Church–State Relations in Ukraine

Is international human rights law being challenged by national law? Are common standards and principles set out in international human rights instruments being denied by national legal systems and less likely respected within national jurisdictions? Have the individuals' civil liberties and fundamental rights been deprived and arbitrarily violated in the name of the protection of 'public interests' and national security? International human rights law allows suspending of and derogating from some human rights in times of public emergency which are clearly stated by national laws. State parties to international human rights conventions sometimes, however, use their rights to suspension of and derogation from their binding obligations in order to breach the individuals' civil liberties and fundamental rights. This paper's overall aim is to touch upon the protection of the individual's civil liberties and fundamental rights in international law and national laws in the age of terrorism. Given recent developments of the legislations on anti-terrorism in the US and the UK, the paper raises a concern of the infringements and denials of international and regional human rights law within national legal systems in the name of the so-called 'the war on terror' and 'national security'.

As is well known, different countries may have a different attitude toward the formal rank of international human rights law in domestic legal order. In those countries that qualify the ratified international human rights law merely as statute, the formal rank of international human rights law is often used as an argument against the binding force of international human rights law on domestic constitutional law. Through a comparative analysis between Germany and Taiwan, though, this paper shows that, despite similar determinations on the formal rank of international (human rights) law, the German and the Taiwanese Constitutional Courts have developed quite different views on the normative significance of international human rights law to their domestic constitutional orders. The different constitutional practices in Germany and Taiwan thus not only reflect Taiwan’s unique international status, but also indicate that the formal rank of international human rights law does not have much to do with its normative binding force on domestic constitutional law. Those who use formal rank as an argument against the binding force of international human rights law on constitutional law presuppose the absolute dichotomy of international and domestic law and thereby overlook the potential compatibility between international human rights law and constitutional law. From a human rights perspective, I argue that international human rights law should not be regarded as an “external” law, but rather as a framework order which delegates domestic constitutional orders to concretize international human rights law according to their own needs or interests so as to fulfill their international task of human rights protection on national level. Viewed this way, the determination on the formal rank of international human rights law in domestic legal order matters only because it has to do with the determination of a certain constitutional order on the way in which it concretizes international human rights law.

The nature of the relationship between international humanitarian law and international human rights law remains a vexed one. In recent years, human rights lawyers and activists have sought to apply human rights norms to military conduct in international and internal conflicts, and during belligerent occupations. With varying degrees of success, complainants have brought their cases before international tribunals, and to national courts able to apply international human rights standards. This development has occurred largely because forums exist to hear human rights claims, whereas they do not for persons claiming individual redress for violations of international humanitarian law. However, human rights norms have also been seen as more restrictive: as placing greater constraints on States' freedom to conduct hostilities, preventively detain, and administer occupied territories. It is for this reason that some States have resisted attempts to extend the reach of international human rights law into areas traditionally seen as governed by international humanitarian law. This chapter argues that principles have now developed to govern the relationship between the two bodies of law. However, their application to different situations remains a work-in-progress and controversies remain. In particular, despite valient efforts, it remains unclear what what happens in situations where the two bodies of law cannot be read together? There are only few rules of norm-conflict resolution in international law, all of which have limited application in the context of the relationship between international humanitarian law and human rights law. Most inconsistencies between the rules of the two bodies of law are not true conflicts at all, as they do not require States to conduct themselves in different ways. It is simply that international humanitarian law is the more permissive system. In such situations, to argue that the two bodies of law are ‘complementary and mutually reinforcing’ is to do little more than issue a policy prescription. In reality, in such cases States have to make a choice as regards which rules they wish to comply (a choice which is likely to be a political one) and take the consequences. There are fundamental incompatibilities between international humanitarian law and human rights law, not only as regards discrete rules but in their theoretical bases. Attempts can be made to reconcile them, to avoid conflicts, but they can only be provisional and on a case-by-case basis. The legal tools available cannot always provide an answer. Absent legislation, conflicts will remain. And in a world of States with differing interests and values, the adoption of new rules governing armed conflict and belligerent occupation will be difficult, if not impossible. One difference between the two bodies of rules, in particular, remains fundamental. Despite developments over past decades which are said to indicate a ‘humanization of humanitarian law’, international humanitarian law, in contrast to human rights law, is not based on an individual rights paradigm. It is this difference, even excluding the differences in the substantive protections accorded individuals under the two bodies of law, which will ensure that individuals continue to bring complaints regarding their treatment in situations of armed conflict before human rights bodies. And even if human rights bodies take the view that States’ human rights obligations in situations of armed conflict are to be interpreted using the yardstick of international humanitarian law, their interpretations of humanitarian law are likely to differ from lawyers advising States’ defence ministries and armed forces, who are likely to continue to be unhappy with such trespasses into what they see as their chasse gardee.

Economic Sanctions Against Human Rights Violations

This article was presented at the workshop on “Borders and Human Rights,” College of Law & Business, Ramat Gan, Israel.Notions of human rights as enshrined in international law have become the “idea of our time”; a “dominant moral narrative by which world politics” is organized; and a powerful “discourse of public persuasion.”Tony Evans, International Human Rights Law as Power/Knowledge, 27 (3) HUM. RTS. Q. 1046 (2005); Meg McLagan, Human Rights, Testimony, and Transnational Publicity, 2 (1) SCHOLAR & FEMINIST ONLINE 1 (2003), available at http://www.barnard.edu/ps/printmmc.htm; Wendy S. Hesford, Human Rights Rhetoric of Recognition, 41 (3) RHETORIC SOC. Q. 282 (2011). With the rise of human rights discourse, we need to ask, how do protagonists make human rights claims? What sort of resources, techniques, and strategies do they use in order to publicize information about human rights abuses and stipulations set out in international law? With the democratization of mapping practices, various individuals, organizations, and governments are increasingly using maps in order to put forth certain social and political claims. This article draws on the sociology of knowledge, science studies, critical cartography, cultural studies, and anthropological studies of law in order to analyze how various international, Palestinian, and Israeli organizations design maps of the West Bank Barrier in accord with assumptions embedded within international law as part of their political and new media activism. Qualitative sociological methods, such as in-depth interviewing, ethnography, and the collection of cartographic material pertaining to the West Bank Barrier, provide the empirical tools to do so. The maps examined here exemplify how universalistic notions of international law and human rights become a powerful rhetorical tool to make various and often incommensurable social and political claims across different maps. At the same time, international human rights law, rather than dictating local mapping practices, becomes inevitably “vernacularized” and combined with local understandings, cultural preferences, and political concerns.

Regional human rights courts like the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of Human and People's Rights (ACtHPR) have become popular sites of mobilization for victims and activists who seek justice when justice fails at home. Besides being platforms for individual remedy, human rights courts increasingly shape social norms and state policy within countries, making them attractive avenues for rights advocates to develop new norms or to push domestic authorities to reform legislation. The judges of these courts can decide, for example, whether same-sex couples have a right to be married, if prisoners have the right to vote or receive HIV/AIDS treatment, or when a state can deport illegal immigrants to a country where they will likely be tortured. As these courts pass their judgments, they often find themselves in conflict with states that are violating human rights of marginalized groups on a large scale and are unwilling to implement international rulings. Although international human rights courts have become increasingly popular venues among victims and activists who seek justice when justice fails at home, we are only beginning to understand how activists play roles in shaping the development of regional human rights courts' case law—the body of judgments that shapes how judges will make their decisions in the future. We now have plenty of international relations and international legal research on the interactions between states and international courts: how judges in these courts wrestle between deferring to the interests of member state governments whose actions are on trial and sticking closely to the conventions' fundamental yet evolving principles (Alter et al., 2019; Helfer & Voeten, 2014). As some states begin to resist international courts' authority, scholars have begun to examine the dynamics of this backlash (Hillebrecht, 2022; Madsen et al., 2018; Sandholtz et al., 2018). Recent studies have also demonstrated that human rights advocates—whether NGOs or individual lawyers—have a significant impact on shaping the jurisprudence of international courts and the impact judgments have in concrete locations (Kahraman, 2018; Sundstrom, 2014; van der Vet, 2012; Kurban, 2020; Conant, 2018; Harms, 2021; Cichowski, 2016; Hodson, 2011; Haddad, 2018). Meanwhile, these advocates themselves have been subject to repression and stigmatization by governments as part of the backlash phenomenon. Without an adequate understanding of the factors shaping activists' engagement with international courts, we risk undervaluing their strategic impact on the expansion of case law, the human rights protection of marginalized groups who cannot find remedies at home, and the domestic implementation of these judgments in an age of state backlash. In this section, we summarize the three papers contained in this symposium and their original contributions to these themes. Over the last decade, dozens of countries have erected legal barriers or started vilifying campaigns to stymie the work of NGOs (Buyse, 2018; Chaudhry, 2022). One tactic in this toolkit is the enactment of burdensome regulation on NGOs that receive funds from foreign donors as they allegedly promote foreign agendas (Christensen & Weinstein, 2013; Dupuy et al., 2021). States that frequently abuse human rights are especially prone to target NGOs that engage in strategic litigation (Hillebrecht, 2019). Most NGOs depend on foreign funding, and NGOs that litigate international cases fall disproportionately in this category, but do funders affect the selection of cases? In “Foreign Agents or Agents of Justice? Private Foundations, NGO Backlash, and International Human Rights Litigation,” Heidi Haddad and Lisa Sundstrom examine the extent to which Western donors, particularly private foundations, have encouraged NGOs in Europe to litigate at the ECtHR as a human rights advocacy strategy. They examine overall patterns of donor funding and NGO litigation records, and look in more detail at the case of Russian NGOs' foreign funding and litigation records. The analysis is extremely timely, as the Russian government's criminalization of independent civil society actors, especially in the human rights field, and their accusation that foreign funding turns NGOs into “foreign agents” have been crucial elements of the Russian regime's autocratization. This claim has also provided fuel for Russia's disenchantment with the ECtHR in recent years, contributing to the assessment of many observers that Russia's full-scale attack on Ukraine was the last straw in an inevitable collision course leading to its exit from the Council of Europe. Haddad and Sundstrom debunk the idea that foreign donors are pushing NGOs toward strategies of human rights litigation. Instead, they argue, there is more evidence that NGOs themselves promoted the mechanism of international litigation as a strategy that donors later adopted. This article is a poignant reminder of the advocacy tools that Russian human rights activists and citizens have lost as a result of their government's departure from the Council of Europe, including ECtHR jurisdiction. Yet it also provides insight into the likely roles of foreign donors in other country cases where NGOs are using international court litigation as a human rights advocacy strategy, which is often a target of the ire of national governments, as explored in the next article in the symposium. When states attack human rights NGOs within their borders and/or international human rights courts themselves, how does this affect the willingness of those NGOs to take cases to international courts, and the ways in which they do so? De Silva and Plagis ask this question in their article about state backlash against NGOs in the case of Tanzania and the African Court on Human and Peoples' Rights. A fascinating empirical question they pose is: does state backlash against NGOs increase NGO litigation at international courts (to contest state repression at those courts and use international mechanisms when domestic ones are not available), roughly in line with Keck and Sikkink's famous “boomerang pattern” (Keck & Sikkink, 1998), or decrease it due to heightened fear and restricted NGO capabilities that state repression creates? Employing a process-tracing analysis of NGOs' involvement in three cases before the African Court at different stages of the Tanzanian government's backlash against the Court, De Silva and Plagis find that “two-level backlash” by states can result in both phenomena, either promoting or deterring NGO legal mobilization at international human rights courts, depending on certain conditions. The three selected cases concerning the death penalty, the rights of persons with albinism, and the rights of pregnant schoolgirls and mothers, which took place at different time periods, demonstrate a number of patterns of state backlash interacting with NGO strategies. The authors find that domestic-level state backlash deterred domestic NGOs from partnering with international NGOs in litigation, but that such backlash, when it repressed domestic political and legal mobilization opportunities, actually encouraged both Tanzanian and international NGOs to turn to the African Court more frequently to seek remedies. International-level backlash in turn only deterred NGOs from international litigation when such backlash consisted of state efforts to restrict NGOs' ability to engage in litigation, and not when the international backlash was in the form of routine noncompliance with African Court rulings. Importantly, the authors find that NGO responses to state backlash were significantly shaped by their degree of legal consciousness and expertise with the rules, proceedings, and workings of the African Court. Those NGOs with less knowledge and experience were more likely to back away from engaging with the Court under the pressure of state backlash. De Silva and Plagis conclude that “NGOs' persistent human rights advocacy in the face of state backlash is a double-edged sword,” in the sense that they may not be deterred by state backlash initially, but there is a danger that their continued determination to engage in international litigation could prompt governments to engage in even more severe forms of backlash, with critical impacts on international courts and already vulnerable human rights defenders. Rights advocates have a growing menu of institutions and courts available to them. How do activists choose at which institution to lodge their cases in a world where legal remedies have diversified, or as some have argued, fragmented (Koskenniemi & Leino, 2002)? In “What Makes an International Institution Work for Labor Activists? Shaping International Law through Strategic Litigation,” Filiz Kahraman goes beyond the tendency of legal mobilization studies to only examine how activists interact with a single court or institution. Instead, Kahraman opens up how rights advocates imagine which institution is most receptive to their claims. Drawing on a comparative interview study of British and Turkish trade union activists and their legal mobilization campaigns at international courts and quasi-judicial institutions like the International Labor Organization (ILO), Kahraman examines how activists first probe and then strategically identify which court or international institution is most susceptible to their primary goals of influencing structural reforms and setting new norms. Through this probing process—or dynamic signaling game between courts and litigants—activists push a court's jurisprudence and case law into new issue areas. For instance, at the ECtHR, Turkish trade unionists challenged domestic courts' ruling that public sector workers did not have the right to establish unions, even though the ECtHR had no established case law on labor rights in 1990s. They won the case, with the ECtHR finding that Turkey violated the right of public sector workers to unionize. These cases not only had an impact within Turkey, but over the next decades, similar cases brought by British unionists would spin off the early precedent set by the Turkish legal mobilization efforts. Kahraman argues that they ultimately pushed the ECtHR to recognize the basic trade union rights as fundamental human rights. Kahraman sheds light on the often hidden strategies behind international litigation. Activists litigate not just for the immediate impact on the current case they work on, but how they envision that all the cases they work on may shape norms and domestic structural reforms further in the future. Whether an institution is perceptive of claims lies in the eye of the beholder. Kahraman finds that besides targeting institutions with high compliance rates, they also take cases to institutions with low rates of compliance, especially “if these institutions have extensive judicial authority to create new international norms.” So, it is not the de jure protection set by an international courts, but rather how activists perceive the juridical responsiveness and judicial authority of courts—or, how judges adopt either an activist approach or restraint in response to incoming cases and how willing states are to implement cases of a court, respectively—that determines why activists select certain courts or quasi-judicial institutions (like the ILO). Kahraman gives us new tools to interpret how activists perceive authority and receptiveness and respond to opportunities. Rather than static external legal remedies, courts and quasi-judicial institutions are opportunity structures that are malleable to the strategic vision of the activist or litigant. The articles in this symposium together reveal a number of key overlapping insights. At the broadest level, they demonstrate that activists' behaviors and strategies influence international courts' jurisprudence, politics within states, and the human rights outcomes of everyday citizens—and these influences have often been hidden in our existing canon of research on international courts. In addition, all of these articles show that, while activists may face challenges in their efforts, often including significant backlash from their home state governments, they also continue to retain significant agency through their creative efforts to develop legal strategies and circumvent state repression. Activists perennially innovate: sparking the ideas that inspire donors who fund them; calculating how to continue their litigation work when government actors threaten them; and taking risks in litigation to push courts to expand how they define human rights. However, along with these uplifting conclusions, there are worrying patterns that demand future research. States are increasingly pushing back against the powers of international courts to bind them to costly measures, and as this symposium has shown, national governments often point to activists as contributors to this “problem” of invasive international human rights standards. A growing body of research has tracked how human rights defenders of all kinds globally are under threat from actors like governments and corporations who disagree with their contentious actions. We need more studies that gather comprehensive data and systematically track these threats, specifically with regard to activists who engage in international human rights litigation. We suspect that such activists are likely disproportionately targeted due to the international visibility of their complaints. We also desperately need research into possible innovative responses to these threats to activists—responses from activists, funders, governments of countries that support human rights, and international courts themselves. Freek van der Vet is a University Researcher at the Erik Castrén Institute of International Law and Human Rights, Faculty of Law, University of Helsinki and the principal investigator of the Toxic Crimes Project. Lisa McIntosh Sundstrom is Professor of Political Science at the University of British Columbia. She is the director of the ActinCourts network at UBC and conducts research on legal mobilization by Russian activists.

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

Reviewed by: Mobilizing for Human Rights: International Law in Domestic Politics David Cingranelli (bio) Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge Univ. Press 2009) 451 pages, ISBN 9780521885102. This is one of the most important books in decades on the effectiveness of international law in affecting human rights practices. It is an outstanding example of testing theory using a combination of qualitative and quantitative analyses. For students and scholars who want to understand how and when international human rights law works this book is a must-read. Simmons argues that international human rights law has made a positive contribution to the realization of human rights in much of the world. In support of this argument, she shows that governments that ratify human rights treaties improve their treaty-relevant human rights practices more than governments that do not. Although governments sometimes ratify human rights treaties insincerely, gambling that they will experience little pressure to comply with them, Simmons contends that this is not typically the case. Focusing on rights stakeholders within ratifying countries rather than external pressure from the United Nations or other states, she demonstrates that the ratification of treaties leads to better rights practices on average. By several measures, civil and political rights, women’s rights, a right not to be tortured in government detention, and children’s rights improve, especially in the very large heterogeneous set of countries that are neither stable autocracies nor stable democracies. Simmons argues that the international community should give more practical and rhetorical support to international human rights law as a supplement to broader efforts to address conflict, development, and democratization. She devotes about 40 percent of the book to developing theoretical arguments about why governments commit themselves to be bound by international law and then subjecting those arguments to empirical tests. The author uses most of the rest of the book to develop arguments about why states comply with their treaty commitments and subjecting those arguments to empirical tests. Her main argument about compliance is that treaties alter politics and human rights practices in certain settings by providing opportunities for social mobilization. There are four findings chapters—each focused on estimating the effects of joining a different human rights treaty. The last chapter is a well written summary of her findings, how they relate to her theories of commitment and compliance, and the implications of her findings for policy and practice. The two appendices to the book will be especially useful to those who wish to replicate her study or conduct similar studies. Appendix one provides a detailed account of the measures used in the quantitative analyses. Appendix two shows the countries included in her study broken down by the degree of the rule of law and by regime type—two of the most important characteristics explaining treaty commitment and compliance. [End Page 761] Simmons acknowledges that her arguments about the effectiveness of human rights treaty commitments run counter to most previous research. She notes that most previous relevant research in the fields of international law and human rights has relied on evidence from intensive case studies about treaty participation effects in individual countries. Her research, in contrast, looks for evidence of relationships between commitments to human rights treaties and human rights performance over a broad span of time and space. The data shows patterns that were not easily demonstrated in the previous quantitative or case study work conducted by other scholars. Simmons complements her quantitative evidence with detailed discussions of how treaties have influenced politics and practices in particular countries. The qualitative work in the book is useful in exploring the causal mechanisms by which government commitments to treaties are translated into subsequent better human rights practices. Her argument is that commitments to human rights treaties do not affect human rights practices by all the governments that make such commitments. They matter most where they have “domestic political and legal traction.”1 Her book is focused on identifying the conditions under which such traction is possible. Thus, even her quantitative research is more nuanced than most previous quantitative studies on this topic, which have generally reached more pessimistic conclusions about the effectiveness of international human rights...

This study undertakes a philosophical examination of the intersection of international criminal law and human rights law, revealing the paradoxical tensions between the pursuit of justice and the protection of human rights. Through a critical analysis of the normative foundations of these two fields, this research discloses the differing ontological and epistemological assumptions underlying international criminal law and human rights law. Employing a qualitative research methodology, this study conducts an in-depth examination of the major international criminal law and human rights law instruments, including the Rome Statute of the International Criminal Court and the Universal Declaration of Human Rights. Additionally, this research undertakes a critical discourse analysis of the jurisprudence of international criminal law and human rights law institutions, including the International Criminal Court and the European Court of Human Rights. This study argues that the paradox of justice at the intersection of international criminal law and human rights law stems from the differing conceptions of justice and human rights that underlie these two fields. While international criminal law prioritizes retributive justice and the punishment of perpetrators, human rights law emphasizes restorative justice and the protection of human dignity. To reconcile this paradox, this research proposes a philosophical framework that integrates the insights of both fields. Drawing on the concepts of "justice as recognition" and "human rights as capabilities," this study develops a novel approach to understanding the intersection of international criminal law and human rights law. The findings of this study contribute to a deeper understanding of the complex relationships between justice, human rights, and international law. This research informs strategies for enhanced cooperation and accountability between international criminal law and human rights law institutions, ultimately promoting a more just and equitable international legal order. This study employs a qualitative research methodology, including critical discourse analysis and philosophical inquiry. The research questions guiding this study include: What are the differing ontological and epistemological assumptions underlying international criminal law and human rights law? How do these differing assumptions give rise to the paradox of justice at the intersection of international criminal law and human rights law? How can a philosophical framework that integrates the insights of both fields reconcile this paradox?. The study's findings suggest that a philosophical framework that integrates the insights of both fields is necessary to reconcile the paradox of justice. The research also highlights the importance of enhanced cooperation and accountability between international criminal law and human rights law institutions in promoting a more just and equitable international legal order. The key lessons from this study include the importance of understanding the complex relationships between justice, human rights, and international law, and the need for a philosophical framework that integrates the insights of both fields. The study also emphasizes the importance of enhanced cooperation and accountability between international criminal law and human rights law institutions.

Global inequities persist despite the achievements of the human rights project so far, as Kofi Annan highlighted in 2005. Caribbean calls for reparations for chattel slavery are a manifestation of and a response to global inequities that affect the Global South in particular. However, when endeavouring to find a footing in international law, and specifically in international human rights law, reparations calls have been contested and challenged. This article proposes a reimagining of the international human rights system to offer a legitimate place for reparations for chattel slavery and thus enable an effective challenge to pressing injustices such as racial discrimination and its ramifications. Despite being a region that has been birthed from such profound historical injustices that still affect the full realisation of human rights today, the Caribbean and its human rights challenges and calls for justice have been relegated to and maintained at the periphery of international human rights law. For that reason, this article focuses on reparations for slavery emanating from the Caribbean. Drawing on Third World Approaches to International Law (TWAIL), it argues that the inability of international legal systems to respond to historical injustices indicates that the colonial imagination, constructed on the compass of exclusion, is still the foundation of international human rights law and of modern, postcolonial societies. The article thus advocates for decolonising international human rights law to accommodate a more inclusive future for human rights.

It is a joy and a privilege for me to be here with you allfriends and colleagues of very long standing and new (dare I say "younger"?)colleagues with whom I look forward to forming lifelong friendships.**[Much of the depressing material that we have been discussing has to do not with substance, but with procedurewho can gain access to the courts or legislatures, what statutory or regulatory language will be held to be enforceable at the instance of private plaintiffs, etc.***Although this is not what I am going to discuss, I do want to underscore that access to the courts and legislatures is crucial.I never understand why so-called conservatives want to keep people out of these institutions, for when aggrieved people do not have such access, they are more likely to express their grievances in other ways, often including violence.

The British House of Lords recently considered whether Augusto Pinochet was entitled to immunity from arrest and possible extradition to Spain for human rights abuses allegedly committed during his reign as Chile?s head of state. In its second decision in the case (after the first one was vacated due to a conflict of interest), the House of Lords concluded that Pinochet was not entitled to immunity for acts of torture and related conduct committed after Britain?s 1988 ratification of an international convention against torture. In addressing this immunity issue, the parties and judges in the Pinochet case looked closely at the large and growing body of U.S. case law involving civil suits against foreign officials for alleged human rights abuses committed in foreign countries. In this article, we in effect do the opposite: we assess how the Pinochet decision might be relevant to international human rights litigation in U.S. courts. The article focuses on three issues in particular. It first considers whether developments in international human rights law limit the scope of the domestic immunity available to foreign governments and officials. The House of Lords held that these developments did limit the scope of Pinochet?s immunity from criminal process in Great Britain. In the United States, however, the political branches and the federal courts have, with narrow and specific exceptions, declined to permit developments in international human rights law to limit the scope of foreign sovereign immunity from civil process. As we explain, the adverse political consequences that might flow from otherwise-unfettered private lawsuits against foreign officials for human rights abuses justify the broader immunities available in U.S. domestic courts. The second issue is the legitimacy of a U.S. counterpart to the British rule, invoked by some of the Law Lords in Pinochet, that customary international law ("CIL") is part of the British common law. In the United States, plaintiffs and scholars have argued for a similar rule of incorporation to justify the domestic application of substantive international human rights law. As we explain, however, the constitutional implications of an automatically-incorporated CIL are substantially different for the United States than they are for Great Britain. And, when faced with claims of international immunity, such as the claim of head-of-state immunity that was at issue in Pinochet, U.S. courts do not apply the CIL governing this immunity directly. Instead, they seek and follow political branch authorization. The failure by courts to apply CIL as automatically-incorporated common law in this context, involving traditional rules of CIL that are a central component of international relations, casts substantial doubt on the conventional wisdom that international human rights law should be applied as self-executing federal common law. Finally, the article defends the United States? general resistance to the domestic application of international human rights law. This resistance has two dimensions. First, the United States does not apply international human rights law to domestic officials. This approach is justified by the profound uncertainty regarding the source and content of international law, and the general adequacy of U.S. domestic human rights protections. Second, the United States permits the domestic application of international human rights law against foreign governmental officials, but only in very narrow contexts. This limited embrace of international human rights law reflects a legitimate concern with giving private citizens, and unelected judges, too much influence over U.S. foreign relations. As we explain, both of these justifications for resistance to the domestic application of international human rights law ? the vagueness of international norms and the danger that private lawsuits will interfere with foreign relations ? find support in the House of Lords? decision in Pinochet.

This study tries to produce a new ground for understanding the multidimensional concepts such as rights simultaneously for the people and humankind in international law and constitutional law with transnational connections. The impacts of transnational legal orders within nation-states are globalized in the modern international law and spectacles with normative and empirical-analytical lenses on constitutional and human rights while looking at international law and governance through constitutionalist glasses. International human rights law can have a significant impact on national systems, here constitutions. National constitutions may look at international and regional human rights norms to interpret and develop their national regulations. International and regional human rights norms can help national constitutional rights mechanisms in different ways, such as providing a base for the human rights claim on international or regional law. Such has been provided via the national constitution; or has contrarily been incorporated into national law. The use of the international and regional human rights law to interpret constitutional provisions and as a standard of protection increases (“Compilation of International Norms and Standards Relating to Disability.”). Not only that but also the evolution of international law called fragmentation also directs and denotes both a process and its result. It first refers to the dynamic growth of new and specialized sub-fields of international law, secondly to the rise of new actors beside states, and thirdly to new types of international norms outside the acknowledged sources. It is smoothly started by ratifying human rights treaties and simultaneously constitutional amendments during the times and had a significant growth by the emergence of new states and constitutions after the breakdown of the communist bloc in 1989. The stable bi-polar world order shift to a host of multilateral treaties (Peters, “Constitutional Fragments—On the Interaction of Constitutionalization and Fragmentation in International Law.” P3.). E.g., there is a five-part conceptual typology of the different ways that domestic courts can use foreign law: As (1) binding law, (2) a nonbinding norm, (3) an interpretive aid, (4) a basis for functional comparison, and (5) factual information (Jackson, Tolley, and Volcansek, U, Suny Series in the Foundations of the Democratic State. P48.). The comparative study of international law, human rights, and constitutional law have emerged as the new frontier of scholarship. Scholars and constitution drafters are increasingly using comparative methods in updating and upgrading conceptual and contextual experiences in their works; meanwhile, decision-makers, academics, and the general public alike tend to think that several normative orders coexist.

Globalizing What:Education as a Human Right or as a Traded Service? Katarina Tomasevski Introduction Globalization tends to be described as an extralegal phenomenon.1 This image does not apply to education for which there is international law, albeit composed of two parallel and disconnected legal regimes. International human rights law defines education as a human right; international trade law defines it as a service. 2 International human rights law is older than the law on trade in services, and domestic educational laws tend to be even older.3 Most of these define education [End Page 1] as compulsory and also as a right.4 Accordingly, they specify the corresponding governmental obligations. Large budgetary allocations for education reflect the legally defined extensive role of the state in education,5 and teachers are often the largest segments of the civil service.6 Against that role of the state in providing and/or financing education, globalization (defined as interaction across national borders unmediated by the state) fosters disengagement from education. The key facet of globalization, liberalization, is predicated on increasing the privatization of education,7 which demands decreased involvement of the state. In the 1990s, [End Page 2] this facet was built into the international law on trade in services, resulting in two conflicting legal regimes for education. International human rights law mandates state intervention, requiring it to ensure, at least, free and compulsory education for all children. International law on trade in services legitimates the sale and purchase of education, excluding those who are unable to purchase it, thereby jeopardizing the key human rights requirements that at least primary education should be free and compulsory. This article examines the practice of states in accommodating this legal duality of education. It focuses on the developing regions and countries in transition8 because the poverty of families, communities, and countries precludes access to education for many, if not most, unless education is free, namely provided or financed by the state. Its point of departure is international human rights law, which defines human rights—including the right to education—as universal. Its translation into reality would entail a minimum entitlement to education throughout the world, to be secured through international cooperation. Thereby governments would collectively comply with their human rights obligations. Consequently, globalization of education would be guided by a universal human rights obligation to ensure that education is free and compulsory for all school-age children in the world. However, the creation of international human rights law during the Cold War divided human rights into civil and political on the one hand, and economic, social, and cultural, on the other hand. Although education belongs in both categories, it also has been categorized as an economic, social, and cultural right. Its civil and political dimensions require respect of freedom; its social and economic dimensions mandate state provision and/or financing of education, while education as a cultural right often necessitates its affirmation as a collective right.9 [End Page 3] For the majority of countries in the world that recognize economic, social, and cultural rights,10 the corresponding human rights obligations presuppose governments' willingness and ability to raise revenue and devote the maximum available resources to human rights. An important aim is to ensure that education is free at the point of use, at least for compulsory education. Therein originates the conflict of laws. While international human rights law recognizes every child's entitlement to free education, international trade law makes access to education dependent on the ability to pay.11 Free trade does not have safeguards for the rights of the poor, least of all, for poor children. Hence, state intervention to safeguard free education for the millions of poor children necessitates corrective steps for the free market in education, facilitated by international cooperation. However, global development finance policies work in the opposite direction, as does trade in educational services.12 These counterpoised pressures, especially upon the governments of poor, impoverished, or indebted countries, result in an increasing incidence of for-fee rather than free education. [End Page 4] The phenomenon is not new; it was marked memorably by the United Nations International Children's Emergency Fund's (UNICEF) "Adjustment with a Human...

Separation and self-contained regimes From a strictly separatist position, human rights and humanitarian law are fundamentally different and irreconcilable to the extent that there can be no meaningful debate on human rights in armed conflict. The different historic development of the two systems, the dissimilar nature of their respective norms and the different goals they pursue in law and policy keep them apart and prevents any discussion on their simultaneous applicability for theoretical as well as practical reasons. It was asserted that the law of armed conflict is so radically different from international human rights law in its origin, foundation, nature, object and content that the two are not only diametrically opposed but that neither can be derived from the other. Such a position maintains that international humanitarian law and international human rights law neither share a common history nor common goals but have a fundamentally different legal structure and “no over-reaching axiology, no value system that unifies the objectives of these fields of international law.” They are mutually exclusive. Such a complete separation of international humanitarian law and international human rights law has been suggested only rarely. Where a separation was argued for, metaphorical concepts such as presenting international humanitarian law and international human rights law as “two curtains” were introduced instead. Each of these curtains was meant to shield the individual from threats in different moments: international humanitarian law in times of war and international humanitarian law in times of peace. But even this suggestion was mitigated by the argument that during armed conflicts the curtain of international human rights law (i.e., the two UN human rights Covenants) would not be drawn back completely but only “largely.”