Malcolm Langford

Norwegian Centre for Human Rights, University of Oslo

HUMR 4140: Introduction to Human Rights Law

Lecture 5

International Human Rights in

National Legal Systems

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:

• Constitutions and Bills of Rights

• Legislation

• Regulations

• Provincial and Local Laws

• Jurisprudence

• 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:

• Pre-legislative (e.g. France) and post-legislative (e.g. Canada)

• Strong vs Weak (e.g. ruling laws invalid vs find inconsistency)

• Constitutional jurisdictions in apex court or all courts.

• 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

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’.

• (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

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

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.