Conceptual Problematic and Internationalization of Human Rights: Implications for Domestic Jurisdiction

Abstract

This paper evaluates the implications of conceptual problems and the internationalization of human rights for the principle of domestic jurisdiction. The conception of human rights as absolute rights creates a problem for determining the proper jurisdiction for protection and enforcement of the rights. If the rights are absolute, how can they be protected and enforced through state laws, which can only establish and enforce relative rights? This paper shows that the conceptual problematic of human rights, though it seems to be resolved in the recognition of such rights as fundamental rights, persists as states can still determine the extent to which such rights can be exercised. However, fundamental rights transcend the relativity of socio-economic and political rights. Thus, unlike state-centric rights, human rights are considered inalienable and immutable; hence, the internationalization of such rights. Internationalization confers on human rights the essence of reification, such that state laws cannot set boundaries on their protection and enforcement. Human rights can only be ratified and added to state constitutions by states through treaties. The United Nations (UN) makes sure that individual states (members and non-members) protect and enforce human rights. This paper maintains that, despite internationalization, the nature of human rights as absolute rights can only be realized when no restrictions are placed on the exercise of the rights. Since human rights are important, states should do more to protect and enforce them. They should also avoid restrictions that would make the exercise of human rights like exercising a societal right.