Jean Monnet Center at NYU School of Law


3. Constitutional Primacy of the Inalienable Core of Human Rights in International Law?

National and international human rights law rests on "recognition of the inherent dignity and
of the equal and inalienable human rights of all members of the human family (as) the foundation of freedom, justice and peace in the world" (Preamble of the UDHR). Human dignity (e.g. in the sense of respect for the moral and rational autonomy of each individual to distinguish between good and bad and decide on one's personal goals in life) has become the common value premise of national and international human rights law.

A. Human Rights as Part of General International Law

There exist today more than hundred multilateral and bilateral international treaties on
the protection of human rights. In the UN Charter, the Universal Declaration of Human Rights (UDHR), the 1993 Vienna Declaration on Human Rights, as well as in numerous other UN instruments, all 189 UN member states have also committed themselves to inalienable human rights as part of general international law. In addition, most states recognize human rights in their respective national constitutional laws as constitutional restraints on government powers, sometimes with explicit references to human rights as legal restraints also on the collective exercise of government powers in international organizations (see e.g. Article 23 of the German Basic Law and Article 11 EU Treaty). Human rights have thus become part also of the general principles of law recognized by civilized nations (Article 38 of the Statute of the International Court of Justice). As a result, international law is increasingly confronted with the "constitutional problems" addressed in the human rights jurisprudence of the EC Court of Justice: What is the essential core of human rights which must be recognized today as erga omnes obligations and ius cogens? Can governments evade their human rights obligations by exercising government powers collectively in specialized international organizations? How can the legal supremacy of international law over national law remain effective and be judicially enforced if human rights are not effectively protected in all fields of international law? Can international courts ignore the worldwide experience in all states that protection of human rights risks to remain ineffective without respect for complementary due process guarantees and other "constitutional principles" of rule of law, democratic government and judicial review? How to interpret and, in case of conflict, reconcile "state sovereignty", "popular sovereignty" and "individual sovereignty" in a manner respecting the constitutional primacy of human rights?34

General international law (as codified in Article 31:3 of the 1969 Vienna Convention on the Law of Treaties) requires interpreting international treaties "in their context", including "any relevant rules of international law applicable in the relations between the parties" such as universal human rights. Even though the law of e.g. the WTO does not explicitly refer to human rights, Article 3 of the WTO Dispute Settlement Understanding (DSU) requires "to clarify the existing provision of those agreements in accordance with customary rules of interpretation of public international law". Universally recognized human rights are today part of the "context" for the interpretation of the law of worldwide organizations. They may be important for interpreting not only "general exceptions" (e.g. in GATT Article XX), but also basic guarantees of freedom (e.g. in GATT Articles II-XI), non-discrimination, property rights, individual access to courts, and the "necessity" requirements for safeguard measures to protect "public interests" and human rights.

B. Has the "Inalienable Core" of Universally Recognized Human Rights Become Ius Cogens?

Human rights define legal principles, rights and corresponding obligations for individual and democratic self-development and are today universally recognized by all UN member states as inalienable "birth rights" of every human being which precede and constitutionally limit government powers. Human rights need to be legally concretized, mutually balanced and implemented by democratic legislation which tends to vary from country to country. Their inalienable core, however, is "acknowledged" rather than "granted" by governments, as recognized in national as well as international legal practice: "Human dignity is inviolable. It must be respected and protected" (Article 1 of the Charter of Fundamental Rights of the European Union). "The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world" which "shall bind the legislature, the executive and the judiciary as directly applicable law" (Article 1 German Basic Law of 1949). In UN practice, the "right to development" and the corresponding government obligations are defined in terms of the realization of all human rights. 35

The International Court of Justice (ICJ) has recognized that human rights constitute not only individual rights but also, in case of universally recognized human rights, erga omnes obligations of governments based on treaty law and general international law.36 The universal ratification of human rights treaties (such as the UN Convention on the Rights of the Child ratified by 191 states), and the universal recognition in these treaties "of the equal and inalienable rights of all members of the human family"as set out in the UDHR37, reflects a worldwide opinio iuris on the inalienable erga omnes character of core human rights. This opinio iuris on essential and inalienable core human rights is not contradicted by the diversity of views on the precise scope, meaning and ius cogens nature of many specific human rights whose legal implementation may differ from country to country and from treaty to treaty. In contrast to the EC Court of Justice which construed the common human rights guarantees of EC member states as constituting general constitutional principles limiting the regulatory powers also of the EC38, the ICJ has not yet specified to what extent human rights entail constitutional limits also on the UN and its Specialized Agencies. Likewise, the WTO jurisprudence has not yet clarified the impact of human rights (e.g. to human health and food) on the interpretation of e.g. the intellectual property rights guaranteed in the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS), or on the numerous WTO exceptions protecting national policy autonomy for non-trade concerns.

International legal practice confirms an increasing opinio iuris that membership in the UN and in the ILO entails legal obligations to respect core human rights.39 Dictatorial governments can no longer freely "contract out" of their human rights obligations by withdrawing from UN human rights covenants or ILO conventions.40 Legal practice suggests that not only the prohibitions of genocide, slavery and apartheid, but also other core human rights must be respected even "in time of public emergency" (cf. Article 4 of the ICCPHR, Article 15 ECHR) and, since the end of the cold war, have become erga omnes obligations of a ius cogens nature.41

C. Constitutional Primacy of Human Rights in European Law

European integration law recognizes the legal primacy and constitutional functions of human rights in various ways. It was essentially due to the human rights jurisprudence of national courts in EC member states that the EC Court acknowledged, since the Stauder case (1969), that not only EC member states but also the EC itself must respect human rights in all EC policy areas: "respect for human rights is a condition of the lawfulness of Community acts".42 Article 6 of the Treaty on European Union (EU) now explicitly confirms that the "Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States." Breaches of these principles can entail sanctions (Article 7) and prevent admission to the EU (Article 49 EU Treaty).

The constitutional objective of the "common foreign and security policy" of the European Union - namely "to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms" (Article 11 EU Treaty) - reflects the insight that human rights apply to the exercise of all government powers, as already stated in the French Declaration of the Rights of Man and the Citizen of 1789: "The final end of every political institution is the preservation of the natural and imprescriptible rights of man. Those rights are liberty, property, security, and resistance to oppression."43 Most policy objectives of specialized agencies (such as monetary stability, trade liberalization, health protection) can be understood as protecting liberty, property, non-discrimination and other human rights across frontiers.44 Arguably, the universal recognition, in both national and international law, of the inalienable character of the essential core of human rights implies recognition of the legal primacy of their inalienable core vis-à-vis governmental and intergovernmental limitations that are arbitrary or "unnecessary" for protecting other human rights. The explicit necessity requirements for limitations on freedom and on other human rights - to be found not only in national constitutions and human rights treaties but also in the safeguard clauses of worldwide and regional trade agreements (such as GATT Article XX) - must be construed in conformity with this constitutional primacy of the inalienable core of human rights.

D. Can "Specialized Organizations" Exclude Human Rights from their Field of Specialization?

Like the negotiators of the EC Treaty in 1956/57, government representatives in specialized international organizations sometimes appear to believe that governments remain "sovereign" to exclude human rights from the law of specialized agencies and from the "covered agreements" of WTO law. Yet, the lex posterior and lex specialis rules for the relationships between successive international treaties (as laid down in Articles 30,41 and 58 of the 1969 Vienna Convention on the Law of Treaties) cannot derogate from the inalienable ius cogens nature of the obligation of all national and international governments to respect the essential core of human rights (cf. Article 53 of the Vienna Convention). UN human rights law explicitly recognizes (e.g. in Article 28 of the UDHR quoted at the beginning of this article) that human rights entail obligations also for intergovernmental organizations. From a human rights perspective, all national and international rules, including economic liberalization agreements like the IMF and WTO agreements, derive their democratic legitimacy from protecting human dignity and inalienable human rights which today constitutionally restrain all national and international rule-making powers.

The generously drafted "exceptions" in global and regional integration law, and the usually deferential jurisprudence of international courts (e.g. WTO dispute settlement bodies) vis-à-vis national restrictions necessary for protecting public interests45, confirm that, in cases of conflict, the essential core of human rights must prevail. As in EC law, the obligations of states to respect, promote and fulfill human rights must be recognized as extending also to their participation in worldwide organizations like the Bretton Woods institutions and the WTO. Neither the "progressive realization" commitment in Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)46, nor the proviso in its Article 24 that "(n)othing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies", can serve as pretexts for non-compliance by unwilling governments and organizations with their human rights obligations.

34 Cf. E.U.Petersmann, International Activities of the European Union and Sovereignty of Member States, in: E.Cannizzaro (ed.), The European Union as an Actor in International Relations, 2002.

35 See UN General Assembly Declaration 41/128 of 4 December 1986 on the `Right to Development'.

36 See e.g. the Barcelona Traction judgment (ICJ Reports 1970, 32) and the Nicaragua judgment (ICJ Reports 1986, 114).

37 Quotation from the preamble to the 1989 UN Convention on the Right of the Child, which also confirms the universal recognition of the rights set out in the UDHR. See: Human Rights in International Law (note 9), at 169.

38 In Internationale Handelsgesellschaft (Case 11/70, ECR 1970, 1125,1134), the ECJ held that respect for human rights forms an integral part of the general principles of Community law: "the protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community" (paras.3-4).

39 See e.g.: ILO Declaration on Fundamental Principles and Rights at Work (ILO 1998, at 7), adopted by the International Labour Conference on 18 June 1998, which recognizes (in its paragraph 2) "that all Members, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are subject of those Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation".

40 See General Comment 5 on Article 4 of the UN Covenant on Civil and Political Rights, adopted by the Human Rights Committee on 31 July 1981 and recently revised (cf. D.Goldrick, The Human Rights Committee, 1994, at 315).

41 For detailed references to state practice see: I.Seiderman, Hierarchy in International Law, 2001.

42 Opinion 2/94, European Court Reports (ECR) 1996, I-1759, para.34.

43 French Declaration of the Rights of Man and the Citizen (1789), section 2, cf.: Finer/Bogdanor/Rudden, Comparing Constitutions, 1995, at 208. The constitutional theories e.g. of Kant and Rawls likewise conclude that "democratic peace by satisfaction" (as opposed to "peace by power") requires that "promotion of human rights ... should be a fixed concern of the foreign policy of all just and decent regimes" (Rawls, above note 3), at 48.

44 On the "human rights functions" of the law of the IMF, the World Bank and GATT see E.U.Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law, 1991, chapter VII.

45 See e.g. the WTO Appellate Body report of 12 March 2001 (WT/DS135/AB/R) on EC import restrictions affecting asbestos and asbestos-containing products that threaten the health of EC citizens.

46 Cf. General Comment No.3 on "The nature of States parties obligations (Art.2, para.1 of the Covenant)", adopted by the UN Committee on Economic, Social and Cultural Rights in 1990 and reproduced e.g. in: A.Eide/C.Krause/A.Rosas (eds.), Economic, Social and Cultural Rights, 1995, at 442-445. The fact that the ICESCR formulates some rights in terms of principles rather than precise rules only indicates that some economic and social human rights, like certain civil and political rights (such as the right to vote), need to be concretized through implementing legislation and administrative or judicial decisions. On the distinction between principles and rights see e.g.: R.Dworkin, Taking Rights Seriously, 1977, 23 et seq.




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