Download Legalisation of Human Rights

International Human Rights in
National Legal Systems
Malcolm Langford
Norwegian Centre for Human Rights, University of Oslo
HUMR 4140: Introduction to Human Rights Law
Lecture 5
At the 1953 conference on the constitutional future of Nigeria, a
Nigerian delegate suggested including a bill of rights in the new
constitution. Oliver Lyttleton, Secretary of States for the Colonies and
chair of the conference, responded by saying that the Nigerians could
put ‘God is Love’ into their constitution if they so wished, but not
while he was in the chair…Yet by 1959 the Colonial Office
supported the incorporation of a bill of rights into the Nigerian
constitution (Parkinson, 2007:1)
Contents
I. Human Rights in National Law
II. Relationship between International and National Law
III. Implementation Obligations Under International Law
1. Human Rights in National Law
1. National Law and Human Rights
 Different sources of law:
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Constitutions and Bills of Rights
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Legislation
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Regulations
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Provincial and Local Laws
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Jurisprudence
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National Human Rights Institutions/Ombudspersons/Public Defenders
 Human rights recognition (e.g. right to fair trial or education) sometimes
explicit and implict in these laws.
 Human rights protections often not linked to express human rights(e.g.
amount of time before suspect must be brought before a judge or
process for disconnecting water) but many exceptions.
2. Constitutional Developments
 With some exceptions, most radical changes in constitutional rights
come after state formation or various revolutions. Multiple constitutions
in some countries.
 A wide variance in gradualist amendments during regime stability or
judicial activism in implying rights.
 A broad move away from ’pre-modern’ rights and growing
convergence to ’modernist’,’cosmpolitan’ and ’group’ rights
recognised in international human rights treaties.
 But strong debates on the nature of constitutional incorporation: e.g.,
length and detail of catalogue of rights, rights vs principles, rights or
obligations, direct inclusion of international rights, existing vs
aspirational rights, ESC rights, horizontal obligations, limitations,
powers of judicial review, nature of remedies etc.
3. Chronology of Bills of Rights
 Pre- Revolutionary Age (English Magna Carta 1215/Bill of Rights 1689)
 Post-Revolutionary (US, Norway 1814, German states 1849)
 Post-World War I (e.g. Mexico 1919, Russia 1917)
 Post World War II (e.g., Germany 1949, Hungary 1949)
 Post-Decolonisation – (e.g. India 1947, Ghana 1957)
 Post Cold War/Authoritarianism – (e.g. Argentina 1994, South Africa
1994 ++)
 Post-Conflict – (e.g. Iraq, East Timor, Nepal)
4. Judicial Review
 Most controversies over powers of judicial review
 Courts and politicians traditionally uncomfortable with ’judicial review’: i.e.
the assessment of the constitutionality of legislation or state action/omission on
the basis of the constitutional text. (e.g., 1689: UK Parliamentary Sovereignty)
 US Supreme Court: Marbury v. Madison (1803): “It is emphatically the province
and duty of the Judicial Department [the judicial branch] to say what the law is.
Those who apply the rule to particular cases must, of necessity, expound and
interpret that rule. If two laws conflict with each other, the Courts must decide
on the operation of each. “
 Different structural forms of judicial review:
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Pre-legislative (e.g. France) and post-legislative (e.g. Canada)
•
Strong vs Weak (e.g. ruling laws invalid vs find inconsistency)
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Constitutional jurisdictions in apex court or all courts.
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Direct petition to apex court vs beginning at lowest court
•
Individual vs precedential vs collective standing and remedy.
• Wide variations in levels of judicial restraint (e.g. Nepal vs. Ireland;
Colombia vs. Kenya).
• Most human rights litigation is more of an administrative law character:
i.e. failure of governments or other actors to follow their own domestic
statutes. This includes international litigation.
• However, precedents can have wide-ranging effects in both common and
civil law systems (e.g. Grootboom).
5. Research Questions on International Law
and Domestic Legal Systems
 What is the historical relationship between international and national
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human rights law?
What is the legal status of international law in domestic legal systems?
What should be the status of international law on domestic systems?
What is the effect or impact on international human rights treaties on
domestic law and politics?
How can international law be better incorporated in domestic legal
systems?
II. International Human Rights Law
and Domestic Law
1. Historical Relationships
 Chicken and eggs?
 Henkin (1989: 13) on attempt to measure influence of the US
constitution:
One would have to trace not only obvious borrowings but also those that are implicit, not only direct adoptions or
adaptations from the United States but also from others previously influenced by the United States, and
contributions by the United States to the Zeitgeist, to the spirit and ideas of the times. One would have to attempt
to disentangle multiple strands, notably, for example, the reciprocal influences of English, French and American
ideas, persons, and events in the last half of the Century; the impact of the French Declaration on the Rights of
Man and of the Citizen and the US Bill of Rights in Latin America in the nineteenth Century; or the contributions
in recent decades of US constitutional ideas and the Universal Declaration of Human Rights, the latter itself a
product of multiple influences. One might try too, to sort out the influences of ideas from that of power and
image. The history of the influence U.S. ideas would have to be chronological as well as logical, and would have to
attempt to place the influence of ideas in the changing context political, cultural and economic influence as the
place of the United States in international affairs has changed over decades and centuries.
 ICESCR 1966  SA Bill of Rights 1994 - Grootboom 2000  OP
ICESCR 2008
 ADA (US)  ICRPD  Norway (& US?)
2. Legal Status of Treaties
 Automatic Incorporation (monism) versus legislative incorporation
(dualism)
 Difference in practice?
•
(1) Monism requires interpreting treaty as ‘self-executing’.
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(2) Monism requires actually paying attention to international treaty.
•
(3) International law in dualist systems used as interpretive device
 Is the practice explainable by political and judicial culture over the
deeper philosophy of monism/dualism or judicial activism/restraint.
 Group A on what is better: monism vs dualism
 Group D on US versus UK approach.
3. Legal Status: Intepretivism
 Growing trend to interpret domestic law in accordance with
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international (and comparative) law.
This might concern the interpretation of a particular shared right (e.g.
Right to life in death penalty cases) or whether a practice or law is
consistent with an international human right (e.g. whether
administrators need to consider a treaty in decision-making)
Teoh Case (pp. 1113-1116 SAG) (i) a lacuna (ii) interpret local law
consistnely with treaty (iii)
Some backlash against increased interpretivism.
International law also used in constructing remedies (e.g. India,
Germany)
Increased use of international jurisprudence in interpreting rights:
particularly in relation to regional systems.
III. Implementation Obligations
under International Treaties
1. Obligations of Incorporation?
 Is there an obligation to incorporate international law?
 ICCPR: Article 2.2 “Where not already provided for by existing
legislative or other measures, each State Party to the present Covenant
undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present
Covenant, to adopt such laws or other measures as may be necessary to
give effect to the rights recognized in the present Covenant.”
 ICESCR: Article 2 – no similar express obligations “by all appropriate
means, including particularly the adoption of legislative measures. “
 CESCR, General Comment No. 9 (pp. 1110 SAG).
 Opinion of Group C on General Comment No. 9
2. Improving incorporation of
itnernational human righs law
 See limiting and enhacing factors and best practice in Heyns
and Viljoen (pp. 1008-1095 SAG). See longer version of
article for recommendations.
 Should states be required to incorporate? Group B.
3. Obligations for Implementation
Boerefijn (2009) argues there are five main obligations:
General duty to implement
Legal Protection
Obligation to Protect against Acts of Private Parties
Obligation to Provide Effective Remedy
Education and Awareness Raising
Do you agree?
CEDAW, Article 5
 States Parties shall take all appropriate measures:
 (a) To modify the social and cultural patterns of conduct of
men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of
either of the sexes or on stereotyped roles for men and
women;
ICESCR, Article 6
 1. The States Parties to the present Covenant recognize the
right to work, which includes the right of everyone to the
opportunity to gain his living by work which he freely
chooses or accepts, and will take appropriate steps to
safeguard this right.
4. Monitoring Implemntation
Boerefijn (2009) discusses two methods:
Judicial oversight
National Human Rights Institutions
What do you think?
5. Impact of Human Rights Treaties
 Only emerging evidence acrosss various sorts of programmes.
 Difficult questions of what is impact (matrerial, process and symbolic?) plus
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determining baselines, attribution and time period.
Often different results for quantitative and qualitative studies.
Strong impact in European and Inter-American regional systems than
international and other regional systems.
Some evidence that international human rights treatis consistently
achieve higher impact in transitional middle income democracies.
Also seems to be more significant in countries outside regional systems
and possibly with weaker constitutions.