Revista Pensar en derecho N�2.indd
The coexistence of two positive law systems for the protection of fundamental rights (international human rights law (IHRL) and domestic constitutional law) may give rise to disharmony and even conflict. To reduce such differences, there are alternatives ranging from the impossibility of applying do...
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| Formato: | Artículo publishedVersion |
| Lenguaje: | Español |
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Universidad de Buenos Aires. Facultad de Derecho. Departamento de Publicaciones
2013
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| Acceso en línea: | http://www.derecho.uba.ar/publicaciones/pensar-en-derecho/revistas/2/el-antinegacionismo-juridico-derecho-internacional-vs-derecho-local.pdf http://repositoriouba.sisbi.uba.ar/gsdl/cgi-bin/library.cgi?a=d&c=pensar&cl=CL1&d=HWA_3075 https://repositoriouba.sisbi.uba.ar/gsdl/collect/pensar/index/assoc/HWA_3075.dir/3075.PDF |
| Aporte de: |
| Sumario: | The coexistence of two positive law systems for the protection of fundamental rights (international human rights law (IHRL) and domestic constitutional law) may give rise to disharmony and even conflict. To reduce such differences, there are alternatives ranging from the impossibility of applying domestic constitutional law (authoritative use of international law) to the outright denial of international human rights law (the United States' traditional position on freedom of speech). Europe has adopted an in-between system that seeks the convergence of both extremes, though not always successfully. The position adopted by some European States in favor of punishing negationist practices is a clear example of this. Even though international and regional European case law has lately stood for fighting legal negationism, this trend seems to have been reversed by the Constitutional Court of Spain, which declared that defining negationism as a crime is unconstitutional (STC 235/2007) on the grounds that this is incompatible with Article 20.1 of the Constitution of Spain, which guarantees the right to freedom of expression. Disregarding the IHRL guidelines on the approach to be given to "memory laws", such ruling reopens the debate over the scope and effectiveness of the international human rights system vis-à-vis domestic laws, and accounts for this evident tension. In addition to this already controversial ruling, the guidelines laid down by international law have proven not to be sufficiently clear or univocal. After urging the States to legislate negationism as a crime and after having condemned it in individual decisions, the UN Human Rights Committee, in its General Comment No. 34, has recently done a complete reversal on its decisions by firmly declaring that laws of this type are incompatible with the ICCPR. This kind of contradiction by one of the most important organizations in the international community averts the possibility of reducing disharmonies in the "domestic versus international law" debate. It is essential for human rights bodies to establish clear and univocal guidelines and criteria on this issue so that States may understand in what sense they should adjust their domestic legal systems to gain greater cohesion in the application of international human rights law. |
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