Conference Contribution Details
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Yahyaoui Krivenko, Ekaterina
Juris Diversitas Annual Conference: Comparative Law and ...
Conceptualising international human rights as international constitutional guarantees: promises and perils of comparativism
Aix-Marseille University - Aix-en-Provence, France
Conference Paper
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Constitutionalisation of international law is a very popular subject for scholarly research and debate in public international law. International constitutionalism argues that international law can be conceived as a system of protection against and limits on the arbitrary exercise of power by subjects of international law: states or international organisations. In addressing this issue international lawyers mostly operate based on analogy to western national constitutional structures. Within this analogical reasoning human rights are always conceived as international constitutional rights able to operate as constraints and guarantees at the international level similarly to national constitutional rights. International lawyers writing on the topic most often just shortcut their reasoning by assuming that this analogy is valid and then proceed to their argument in favour of the existence of constitutional structures in public international law based on this assumption. What remains uninterrogated, is the validity of the presumption that human rights function at the international level as national constitutional rights.[1] Since the structures and mechanisms of international law are quite different, to what extent national constitutional developments and mechanisms can be used as models for public international law? Aren’t international lawyers too hasty in their assumption that human rights will necessarily produce results similar to national constitutional rights and that western constitutional model is the best-suited for international law? I will address these questions using the functional and structural comparative approaches, looking at both national constitutional rights protection and international human rights protection as assemblages, machines and mechanisms. This approach is inspired by literary analysis developed by Deleuze and Guattari and more specifically as it is applied in their work Kafka: Towards the Minor Literature. [1] The only partial exception remains Stephen Gardbaum who attempted to define more precisely the relationship between human rights and constitutional rights. Unfortunately, his analysis is still maintains a set of assumptions about analogy between human rights and national constitutional rights. See e.g. S Gardbaum, ‘Human Rights and International Constitutionalism’ in JL Dunoff & R Trachtman (eds.) Ruling the World? Constitutionalism, International Law and Global Governance (CUP: 2009) 233-257.
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