The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body

The debate about the simultaneous applicability of international humanitarian law and human rights law also affects human rights treaty bodies. The article first considers the difficulty for a human rights body in determining whether international humanitarian law is applicable; second, it examines the problems in practice in applying the lex specialis doctrine and the question of derogation in this particular context. The author finally outlines the impact of the debate as to the extent of extraterritorial applicability of human rights law

Constitutional law and international law at the turn of the century

Constitutional law and international law operate in simultaneous conjunction and reciprocal tension. Both fields seem to have overcome the great challenges of destruction and neglect in the course of the 20th century. Both after World War I and World War II the world experienced new waves of constitution making. In both cases the current German constitutions (the Weimar Constitution of 1919 and the Grundgesetz of 1949) were influential. Characteristic of constitution-making in this century, is the final victory of liberal constitutions based on the rule of law, the Rechtsstaat, fundamental rights, meaningful control of public powers and the establishment of constitutional courts. Following the destruction of World War II, the notion of the Sozialstaat emerged strongly in Germany. In contrast to the Constitution of the United States of America, the principle of the responsibility of the state for social justice has emerged in almost all new constitutions, including Russia, Poland, South Africa, Spain, Italy and Portugal. Where courts are given the mandate to interpret bills of rights, fundamental rights have been developed into foundation stones of the legal system. The presence in a Bill of Rights of restrictive clauses, is important for its analysis. Generally restrictive clauses in new constitutions try to limit the possibilities of restriction. The importance of constitutional rules establishing and legitimizing the political organs, must not be overlooked. Of particular importance is the degree of control over the head of state, a positive attitude among political actors towards the constitution and the protection of the interests of minorities in a democratic system. In the field of Public International Law much of Kant's ideal of an international confederation of peace has been realized. Since 1990 the United Nation's Security Council has shown the potential of becoming a directorate for the community of nations. International law has also been instrumental in the worldwide recognition of human rights. Especially in Europe, Convention Law has had a strong impact. Furthermore, global and regional systems of regulation have tended to alter the legal attitude towards state sovereignty. It may be that the South African constitutional approach in terms of which international law is subject to constitutional and other national law, is not in line with international tendencies

The European Community and the Requirement of a Republican Form of Government

The European Community - that is, the factual entity composed of three legally separate communities which has been and still is one of the basic concerns of Eric Stein - cannot be understood without taking into account European history after 1933. As an irony of history, the stage for a new beginning was set by the man who destroyed the old Europe and who was the reason that so many academics left the old country for the new world. This new start was not only influenced by the determination of those Europeans who had lived through the darkness to overcome the dangers of rivalry but also by those European-Americans who were able to build the bridges between the old country of liberty and a Europe trying to find new structures. The role played by lawyers, historians and social scientists familiar with both the old world and the emerging new Europe is a story that remains to be written for the benefit of younger generations

European Integration Through Fundamental Rights

The conception of fundamental rights as natural rights of human beings developed in European legal thinking mainly in the seventeenth and eighteenth centuries. John Locke, Jean-Jacques Rousseau, and also Immanuel Kant should be mentioned. But it was in the new world that the principles of fundamental human rights were first put into practice. A little more than ten years after the first American declarations, the Declaration des droits de l\u27homme et du citoyen was adopted in Paris; it remains part of French constitutional law today. But, unlike the development in the United States, the French guarantees could not be enforced by judges. The legislature was seen as the last arbiter of whether or not a specific regulation could be accepted as compatible with the bill of rights. As soon as the legislature had adopted a law, that law could not be challenged. In 1958 a very limited challenge became possible, through the Conseil Constitutionnel, but only before the formal promulgation of the law

La promoción y aplicación del derecho internacional por conducto de los tribunales nacionales.

En Setiembre de 1993, el prestigioso Instituto de Derecho Internacional adoptó una resolución señalando el rol de las jurisdicciones nacionales en la aplicación del derecho internacional, en la cual rechazaba la practica según la cual esas jurisdicciones están influidas por la posición del poder ejecutivo cuando ellas se pronuncian sobre cuestiones de derecho internacional. El derecho internacional depende esencialmente de su aplicación y de su respecto por las cortes y los tribunales nacionales. La dependencia del derecho interno al derecho internacional es más evidente en 1995 que en 1905. En un mundo que ha devenido interdependiente y fundado sobre valores y principios comunes, los sistemas jurídicos nacionales no son tan perfectos que permitirían que el derecho interno fuerce a los órganos estatales a actuar en violación del derecho internacional. Hoy, las jurisdicciones de numerosos países han aceptado el principio de interpretación según el cual, una ley posterior a un tratado deberá ser interpretada en conformidad con el tratado

Constitutional law and international law at the turn of the century

Constitutional law and international law operate in simultaneous conjunction and reciprocal tension. Both fields seem to have overcome the great challenges of destruction and neglect in the course of the 20th century.  Both after World War I and World War II the world experienced new waves of constitution making. In both cases the current German constitutions (the Weimar Constitution of 1919 and the Grundgesetz of 1949) were influential.  Characteristic of constitution-making in this century, is the final victory of liberal constitutions based on the rule of law, the Rechtsstaat, fundamental rights, meaningful control of public powers and the establishment of constitutional courts.  Following the destruction of World War II, the notion of the Sozialstaat emerged strongly in Germany. In contrast to the Constitution of the United States of America, the principle of the responsibility of the state for social justice has emerged in almost all new constitutions, including Russia, Poland, South Africa, Spain, Italy and Portugal.  Where courts are given the mandate to interpret bills of rights, fundamental rights have been developed into foundation stones of the legal system. The presence in a Bill of Rights of restrictive clauses, is important for its analysis. Generally restrictive clauses in new constitutions try to limit the possibilities of restriction.  The importance of constitutional rules establishing and legitimizing the political organs, must not be overlooked. Of particular importance is the degree of control over the head of state, a positive attitude among political actors towards the constitution and the protection of the interests of minorities in a democratic system.  In the field of Public International Law much of Kant's ideal of an international confederation of peace has been realized. Since 1990 the United Nation's Security Council has shown the potential of becoming a directorate for the community of nations.  International law has also been instrumental in the worldwide recognition of human rights. Especially in Europe, Convention Law has had a strong impact. Furthermore, global and regional systems of regulation have tended to alter the legal attitude towards state sovereignty. It may be that the South African constitutional approach in terms of which international law is subject to constitutional and other national law, is not in line with international tendencies.   &nbsp