The Legal Status of Decisions by Human Rights Treaty Bodies

Legal Position

Academic analysis of pronouncements of human rights treaty monitoring bodies has tended to focus on their contribution to the promotion of human rights in domestic jurisdictions, particularly to convey the desire of scholars to see more use of these pronouncements by domestic courts. Comparatively little attention has been paid to the issue of their legal status in light of the supervisory function of human rights monitoring bodies. This chapter starts with a thorough analysis of a few recent cases by national courts, which commented on the legal value of the work of these bodies. The chapter then challenges two recurring arguments in the legal scholarship: their assimilation to judicial bodies, and the existence of a procedural obligation on states to consider their views. Next, it focuses on the interpretive weight of the pronouncements of these treaty bodies in international law, and, accordingly, in national jurisdictions. The chapter argues that the alleged existence of a general procedural obligation on states to consider the pronouncements of human rights treaty monitoring bodies is controversial, and that their work does not have a specific, or privileged, legal position in defining the ordinary meaning of a treaty. The conclusions point out that supervisory bodies have a specific and important role in the international legal order, different from that of courts, which bears preserving.

Transnational constitutional aspects of the European Court of Human Rights

Global Constitutionalism ◽

10.1017/s2045381719000303 ◽

2021 ◽

Vol 10 (1) ◽

pp. 151-174

Author(s):

GEIR ULFSTEIN

Keyword(s):

Human Rights ◽

Direct Effect ◽

Legal Pluralism ◽

Legal Order ◽

Not Given ◽

National Courts ◽

European Court ◽

International Court ◽

AbstractThe European Court of Human Rights (ECtHR) is an international court operating in the international legal order. Its judgments are not given direct effect in national law. In this sense we have a system of legal pluralism between international and national law. But the ECtHR has constitutional effects in national law through the weight placed on the Court’s practice by national courts. Therefore, constitutional principles are applicable in the interaction between the ECtHR and national courts. This article discusses the transnational constitutional aspects of the Court, and how this should guide the roles of, respectively, the ECtHR and national courts.

Remedies against Immunity? - Beiträge zum ausländischen öffentlichen Recht und Völkerrecht ◽

Sentenza 238/2014: A Good Case for Law-Reform?

10.1007/978-3-662-62304-6_4 ◽

2021 ◽

pp. 71-89

Author(s):

Heike Krieger

Keyword(s):

Human Rights ◽

Legal Order ◽

Law Reform ◽

Cautious Approach ◽

National Courts ◽

State Immunity ◽

Post War ◽

The Stability ◽

Law Making

AbstractSentenza 238/2014 is an important judgment which does not only concern the concrete case at hand but also pushes for a change in the law of state immunity. However, such attempts at law-making by national courts may not always attain their goal but may exert adverse effects which are harmful for the international legal order. Sentenza 238/2014 may have an impact on three different yet related issues central to the future development of international law: the relationship between international and national law, exceptions to immunities, and individual reparations in cases of mass atrocities.This chapter criticises law-making through non-compliance with international judicial decisions by national courts. Judges in democratic states under the rule of law who try to push for law-reform, by initiating non-compliance with decisions of international courts, should be aware that they may act in the company, and thereby in support of, courts in regimes with autocratic tendencies, such as the Russian Constitutional Court, which refuses to comply with judgments of the European Court of Human Rights. Furthermore, the chapter argues that immunity from jurisdiction and immunity from execution should be kept distinct and that human rights exceptions should not be applied to immunity from execution. Such a differentiation remains justified because measures of constraint against property used for government non-commercial purposes intrude even further onto sovereign rights than the institution of proceedings before courts in the forum state. It is particularly difficult for states to protect assets and other property situated in a foreign state. These assets may therefore be more susceptible to abusive enforcement measures while simultaneously forming an essential basis for the actual conduct of international relations.The chapter concludes by advocating a cautious approach to individual reparations in cases of mass atrocities. This more cautious approach observes the complexities of ending armed conflicts and negotiating peace deals. An individual right to monetary compensation based on civil claims processes does not allow for taking into account broader political considerations related to establishing a stable post-war order. Such a right is conducive to bilateral settlements between the state parties concerned, which might create new injustices towards other groups of victims. It might also overburden negotiations for a settlement to an ongoing armed conflict.The chapter thereby starts from the assumption that the stability of the international legal order itself as guaranteed by concepts such as immunities or the respect for its judicial organs serves to protect human rights, albeit indirectly.

Kadi and the Role of the Court of Justice of the European Union in the International Legal Order

Cambridge yearbook of European legal studies ◽

10.5235/152888713809813594 ◽

2013 ◽

Vol 15 ◽

pp. 587-617

Author(s):

Veronika Fikfak

Keyword(s):

European Union ◽

Active Role ◽

Legal Order ◽

Constitutional Court ◽

The European Union ◽

National Courts ◽

Court Of Justice ◽

Domestic Courts ◽

AbstractThis chapter investigates the role of the Court of Justice of the European Union (CJEU) in the international legal order in light of its decision in Kadi and the forthcoming Kadi II. It focuses on establishing how the Court perceives its relationship with the UN Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by it as a ‘constitutional court of a municipal legal order’. In this context, the chapter reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Bot insists that what the CJEU ought to do in Kadi II is adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.

Kadi and the Role of the Court of Justice of the European Union in the International Legal Order

Cambridge yearbook of European legal studies ◽

10.1017/s1528887000003177 ◽

2013 ◽

Vol 15 ◽

pp. 587-617

Author(s):

Veronika Fikfak

Keyword(s):

European Union ◽

Active Role ◽

Legal Order ◽

Constitutional Court ◽

The European Union ◽

National Courts ◽

Court Of Justice ◽

Domestic Courts ◽

AbstractThis chapter investigates the role of the Court of Justice of the European Union (CJEU) in the international legal order in light of its decision inKadiand the forthcomingKadi II. It focuses on establishing how the Court perceives its relationship with the UN Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by it as a ‘constitutional court of a municipal legal order’. In this context, the chapter reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Bot insists that what the CJEU ought to do inKadi IIis adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.

Nikolaos Politis and the Legal Status of the Individual in the International Legal Order

Human Dignity and International Law ◽

10.1163/9789004435650_006 ◽

2020 ◽

pp. 30-38

Keyword(s):

Legal Status ◽

Legal Order ◽

The Individual

The Sovereignty of Human Rights

Israel Law Review ◽

10.1017/s0021223717000231 ◽

2018 ◽

Vol 51 (1) ◽

pp. 145-156

Author(s):

Sarah Frost

Keyword(s):

Human Rights ◽

Adverse Effects ◽

Legal Order ◽

Sovereign Power ◽

A primary purpose of a human rights theory is to provide a foundation from which the actual and complete nature of human rights can be gleaned. Particularly for rights that are controversial or do not enjoy widespread consensus, a human rights theory provides a system for understanding what rights exist or should exist and what rights contain or should contain. The most predominant theories of human rights are based in law, politics and morality. Patrick Macklem's The Sovereignty of Human Rights proposes a new theory of human rights devised to bypass the shortcomings of those predominant theories. He argues that sovereignty is a better foundation for understanding human rights because sovereignty and its distribution in the international legal order has given rise to the need for certain rights to exist. The exercise of sovereign power by individuals also influences how human rights are implemented within state borders. He maintains that understanding the adverse effects of sovereignty and its distribution yields greater insight than other theories into why human rights exist, what they contain, and how they should be implemented.Following a brief summary of Macklem's argument, the review examines how his theory compares with the predominant theories of human rights, particularly in light of the shortcomings of those theories. The review outlines Macklem's position that the adverse effects of sovereignty can clarify the international community's understanding of why human rights are necessary and what forms of protection they include. The review then examines how Macklem's theory corresponds with traditional classifications of human rights, which depict such rights in terms of generations. Finally, the review concludes with reflections on the theory and poses new questions raised by Macklem's theory of human rights.

Les nouvelles constitutions africaines et la politique internationale : contribution à une économie internationale des biens politico-constitutionnels

Études internationales ◽

10.7202/703459ar ◽

2005 ◽

Vol 26 (2) ◽

pp. 329-345 ◽

Cited By ~ 3

Author(s):

Luc Sindjoun

Keyword(s):

Human Rights ◽

Legal Order ◽

International Policy ◽

Relative Extent ◽

The Impact ◽

Internal Order

Africa's new constitutions have arisen from a dynamic of relative globalization in an era of Western preeminence. Thus, they are both barometers and instruments of international policy. The method of constitutional ecology can be used to measure the impact of international policy by examining the degree to which human rights have been firmly entrenched in Africa's new constitutions. It is also possible to measure the relative extent to which the international viewpoint has been taken into account in the internal order. As "barometers", the instrumentality of Africa's new constitutions is in relation to their being templates of the international legal order. Hence the principle of constitutionality (or "constitutional bases") of official diplomacy.

Die Zukunft des Völkerrechts

Juridica International ◽

10.12697/ji.2017.26.01 ◽

2017 ◽

Vol 26 ◽

pp. 3 ◽

Cited By ~ 1

Author(s):

Christian Tomuschat

Keyword(s):

Human Rights ◽

World War Ii ◽

International Law ◽

World Order ◽

Legal Order ◽

Positive Side ◽

Normative Growth ◽

Fragmentation Of International Law

The Rich ◽

The international legal order today constitutes a truly universal legal system. It has received guiding principles through the United Nations Charter: ever since this ‘Constitution for the world’ began operating, sovereign equality of states, self‑determination of peoples, and human rights have been key components of this architecture, which has reached a state of ‘conceptual unity’ belying the talk of ‘fragmentation’ of international law that so fascinated scholars in their debates only a short while ago. The great peace treaties of 1648, 1815, and 1919, as Euro‑centric instruments influenced by the interests of the dominant powers, could not bring about a peaceful world order. After World War II, it was, in particular, the inclusion of the newly independent states in the legislative processes that has conferred an unchallenged degree of legitimacy on international law. Regrettably, its effectiveness has not kept pace with its normative growth. Some islands of stability can be identified. On the positive side, one can note a growing trend to entrust the settlement of disputes to formal procedures. Yet the integration of human rights in international law – a step of moral advancement that proceeds from the simple recognition that, precisely in the interest of world peace, domains of domestic and international matters cannot be separated one from the other as neatly as postulated by the classic doctrine of international law – has placed enormous obstacles before international law. It must be expected that the demand for more justice on the part of developing nations will subject the international legal order to even greater strain in the near future. Currently, chances are low that the issue of migration from the poorer South to the ‘rich’ North can be resolved.

Public Morality as a Legitimate Aim to Limit Rights and Freedoms in the National and International Legal Order

Contemporary Central & East European Law ◽

10.37232/cceel.2019.01 ◽

2019 ◽

pp. 10-20

Author(s):

Anna Młynarska-Sobaczewska ◽

Katarzyna Kubuj ◽

Aleksandra Mężykowska

Keyword(s):

Human Rights ◽

Moral Judgments ◽

Moral Issues ◽

National Courts ◽

European Court ◽

Starting Point ◽

Protection Of Human Rights ◽

Human Rights Standards ◽

The Impact

Domestic legislation and international instruments designed for the protection of human rights provide for general clauses allowing limitations of rights and freedoms, e.g. public morals. A preliminary analysis of the case-law leads to the observation that both national courts and the European Court of Human Rights, when dealing with cases concerning sensitive moral issues, introduce varied argumentation methods allowing them to avoid making direct moral judgments and relying on the legitimate aim of protecting morality. In the article the Authors analyse selected judicial rulings in which moral issues may have played an important role. The scrutiny is done in order to identify and briefly discuss some examples of ways of argumentation used in the area under discussion by domestic and international courts. The identification of the courts’ methods of reasoning enables us in turn to make a preliminary assessment of the real role that the morality plays in the interpretation of human rights standards. It also constitutes a starting point for further consideration of the impact of ideological and cultural connotations on moral judgments, and on the establishment of a common moral standard to be applied in cases in which restriction on human rights and freedoms are considered.

Seismic Shifts: The COVID-19 Pandemic’s Gendered Fault Lines and Implications for International Law

Australian Year Book of International Law ◽

10.1163/26660229-03901008 ◽

2021 ◽

Vol 39 (1) ◽

pp. 91-104

Author(s):

Shruti Rana

Keyword(s):

Human Rights ◽

International Law ◽

International Order ◽

Private Life ◽

Legal Order ◽

Public And Private ◽

State Action ◽

Role Of The State ◽

Fault Lines

Abstract The Covid-19 pandemic and related shutdowns created seismic shifts in the boundaries between public and private life, with lasting implications for human rights and international law. Arriving just as the international legal order was wobbling in the wake of a populist backlash and other great challenges, the pandemic intensified fault lines of marginalisation and state action, amplifying the forces that had already left the liberal international order in crisis and retreat. This article examines the pandemic’s impacts on the international legal order through a gendered lens. It argues that in the short-term, the pandemic has reinforced public-private divides in international law, reinvigorating previous debates over the role of the state in protecting its people from harm. It argues that in the long-term, these developments threaten to unravel the most recent gains in international law and global governance that have supported and expanded the recognition of human rights to marginalised groups. Left unaddressed, this unraveling will further entrench such divides and contribute to the further retreat of the liberal international order. Examining these fault lines and their implications can help us re-imagine a post-pandemic international legal order that offers more protection for human rights, even as multilateral institutions and cooperation sputter or fail.