Volume 47, Number 1, Winter 2006 The Denationalization of Constitutional Law Gráinne de Búrca ∗ Oliver Gerstenberg ∗∗ Introduction International law, in general, and international human rights law, in par- ticular, have experienced a battering in recent years. Spurred in part by national reactions to the “new terrorism,” politicians and legislators—as well as judges, practitioners, and intellectuals worldwide and along the ideological spectrum— have expressed reservations about the role and function of international law in domestic affairs. Reactions have ranged from sharp skepticism about the au- thority and utility of international law to conditions and caution about how it should be given effect within the domestic system. Concerns regarding the role of international law are evident throughout Europe. In Germany, the federal constitutional court has in different ways positioned itself as a bulwark between the national legal system and the two European legal orders of which the court is a part—the European Union (“EU”) and the European Court of Human Rights (“ECHR”) system. 1 In Denmark, the Council of Europe’s Human Rights Commissioner’s 2004 censure of Danish immigration policy on family reuniªcation sparked critical political and media debate on the relevance and authority of international human rights law. 2 And in the United Kingdom, which sought to derogate from the rele- vant provisions of the European Convention on Human Rights, the Home Secretary responded sharply to the United Nations Special Rapporteur on Tor- ∗ Gráinne de Búrca: Professor of Law, European University Institute, and member of the Global Law Faculty, New York University. ∗∗ Oliver Gerstenberg: Reader in Law, School of Law, University of Leeds. This Article was written while the author was a Fellow of the Program in Law and Public Affairs at Princeton University, in 2004- 05. Thanks are due to Ruti Teitel, who made extremely insightful comments at the presentation of an ear- lier version of this Article in the LAPA-seminar at Princeton University, and to Joshua Cohen, Stanley Katz, Frank Michelman, Andrew Moravcsik, Chuck Sabel, Kim Scheppele, and Anne-Marie Slaughter. The usual disclaimer applies. 1. See, e.g., BverfG, Oct. 14, 2004, docket number 2 BvR 1481/04, at juris online/Rechtsprechung (ªnding that appellate court did not sufªciently consider the judgment of the European Court of Human Rights concerning the custody rights of biological father); BverfG, July 18, 2005, docket number BvR 2236/04, at juris online/Rechtsprechung (holding that German law implementing resolution concerning European arrest warrant violates German Basic Law). 2. See Council of Europe, Office of the Commissioner for Human Rights, Report by Mr. Alvaro Gil- Robles, Commissioner for Human Rights, on His Visit to Denmark, Doc. No. CommDH(2004)12 (July 8, 2004).