Construing Contemporary Cosmopolitan Constitution-Making: A Comparative View

Global Jurist ◽  
2018 ◽  
Vol 18 (2) ◽  
Author(s):  
Qerim Qerimi
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Domestic Sphere ◽  
International Human Rights ◽  
Post Conflict ◽  
International Human ◽  
Law Making ◽  
Constitution Making

Abstract The newest and gradually evolving trends in global law-making have been defined by an ever increasing interplay between rules and principles of different legal orders and between national legal orders and international legal order. References in national constitutions to the binding force of international law within the domestic sphere and sometimes the primacy of such internationally-made law over national laws are now a widespread and unsurprising phenomenon. Clauses referring to international human rights, including direct applicability of specific international human rights instruments, also to international organizations such as the UN, or accession to new international organizations, including transfer of sovereignty, can also be found in a significant variety of cases. The most unique feature of these trends could, however, be the establishment of national constitutional and legal order based on, or modeled after, international law and comparative law. At a broader constitutional level, for example, the international community has played a pivotal role in the style and substance of the constitutions of a number of post-conflict, newly-formed or transformed societies (e. g., Constitutions of Cambodia, Bosnia and Herzegovina, South Africa, East Timor, Afghanistan, Iraq, Kosovo, Libya, and South Sudan). This process of constitution-making influenced by, based on, or modeled after, international law, has unique features that resonate with a cosmopolitan constitutional law-making. This paper seeks to understand the contours of this phenomenon, ascribe the proper value, and identify the degree to which contemporary constitution-making conforms to the original ideals of cosmopolitanism.

scholarly journals International Constitutional Law and Judicial Review of Domestic Human Rights Legislation

ICL Journal ◽  
2019 ◽  
Vol 13 (2) ◽  
pp. 87-118
Author(s):  
Laura-Stella Enonchong
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Domestic Sphere ◽  
International Human Rights ◽  
Human Rights Regime ◽  
International Human ◽  
Human Rights Norms

Abstract This article discusses the idea of international human rights law as ‘constitutional law’. It applies the French concept of Le contrôle de conventionnalité des lois, to demonstrate the constitutional potentials of international human rights law in the domestic sphere. In most monist constitutional systems based on the French civilian model, international law takes precedence over acts of parliament and other domestic legislation. Due in part to that hierarchy, conventionnalité permits the courts to review domestic law for compatibility with international law. From that perspective, international human rights norms can be said to have assumed a ‘para-constitutional’ function. Using two case studies from francophone Africa, this article argues that conventionnalité has the potential to play a significant role in the domestic implementation of international human rights and ultimately contributing to a more comprehensive domestic human rights regime.

Part IV Normative Evolution, Ch.21 The Law-Making Process: From Declaration to Treaty to Custom to Prevention

2013 ◽  
Author(s):  
Ramcharan Bertrand G
Keyword(s):  
Human Rights ◽  
International Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
Human Rights Movement ◽  
International Human ◽  
The Law ◽  
Preventive Role ◽  
Law Making

This article examines the international human rights lawmaking process. It analyses the sources and methods for the creation of norms and the transition from declarations and treaties to customary international law. It describes the drafting process for human rights declarations and conventions and offers a number of suggestions on how to improve human rights law-making. These include adopting a greater preventive role in the future and leaving the law-making process in the hands of members of the human rights movement.

The “Reservations Dialogue” as a Constitution-Making Process

2013 ◽  
Vol 15 (3) ◽  
pp. 381-403
Author(s):  
Ekaterina Yahyaoui Krivenko
Keyword(s):  
Human Rights ◽  
International Law ◽  
Special Rapporteur ◽  
International Human Rights ◽  
Human Rights Treaties ◽  
International Human ◽  
New Vision ◽  
International Law Commission ◽  
Law Commission ◽  
Constitution Making

Abstract The article proposes a new reading of the reservations regime to human rights treaties. The practice developed by states in relation to the reservations regime is analysed and presented as a constitution-making process. This new vision is based on the notion of the reservations dialogue as presented and developed by the Special Rapporteur of the International Law Commission on reservations to treaties. However, the article also proposes a wide reading of the practice of the reservations dialogue using examples from the Convention on the Elimination of All Forms of Discrimination against Women. Based on this analysis, the author formulates some proposals as to a more adequate development of the reservations dialogue and the reservations regime. A development which will favour the formation of inclusive international human rights as a basis for a future international constitution accepted as legitimate by all members of the international community.

The “Reservations Dialogue” as a Constitution-Making Process

2014 ◽  
Vol 16 (3) ◽  
pp. 306-332
Author(s):  
Ekaterina Yahyaoui Krivenko
Keyword(s):  
Human Rights ◽  
International Law ◽  
Special Rapporteur ◽  
International Human Rights ◽  
Human Rights Treaties ◽  
International Human ◽  
New Vision ◽  
International Law Commission ◽  
Law Commission ◽  
Constitution Making

The article proposes a new reading of the reservations regime to human rights treaties. The practice developed by states in relation to the reservations regime is analysed and presented as a constitution-making process. This new vision is based on the notion of the reservations dialogue as presented and developed by the Special Rapporteur of the International Law Commission on reservations to treaties. However, the article also proposes a wide reading of the practice of the reservations dialogue using examples from the Convention on the Elimination of All Forms of Discrimination against Women. Based on this analysis, the author formulates some proposals as to a more adequate development of the reservations dialogue and the reservations regime. A development which will favour the formation of inclusive international human rights as a basis for a future international constitution accepted as legitimate by all members of the international community.

scholarly journals International Judicial Legitimacy

2020 ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
Democratic Legitimacy ◽  
Direct Reaction ◽  
International Human Rights ◽  
International Courts ◽  
International Human

These texts on the legitimacy of international courts were framed as a direct reaction to arguments put forward in the book “In Whose Name?” by Armin von Bogdandy und Ingo Venzke. The subjects ranged from a comparison between international organizations and international courts and how they can contribute to democratize international law to assessing the democratic legitimacy of international human rights courts. Therefore the collection is dealing with both theoretical and practical questions regarding the legitimacy of international courts and how such problems relate to fundamental problems of our times.

Conceptions And Interpretations of Human Rights in Europe and Asia: Normative Aspects

2010 ◽  
Vol 1 (2) ◽  
pp. 117-135
Author(s):  
Bożena Drzewicka
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Human Rights ◽  
The West ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The World ◽  
International Human

Conceptions And Interpretations of Human Rights in Europe and Asia: Normative AspectsThe issue of confronting values between civilizations has become very important. It influences not only the level of international politics but also the international normative activity. It is very interesting for the modern international law and its doctrine. The most important factor of causing huge changes in the system of international law is still the international human rights protection and the international humanitarian law which is related to it. It is very difficult to create one catalogue of executive instruments and procedures but it is possible to influence the attitude toward the basic paradigms. The frictions appear from time to time and move to other planes. The West and Asia are still antagonists in the dialogue on the future of the world. The article is a contribution to the intercivilizational dialogue.

Contemporary International Tribunals

2018 ◽  
Author(s):  
Antônio Augusto ◽  
Cançado Trindade
Keyword(s):  
Human Rights ◽  
International Law ◽  
Ad Hoc ◽  
International Criminal ◽  
International Human Rights ◽  
International Criminal Tribunals ◽  
International Human ◽  
International Tribunals ◽  
Cross Fertilization

More recently, jurisprudential cross-fertilization has kept on being pursued in particular by international human rights tribunals and international criminal tribunals. This is reassuring, as, despite their distinct jurisdictions, their work is complementary, in their common mission of imparting justice, in distinct domains of international law. Jurisprudential cross-fertilization fosters cohesion and the unity of law. Particularly attention is currently devoted to the preservation of the legacy of the ad hoc international criminal tribunals.

The Margin of Appreciation Revisited

2018 ◽  
Author(s):  
George Letsas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Democratic Institutions ◽  
International Human Rights ◽  
Margin Of Appreciation ◽  
International Human

The idea that states have discretion in complying with their human rights obligations, and the idea that human rights obligations should be compatible with a degree of diversity between states, are either trivial or misleading. In order to assess properly the doctrine of the Margin of Appreciation, one has to reconstruct it as a normative thesis about the conditions under which an international human rights court should place substantial weight on a decision by a domestic authority. Thus understood, however, the doctrine is problematic as it offends the values underlying human rights and the rule of international law. The chapter evaluates Andreas Follesdal’s particular defence of the Margin of Appreciation and argues that neither sovereignty nor democracy provides normative support for unqualified judicial deference. It argues further that the exceptions Follesdal wishes to place on deference to democratic institutions end up covering the whole of the scope of human rights obligations, making the idea of deference redundant.

The Idea of International Human Rights Law

2019 ◽  
Author(s):  
Steven Wheatley
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Moral Concept ◽  
Customary International Law ◽  
Human Rights Treaties ◽  
International Human ◽  
Fragmentation Of International Law

International Human Rights Law has emerged as an academic subject in its own right, separate from, but still related to, International Law. This book explains the distinctive nature of the new discipline by examining the influence of the moral concept of human rights on general international law. Rather than make use of moral philosophy or political theory, the work explains the term ‘human rights’ by examining its usage in international law practice, on the understanding that words are given meaning through their use. Relying on complexity theory to make sense of the legal practice in the United Nations, the core human rights treaties, and customary international law, The Idea of International Human Rights Law shows how a moral concept of human rights emerged, and then influenced the international law doctrine and practice on human rights, a fact that explains the fragmentation of international law and the special nature of International Human Rights Law.

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