Constitutionalization of International Instruments on Human Rights: Lessons from Kosova (original) (raw)
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1. Introduction. - 2. Short Overview of the Constitutional History of Kosovo. - 2.1. Developments Before June 10, 1999. - 2.2. Developments After June 10, 1999. - 3. Constitutional Law of Kosovo and Its Human Rights Law. - 3.1. Basic tenets of the Constitutional Law in Kosovo. - 3.2. Human Rights Law Standards in Kosovo. - 4. The Enforcement of International Recognized Human Rights Standards by a Constitutional Court. 4.1. Bills of Rights as a Source of Judicial Activism. - 4.2. The Role and Jurisdiction of the Constitutional Court. - 5. Conclusion.
Chicago-Kent} Law Review, 2004
It is well known that States and insurgents are "traditional" subjects of the international community, in the sense that they have been the dramatis personae on the international scene from the beginning. Recently, especially after the Second World War, other poles of interest and activity have gained international status: international organizations; "peoples" finding themselves in certain conditions and being endowed with a representative structure (i.e. liberation movements); and individuals. The emergence of these "new" subjects is a distinct feature of modem international law. d 3. The key shift in focus came after World War II, when international law began to concentrate on states' treatment of their own citizens; that is, international law began to focus on human rights, an area that was previously thought to lie exclusively within the realm of internal, domestic law. Peter E.
Poland: Human rights between international and constitutional law
Judicial Perspectives, 2017
Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. CONTENTS List of contributors page ix Table of cases xiii Foreword by Dean Spielmann xxv 1 Introduction 1 lULIA MOTOC 2 Comments on the early years and conclusions 6 LUZIUS WILDHABER 3 ' Albania: Albania's long path towards European human rights standards 13 ' LEDI BIANKU 4 Armenia: The supremacy of the European Convention on Human Rights: Armenia's path 39 ALVINA GYULUMYAN AND DAVIT MELKONYAN 5 Azerbaijan: The directions of influence of the case law of the European Court of Human Rights in Azerbaijan 57 KHANLAR HAJIYEV 6 Bosnia and Herzegovina: Impact of the case law of the European Court of Human Rights on postconflict society ofBosnia and Herzegovina 80 PARIS VEHABOVié 7 Croatia: Commitment to reform: Assessing the impact of the ECtHR*s case law on reinforcing democratization efforts in Croatian legal order 110 KSENIJA TURKOVié AND JASNA OMEJEC VI CONTENTS 8 Czech Republic: Democratic tradition, legitimacy of confiscation, and translation of the case law of the ECtHR in the light of the Convention in the Czech Republic 136 ALE § PEJCHAL 9 Estonia: Impact of the European Court of Human Rights' (case law) on democracy and rule of law: Some reflections from Estonian perspective 153 JULIA LAFPRANQUE 10 Hungary: The legal order of Hungary and the European Convention on Human Rights 11^ KÂR0LY BARD 11 Latvia: Consolidating democratic changes in Latvia: The various roles of the European Convention on Human Rights 201 MÀRTIIvlâ MITS 12 Lithuania: The Em-opean Convention on Human Rights in the Lithuanian legal system: The lessons learned and perspectives for the future 234 DANUTÉ lOèlENÊ 13 Macedonia: The impact of the European Convention on Human Rights and the case law on the Republic of Macedonia 266 MIRTANA LAZAROVA TRAJKOVSKA AND ILO TRAJKOVSKI 14 Montenegro: The effect of the European Convention on Human Rights on the legal system of Montenegro 289 NEBOJSA B. VUélNlé 15 Poland: Human rights between international and constitutional law 305 LECH GARLICKI AND IRENEUSZ KONDAK 16 Romania: Romania and the European Convention on Human Rights: A dialogue of judges 330 lULIA MOTOC AND CRINA KAUFMAN CONTENTS
2013
stm. 6 European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 13. 7 Z and Others v. the United Kingdom, 29392/95 at ¶ 6975. Kingdom's own domestic law-the children would have had no legal remedy. This case serves to illustrate well the consequences of the ever-increasing application of international law, and specifically human rights law, to domestic constitutional and statutory law. National constitutions have always addressed aspects of foreign affairs and international law, if by no other means than by delegating to a particular governmental branch the power to conclude international treaties. 8 The last century, however, has seen a growing influence of international law on domestic law; one prominent manifestation of this has been the "wave of introducing references to international law in national constitutions," particularly human rights. 9 Refinement of constitutional provisions to reflect international law has made viewing international law and "municipal law as almost wholly separate. .. inappropriate in our era." 10 The traditional interplay between domestic and international law was such that "national constitutional principles [were]. .. exported to the international level." 11 The national principle of democracy was slowly transferred to the international scene, transformed, and developed into the now well-established international notion of self-determination. 12 Yet now the transpositions are exactly opposite-from the international level to the national level. This clear evolution of the interaction between international and domestic constitutional law has its origins in the two world wars. After all, "every devastating war [has given] rise to hopes, that due compliance with international law, both domestically and internationally, could serve as a guarantee against the repetition of the scourge of war." 13 The horrors of World War I 8
International Human Rights Law before Constitutional Court of the Slovak Republic
The aim of the paper is to provide to qualitative analysis of the use of international human rights instruments in the jurisprudence of the Constitutional Court of the Slovak Republic. The matter of analysis are cases decided in abstract review of constitutionality. The paper shows how the Constitutional Court interpreted international instruments, how it applied them and how the status of the international human rights instruments changed in the jurisprudence of the Constitutional Court.
Mediterranean Journal of Social Sciences, 2015
This paper centers its discussion on human rights issues addressed by the European Convention of Human Rights (ECHR) and its court of Human Rights (ECtHR). The focus is on the relationship between the European Convention/European Court of Human Rights and the Constitutional Court of Kosovo. The parameters measuring this relationship mainly will be tested against the effects of the judgments of the ECtHR and the decisions of the Constitutional Court of Kosovo within the legal system of Kosovo. The paper sheds light on Kosovo's constitutional order system with regards to basic human rights as enshrined in ECHR. As such, in an attempt to emphasize the effect and relationship between the ECHR/ECtHR, are also outlined the challenges of the Kosovo Constitutional justice in its work as the defender of basic human rights and freedoms. Ultimately, it is pointed out that the legal system of Kosovo is decisive to adhering to the principles proclaimed in "Bill of Rights", ECHR, and the jurisprudence of ECtHR.
Human Rights and the Constitutionalization of International Law
Tibor Várady and Miodrag Jovanović (eds.), Human Rights in the 21st Century (Eleven International Publishing), 2020
The paper discusses the current status of human rights through the lens of the constitutionalisation of international law. What do we mean by ‘constitutionalisation’? The word designates the developing constitutionalist functions of the international legal order. In this respect, two fairly distinguishable aspects of the possible constitutionalisation of international law may be observed. First, we may discuss constitutionalist functions with respect to the governmental power. The function of constitutionalisation is to a) organise and b) limit the governmental power. Secondly, we may discuss constitutionalist functions with respect to law. In this sense, constitutionalisation has to do with the a) hierarchisation and b) systematisation of the legal order. The Universal Declaration of Human Rights was a stepping stone in the process of constitutionalising the international legal order in terms of limiting the global governance (insofar as there is no such a thing as ‘global government’) and hierarchising international law. This process was further supported by the adoption of the core United Nations (UN) and regional human rights instruments. Human rights have become universally applicable yardsticks for the constitutionalist function of constraining and checking the global exercise of power (labelled by Peters as ‘constitutionalism 2.0’). For example, with respect to the World Trade Organisation (WTO), constitutionalisation implies focusing on the need for the WTO regime to integrate non-trade concerns, including the protection of human rights. Even more paradigmatically, the European Commission’s Court of First Instance concluded in the famous Kadi case that it had jurisdiction to review indirectly the lawfulness of the resolutions of the UN Security Council on targeted sanctions on individuals suspected of terrorism in the light of jus cogens norms, “in particular the mandatory prescriptions concerning the universal protection of the rights of the human person”. Accordingly, some human rights are largely identified as hierarchically higher norms of international law from which no derogation is permitted. This paper seeks to elucidate the effects of the observed processes of constitutionalisation on the body of human rights law, by addressing the following questions: Does the jus cogens doctrine introduce a distinction between some human rights, thereby challenging one of the principles of international human rights law – that all rights in the Universal Declaration are regarded as equally important? In other words, are some human rights now regarded more fundamental than the others? Is (should) this status (be) reserved for the class of ‘non-derogable’, i.e. ‘absolute’ human rights? If so, what specific rights are considered as ‘absolute’? Another important question is whether the mechanism that allows for human rights control by international organisations, apart from States, leads to the meaningful constitutionalisation of international law? If this is the case, is it possible to reconcile universal and regional regimes of human rights protection, the respective practices of which may lead in different directions? Ultimately, can the implementation of a constitutionalist perspective be detrimental for strengthening and further development of international human rights law?
Guaranteeing and Protection of Human Rights and Fundamental Freedoms in Kosovo
Abstract: Human Rights describes a concept, which it belongs to all people from the birth. On 10 December 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. Following this historic act, the Assembly called upon all Member countries to publicize the text of the Declaration and to try to spread it, to be presented, read and explained, especially in schools and other educational institutions in all countries and states without considering their political status. The General Assembly declared this statement as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, always given this Statement, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure recognition and enforcement of their universal and true, both among the peoples of Member States themselves and among the peoples of territories under their administration. This statement highlights the universality, the character indivisible and inalienable rights and freedoms, international standards of human rights; international law of human rights; ancestral rights; institutions and procedures for the development and protection of human rights.