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.

Human Rights: Effectiveness of International and Regional Mechanisms

2017 ◽  
Author(s):  
Par Engstrom
Keyword(s):  
Human Rights ◽  
Relative Effectiveness ◽  
International Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
United Nations System ◽  
The One ◽  
Human Rights Norms ◽  
Nations System

The issue of human rights presents a dilemma for the discipline of international relations (IR) in general and the literature on international institutions in particular. Since international human rights institutions are primarily, but not exclusively, concerned with how states treat their own citizens, they seek to empower individual citizens and groups vis-à-vis their own governments. A major concern is whether such institutions make a difference for the protection and promotion of human rights. This concern has spawned a series of research questions and some major lines of enquiry. The study of human rights regimes has developed at the interface between IR and international law, along with the norms and practices of global human rights institutions. In addition, human rights has been institutionalized globally through the United Nations system and the connections between the development over time of international human rights institutions on the one hand, and their relative effectiveness in shaping human rights behavior on the other. The development and impact of international human rights law and policy have also been influenced by regionalism. While the research on human rights regimes has provided important insights into the role of institutions in narrowing the gap between the rhetoric and practice of human rights, there are crucial areas that need further scholarly attention, such as the domestic actors and institutions that act and could potentially act as “compliance constituencies” and conduits of domestic implementation linking international human rights norms to domestic political and legal institutions and actors.

scholarly journals Human rights courts and global constitutionalism: Coordination through judicial dialogue

2020 ◽  
pp. 1-26
Author(s):  
WAYNE SANDHOLTZ
Keyword(s):  
Human Rights ◽  
Focal Point ◽  
Original Data ◽  
International Human Rights ◽  
Decentralized Coordination ◽  
International Courts ◽  
Global Constitutionalism ◽  
International Human ◽  
Human Rights Norms

Abstract International courts regularly cite each other, partly as a means of building legitimacy. This study aims to show that judicial dialogue among the regional human rights courts and the Human Rights Committee has an additional effect: it contributes to the construction of a rights-based global constitutionalism. Judicial dialogue among the human rights courts is purposeful because the courts see themselves as embedded in, and contributing to, a global human rights legal system. Cross-citation among the human rights courts advances the construction of rights-based global constitutionalism in that it provides a basic degree of coordination among the regional courts. The jurisprudence of the United Nations Human Rights Committee (HRC), as an authoritative interpreter of core international human rights norms, plays the role of a central focal point for the decentralized coordination of jurisprudence. Using original data, this study demonstrates the extent of citations among the regional human rights courts and from them to the HRC. The network of regional courts and the HRC is building an emergent institutional structure for global rights-based constitutionalism.

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. 

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.

Municipal Courts and the International Interpretive Principle: Al-Kateb v Godwin

2020 ◽  
Vol 43 (3) ◽  
Author(s):  
Michael Kirby
Keyword(s):  
Human Rights ◽  
Common Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Global Problems ◽  
The Common ◽  
International Human ◽  
Human Rights Norms ◽  
Constitutional Adjudication

This article examines the decision in Al-Kateb v Godwin (2004) 219 CLR 562. It revisits the suggested ‘heresy‘ that international human rights law may influence the interpretation of the Australian Constitution and other legal texts. Accessing universal human rights law, including in constitutional adjudication, was endorsed in the Bangalore Principles on the Domestic Application of International Human Rights Norms 1988. The author suggests that interpreting statutory language in this way is not dissimilar to the common-law principle of interpreting statutes so as to uphold basic rights. But should an analogous approach be permissible in deciding the meaning of constitutional language? Although arguably invoked by the majority of the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1, in the context of declaring the common-law, so far this approach has not been accepted for constitutional elaboration in Australia. But should this be so in the age of global problems and internationalism?

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