Human rights as international constitutional rights

European Journal of International Law

Volumn 19, Issue 4, 2008, Pages 749-768

  Gardbaum, Stephen ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 54949143961     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn042     Document Type: Article

References (38)

1. See, e.g., Helfer, 'Constitutional Analogies in the International Legal System ', 37 Loyola L Rev (2003) 193.
2. I do not intend to suggest in either case that this is the only function or, in the case of international human rights law, the only basic function.
3. Certain parts of the ICESCR (and CEDAW) are exceptional because they include more detailed and extensive social and economic rights than are found even in those domestic bills of rights which contain the greatest number of such rights.
4. On the difference between direct and indirect effect of constitutional rights on private actors, as well as the variety of types of indirect effect see Gardbaum, 'The "Horizontal" Effect of Constitutional Rights', 102 Michigan L Rev (2003) 387. In that both the ICCPR and the ICESCR contain an express general duty to enact legislative or other measures necessary to give practical effect to all protected rights, they impose more extensive positive duties than the typical domestic bills of rights.
5. Neuman, 'Human Rights and Constitutional Rights: Harmony and Dissonance', 55 Stanford L Rev (2003) 1863, at 1863-1864 ('[t]wo leading systems exist today for protecting the fundamental rights of individuals: Constitutional law and [international] human rights law').
6. I analyse these two examples and suggest that they present a new, alternative model of constitutionalism in Gardbaum, 'The New Commonwealth Model of Constitutionalism', 49 Am J Comp L (2001) 707.
7. Even if one accepts Jed Rubenfeld's distinction between 'democratic constitutionalism 'in the US and 'internationalist constitutionalism' in Europe, between self-government and the protection of one or more universal human rights, such as dignity, as the foundational normative basis of a constitution, this does not mean that European constitutions were not equally the products of a (democratic) constituent power. Thus, the Basic Law of Germany came into effect only upon ratification by two-thirds of the Länder, as required by Art. 144(1); not so very different from the US Constitution's requirement in Art. VII of ratification by 'the Conventions of nine [out of 13] States': See Rubenfeld, 'Unilateralism and Constitutionalism', 79 NYU L Rev (2004) 1971.
8. Art. 120 of the Netherlands constitution states: '[t]he constitutionality of Acts of parliament and treaties shall not be reviewed by the courts'.
9. See, e.g., the disagreement on this score between Peters, 'Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures', 19 Leiden J Int'l L (2006) 579, and Walter, 'Constitutionalizing (Inter)national Governance - Possibilities for and Limits to the Development of an International Constitutional Law', 44 German Y B Int'l L (2001) 170.
10. On the value of the enterprise see Weiler and Paulus, 'The Structure of Change in International Law or Is There a Hierarchy of Norms in International Law?', 8 EJIL (1997) 545.
11. Case 45036/98, Bosphorus Hava Yollari Turzim ve. Ticaret Anonim Sirketi v. Ireland, judgment of 30 June 2005, at para. 154.
12. Case 15318/89, Loizidou v. Turkey (preliminary objections), at para. 75.
13. Bosphorus, supra note 10, at para. 154.
14. See Neuman, supra note 4, at 1868-1869.
15. See ibid.;
16. see also Koskenniemi, 'The Pull of the Mainstream', 88 Michigan L Rev (1990) 1946.
17. See supra note 4.
18. Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 40.
19. ICCPR, Art. 51.
20. Vienna Convention, Arts 54, 56.
21. Almost as familiar is the fact that the seminal work here was done by Joseph Weiler: See, e.g., Weiler, 'The Transformation of Europe', 100 Yale LJ (1991) 2403.
22. ECHR, Art. 13.
23. Variations include incorporating the ECHR as having higher status than the constitution (Holland), equal status to the constitution (Austria), below the constitution but above statutes, equal status to statutes (Germany).
24. In the UK, s. 2 of the Human Rights Act requires British judges to 'take into account' ECtHR interpretations; in Germany, a similar duty was imposed on lower courts by the federal constitutional court. See Görgül-dsu v. Germany, 2 BVG (2004) 1481.
25. American Convention on Human Rights, Art. 2.
26. Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastigen [1963] ECR 1, at para. 12.
27. Bryde, 'International Democratic Constitutionalism', in R. St J. MacDonald and D.M. Johnston (eds), Towards World Constitutionalism (2005), at 106.
28. See Fassbender, 'The United Nations Charter as Constitution of the International Community', 36 Columbia J Transnat'l L (1998) 529.
29. Weiler, 'The Geology of International Law - Governance, Democracy and Legitimacy', 64 [s ZAÖ s]RV (2004) 547, at 558.
30. By the 'full panoply of human rights', I mean that no type or category of human right should be excluded. Clearly, given the variety and range of human rights, certain particular ones are not plausibly applicable or transferable to international organizations.
31. See Neuman, supra note 10, at 1863.
32. Thus, Art. 2 of the ICCPR states that '[e]ach State Party ... undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant ...'(emphasis added). By contrast, most other human rights treaties omit the reference to 'territory' and bind states to respect and secure rights to everyone 'within their jurisdiction', giving them a potentially broader territorial scope.
33. See generally Cerone, 'Jurisdiction and Power: The Intersection of Human Rights Law & the Law of Non-international Armed Con. ict in an Extraterritorial Context', 40 Israel L Rev (2007) 72.
34. The recent US Sup. Ct. decision in Boumediene v, Bush, judgment of 12 June 2008, not yet reported holding by 5 votes to 4 that, as an exception to the general principle, the Constitution protects aliens held at Guantánamo because of the US's de facto sovereignty over the base of course undermined the Administration's rationale - and also reduced the contrast between the US bill of rights and international human rights on this particular issue.
35. A striking example of this difference is that, applying the international human rights provisions of the ECHR as incorporated under the Human Rights Act, the UK's House of Lords declared the indefinite detention provisions of the Anti-Terrorism, Crime and Security Act of 2001 (which applied only to foreigners) to be unlawful discrimination against aliens living in the UK. By contrast, the US Supreme Court stated in 2003 that on the issue of preventive detention, the Constitution permits treatment of aliens living in the US that would not be permissible in the case of citizens: See A and others v. Secretary of State for Home Department [2004] UKHL 56;
36. Denmore v. Hyung Joon Kim, 538 US 510, at 522 (2003).
37. See, e.g., the ICCPR and American Convention.
38. The one exception to this would be where a domestic constitutional court had foreign members, as in Bosnia and Herzegovina. Under its constitution, 3 of the 9 members of the constitutional court are nominated by the President of the ECHR and cannot be citizens of the country.