Human Rights and Constitutional Law

Abstract

Abstract International human rights law and constitutional rights law have distinct albeit complementary functions. This chapter attempts to clarify those respective and complementary functions of international and domestic human rights to shed light on key issues in human rights theory, such as the nature of human rights (moral and/or legal) and the legitimacy of human rights law (domestic and/or international). The complementarity in function of the two human rights regimes reflects what is referred to as the ‘mutual legitimation’ of international and domestic human rights, and their corresponding ‘mutual positivization’ or mutual legal validation. Following a discussion of the underlying understanding of human rights, and in particular of their legal nature and relationship to moral rights, the chapter examines the constitutional dimension of human rights in three constellations: first, their guarantees as domestic constitutional rights and their relation to international legal human rights; secondly, their relationship to other domestic constitutional law norms; and, thirdly, their role in the constitutionalization of international law itself.

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