The Changing Role and Reception of International Law in Domestic Constitutional Law

2021 ◽  
pp. 425-442
Author(s):  
Marie-Christine Fuchs
Keyword(s):  
Human Rights ◽  
Latin America ◽  
International Law ◽  
Descriptive Analysis ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Human Rights Protection ◽  
European Court ◽  
Protection Of Human Rights ◽  
Changing Role

This chapter addresses the changing role and reception of international law into domestic constitutional jurisdictions in Latin America and Europe. It begins by presenting a descriptive analysis of the differences between Europe and Latin America. Despite the existence of the 'conventionality control' doctrine developed in Latin America by the Inter-American Court of Human Rights (ICtHR), the European context seems more complex and diverse due to the 'three spheres of human rights protection': the European Court of Human Rights (ECtHR), the European Court of Justice (ECJ), and the national constitutional courts. The chapter then argues that, despite the fact that the multilevel architecture of protection provides States with a large range of opportunities for improving the effective protection of human rights both in Europe and Latin America, in practice, the most relevant level of guaranteeing such protection still seems to be at the domestic constitutional level. After exploring the 'conventionality control' and the application of the 'constitutionality block' doctrine developed by the Colombian Constitutional Court, it turns to examine the 'margin of appreciation doctrine'. Paradoxically, this doctrine, introduced by the ECtHR, has recently regained power both in Europe and Latin America as a bedrock of the 're-birth' of nationalistic movement.

scholarly journals Mainstreaming Human Rights in the Asian Judiciary

2018 ◽  
Vol 4 (1) ◽  
pp. 77
Author(s):  
Desi Hanara
Keyword(s):  
Human Rights ◽  
Constitutional Court ◽  
Legal Research ◽  
Constitutional Courts ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Leading Role ◽  
Protection Of Human Rights ◽  
Enforcement Mechanisms ◽  
The Guardian

Human rights protection in Asia is hindered by the absence of binding human rights instruments and enforcement mechanisms, including the lack of human rights mainstreaming into the works of relevant stakeholders, notably the judiciary. Judiciary plays key roles in the realization and protection of human rights. As the guardian of the Constitution, the Indonesian Constitutional Court (‘the Court’) is mandated to protect the human rights of the citizens. This paper argues that the Court, which previously served as the President of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC), has the potential to play a leading role in mainstreaming human rights in the region. Using normative and comparative legal research methodologies, the paper identified the Court’s mandates on human rights at the national, regional and international levels; assessed the need for human rights mainstreaming in the Asian judiciary; and examined the significant potential of the AACC to house the mainstreaming project. Finally, it proposes several recommendations for the Court’s consideration, namely to encourage judicial independence, recommend human rights incorporation into judicial discussions and decisions, suggest the establishment of a platform to enhance human rights expertise of the judiciary, as well as facilitate a platform for the development of binding human rights instruments and the establishment of an Asian Human Rights Court.

scholarly journals INTERNATIONAL LAW AND CHRISTIAN VALUES IN HUMAN RIGHTS

2016 ◽  
Vol 2 (127) ◽  
pp. 73-81
Author(s):  
M. Medvedieva
Keyword(s):  
Human Rights ◽  
International Law ◽  
Historical Context ◽  
Human Embryos ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Christian Morality ◽  
Protection Of Human Rights ◽  
The Individual

The article considers the role of International Law in asserting Christian values in human rights protection. The author gives examples of harmonious interaction of International Law and Christian morality. According to the author, as a result of certain factors, International Law started to deviate from the principles of Christian ethics. As a result at the level of creating and implementing International Law there is a positive attitude or indifference to such destructive practices that destroy the individual, family, society, state as abortion, surrogacy, change of sex, same-sex unions, euthanasia, cloning, genetic modification, research on human embryos, etc. The article deals with these trends mainly on the example of the European model of human rights. The author analyzes the practice of interpretation and application of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) by the European Court of Human Rights regarding the aforementioned issues and concludes that in many cases the Court goes away from the historical context of the adoption of the Convention, creates new rights, and in its judgments does not take into account the arguments of a state concerning the protection of public order and public morality that looks like a dangerous trend for the International Law functioning.

scholarly journals DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS AS THE SOURCE OF THE CONSTITUTIONAL LAW OF UKRAINE

2019 ◽  
pp. 19-23
Author(s):  
P. M. Synytsyn
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Complex Structure ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Public Authorities ◽  
European Court ◽  
Protection Of Human Rights

The article has been devoted to the analysis of the nature of the decisions of the European Court of Human Rights as a source of constitutional law of Ukraine. The nature of the judgments of the European Court of Human Rights has been characterized depending on the following factors: state legal system, constitutional approach to the relation between national and international law, the level of bindingness of decisions of the European Court of Human Rights for public authorities. The author has concluded on the duality of nature the decisions of the European Court of Human Rights, namely that, the author considers that the decisions of the European Court of Human Rights have a complicated, complex structure, combining the properties of both a right-interpreting act and a judicial precedent. According to the author, the decisions of the European Court of Human Rights are intended not only to resolve the cases under trial, but also to specify and interpret the rules of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has been established that the current Ukrainian legislation, establishing the primacy of the rule of law before the law, provides for the obligation of the judicial authorities to apply the decisions of the European Court of Human Rights as a source of law and at the same time the duty of the state to enforce the decisions of the European Court of Human Rights in cases where Ukraine is the defendant. In addition, as the case law of the European Court of Human Rights shows, the judiciary itself emphasizes in its decisions the interpretative nature and the binding nature of all its decisions to be taken into account by all States parties. The Constitutional Court of Ukraine constantly uses the decisions of the European Court of Human Rights to form its own legal positions, after which they actually become a substantive element of the motivating part of the decision of the Constitutional Court of Ukraine. It has been concluded that regardless of whether or not the decision of the European Court of Human Rights has been ruled on Ukraine, it is a source of constitutional law in Ukraine.

Individual application to the Turkish Constitutional Court as a case of constitutional transfer

2016 ◽  
Vol 5 (2) ◽  
pp. 269-294 ◽  
Author(s):  
ENGIN YILDIRIM ◽  
SERDAR GÜLENER
Keyword(s):  
Human Rights ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
New Host ◽  
Human Rights Protection ◽  
Turkish Government ◽  
European Court ◽  
Policy Objectives ◽  
Venice Commission ◽  
The Individual

Abstract:The article has sought to clarify the phenomenon of constitutional transfer through an analysis of the introduction and implementation of the individual complaint procedure in Turkey. Individual access to constitutional courts has recently attained prominence as an effective tool of human rights protection and it is viewed as an example of the broader phenomenon of transfer of constitutional ideas from a point of origin to a new host environment. Critically applying the IKEA theory of constitutional transfer to the Turkish experience of the individual application to the Constitutional Court, we argue that the transfer process involves more than a simple interaction between the promoter and the importer, both of whom have converging as well as diverging expectations. The Turkish experience has proved a useful case to demonstrate the dynamic and multifaceted nature of the process of constitutional transfers. The Venice Commission, the European Court of Human Rights, the Turkish Constitutional Court and the Turkish Government all have important stakes in the success of the transfer to realise their own policy objectives.

Making Human Rights a Reality

2013 ◽  
Author(s):  
Emilie M. Hafner-Burton
Keyword(s):  
Human Rights ◽  
International Law ◽  
World Population ◽  
International Human Rights Law ◽  
Legal Norms ◽  
Human Rights Protection ◽  
National Human ◽  
The World ◽  
Protection Of Human Rights ◽  
National Human Rights Institutions

In the last six decades, one of the most striking developments in international law is the emergence of a massive body of legal norms and procedures aimed at protecting human rights. In many countries, though, there is little relationship between international law and the actual protection of human rights on the ground. This book takes a fresh look at why it's been so hard for international law to have much impact in parts of the world where human rights are most at risk. The book argues that more progress is possible if human rights promoters work strategically with the group of states that have dedicated resources to human rights protection. These human rights “stewards” can focus their resources on places where the tangible benefits to human rights are greatest. Success will require setting priorities as well as engaging local stakeholders such as nongovernmental organizations and national human rights institutions. To date, promoters of international human rights law have relied too heavily on setting universal goals and procedures and not enough on assessing what actually works and setting priorities. This book illustrates how, with a different strategy, human rights stewards can make international law more effective and also safeguard human rights for more of the world population.

scholarly journals Improving Human Rights Protection on the national and the European Level

2015 ◽  
pp. 36-51
Author(s):  
RUDOLF DUR SCHNUTZ
Keyword(s):  
Human Rights ◽  
National Level ◽  
European Level ◽  
Human Rights Protection ◽  
Current State ◽  
European Court ◽  
Protection Of Human Rights ◽  
Venice Commission ◽  
Effective Remedy ◽  
The Individual

The recent move towards the individual access to constitutional justice is a progress for protection of human rights in Europe. The explicit purpose of these efforts is to settle human rights issues on the national level and to reduce the number of cases at the Strasbourg Court. Such individual complaints have to be designed in a way that makes them an effective remedy which has to be exhausted before a case can be brought before the European Court of Human Rights. This paper points out the current state of these improvements on the national level in a difficult context on the European level and the recommendations of the Venice Commission in this regard.

scholarly journals Intertwined but Different. The Heterologous In Vitro Fertilization Case before the European Court of Human Rights and the Italian Constitutional Court

2017 ◽  
Vol 9 (1) ◽  
pp. 34-67
Author(s):  
Antonia Baraggia ◽  
Maria Elena Gennusa
Keyword(s):  
Human Rights ◽  
In Vitro Fertilization ◽  
Constitutional Court ◽  
Vitro Fertilization ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Protection Systems ◽  
Shed Light

Abstract International and constitutional law, originally distinct realms with limited areas of intersection, are getting closer and closer, particularly in the European landscape within the human rights protection field, where these mere contacts between the two systems have become intersections and overlaps. The present article will try to shed light on the still unsolved and problematic issues to which overlapping human rights protection systems give rise, by focusing on an analysis of the heterologous in vitro fertilization case, where both the Strasbourg Court and the Italian Constitutional Court delivered relevant judgments on very similar matters (ECtHR’s S.H. Judgment; Judgment No. 162/2014 from the Italian CC). Such analysis revealed useful in highlighting connections and disconnections between the different levels of protection of rights, and led us to argue that the development of a multilevel protection of rights is also, at least partially, a tale of Courts, each competing to have the last word on human rights adjudication.

Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights

2005 ◽  
Vol 6 (5) ◽  
pp. 869-894 ◽  
Author(s):  
Matthias Hartwig
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Constitutional Court ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
European Court ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
German Court

On October 14, 2004 the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) delivered a judgment which gave rise to vivid reactions in the mass media and to a dispute between the European Court of Human Rights (ECtHR) and the German Federal Constitutional Court. In interviews, members of the Strasbourg court spoke about their disappointment in the German Court's unwillingness to implement decisions of the ECtHR while members of the German court referred to the necessity to respect national particularities. Whereas, normally, the ECtHR and the constitutional courts of the Member States of the Council of Europe are fighting side by side for human rights and, therefore, consider themselves as natural allies, this time their decisions, which seem to be incompatible, led to a dispute which attracted as much public interest as a film or theatre premiere.

scholarly journals General and Particular Approaches to Implementation of theEuropean Convention on Human Rights

2018 ◽  
Vol 55 ◽  
pp. 248-292
Author(s):  
VLADIMÍRA PEJCHALOVÁ GRÜNWALDOVÁ
Keyword(s):  
Human Rights ◽  
National Level ◽  
Case Law ◽  
European Convention ◽  
Constitutional Courts ◽  
The Czech Republic ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court

AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.

Headwind from Europe: The New Position of the German Courts on Personality Rights after the Judgment of the European Court of Human Rights

2010 ◽  
Vol 11 (5) ◽  
pp. 527-537 ◽  
Author(s):  
Corinna Coors
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Federal Court ◽  
Constitutional Court ◽  
Public And Private ◽  
State Laws ◽  
Private Interests ◽  
European Court ◽  
Protection Of Human Rights ◽  
The U.S

In Germany, as in the U.S., the relationship between protection of privacy and freedom of expression has been subject of many decisions. In the U.S. a right of privacy was famously conjured out of common law precedents by Warren and Brandeis. Over the course of a century, it developed into a right of publicity, which gave celebrities the power to prevent the commercial use of their names, endorsements, images, voices, and other attributes of personality by unauthorized third parties. In defining such a right, much attention has been focused on separating what is commercially unacceptable from what is desirable free speech under the First Amendment of the U.S. Constitution. It has also been important to settle the duration of such rights. Publicity rights as a commercial value of a person's identity are therefore well established in the U.S., although state laws vary widely as to the extent of protection. In Germany, due to the constitutional background of the personality right, the balance between public and private interests still operates differently. After the European Court of Human Rights (ECHR) in 2004 convicted the German Federal Republic of violating the Convention for the Protection of Human Rights Fundamental Freedoms, the German Federal Court (Bundesgerichtshof—BGH) took the opportunity to think over its previous position about image rights. Three judgments were examined by the German Constitutional Court (Bundesverfassungsgericht—BVerfG) and one of them was reversed.

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