CONSTITUTIONAL PROTECTION OF HR IN THE ARAB WORLD – ASEM KHALIL

Asem Khalil – Professor at Birzeit; member of the board of Al Haq and of the Independent
Commission of HR in Palestine.

01/10 Introducing Human Rights

What is the origin of the idea of HR? Several ways to explain this origin:

- Religion – Most people believe that we have HR because God created us.
o Since religion is not universal, how could HR be universal? Though it developed with
God, religion can support the discourse of rights and with time speak about rights for
even those who don’t believe – even if they would do that, there would still be more
rights for the faithfuls.
o Religion and HR may contradict each other – how to reconcile both?
- Nature – HR are related to the nature of humans, it has always been there, but humans
discovered them late.
o Humans are different from animals, the way to explain their rights is to go back to
natural law. Because they have reason.
o All humans have the same human character. When we say this we put aside all the
differences among humans.
- Historical development and IL – HR are a voluntary self-biding element that states
undertook in order to respect citizens and non-citizens rights under their territory. An
agreement on a normative framework.
o If IL is the source of HR, can we defend the universality of HR? And what if it is
Constitutional law?
 HR are mainly about the state.

How can we reconcile international law and Constitutional law regarding the universality of HR?

- States are not obligated to ratify the International Convention on the rights of child, or the
Convention on Social and Economic Rights (like the US). How can we talk about universality if
it is voluntarily and left for the state?
- And even if they ratify, sometimes they say that they cannot implement it because it is
against certain articles in their constitutions, or they use their right to make reservations. HR
then is contingent of each countries legal systems.
- The universality would then be more a way to inspire thoughts, not a reality – it is much
more philosophical.

The historical perspective of HR:

- There is a package of historical development of ideas related to HR, from the ancient times to
the Enlightenment.
 - There is this idea that the HR framework was made in reaction of the violations of HR in the
WW2. There was a package of historical development of ideas, from the ancient times to the
Enlightenment, but it is not the reason.
o Japan, German and Italy were the first ones to adopt constitutions with reject of
totalitarian regime, adopt list of rights insisting on the human dignity after the WW2.
- The philosophical background of the ones who drafted the Universal Declaration was
Christianism (because they were Europeans and Westerns). There was a Lebanese guy but he
was an Orientalist so same philosophical background.
o For a while the HR framework coexisted with colonialism.

Other observations about state bypassing HR, including within its legal framework:

- Derogation close in the ICCPR: There is a derogation close – article 4 – in the International
Covenant of Political rights. It was introduced by GB: at a certain emergency, the states can
derogate to their obligations under ICPR.
- Mahmoud Abbas & CEDAW: Abbas ratified the CEDAW without any reservation (Egypt, Israel
ratified it with reservations). Abbas wanted to show that he is not at odd with the current
prevailing regime. But he cannot implement it – people went to the street against CEDAW.
The same could be said about capitalism and political liberalism – now when we have a
regime of another kind we think it is at odd.
- Question if HR do not contradict with group rights – like national rights and national
ideologies (rights only for those who share common languages and religion etc). – example:
Israeli Nation State law.

Yuval Noah Hariri speech

- Main idea: what makes humans able to control the planet is that we are able to cooperate
flexibility in large number, because we have imagination and can believe shared stories –
fictional realities.

Homework reading: chapter 6 and 14 of Hariri, 21 Lessons from the 21 Century.

 The HR framework is not suitable for the challenges to come.

04/10 The Historical Origins of HR

When we talk about HR we must avoid absolute dogmas

- Example from National courts: South Africa is revisiting today what it has been decided as
Socio Economic rights.
- HR are not necessarily a dogma, a religion, part of the nature – it is a human invention. There
is no end of sentence, HR are an open book.

The central role of the state in HR:

 - In Domestic Law, there is a development that took place related to CL: the state decides
what it will apply to its citizens. HR became an important part of IL, but they often compete
with each other between IL and CL. We need to decide a way to get out of this dilemma.
- The State in IL and CL has a central role. The state is at the center, it is not about
humans/individuals. Despite those differences, today, states agree in both IL and CL that
basic HR and freedoms matter – even if they are not sure/accorded on what these rights are.
They also agreed that they need protection by the state. Legally speaking, the idea that HR
matter and are binding obligations on the state to protect them is fairly new. Also regarding
to the fact that protection is also against the violations committed by the state.
- Both from IL and CL, the state does not have the exclusive monopoly on the individuals under
its jurisdiction. Also new.
- High Court and Constitutional Courts – they do not represent majority or opinion, but are the
true interpreters of what the Constitution is. What does it mean to have the right to
education, to habeas corpus, to freedom of opinion? That system in which few individuals,
not elected, are there to decide exactly what HR are.

 If the point of reference cannot be religion, and it cannot be nature, but it’s a social
construction – how did we come to have this kind of system? What is the historical
moment that made the HR central in the state systems, and when did it come to be so
central? How deep down we can go in history – from the perspective of state law.
 Our starting point to the understanding of HR : HR became as a reaction to what took
place in the WW2, built on the Universal Declaration of HR. Can we really find traces in
the history of human being that enables us to see these elements? Can we pretend that
those concepts are universal although they began somewhere? The regime of HR that we
have now has an identity.

First important historical elements: French and American Revolutions

- The Constitution enables us to distinguish between the governors and the state itself. The
state is no more the sovereign as the king was seen: the source of authority is now in the
nation.
- The Americans rejected the royal regime, established a republic and a written constitution,
which is at midway between an international treaty and a Constitution. It is a completely
different understanding of the concept of Constitution.
- In the French Revolution: written Constitution is the base of authority. The idea of having a
constitution is related to the idea of the rule of law, meaning that state of authority must be
based on law, rather than the will of the governor.
- Ideas that emerged at this time:
o Rule of law, by law, through law: of – State authority gvt is itself bound by the law.
o The idea of separation of powers: a new kind of regime, different from the previous
ones. The state is seen as a triangle.
 In Judeo-Christian tradition, this is similar to the trinity: god is one and three
at the same time. It is political theology.
o Idea of supremacy of the written constitution: we cannot by federal law contradict
with the constitution. It is also a new idea.
 o The sovereignty of the people: “le pouvoir constituant” is a French invention by the
Abbé Seyes. He said we can make a new order out of nothing, a new system by an
Assembly to write down a constitution. The power behind it is pouvoir constituant.
 This idea of creating something out of the blue is completely religious: like
God has created the world. That pouvoir constituent is like God: it doesn’t
abide by the Constitution itself. In this political theology, the XVIIIe century
developments are somehow a replicate of the creation.
 The American understanding of the Constitution is different: “We, the
people”. Once we decide the constitution then we have no say on public
affairs.
 Constitutional Council: The French understanding is that a revolution is part
of the natural development, the American understanding is that a Revolution
is always anti-constitutional (unless and until it succeeds of course). No
Anglo-Saxons legal discussion for the Revolution in Cairo in 2011, but once
Mubarak was out of the way there was no way to not deal with the regime
now in place.

In the XIXe, the written constitution became really supreme.

- 1803 in the USA: defined that the Supreme Court can review the constitutionality of laws.
- Not until the Fifth French Constitution in France.
- The Constitution is legally binding for the three branches of the state.

After the WW2, we adopted the current regime to review the constitutionality of laws.

- Before WW2, in the 1920s: Hans Kelsen had created a Constitutional Court but no individuals
could reach it, only the state. While most Constitutions today refer to the supremacy of the
constitution, including a list of rights, it was not the case in Kelsen’s view.
- German, Italy and Japan: they did not decide their own constitutions, which were imposed.
Structured with the help of Western jurists. It was to make sure that these states could not
be used again to violate important rights. They can never amend the list of rights in these
constitutions – an article makes it impossible.
- The WW2 showed that state authorities, despite of the rule of law, separation of powers,
supremacy of the written constitution, are capable of committing atrocities.
- After WW2 two processes:
1. Codification of IHRL in treaties.
2. The proliferation of the idea of written constitutions of states. It is impossible today to
have states without adopting a written constitution.
o Liberal constitutionalism: constitutions are similar together and similar to
international treaties. The result of that kind of proliferation that adopt the basic
elements of liberal constitutionalism, is that we have states that are similar.
 The institutionalization of the human rights through (1) international law via treaties,
and (2) national law. Similarities between Cst texts and treaties can be misleading:
despite the similarities in the texts there is no convergence between the treaty text and
how the state applies it.

Readings/audio (Timothy Snyder & Willy Brandt):

 - https://drive.google.com/file/d/1nvYQGnJc05Pq7QwBSktTO0XeQpq5Ad5e/view (p383)
- https://www.youtube.com/watch?v=enJRIdmVHRE (5:03)

06/10 States’ Human Rights Obligations

Discussion: can military intervention be humanitarian? (Legitimacy for other states to intervene in
order to stop atrocities).

- Was also the question if it is possible to cooperate with the Soviet Union despite the
atrocities they committed to take down the Nazi regime?

Theory of Justice: HR regime does not say what to do in each specific situation, we have to interpret.

Debate around the Little people:

- The main question, from the perspective of the state, is whether or not it should intervene.
- Second question: what kind of intervention it should make, based on particular interests.
o In France: freedom of entrepreneurship with limits because it stereotypes a
community or a group (set by the Constitutional Court). The issue is a kind of
balance between various people’s rights.
- Observations:
o Take what is important not for the majority of the individuals concerned, but for the
most vulnerable part.
o Where does the state stop from intervening in the society, defining what is human
dignity? One of the main issues is the definition of dignity.
o Depends also what is the point of departure of HR: dignity (which could be a
limitation of rights and freedom), or freedom (everyone is free to do what they
want). Or equality: without equality freedom has no sense (how free is this
freedom?).
 The three are the basis of the UDHR. So the UDHR is rather a platform for
states to decide, based on the culture, do decide what to do.
 Religion and nature often present arguments against equality. In religious
terms there is equality for those who are similar (the group of faithful’s).
Certain political groups can do the same thing with dignity (Nazis for ex).
o There is also the question of whether the state has the ability to prohibit a practice?
Does it have the human and financial resources?

In IL there is a difference, a hierarchy between rights.

- Certain are considered jus cogens. For ex there is no way that a treaty between two states
including slavery. Certain rights are so important that states cannot agree to contradict it
o These rights are taken away from the state to decide.
o Freedom of mvt for example is not – treaties between states regulating this
depending on the nationalities.
 o Judicial discussions in Oslo for ex: apartheid and self determination are they jus
cogens?
- Erga omnes: rights and obligations for and between everybody. Certain provisions are not
left for states themselves. What Khadafi was doing in Libya is something to be delt by
everybody, when it comes to fundamental rights.

Difference between HR and basic rights:

- Optional reading: Michael Sandel, Justice: What’s the right thing to do? (p9 to 20)
https://drive.google.com/file/d/1rQ2Gc-zQRR05JA_3pF_LnqLHxxTk6QD9/view
- https://www.youtube.com/watch?v=kBdfcR-8hEY&ab_channel=HarvardUniversity until
15:34
o Moral reasoning:
 Consequentialist – locates morality in the consequences of an act
 Categorical – locates morality in certain duties and rights

08/10 Responsibility of States: What if?

About the concept of dignity (wrap up of last class):

- Jeremy Walton introduced the notion of dignity and said that he always existed but applied
only for the riches and nobles. The HR system is taking this status of dignity that is already
used and extend it to all humans.
- Dignity can be dangerous if it is used to exclude others: Usually the concept of dignity, when
it can be used against a certain conception of HR, is usually when it is applied at the
collective level – a set of level and values that are supposed to apply for everyone (ex: the
LBTQI+ marriage, or suicide/euthanasia). You are not free to choose, your emotions or
inclinations are not for you to choose (so then these differences are explained as handicap,
sickness).
- Make a judgement is often more about feeling than reason. Intuition is very important.
o Often we don’t disagree about the text, that something should be done, but about
what to be done in light of this text.
o Cultural relativism would decide what is the right thing to do. (Cultural relativism
refers to not judging a culture to our own standards of what is right or wrong,
strange or normal. Instead, we should try to understand cultural practices of other
groups in its own cultural context.)
o Regardless to this insistence on relativism, there is still jus cogens and erga omnes.
- We distinguish HR and basic rights: basic rights and freedom can apply to non humans, like
companies.

About the importance of citizenship:

- As Arendt introduced the idea, citizenship is the right to have rights. In the past it was
subjectivity to the sovereign, now it is citizenship.
- This is different from nationality: there could be differences between citizenship and
nationals (in the US with Porto Rico for example; or if you are born in the US, even from
 foreign parents you will have full citizenship vs. American parents born abroad: no full
citizenship). Right of blood or right of land.

HR vs. state of exception:

- Ex in Spain: Spain has been condemned by the European Court of Human rights regarding the
cruel and inhuman treatment it gave to certain prisoners.
- Ex in the US: The US Supreme Court refused to intervene in the state exclusive power
regarding Guantanamo, except for one prisoner: because this one was a US citizen. So
citizenship made the difference for this one – the Supreme Court said I have a jurisdiction
over this one. It decided that the US don’t have territorial jurisdiction, with the exception of
citizenship.
- Ticking bomb scenario – a thought experiment that has been used in the ethics debate over
whether torture can ever be justified: sometimes officers need to take decisions, including
inhuman treatment and torture, but the reason is they’d save several hundred people. So
they consider they can torture this people  a consequentialist thought.
o The Israeli Supreme Court legalized this concept: when Rabin was defense minister
during the first intifada, there were cases of torture in prison to the point that the
gvt decided to form a committee to look into the matter to answer the question – is
it possible to torture? The Committee said that during ticking bomb period, it is
agreed to not apply norms that are done for regular period of time. Israeli Supreme
Court used the agreement saying that torture is prohibited in Israel so it is not
possible, but in case an officer use it he cannot be punished.
o This is the kind of discussion that many countries right now are trying to have to
explore if it is possible to commit torture in certain cases.
o In the US it is forbidden but under the territorial jurisdiction: the US Supreme Court
decided they have no extraterritorial jurisdiction.
 Territory and citizenship are often used to make a different interpretation of what are HR.

There are two main approaches to HR that lead us to different conclusions:

- The result oriented one: the utilitarian school, the right thing to do is what leads to the
greatest benefit.
- The principled one (E. Kant): certain principles can never be waived.

Implementing HR Obligations:

 Which rights do we have? Where should we look:

- Whether the treaty is in force in general: ratification. First way: look in international treaties.
Ex: the Convention of the Rights of the Children violated by the US cause they separated
migrant children from their parents  they signed it but did not ratified it. Link to OHCHR.
o The signature signifies that you must not work against the treaty, so it is not
completely irrelevant. (ex when the US wanted to sew the ICC judges).
o But in the case of rights of child they have no obligation.
- Whether the treaty is in force in specific: Palestine ratified the First Protocol on the Death
penalty but still applies death penalty. How is it possible?
o Whether the treaty is really in force. Here the protocol is in force after reaching a
certain number of ratifications.
- Whether the time of implementation has passed: Thirty days between the ratification and
the implementation. During this period, they need to take all the necessary measures to pass
laws and implement it (pass bills, implement them, ensure that there is no discrimination in
this implementation).
- Whether or not the state expressed reservations at the time of the ratification? Check the
status of reservations.
o Israel decided to put people administratively in prison, against the right of freedom
of movement and fair trial, without being charged by a court. Israel ratified the
ICCPR, it is in force since more than 30 days.
- Whether some countries apply the derogation? Check the status of derogation.
o Israel wrote a letter to the SG applying a derogation to Political status and explaining
they can derogate from the impediments on the administrative detention due to
specific contexts. The difference with reservation is that in certain temporary
contexts certain articles would not apply.
o International Covenant on Civil and Political Rights: Article 4 explains there can be
some derogations due to safety of the state.
- What is the judicial regime of the country? Dualist approach or monist approach.
o Fourth Geneva Convention, art. 15: respecting the rights under occupation in case of
conflict. Israel has passed all the steps above (no reservation, no derogation). So you
say to Israeli Supreme Court: According to article 15, Israel has this obligation.
o But: all Anglo Saxon courts would never accept the direct application of a treaty,
those countries are called dualist regarding international treaties. They think that
international treaties are an obligation on government, not on justice. So we need
to see what the Knesset and the Supreme Court has decided, cause international
treaty does not apply here. Also it is not usual in these countries to use article: you
use cases.
o Difference with a monist approach: France had ratified a treaty regarding freedom of
mvt: the French judge would apply the treaty, even if it contradicts with national law:
the treaty is above.
- Whether the subject is protected by the treaty? A protected subject matter: both the subject
(individual) and the object.
o Is the object protected under the treaty? There is no written human right to
water for example, although there is right to food. The Community of
International Treaties issued a binding interpretation of the right to water as part
of the right to food. (CESC General Comment 15).
o Is the subject protected? Ex: No private company has a right to freedom of
expression, no right to life for fetus.
- Is International Court having jurisdiction over this individual case?
o Question of prosecution by the state - Example: if a policeman kills someone
arbitrarily and the state does not prosecute him, can we go to the Human Rights
Committee? Yes.
 Question: who represents the state? Officials, but also private companies
if they are hired by the state. The privatization of the state role does not
mean that the state is not responsible. Ex: the mercenary companies in
Afghanistan.
 Ex: an Israeli settler kills a Palestinian farmer. Is the state of Israel
responsible? Can we go to the HR Committee? Yes, if the state did not
 put into trial the settler or it did and it was unjust – then the victims can
go to an international tribunal.
o Question of territory –
 Ex: an Israeli company producing dangerous materials - that are
prohibited from entering in the territory of Israel – in Palestine. Not
respecting rules of health – would you call for obligation for a better
treatment of workers and apply Israeli law in the OPT? Under the ICC
Israel needs to apply HR in every territory under which they have
jurisdiction.
 Territory becomes a way to say I have no obligations. Obligation to let
people suffering from cancer in Gaza to leave the enclave. Does Israel
have obligation under the right to health? Israel would say no I have no
obligation under the treaty – no more than Egypt, while IL would say due
to the blocus Israel has obligations.

Additional readings/audio:

- A talk about the book:

https://www.youtube.com/watch?v=TiTaE863jBI
21:47 – 31:13. Sharia is not divine. It is the human understanding of the divine.
Regarding HR regimes as a forum to negotiate our rights.
- Does Israel want peace? https://www.youtube.com/watch?v=1yh3IoxCoDc Min 34:50 –
48.50
- Raja Shehadeh, Human Rights and the Israeli Occupation. The New Centennial Review, Vol. 8,
No. 1, 2008, pp. 33–55. What is the alternative? Question of insistence on territorial state
rather than on citizenship rights.

13/10 Constitutional Courts and HR (1)

 In the 21th century, the constitutional courts are the forum through which we could decide
cases of disagreement regarding HR (in the 20 th it was parliament, in the 19th the executive
power).

 The idea of double standard assumes that the subjects are equal which is not true. We
should not confuse international systems and international state systems.

About Justiciability (wrap up of last class):

- Those rights that are present in Int treaties should be made judiciable  means that courts
should be able to look into this kind of violations.
- Civil and political rights: negative rights in the sense that the state should not. They are
presented as almost absolute. It is generally taken for granted that judicial remedies for
violations are essential.
- Eco, social and cultural rights: positive rights. Regrettably the contrary assumption  they
are subject to the resources that the state has. So it is not looked as absolute.
o In this sense the judiciary often have a say on the best way to use the state
resources.
 - The court have a say in the way states authorities reflect their obligations in the executive
system. Even in the countries where there is a direct application of the treaties, where the
court is capable to do something when there are violations of int. treaties, their
interpretations will be subjected by the committee which can say that it contradicts with the
covenant.

Presentation of book synthesis: Could HR be simply a Western way to conceive the rights of
individuals, or is it something universal? Link to book review.

- Edward Said, critic on the nationalistic approach of the PLO that gives a non inclusive
approach of rights.
- Reynolds: derogation close in Int treaties is just another example of the way colonizer
regimes use IL to maintain domination.
- Gross: how law is used to control the pop and how terrorism played a role in covering
violations of the law of occupation.
- Mamdami: victims become killers because of the nationalistic approach of rights. IL deals
only with individual crimes, not collective.
- Rifklin: the individualism in HR is a Western concept that must be criticized.
- Sen: Hamas confuses anti colonial and post colonial.
- Gordon: Israel used the law in various ways to maintain the occupation.
- Anghie: the current regime of HR is a parcel of a bigger imperial regime that is taking place.
 Those critics need a kind of balance.

About Constitutional Courts (CC):

- Executive sign, legislative ratify, and judiciary must monitor the implementation and
violations. It is the role of the court in the 21th century.
- Constitutions became different after the WW2: now they have lists of rights in the body of
the Cst. The list of rights are not looked as standard for gvt to abide with when it is
convenient for them: now it is a rule to be enforced. A Constitutional Court must be put in
place for this.
- CC à la française: a regime that controls before and after the promulgation of laws
o Changed in 2008/2010: before the Conseil Cst had no power to review a law that was
promulgated. It was possible to have a law that contradicts with the Cst but no one
could find a way to seize the Court.
o 2008: the Cst was amended to enable the Conseil to review the constitutionality
after the promulgation.
o 2010: maintain the prior control of laws and added the possibility of control of the
law after the promulgation.
- Control of constitutionality: in the way it developed after WW2, we establish a Court with
specific tasks of reviewing the acts of Parliament and gvt to be sure it is aligned with the Cst.
They can suspend the application of the law until the time the parliament decide to review
that law.
- Overview of CC worldwide:
o Netherland has no special body – it is done by the legislative power – but gives equal
importance to the international treaties and Cst
o Lebanon: theoretically a Cst Council that review laws but not very functional. 8
judges but 2 died and so they cannot review the law as they are supposed to be the
 whole court to rule. Review before the promulgation. Political conflict around the
nomination of judges.
 Importance: who has the power on the judges, so it is not about the law, but
about humans subjected to their influence, background and legacy.
 The Cst Council is itself unconstitutional cause the judges had a limited
number of years for judges but there was no consensus over the choice of
new members.
o US: the only case of decentralized judicial review in the word. Any federal judge can
suspend the application of any decision of gvt. Until the Supreme Court intervenes,
the federal court judgement will prevail.
 US cannot review the constitutionality of laws before promulgation. The
Court can look into the matter only when there is a conflict in the application
of the law. The opposite regime than in the other countries.
 The Supreme Court can only suspend the application of a law. Because the
power of the precedent is: no other court can contradict the US SC in case
they consider a law to be unconstitutional.
 After that the gvt can still continue to apply the law even if it has been
considered unconstitutional by the SC, but if it does the individual can be
held personally accountable.
o In Poland: the gvt is so strong they control both chambers and can decide to amend
the Cst, change the way to nominate (ideological and political tendencies of the
judges). The Court itself is used by the gvt to confirm their fascist tendencies. It
became one additional instrument that totalitarian regime can use to entrench their
fascist tendencies.
o South Africa: One of the leading model of Cst Court. They followed the model of
Germany but added stuff. It considers the result of decade of apartheid in South
Africa, to the structural inequalities in the society. Not only to consider HR as an
individual entitlement but to consider the structures.

Who can approach a Court to refer a law as unconstitutional?

- Most countries give that power to the President, prime minister, head of senate.
- In France: some minority of the Member of Parliament may go to the Court.
- Germany, Italy and Japan: an individual can go to the Court.

North/South, constitutions and HR:

- Countries of the North are often quoted when we speak about this. They have developed an
important jurisprudence of the cst bodies.
- Three courts of the South that have contributed enormously to the dvlpt of a theory of
human rights, where poor and rich, inequality in the market, colonial or fascist pasts are
taken into account: South Africa, Brazil, and India. Very important decisions undertaken by
these courts. Those countries are not copying other justices, they are in conversation with
them.
- What are HR based on that conversation btwn North and South? We reach a completely
different conclusion.

Reading/audio: Albie Sachs

 - Sachs, Albie.  2009. The Strange Alchemy of Life and Law

- Albie Sachs Lecture, https://www.youtube.com/watch?v=pBkhjB8v4FA

- We see that the Court has not to decide between right and wrong, but between the right of
someone/some entity and the right of someone else/entity.

15/10 Constitutional Courts and HR (2)

About limitations on the CC power:

- Cst Judges should decide if it is up to the government to intervene

- The role of elected parliamentarians: If there is a strong majority in Parliament, the Cst Court
will find it very hard to intervene and substitute to the government; but when we have a
divided majority the Court could decide because the Parliament would not find consensus to
oppose its decision.
- So even in democratic societies the Cst Court is not very indpdt – because of political issues.

Context of the early years after apartheid in South Africa: shows that the power of the
constitutional text is not to be underestimated.

- In South Africa there were objections to have a Bill of rights, Sachs was surprised about that.
Because people were calling the Bill of Rights, Bill of Whites. Sachs argument in favor of a bill
of rights in post apartheid was equality.
- Indeed inequality can be inscribed from the very beginning. The right of property is
problematic like it was in Mozambique. Imagine we decide in Palestine to create one state
for all, and we include a bill of rights were settlers would need a kind of assurance that their
property would be protected in post apartheid. It was that difficult for Sachs to defend it.
- Difficulties started to show afterward in South Africa: people who would show up to the
Court are mostly poor and blacks.

About the importance of the right to property as basis of society (Theory of justice):

- If this right is not guaranteed, there is no possibility that people would accept to submit to a
system that does not protect the starting point of life, property and freedom.
- A system where there would be a kind of collective and gradual approach to property: a
system of taxation for ex that would take in consideration that kind of inequality. Can we
have a democratic system that would be able to take away property to give it to others while
not destroying the idea that talents are compensated with resources?
- In SA they did accept the right of property of whites. In Mozambique, they accepted the
opposite and it was catastrophic.

Sachs: “I conclude that when it comes to protecting the rights of marginalized and vulnerable groups,
it may well be an advantage that our judges are not elected.” (p. 170)

Role of Courts:

- Cst Court: judges have the final say on what are these rights and what should be done by the
State.
 - Regular courts: These rights are justiciable, and the Court could consider them as this and
look at the legality of the acts of the gvt. To be sure that its decisions are legal.

Constitutional review from three different approaches:

 View of the institutions: we could confuse the idea and the way that the institution works.
 The question of reconsidering a precedent: example of the principle of “equal but separate”
in the US. The Supreme Court at some point stated that it was wrong before to set this
principle, the precedent does not work anymore.

Considering the apex courts (= CC) in the Arab World:

- Ex of
the Egyptian transition from Mubarak to the Muslim Brotherhood: the High court and the
military have a role to play in this kind of transitions.
- Ex in Jordan: the country did not really have an Arab spring; the King immediately sanctioned
the Committee that was subject to review the Constitution; and he set up a Constitutional
Court.

20/10 Constitutional Courts and HR (3)

Hate speech debate; “Multiculturalism and Human Rights” Conference

 - Ronald Worken, most famous legal philosopher, presents the American view of rights (totally
different views about hate speech than others). He is making the case against hate speech
laws. He doesn’t accept that in the name of protecting minorities we censor freedom of
expression.
o Taking away their freedom of expression is like taking away their right to vote.
Democracy needs to remain open to everyone opinion, even minority opinions.
o Who decide the limit – opens the possibility to limit free speech for illegitimate
reason.
o It still proliferates when you prevent it – so we should rather let it open so we can
debate it.
o American exceptionalism is also an argument.
- Jeremy Walton is representing the European view: laws that criminalize hate speech. He
wrote a book about what motivates the laws providing moderate criminal penalties on
speech in democracies. There is a need to understand what harm they are trying to prevent.
o Regulating hate speech is in connection with the viability of diverse societies as to
ethnic background, religion and culture.
o Individuals ability to function in society depends not only on their reputation as
individuals, but the general reputation of the group they belong to.
o Need to protect a degree of inclusiveness in society : it is a public good – dignity.
General assurance in the social atmosphere. Hate speeches are calculated to
undermine this dignity. Hate speech have an aim to have an impact on society – to
construct a rival public good. There is at least a negative duty to not undermining this
public good.
o Universal notion of free speech – it already has limits. When there is a direct link
between discourse and violence  easy to condemn when there is this direct
connection. But maybe we need to be sophisticated on the way we conceive harm.
 Not the immediate outset of violence. Like the emissions of CO2:
accumulating arms, slow acting poison, rather than immediately acting
poison. Like social conditions that nurture discrimination.
o The gvt itself does not have the resources to protect against act of discrimination –
rely on the self application of these principles by an important number of individuals.
o However Walton sees limitations that hate speech laws must have:
 Not important as law to protect people from being offended. The priory aim
of hate speech laws is to protect social standing (animal, criminal, terrorist
generalization) rather than the emotion of people.
 Not preclude the social investigation, social criticism and the protection of
people from particular customs practiced among groups that can be
harmful or criminal

Möller, Kai. The Global Model of Constitutional Rights (Oxford, OUP, 2012):

- He presents the dominant narrative of HR as an American view:

 - Then he reviews cases from European courts and reach a different conclusion, of how real
life can develop a different theory of HR:

- Contrary to what the Americans understand about HR – limited domains where the states
could intervene – the current situation is different: we have like a rights inflation.

The rights inflation in Constitutional Courts

- Contrary to the American view, or this traditional approach that has been negative in
nature, we have increasing demands towards the state to positively intervene.
- Horizontal effect: it is not only between state and the individual, but between individuals
themselves. In the usual conception, the perpetrator is the state. The dvlpt in many
constitutional courts right now is that there is this horizontal effect developing.
- Exemples:
o India: case against the practice of genital mutilation that was practiced in certain
communities and was contrary to the Indian cst in 2018. The same court decided that
gay sex is no longer a crime in 2018 as well.
o Spain stroke down the burka ban in municipalities.
- So this increase of HR discourse in constitutional courts is spreading both around the world
and in a wide range of areas.
 The US approach, HR understood in a very limited version, is not working in reality at the
global scale.
 - Legitimate goal: If you would like to limit rights, make sure that a community prevail for ex,
this is not a legitimate goal. But if it is for public health, security, it is. And in this situation the
limitation of rights should be to the minimum, not the max.

akhalil@birzeit.edu