International human rights law Part 38

International human rights law Part 38

 

507

International human rights law AND THE WAR ON TERRORISM
Derek Jinks
Denver Journal of International Law and Policy
Volume 31, Number 1, Fall 2002 p.58

LAW JOURNAL / LAW REVIEW

508

DOES FEDERALISM CONSTRAIN THE TREATY POWER?
Edward T. Swaine
Columbia Law Review
Volume 103, Number 3, April 2003 p.403

LAW JOURNAL / LAW REVIEW

The Supreme Court’s revival of federalism casts doubt on the previously unimpeachable power of the national government to bind its states by treaty, suggesting potential subject-matter, anti-commandeering; and sovereign immunity limits that could impair U.S. obligations under vital trade and human rights Treaties . Existing scholarship treats these principles separately and considers them in originalist or other terms, without definitive result. This Article takes a different approach. By assessing all of the doctrines with equal care, but not at daunting length, it permits insight into the common issues involved in determining whether they should be extended to the treaty power. It also demonstrates that international law and constitutional law are not estranged on these questions. Not only does international law require federal states to interpret their Constitutions so as to permit adhering to Treaties , but the new federalism doctrines show a sensitivity toward preserving adequate means to pursue national and international ends like the treaty power, especially where those means turn on state consent. Finally, the Article develops a treaty-compact device as an innovative tool for dissolving federalism’s constraints. Taking advantage of parallel doctrinal developments that liberate state and national authority relating to foreign and interstate compacts, it demonstrates that combining the use of compacts with treaties offers solutions on each of the new federalism’s fronts. The answer, then, is that federalism does not constrain the treaty power, when the Constitution is read as an organic whole and interpreted in a fashion in keeping both with international law and the new federalism itself

509

LEGAL, POLITICAL, AND ETHICAL HURDLES TO APPLYING INTERNATIONAL HUMAN RIGHTS LAW IN THE STATE COURTS OF THE UNITED STATES (AND ARGUMENTS FOR SCALING THEM)
Penny J. White
University of Cincinnati Law Review
Volume 71, Number 3, Spring 2003 p.937

LAW JOURNAL / LAW REVIEW

510

INTERNATIONAL ENVIRONMENTAL JUSTICE: RIGHTS AND REMEDIES
Kenneth F. McCallion
Hastings International and Comparative Law Review
Volume 26, Number 3, Spring 2003 p.427

LAW JOURNAL / LAW REVIEW

Although environmental rights are not explicitly enumerated in the Universal Declaration of Human Rights , it has become generally recognized that environmental rights are closely linked with the right to life, which is the most fundamental jus cogens norm, without which no other rights can be exercised. As the environmental crisis has accelerated in the nineteenth and twentieth centuries, constitutional drafters around the globe have explicitly enshrined in their Constitutions some form of obligation to protect the environment or other environmental rights. Consequently, states have come to realize the existence of a duty to prevent grave environmental destruction, particularly in the transfrontier context. The emergence of bilateral and multilateral agreements designed to protect the environment, in addition to the weight of judicial authority and scholarly opinion, supports the proposition that the duty to prevent environmental destruction has attained the status of Customary International Law .

 

Conclusion

Notes

See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

Columbia Law Review, Constitutions, Customary International Law, International human rights law, Treaties.


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