human rights standards affect domestic law, they have a homogenising effect on
institutional arrangements as well as on substantive rights. Judicial independence
and fair elections are examples.
International human rights norms penetrate domestic constitutional law in
different ways. Anecdotally, there is a trend to give them direct effect in or through
the constitution.^10 This practice may now bede rigueurfor new constitutions.
In any event, it is reinforced in the course of constitution-making processes that
rely on assistance from the United Nations or international NGOs.^11 Even so, direct
effect may be achieved in different ways with different consequences. Most obvi-
ously, in monist states international treaty commitments automatically take effect
in domestic law as long as they are self-executing. Such states may make different
decisions about which treaties are self-executing, however.^12 They may also have
different understandings of the legal status of international norms vis-a`-vis legisla-
tion and the national constitution.
13
Where international norms co-exist with
domestic rights the question of supremacy may be important.
In addition, there are alternative techniques through which international human
rights norms may be given a form of direct domestic effect. International instru-
ments may provide the model on which the drafters of a domestic constitution
draw, more or less faithfully; the reliance of the Hong Kong Bill of Rights on the
International Covenant on Civil and Political Rights is a case in point.
14
In such
cases, international norms take effect as constitutional provisions and there is
unlikely to be a separate, competing suite of domestic human rights norms. In a
variation, as in Argentina, a constitution may specifically confer constitutional
effect on particular treaties, in terms that prescribe their relation to existing consti-
tutional rights protections.^15
Punishment, New York, 10 December 1984 , in force 26 June 1987 , 1465 UNTS 85 ( 150
parties); Convention on the Rights of the Child, New York, 20 November 1989 , in force
2 September 1990 , 1577 UNTS 3 ( 193 parties). For the particular position of Taiwan, see
Yeh and Chang,Chapter 7 of this volume.(^10) Cf the findings on explicit references to international treaties in Tom Ginsburg, Svitlana
Chernykh and Zachary Elkins, ‘Commitment and diffusion: how and why national consti-
tutions incorporate international law’ ( 2008 )University of Illinois Law Review 201 ,at 207 – 10.
(^11) Guidance Note of the Secretary-General, ‘United Nations Assistance to Constitution-
Making Processes’, identifying ‘compliance with international norms and standards’ as the
second principle guiding UN assistance, with the need for ‘national ownership’ as the third.
(^12) Curtis A. Bradley, ‘Self-execution and treaty duality’ ( 2008 ) 2009 Supreme Court Review 131.
(^13) Compare, for example, the position in the Netherlands and France: Constitution of the
Kingdom of the Netherlands 1983 , Art. 94 ; Constitution of the Fifth French Republic 1958 ,
Art. 55 : see generally, Antonio Cassese,International Law, 2 nd edn (Oxford: Oxford
University Press, 2005 ), pp. 228 – 31.
(^14) Chen, ‘International human rights law’, at 243 – 6. The transcription may not, of course, be
entirely faithful: in relation to various Latin American states see Janet Koven Levit, ‘The
constitutionalization of human rights in Argentina: problem or promise?’ ( 1998 – 9 ) 37
Columbia Journal of Transnational Law 281 ,at 298 – 9.
(^15) Constitution of the Argentine Republic, Art. 75 ( 22 ).