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Clash between International Human Rights Law and National Constitutions: LGB Rights as a Case Study

This project studies the clash between international human rights law and national constitutional law in the case of LGB rights.

Supervision: Prof. Dr. Eva Brems

Researcher: Ignatius Yordan Nugraha

The rights of LGB people are currently protected under the jurisprudence of international human rights law. However, there are cases where national constitutions are at odd with it, especially in countries that have invoked sharia law as the source of all laws in their respective constitution. At the same time, the backlash against LGB rights in developing countries could push them to constitutionalize the limitation of the rights of LGB people, such as the thwarted effort in the Indonesian Constitutional Court in 2016-2017 to push for the criminalization of same-sex activities.

In fact, the clash between international human rights law and national constitutional law in the case of LGB rights is basically an entanglement between suprapositive and consensual dissonance. “Suprapositive dissonance” refers to the fact that international human rights law and national constitutional law might rely on different normative underpinnings. Meanwhile, “consensual dissonance” means that both international human rights law and national constitutional law rest on diverging consensual foundations that could lead to a clash; for instance, national constitutions are often regarded as the highest law of the land, while international law dictates that states could not rely on national provisions to justify the violation of international norms.

Therefore, this PhD research will focus on how the dissonances between international human rights law and national constitutional law in the case of LGB rights could be solved. The analysis will be conducted in concentric circles, starting with a general analysis of the problem as a whole and then zooming in on the case of Indonesia.

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