Constitutional Domestication of International Gender Norms: Categorizations, Illustrations, and Reflections from the Nearside of the Bridge

Abstract

This volume of the "Collected Courses of the Academy of European Law" focuses on gender and human rights, offering diverse perspectives on women's international human rights law. Our chapter focuses on the relationship between international gender norms and domestic constitutional law. As professors of constitutional law, we write from the "nearside" of the increasingly heavily-traveled bridge spanning these two realms of law. We draw upon the constitutional experiences of several countries, including Spain and several Latin American countries, to illustrate the complexity both of the methods by which international human rights law has influenced domestic constitutional law and of the effects that these forms of "domestication" of international gender norms have had on domestic constitutional jurisprudence. These domestic experiences demonstrate how, from its "farside" vantage point, traditional international law scholarship's usual focus on the formally binding domestic status or enforceability of international human rights norms fails to capture the full picture. We present a suggested typology to aid in understanding the rapidly evolving nature of the relationships between international human rights law and domestic constitutional law. We categorize the primary processes by which domestication of international human rights norms occurs as assimilation, supplementation, and adaptation, and provide examples of each. We then examine domestic constitutional jurisprudence to illustrate how the incorporation of international gender norms has helped shape domestic constitutional law by expanding, complementing, or concretizing its substantive contours and, at times, by affecting structural allocations of constitutional power.

This volume also includes an Introduction by Karen Knop, University of Toronto Faculty of Law, and chapters on "Feminist Legal Theory and the Rights of Women," by Nicola Lacey, London School of Economics; "Take a Break from Feminism," by Janet Halley, Harvard Law School; "Citizenship in Europe and the Construction of Gender by Law in the European Charter of Fundamental Rights," by Susanne Baer, Humbolt University; "Individual(s') Liability for Collective Sexual Violence," by Patricia Viseur Sellers, Legal Advisor for Gender-related Crimes and Trial Attorney, Office of Prosecutor for the International Criminal Tribunal for the Former Yugoslavia; "'The Appeals of the Orient': Colonized Desire and the War of the Riff," by Nathaniel Berman, Brooklyn Law School; and "Toward an Understanding of Transnationalism and Gender," by Ruba Salih, University of Bologna.

Keywords: gender, human rights, domestic incorporation