Academic journal article
By Neuman, Gerald L.
Stanford Law Review , Vol. 55, No. 5
INTRODUCTION I. DUAL POSITIVIZATION AND THE PRODUCTION OF DISSONANCE A. Three Aspects of Fundamental Rights 1. The consensual, suprapositive, and institutional aspects 2. Overlaps and divergence among the three aspects B. Potential Dissonance Between the International and Constitutional Regimes 1. Divergence within aspects 2. Conflicts across aspects II. METHODS FOR REDUCING DISSONANCE A. International Accommodations to National Constitutional Rights 1. Interpretation 2. Savings clauses 3. Reservations B. National Constitutional Accommodations to International Human Rights 1. Giving constitutional status to human rights treaties 2. Mandatory interpretive direction 3. Voluntary consideration CONCLUSION
Two leading systems exist today for protecting the fundamental rights of individuals: constitutional law and human rights law. Both systems assert an ultimate authority to evaluate whether governmental practices comply with fundamental rights, and each system sits potentially in judgment over the other.
For liberal states that actively enforce constitutional norms, the relationship between these two systems assumes increasing importance. Some U.S. observers--and judges--insist that constitutional law should maintain its distance from the international human rights regime. (1) Other observers subsume this relationship in a more generalized account of transnational legal communication. (2)
In this Article, I pursue a third alternative, focusing specifically on the institutional consequences of embodying the human rights ideology in two parallel regimes of positive law. In elaborating the content of fundamental rights, national courts of liberal states and international tribunals proceed from multiple interpretive influences. I propose a framework for categorizing these positive and normative factors, and examining their interaction across the national and international levels. This examination reveals sources of convergence, but also sources of dissonance between constitutional rights and human rights. The framework also assists in the evaluation of methods employed at either the national or the international level to reduce such dissonance.
Part I elaborates the framework. It first describes three aspects of fundamental rights, the consensual, suprapositive, and institutional aspects, and their possibly conflicting influences on interpretation of fundamental rights at either the constitutional level or the international level. It then shows how these three aspects may also interact across levels, and produce different kinds of divergences or conflicts between international human rights and national constitutional rights. Some of these divergences reflect the central purpose of the international human rights system--to prompt reform of national practices--but others may result from the dual positivization of fundamental rights. Part II examines methods employed by the international human rights regime and by various constitutional regimes to prevent or reduce dissonance between them. Ultimately, the benefits of accommodation between the systems will vary depending on the characteristics of the particular state and the particular human rights treaty. Some types of divergence appear unavoidable, or even desirable.
I. DUAL POSITIVIZATION AND THE PRODUCTION OF DISSONANCE
In this Part, I will distinguish three important features shared by both national constitutional rights and internationally protected human rights: consent, suprapositivity, and institutional context. Their coexistence at the national constitutional level should be familiar to U.S. readers, but identifying them within each system makes it possible to keep track of their parallel operation and especially their interaction across the two levels.
Before introducing these three aspects of rights, it would be useful to clarify some terminology. …