THE IMPACT OF INTERNATIONAL HUMAN RIGHTS LAW ON DOMESTIC LEGAL SYSTEMS

This Article is written by Thuraya Hatim of University of Khartoum, an intern under Legal Vidhiya

Abstract

International human rights law is a soft law that aims to protect individuals’ human rights under any circumstances, whether there is a war, natural disaster, or any other situation that may affect individuals’ human rights. When states sign treaties that aim to protect human rights, the state then has duties to complete towards the citizens by becoming a party of the treaty, and here is where the role of international human rights law comes, the law makes sure that the States have completed their obligations under international human rights law, to take specific actions to uphold and safeguard the human rights and fundamental freedoms of individuals or groups. The state will protect citizens’ human rights.

The impact of international human rights law on the domestic legal system has advantages and disadvantages like any other law. The advantages of applying international human rights law include establishing a human rights culture and enhancing the protection of human rights. The disadvantages of applying international human rights law include cultural conflicts and enforcement issues.

Keywords

International Human Rights Law, Treaties, National Laws, Domestic Legal Systems, Human Rights.

Introduction

The United Nations General Assembly’s adoption of the Universal Declaration of Human Rights in December 1948 was the spark to international human rights law progression, the international human rights law enforcers’ responsibility for the nations to respect, protect, and fulfil the human rights of its people, added to that it gives the people the right to sue their own countries if their countries violated one of their rights. International human rights law protects fundamental human rights such as social, political, and economic rights. These are the rights that everyone should have and enjoy. international human rights law seeks to broaden recognition of the certain rights to all people of the world, the goals of the law have been focused on protecting the most basic of human rights such as the right to life prohibiting slavery torture or arbitrary arrests as well as recognizing a right of association and freedom of movement

To apply international human rights law, the state must ratify the human rights treaty like the Convention on the Elimination of All Forms of Discrimination against Women or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, after the ratification, the state becomes responsible for fulfilling and protecting the rights assigned to the treaty. However, ratifying the treaty only is not practical in applying the international human rights law effectively; it must be used at a domestic level. To effectively apply international human rights law on a domestic level by states or governments, the states must participate in this operation by incorporating human rights treaties into the country’s constitution, allowing the courts to interpret and use the treaties in their judgments, and stimulating new legislation based on the treaties, after these procedures the international human rights law will be applied in the domestic systems. There might be obstacles that may disable the implementation of the law, such as sovereignty issues and political parties refusal, however implementation problems can be solved by rising awareness and education.[1]

History of International Human Rights Law

The history of international human rights law goes back to 1948, when the UN General Assembly adopted the Universal Declaration of Human Rights (UDHR) in 1948. The declaration was a non-binding treaty that set out the first international fundamental human rights, like the right to life, prohibition of torture, freedom from slavery, and freedom of opinion and expression. Several regional conventions on human rights have been established since then, including the European Convention on Human Rights, the Arab Charter on Human Rights, the American Convention on Human Rights, and the African Charter on Human Rights and People’s Rights. In addition, international human rights law has been further developed through global treaties like the United Nations Convention against Torture and the International Convention on the Elimination of All Forms of Racial Discrimination. While these treaties have a worldwide scope, they primarily focus on safeguarding specific rights rather than taking a comprehensive approach to addressing all human rights.

The role of international human rights law is to extend the recognition of the fundamental human rights known throughout history and protect these rights from being violated by the states. And to accomplish that, several measures can be done like: the states shall ratify human rights treaties, and by ratifying the treaties, the state becomes responsible for every violation of human rights that it commits, the courts can interpret the law and apply it within their judgment, it can be added in the constitution which will make the law more powerful, and finally by legislation by enacting new laws that can extend the protection of human rights which naturally leads to enhance the security of human rights. These are the ways to apply international human rights law on the domestic level, but after all, there are complex obstacles to applying this, like sovereignty concerns’ political reasons, and economic reasons; the benefits of applying the law are above the disadvantages of not applying it and the advantages can be like the protection of human rights, accountability, and create a strong community that values human rights.[2]

Application of International Human Rights Law

The debate about whether the means of applying international human rights law are effective or whether the law’s application impacts the domestic legal systems around the world has taken forever.

The basics of applying the law are signing and ratifying treaties. Following that, the states become responsible for protecting these rights and for any violation committed against them. The real obstacles and difficulties occur when the state wants to apply the law on a domestic level, yet these difficulties can be overcome by these measures:

1. Incorporating human rights treaties in the constitution: Addressing the treaties in the constitution will boost their protection, and state bodies will take them seriously and respect them. Not only that, but the people of the state will know their rights and how to enjoy these rights.
2. Judiciary Role: The courts and judges have a huge responsibility when it comes to applying the law. The courts can contribute by including and interpreting human rights treaties in their rulings, which will strengthen law enforcement.
3. Legislation Role: By ratifying treaties, the legal system might need some changes to comply with international law. For instance, if a law contradicts one of the human rights treaties, that law should be amended.
4. Government’s role: Governments make a significant contribution to enhancing the application of the law in a domestic system. This can be done by training police officers, government employees, doctors, lawyers, and the community as a whole to enjoy these rights and not infringe on others’ human rights.
5. Individuals Role: “Transnational norm entrepreneurs” refer to private transnational organizations or individuals who rally public opinion and political backing in their home country and abroad to advocate for establishing a universal human rights norm. These norm entrepreneurs gained prominence in the 19th century, with figures like Lord William Wilberforce and the British and Foreign Anti-Slavery Society advocating for treaties against the slave trade. Jean-Henri Dunant established the International Committee of the Red Cross, while Christian peace activists such as William Ladd and Elihu Burritt promoted public international arbitration and permanent international criminal courts in the United States. ^[3]

There are several ways to apply international human rights law domestically. These measures vary according to the state’s legal system, whether monistic or dualist.

The Monistic Legal System

In the monistic system, the application of international human rights law takes place automatically after ratifying the treaty, and the international law will be a part of the system, which means individuals can immediately exercise and enforce their treaty rights in domestic judicial systems if no further domestic legislation is required. In the case of contradiction between domestic and international law, international law prevails over the domestic law. Countries that adhere to monism include South Africa, Germany, and France.

The Dualistic Legal System

On the other hand, the dualist legal system Keeps international and national legal systems distinct and separated; thus, after ratifying any human rights treaties, it will not automatically be applied within the national legal system; it needs to implement domestic legislation or constitutional modifications for it to be effectively applied. In the case of conflict between international and national laws, the national law prevails, unlike the monistic system. Countries that adhere to dualism: UK, USA, Canada, Australia.

The Impact of International Human Rights Law on Domestic Legal Systems

 International Human Rights Law have a considerable influence on the Domestic Legal Systems, such as:

The Pros of applying the International Human Rights Law on a Domestic Legal System are

1. Protecting human rights is one of the significant effects of applying the human rights law on the domestic system.
2. Accountability: People will have the right to sue their country if their rights are violated. This includes that states that ratify human rights treaties are obligated to give regular reports to international bodies to ensure that they are committed to the Convention’s rules.
3. Judicial guidance: Judges benefit from international human rights law by incorporating it into their judgments.
4. Building a culture that respects human rights will spread awareness, and as a result, people will treat each other with respect and defend themselves and others when their rights are violated.

The Cons from applying International Human Rights Law on Domestic Legal Systems are

1. Sovereignty issues: legal bodies, when applying international human rights treaties, will be considered if these treaties will contradict the national laws and whether this conflict between the two laws will affect the sovereignty of its laws.
2. Public knowledge and education: if the society or also the state needs to have a knowledge and an education good enough to understand these rights, there will be problems with implementing the laws.
3. Cultural problems: the rights involved in the treaties may need to align with the society’s customs and traditions, which may lead to resistance from society and refusal to apply the law to them.[4]
4. Political parties refusal: powerful political parties that have control in the state can simply refuse the application of the law because it contradicts with its agenda.

Cases about applying International Human Rights on Domestic Legal System

1. The Indian Maneka Gandhi Case Personal liberty is guaranteed by Article 21 of the Indian Constitution. This fundamental right has been interpreted by the Indian Supreme Court in conformity with accepted international human rights norms and principles. Maneka Gandhi was not given the chance to follow the proper legal procedures before her passport was seized. The court came to the conclusion that any restrictions placed on an individual’s right to travel abroad must be reasonable and fair in order for the right to be included among the constitutionally guaranteed freedoms of that person. Citing the Universal Declaration of Human Rights and other international agreements, the court showed that it heavily relied on international human rights concepts when establishing domestic law. [5]
2. In 2008, the Supreme Court of Zimbabwe ruled in the case of Zimbabwe Lawyers for Human Rights v. Mugabe, concluding that the land reform programs undertaken by the government of Zimbabwe violated both the SADC Treaty and the African Charter on Human and Peoples’ Rights. The Court recognized the importance of international human rights treaties and their potential application in national legal processes.[6]
3. In 2012, the Atala Riffo and Daughters v. Chile case saw the Inter-American Court of Human Rights make a significant decision. They found that Chile had discriminated against Karen Atala Riffo, a lesbian mother, and stressed Chile’s duty to uphold the rights in the American Convention on Human Rights. This led to changes in Chilean laws and policies to better reflect international human rights standards.[7]

Conclusion

Finally, the international human rights law is the law that addresses the fundamental human rights law that every human should enjoy, and this law is a non-binding law that aims to spread these basic human rights and to bind the states to respect these rights and apply them. The application of international human rights law can be effective by adding it to the constitution, letting the courts interpret it and use it in the ruling, and setting new statutes and enactments by the legislative authority that can make the legal system ready to merge with international law. All of this impacts the domestic legal system, like Building a culture that respects human rights and enhances accountability. All nations cannot progress without protecting human rights since human rights is a very serious topic, and respecting these rights will contribute to the state’s development.

References

1. Atala Riffo and Daughters v. Chile [WWW Document], n.d. LII / Legal Information Institute. URL https://www.law.cornell.edu/women-and justice/resource/atala_riffo_and_daughters_v_chile
2. International human rights law | OHCHR. Available at: https://www.ohchr.org/en/instruments-and-mechanisms/international-human-rights-law (Accessed: 6 August 2024).
3. Longform Pro, What is The case of Maneka Gandhi v. Union of India (1978)?, What is the case of Maneka Gandhi v. Union of India (1978)? Available at: https://www.longform.pro/p/what-is-the-maneka-gandhi-v-union (Accessed: 15 August 2024).
4. Muhammad Sajid Khan, Muhammad Afzal, Ayesha Shabbir, The Influence of International Human Rights Instruments on Domestic Legislation: A Comparative Study of Four Countries, Vol. II, No. I (Spring 2023), The Easta Journal Law and Human Rights,8, 9-11(2023).
5. Slye, Ronald C. “Domestic Application of International Human Rights Norms and Universal Jurisdiction.” Oxford Research Encyclopaedia of International Studies.30 Nov. 2017, Accessed:3 August 2024 https://oxfordre.com/internationalstudies/view/10.1093/acrefore/9780190846626.001.0001/acrefore-9780190846626-e-45
6. HAROLD HONGU KOH. How Is International Human Rights Law Enforced? [Vol. 74:1397] In Indiana Law Journal.9, 10-14(1998)
7. Zimbabwe Lawyers for Human Rights v. Mugabe – Global Freedom of Expression [WWW Document], Global Freedom of Expression. URL https://globalfreedomofexpression.columbia.edu/cases/zimbabwe-lawyers-for-human-rights-v-minister-of-state-national-security/

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[1] International human rights law | OHCHR. Available at: https://www.ohchr.org/en/instruments-and-mechanisms/international-human-rights-law (Accessed: 6 August 2024).

[2] Muhammad Sajid Khan, Muhammad Afzal, Ayesha Shabbir, The Influence of International Human Rights Instruments on Domestic Legislation: A Comparative Study of Four Countries, Vol. II, No. I (Spring 2023), The Easta Journal Law and Human Rights,8, 9-11(2023).

[3] Slye, Ronald C. “Domestic Application of International Human Rights Norms and Universal Jurisdiction.” Oxford Research Encyclopaedia of International Studies.30 Nov. 2017, Accessed:3 August 2024 https://oxfordre.com/internationalstudies/view/10.1093/acrefore/9780190846626.001.0001/acrefore-9780190846626-e-45

[4] – HAROLD HONGU KOH. How Is International Human Rights Law Enforced?, [Vol. 74:1397] In Indiana Law Journal.9, 10-15(1998).

[5] Longform Pro, What is The case of Maneka Gandhi v. union of India (1978)?, What is the case of Maneka Gandhi v. Union of India (1978)? Available at: https://www.longform.pro/p/what-is-the-maneka-gandhi-v-union (Accessed: 15 August 2024).

[6] Zimbabwe Lawyers for Human Rights v. Mugabe – Global Freedom of Expression [WWW Document], Global Freedom of Expression. URL https://globalfreedomofexpression.columbia.edu/cases/zimbabwe-lawyers-for-human-rights-v-minister-of-state-national-security/

[7] Atala Riffo and Daughters v. Chile [WWW Document], n.d. LII / Legal Information Institute. URL https://www.law.cornell.edu/women-andjustice/resource/atala_riffo_and_daughters_v_chile

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