter as a source of public international and EU law (§ 2.I.), thereby not avoiding to mention and to explain the very nature of the Council of Europe’s subsequent practice (§ 2.II.). Finally, the reception of the Charter as a source of law in the different domestic legal orders of Council of Europe member States will be examined (§ 2.III.). The strengths and the weaknesses of the “system of the Charter” will therefore be identified and expounded firstly focusing on the hierarchy of the sources of law, so as to expose readers to how the system interacts with the domestic legal orders and to what extent it might bring about changes of the constitutional frameworks of local self-government at national level.

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Giovanni Boggero

Abstract

In the third Chapter, a definition of local self-government as a democratic institution (§ 3. I) will be provided. In Europe local self-government is in fact conceived as somewhere between an original freedom of local authorities and as a specific type of administrative discretion acknowledged by the State to its decentralised entities. At the same time, it is overwhelmingly coupled with the democratic nature of its governing bodies. From a theoretical point of view, local self-government is generally treated as a “bundle of sticks”, that is to say not as a single unitary thing, but as an assemblage of different powers, which ought to be constitutionally protected. A systematic reading of the nature and content of each of these guarantees will be provided (§ 3.II.). For each provision, the principle and right underlying it will be identified and isolated and it will be assessed whether and, if so, how it has embodied the common legal traditions of the signatory States as well as how the States which later ratified it have been influencing its interpretation. Special attention will be given to the theoretical influence of the German concept of local autonomy on the content of each guarantee. In fact, it will be submitted that the guarantees set out in the Charter mostly correspond to those enshrined under the German constitutional framework, at either federal or regional level. Furthermore, on the basis of the Council of Europe practice, it will be discussed as to what extent each principle and right applies equally in the member States and in which areas its application varies according to a State’s “margin of appreciation”, i.e. considering the different characteristics and traditions from country to country (e.g.: form of government, size of local authorities, local government model, etc.) or depending on financial, political or social circumstances.

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Giovanni Boggero

Abstract

In order to make clear why constitutional guarantees of local self-government are laid down not only in domestic Constitutions but also in an international treaty, the first Chapter will focus on the roots of both the terms “charter” and “local self-government”, claiming that the European Charter originates from a narrative of “municipal freedom” rooted in the Middle Ages and abruptly rediscovered during the nineteenth century (§ 1.I.). The historical anchoring and the moral legitimacy of the Charter are reflected in the history of the origins of the Charter within the Council of Europe (§ 1.II.), the first international organisation in Europe committed to promote the rule of law, democracy and human rights. It is precisely this rhetoric of autonomy and self-government against centralisation at both European and domestic level which led to the ratification of the Charter in the 1980s. The narrative of “municipal freedom” did not only reach out to influence Central and Eastern Europe member States in the 1990s, but stretched out beyond Council of Europe borders in more recent times (§ 1.III.).

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Giovanni Boggero

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Finally, in the fourth and concluding Chapter (§ 4) the main findings of this research will be expounded. First, it will be highlighted that the “system of the Charter” matters from the standpoint of public international law (§ 4.I.), because it reversed the old conception whereby local authorities are mere organs of the State, thereby mandating States to organise their structures not only according to the principle of “deconcentration” of powers but also pursuant to “decentralisation” and democratic self-government. Furthermore, it will be clarified that the “system of the Charter” matters because it makes for the establishment of a consistent and coherent common European constitutional local government law (§ 4.II.), that is to say a detailed reference framework inherent to European constitutionalism which can be employed in the context of transitions for setting up a new local government system from its foundations, for supplementing domestic constitutional standards as well as for containing the power and setting limits to the action of the European Union and its member States. Vertical separation of powers therefore becomes a structural device for implementing the domestic and supranational constitutional order. Finally, it will be pointed out that the “system of the Charter” matters because, despite their different local government systems, Council of Europe member States are progressively converging towards the Charter framework, which has in fact been developing in a sufficiently flexible way so as to adapt to most different conditions (§ 4.III.).

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Giovanni Boggero

In Constitutional Principles of Local Self-Government in Europe Giovanni Boggero offers a meticulous account of the defining features of European constitutional local government law using both an international and comparative law perspective. The book argues that differences between local government systems in Europe, typical examples of internal affairs of a State, can be smoothed away by construing a consistent system of constitutional principles to be coherently applied at domestic level across the whole European legal space. This system can be best grasped by looking at the European Charter of Local Self-Government, which embodies a concept of self-government rooted in common legal traditions, and at its subsequent practice within the Council of Europe.