scholarly journals The Importance of Being Quasi-Democratic - the Domestication Of International Human Rights in American and Arab Politics

2007 ◽  
Vol 38 (2) ◽  
pp. 317 ◽  
Author(s):  
David Mednicoff
Keyword(s):  
Human Rights ◽  
International Law ◽  
The United States ◽  
Democratic Legitimacy ◽  
International Human Rights ◽  
Legal Norms ◽  
Political Processes ◽  
Regime Types ◽  
International Human ◽  
Human Rights Norms

The paper builds on a comparative treatment of the politics of contestation and incorporation of human rights law in the United States, Morocco and Tunisia to highlight the salience of international law's democratic legitimacy problems of popular representation and mobilization. The author shows that Morocco enjoyed the most sustained and broadest recent mobilisation of these cases in the domestic extension of international human rights norms. This finding suggests four conclusions. First, democratic legitimacy problems for international law are similar across more and less democratic regime types. Second, the democratic legitimacy problem allows states to use populist appeals to justify their internal deviations from international legal norms. Third, international human rights norms stand the best possibility of mitigating these legitimacy concerns and permeating domestic practice when they have a basis in a pattern of contestation that engages more than a narrow elite, and which might therefore be called quasidemocratic. Fourth, these points demonstrate the imperative of comparing the political processes for the domestic incorporation of international law across different spaces and regime types. 

Domestic Application of International Human Rights Norms and Universal Jurisdiction

2010 ◽  
Author(s):  
Ronald C. Slye
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal System ◽  
The United States ◽  
Universal Jurisdiction ◽  
International Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Human Rights Norms ◽  
Domestic Law

Domestic courts play an important role in the adjudication of international law, including international human rights law. The relationship between international and domestic law has often been characterized as a continuum between monism and dualism. In a monist system, international law is automatically a part of domestic law, and a conflict between the two is resolved in favor of international law. In a dualist system, domestic law is superior to international law within the domestic legal system, while international law is superior to domestic law within the international legal system. A conflict between domestic law and international law is thus not always resolved in the same way in both systems. In addition, one of the areas with the most active use of international law in a domestic legal system is under a theory of universal jurisdiction. Universal jurisdiction most often involves both the incorporation of international law into a domestic legal system and the assertion outward (extraterritorially) of domestic judicial system. Universal jurisdiction arose initially in the context of criminal prosecutions, but is also found to some extent in civil litigation, particularly in the United States. Under the principle of universal jurisdiction, a state may assert jurisdiction over an offender regardless of the nationality of the offender or victim, the place of commission of the wrongful act, or any other link to the state asserting jurisdiction.

Germany

2018 ◽  
Author(s):  
Valentin Aichele
Keyword(s):  
Human Rights ◽  
International Law ◽  
Direct Effect ◽  
Federal Courts ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
Public International Law ◽  
Monitoring Mechanism ◽  
International Human ◽  
Human Rights Norms

This chapter analyses the use and interpretation of the Convention on the Rights of Persons with Disabilities (CRPD) in sixty-nine decisions of German federal courts between 2009 and mid-2016. German courts’ failure to be proactive in demonstrating ‘friendliness towards public international law’ when dealing with international human rights norms has been criticised. The National CRPD Monitoring Mechanism addressed problems in the application of the law. This chapter investigates the courts’ understanding of basic CRPD concepts, judicial techniques, interpretation methods and specific CRPD provisions. The importance of the concepts of self-executing provisions and direct effect is discussed. In quantitative terms, German courts have referred to the CRPD more often than any other UN international human rights instrument. Furthermore, in qualitative terms, federal courts have become more receptive towards the CRPD. However, it is clear that much of the potential for courts to use the CRPD in the realisation of the rights of persons with disabilities remains untapped.

Democratic Sovereignty and Transnational Law

2017 ◽  
pp. 21-46
Author(s):  
Seyla Benhabib
Keyword(s):  
Human Rights ◽  
International Treaties ◽  
International Human Rights ◽  
Legal Norms ◽  
Global Constitutionalism ◽  
International Human ◽  
The One ◽  
Human Rights Norms ◽  
Zero Sum ◽  
The Cost

Critics of legal cosmopolitanism and global constitutionalism have often pointed to an alleged zero-sum conflict between democratic sovereignty and a particular class of international legal norms: those pertaining to human rights. It is undeniable that there exist tensions between the application of, and compliance with, human rights norms in domestic contexts, on the one hand, and international treaties and covenants, on the other. Benhabib develops a conceptual and empirical model for understanding these tensions not as a zero-sum game, but rather as a process of dialectical norm-enhancement and interpretation. Her thesis is that compliance with international human rights norms does not come at the cost of, but rather reinforces, democratic sovereignty.

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.

scholarly journals Reconciliation between the Islamic Human Rights and International Law: Prospects and Complications

2019 ◽  
Vol 6 (4) ◽  
pp. 609
Author(s):  
Siamak Karamzadeh ◽  
Massoud Alizadeh
Keyword(s):  
Human Rights ◽  
International Law ◽  
Islamic Law ◽  
International Human Rights Law ◽  
International Human Rights ◽  
Historical Aspect ◽  
Historical Fact ◽  
International Human ◽  
Human Rights Norms ◽  
The Relationship

The relationship between International Human Rights and Islamic Law has been always an arguable debate at the international level. This issue can be considered by jurists in two aspects. First, from National Law perspective, especially in the countries in which the law, to some extent is affected by Islamic rules. Second, by view of International Law to see that to what extent, there would be compatibility or likely contradiction between human rights norms and Islamic Law.Considering the historical aspect of the issue, this article is suggesting that although from the outset, International Law tried to separate religion from policy, but this historical fact would not prevent theoretical conciliation between religion and Human Rights rules. The review of the content of International Human Rights Law reveals that the rules in the systems in most part are compatible. However, in some cases the incompatibility between these two group pf rules is observed. The existence of different basis under Islamic Law and International Law makes the least difference unavoidable. The constant dialogue between Islamic scholars and publicists can decrease this difference in future.

Domestic Human Rights Adjudication in the Shadow of International Law: The Status of Human Rights Conventions in Israel

2017 ◽  
Vol 50 (3) ◽  
pp. 331-388 ◽  
Author(s):  
Barak Medina
Keyword(s):  
Human Rights ◽  
International Law ◽  
Democratic Legitimacy ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Quarter Century ◽  
Human Rights Treaties ◽  
International Human ◽  
The Government

The quarter-century anniversary of Israel's ratification of the major United Nations (UN) human rights treaties is an opportunity to revisit the formal and informal interaction between domestic and international Bills of Rights in Israel. This study reveals that the human rights conventions lack almost entirely a formal domestic legal status. The study identifies a minor shift in the scope of the Israeli Supreme Court's reference to international law, as the Court now cites international human rights law to justify decisions that a state action is unlawful, and not only to support findings that an action is valid. This shift may be the result of other reasons, for instance, a ‘radiation’ of the Court's relatively extensive use of international humanitarian law in reviewing state actions taken in the Occupied Territories. However, it may also reflect a perception of enhanced legitimacy of referring to international human rights law as a point of reference in human rights adjudication following ratification of the treaties.At the same time, the Court continues to avoid acknowledging incompatibility between domestic law and international law. It refers to the latter only to support its interpretation of Israeli constitutional law, as it did before the ratification. This article critically evaluates this practice. While international human rights law should not be binding at the domestic level, because of its lack of sufficient democratic legitimacy in Israel, it should serve as an essential benchmark. The Court may legitimise a human rights infringement that is unjustified according to international law, but such incompatibility requires an explicit justification. The Court, together with the legislature and the government, are required to engage critically with the non-binding norms set by the ratified UN human rights treaties.

Linking Self-Determination and Human Rights

2018 ◽  
Author(s):  
Will Kymlicka
Keyword(s):  
Human Rights ◽  
International Law ◽  
Self Determination ◽  
International Human Rights ◽  
International Human ◽  
Human Rights Norms ◽  
Special Responsibility ◽  
Second International

Peter Jones argues that human rights can address violations of the determination principle, but cannot address violations of the selfhood principle. In this commentary, it is argued that international human rights norms should address both violations, for two key reasons. First, these violations are continuous in their underlying ideologies and in their effects on those whose rights to self-determination are denied. Second, international law was itself complicit in creating both categories of violations, and so has a special responsibility to correct them.

The Machinery of International Law and Democratic Backsliding: The Problem of Term Limits

2020 ◽  
Vol 14 (1) ◽  
pp. 1-18
Author(s):  
Tom Ginsburg
Keyword(s):  
Human Rights ◽  
International Law ◽  
Term Limits ◽  
International Human Rights ◽  
Term Limit ◽  
International Courts ◽  
International Human ◽  
Human Rights Norms

AbstractOur era is one of democratic backsliding. International courts and institutions have provided some bulwark against this trend, but we are now witnessing leaders seeking to use international law to extend their power. Courts in several countries have relied on international human rights norms to facilitate term limit extensions by leaders seeking to retain power beyond what is constitutionally allowed. This Article documents these cases and calls for a more robust and substantive international law of democracy-protection.

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