IACL World Congress, Mexico
Workshop 15: The impact of international law on constitutional principles
This workshop will examine the trend toward the increasing incorporation of rules and principles of international law into domestic constitutions. The trend is most pronounced in the field of human rights and international humanitarian law, though the workshop certainly welcomes studies in other areas of international law as well. We will construe the workshop topic rather broadly, and will welcome the full range of studies: those with a specific country focus, those with a comparative or regional focus, those with a doctrinal focus (e.g., the presumption of innocence vis-à-vis emerging international standards of evidence in sexual offenses, or vis-à-vis command responsibility of officers), or those with larger themes (the relation between international and domestic standards of human rights, or between rules embodied by international law and democratic processes embodied in constitutions).
For instance, international conventions have elaborated the definition of specific human rights, and these definitions have either broadened or constricted the domestic definitions. On one hand, international law has fully elaborated the norm of equality and nondiscrimination in ways that can inform domestic constitutions more tightly drafted in the context of a country’s ethnic, racial, linguistic or religious composition. On the other hand, the freedom of speech is typically protected in domestic constitutions, yet international law has also allowed their derogation in, for instance, cases of hate speech.
In addition, the rise of international criminal tribunals starting from the early 1990s – the Yugoslavia, Rwanda, Cambodia, East Timor, Sierra Leone, and most recently, the International Criminal Court – has produced a body of rules (e.g., the Yugoslavia tribunal’s rulings on genocide and hate speech) and institutional arrangements (and mixed or hybrid tribunal to punish the Khmer Rouge in Cambodia) that either foster or deter the incorporation of international standards into domestic constitutions. Furthermore, the ICC’s jurisdiction is merely “complementary” to national jurisdictions which have the first shot at prosecuting the accused. These developments give us an opportunity to ask how to judge these different enforcement regimes: whether to construe the domestic incorporation of global rules as the triumph of the “rule of law”, or the primacy of national constitutions as the reign of democratic majorities.
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