15. Human Rights and Constitutional Law Patterns of Mutual Validation and Legitimation 16. Specifying Human Rights推荐.pdfVIP

15 Human Rights and Constitutional Law Patterns of Mutual Validation and Legitimation Samantha Besson* Introduction When they are approached as legal norms, human rights are primarily guaranteed by domestic law, and usually qua constitutional rights and in the form of a constitutional bill of rights. Since 1948, however, human rights have also been protected through international human rights law and the so-called ‘international bill of rights’1. This dual human rights regime has been famously coined by Gerald Neuman as the ‘dual positivization’2 of human rights in international human rights law (IHRL) and consti- tutional rights law (CRL). Interestingly, constitutional lawyers and international human rights lawyers have long been puzzled by the co-existence of those two legal regimes of human rights and wondered about how they ought to relate. Clearly, the reason for this dual human rights regime does not lie in legal history or genealogy as both types of legal human rights norms as we know them today date back roughly to the same post-1945 era, a time at which or after which the international bill of rights was drafted on the basis of existing domestic bills of rights and at the time at which or after which most exist- ing domestic constitutions were either completely revised or drafted anew on the basis of the international bill of rights. Nowadays, moreover, constitutional rights either pre-exist the adoption of international human rights law or ought to be adopted on the ground of the latter—either in preparation for ratification or as a normative conse- quence thereof—, thus confirming the synchronic nature of their functions and their co-existence requirement.3 Nor does the reason for their co-existence lie in the content or the