Abstract

MARIN-ORTIZ, Iris. Obligatory and non-derogable rule to recognize and guarantee human rights is binding of the constituent power of the state. Estud. Socio-Juríd [online]. 2010, vol.12, n.1, pp.305-336. ISSN 0124-0579.

This paper argues the existence of limits to the Constituent Power in moments of constitutional break. This is derived from the current development of international law according to which constitutional contemporary States agree upon the basic rules of the Charter of the United Nations, the Universal Declaration of Human Rights and the mandatory ius cogens rules. Those limits are obligatory, even to the constituent power. This paper deals with the challenges for the enforceability of the rule that establishes the obligations of preserving a regime that respects human rights, taking into account the theories about monism, dualism, and reticularidad. In the last part, the research proposes some enforceability alternatives.

Keywords : Human Rights; ius cogens; monism; dualism and reticularidad; constituent power.

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