How are human rights connected to international law? How do international human rights standards and practices become realized on the ground? What do we mean by 'domesticating' international law? What rights can be domesticated? Do rights need to be domesticated to be realized?
Share your thoughts, questions and ideas here, in this discussion thread. Add your comments below.
In the early years of human rights advocacy, say the 1960s-80s, there was a sense in the US human rights community that violations were something that took place "over there." Since the early 1990s there has been a growing recognition of the need to advocate for human rights in our own communities. This means, in particular, considering whether the U.S. is meeting its treaty obligations at home.
I attribute this blindsight about domestic human rights violations to a few factors.
Civil wars and political repression in Latin America, South Africa, and the Soviet bloc led to an early focus on stemming violations including torture, disappearances and extra-judicial executions, which were not prevalent in the US at the time. Also, historically, there had been a false split between social movements promoting "civil rights" in the US and "human rights" around the world. Carol Anderson and others have done a great job documenting the intentionality with which this split was promoted in order to avoid international scrutiny of the US's problems with racial inequity. (Eyes off the Prize, Cambridge U Press 2003). By focusing simply on civil rights, such as the right to vote and to participate in government, the US was able to avert attention from the economic and social devastation affecting African Americans.
A third reason for the slowness to advocate hr at home was the lag time for funders to understand the importance of looking at issues of fairness and human dignity in our own communities. Instead, the major HR funders in the US continued to focus on the spread of HR standards and practices internationally.
Whatever the reasons, we in the US were a bit slow to the punch when it came to advocating for ESC rights and especially addressing human rights issues at home. But we did arrive, and now we are working quite steadily on these issues, building coalitions with community groups that are involved in issues from immigrant rights, to police abuse, to labor rights, to the right to basic human needs like housing, food and clean water. What we gain from framing these issues in HR terms is the connection with advocates across the HR spectrum, the ability to appeal to international hr mechanisms such as the UN, and the understandings that are developed through case law and other means regarding what are the basic obligations of states when it comes to human rights.
Well said, Barb! Thank you for starting us out with this insight of what social change advocates in the US (and everywhere, for that matter) can benfit from framing issues in human rights terms. You're right - we all can gain a lot from the international human rights best practices, legal precidence and network. Do you think (a question for all of you reading this) that this is mutually benficial? What I mean is, does the international human rights system also benefit the more that it is used? Is the benfit reciprocal?
I feel the need to preface my comments by indicating that I am civil rights attorney and activist in the US, and focus primarily on governmental and police misconduct issues. Working in the international fora is very new to me and I still have a great deal to learn about internatioal law, mechanisms, concepts and customs.
That being I said, I share many of what has been already said in this thread that domesicating international law includes the passage of national and local legislation that conforms to international treatites. The question I have in my mind is how do we do that effectively. Can people share examples of countries who have passed laws criminalizing acts of torture where the law was based or informed by the definition of torture in UN Convention Against Torture? Here, in the US, we have a federal law that criminalizes acts of torture as torture when committed outside of US territory, but no such provision if it happens in the US. I think this partially has to do with the fact that US governmental officials do not want to accept that law enforcement officials (police, prison guards, immigraton officers, etc.) commit acts of torture against US citizens and civilians, most of whom are of color. We are currently in the process of attempting to pass such federal legislation that criminalizes acts of torture as torture within US territory and the statute have no staute of limitations. I would love to see the statute that Nicholas you are trying to get passed in Uganda. I would love to learn from other experiences in trying to formulate and pass such laws. This is one way I think we need to dometicate international law in the US (also the basic premise in the CERD - that a government must address racial discrimination where it is clear a group of color is disproportionately impacted by a law or practice, regardless of whether there was an intent for the law or pratice to do so - in the US unless we prove both we can't strike down such laws or practices).
I also agree and see that the passage of laws alone on a national or local level is not enough. As the example given from Slovakia demonstrates, the true adherence to international law also requires educating practioners, government officials and the public to the existence of international human rights, defitnitions laws and practices. I wonder if also requires the passage of explicit laws that spell out the obligations under international law (see above paragraph on torture statute) that leaves no vagueness as to the possible application?
I also think just the basic need for education and understanding of the premises and concepts that inform international law is needed to domesticate international law. For example, the idea that reperations or financial redress should be provided to those whose have had their rights violated is a crucial concept, that I believe has been severely twisted and misconstrued in the US. It feels to me well grounded in international law that not only the person aggrieved must be compensated, but family members and communities as well.
If I am understanding this question correctly, I do think use of the international human rights system may be reciprocal because it is my understanding that the international laws, practices and customs in place seem to be a work in progress - evolving over time. And, the more all of us around the world use the law and mechanisms, the more we contribute to the understanding of human rights which can lead to a better understaning of such right and to better tools (treaties, protoculs and practices) to safeguard and ensure the protecton of all people's human rights. I am curious to know whether others agree?
Many of the attorneys I respected in my field were civil rights attorneys who struggled during the civil rights era in the US. But, during the 80s they became disillusioned with US domestic law and grew to believe that it was defined and interpreted in very negative ways that not only failed to protect people's human rights but would continue to do so because of the limited way rights were defined. For example, the US constitutution only provides for negative rights - the State shall not arrest you or deny you freedom of speech. Not that the State must provide you health care, work, or a home. After so many continued to lose in the US legal system, that civil rights attorneys started to look to international law because it appeard international treaties, were not the ceiling on rights, but the bare minimum that must be provided (i.e., the floor). People were continually coming together to write laws and and create practices tha would protect all people's human rights - economic, social, political, etc.
I am hopeful to think that the more we use international law and engage in internaional mechanism the more we breathe new life into it them. It is recipricoal in that it helps us domestically fight for individual's human rights while also building human rights standards and understanding internationally so that it coninues to evolve as we as humans evolve (assuming we are evolving, or idealistically speaking at least).
Joel, in Central Asia countries criminalized torture - but for the moment these remains rather "dead" articles and - with rare exceptions - do not lead to convictions. While taking roots in the definition of the UN Convention Against Torture, the domestic norms do not fully correspond to it. As a side note, it took several years of NGO advocacy-domestic and international – to get the torture criminalized using shadow reports to the UN committees, advocacy with governments, media, litigation and other tools. I can share an example of a clause that does not provide sufficient protection – it illustrates well the nuances definitional problems that we run into throughout the region.
The quote below is from a recent report by Manfred Nowak, UN Special Rapporteur on Torture and CID, after his visit to Kazakhstan in May last year. “[Torture definition in the criminal code] is more restrictive than the one contained in article 1 of the Convention against Torture, as it limits criminal responsibility to public officials and does not criminalize torture committed by any other person acting in an official capacity or by individuals acting at the instigation or with the consent or acquiescence of public officials. Furthermore, unlike article 1 of the Convention against Torture, which refers to “lawful sanctions”, the note to article 347-1 [criminalizing torture] states that “physical and mental suffering caused as a result of legitimate acts on the part of officials shall not be recognized as torture”. The use of the term “legitimate acts” is of concern because of its vagueness.” http://www2.ohchr.org/english/bodies/hrcouncil/docs/13specialsession/A.HRC.13.39.Add.3_en.pdf (paragraph 13)
Burundi is one of the countries that have paased a penal law against torture. It is a provision in the penal code of Burundi. Although its application is yet to become widespread, it expresses the will of the state to make torture a criminal offecne. In Uganda a bill is before parliament and the key things that the bill intoduces is to expand the definition of torture beyond State actors to include nonstate actors and private individuals. Click here to see this bill (PDF).
Australia was in the same camp as the US until recently - ie only torture committed outside the country was criminalised. However, we drafted a new torture prohibition for the Commonwealth (ie Federal) Criminal Code last year and it's now a crime under Australian law no matter where it's committed (that's what "extended geographical jurisdiction category D" means - you will see this if you look at the text).
You might also like to browse APT's Compilation of Torture Laws (http://www.apt.ch/laws). With this compilation we have tried to gather toegther as many of the domestic laws prohibiting torture as possible from around the world. Please note it's just a compilation, and there are good examples as well as not-so-good ones in there.
Thanks Adam and Masha. These resources are very helpful, particularly APT's compilation of torture laws.
How do we domesticate international human rights law?
International law needs corresponding local and national laws, systems that comply with international law, and domestic enforcement to have real impact on our lives.
Every level of government - from a local council or school system to a national government - is responsible for complying with international human rights obligations. And every kind of state action - from court decisions to bureaucratic rules - is an opportunity to assess whether the action meets human rights obligations, to educate law makers about the human rights obligations, and to seek enforcement of those obligations.
In a federal system like the US, this is really important to remember. While it's important that US federal law meets international human rights standards, federal law doesn't govern every situation. Local school district policies may be just as important in guaranteeing basic human rights for people as federal laws.
This really opens up ways in which civil society can engage states to comply with their human rights obligations. Everyone in civil society has an opportunity to use what they do best, in their circles of influence, to push for human rights compliance.
International human rights laws or treaties, will continue to be ordinary write ups or papers of discuss at the international level, if their impacts are not felt by the people at the grassroots level, state institutions and governments for whom they are made. Simply put, when countries create avenues to adopt international human rights treaties into their domestic legal system and make them to become part of the domestic laws, then at this juncture they become weapons or instruments for defense of human rights. These human rights laws can then be employed in defense of cases involving human rights violations before courts of laws. They can also be employed for advocacy of human rights
Just as any other law, violators be it state institutions, the state its self or private individuals will be held accountable for any human rights laws they have violated. For instance, in the early 1990s when Slovakia became an independent and sovereign nation, many international human rights laws were adopted into the legal system en mass. In fact the constitution of Slovak Republic ensures that international human rights laws adopted into the domestic legal system takes precedence over the existing domestic laws. However, there was confusion among legal practitioners namely, the judges, public prosecutors and in fact attorneys on how to apply these adopted foreign laws in deciding cases before courts of law. The people at the grassroots levels either did not understand what is in fact “human rights violation”.
The point I am trying to make is that in many countries, it is not enough to domesticate international human rights laws ordinarily, but there is the need to train legal practitioners on the laws as well as to provide the people with informed knowledge of what is human rights and what constitutes their violations.
League of Human Rights Advocates
Thank you for sharing this information about the adoption of international human rights law in Slovakia, Columbus. I was thinking about what you wrote about the legal system in Slovakia:
and also thinking about Masha's comment on the legal system in Kyrgyzstan:
...and I wonder if there are other campaigns out there pushing for Consitutional reform to ensure the adoption and precedence of international human rights law? Masha - how did the campaign in Kyrgyzstan turn out? Are there other examples of these campaigns? Have they worked? Columbus - how was it decided in Slovakia to include this language in the Slovakia Constitution?
The inclusion of this language in the constitution of Slovak Republic was due to the fact that Slovakia upon its emargence as an independent nation state in January 1993, acceded to many intergovernmental Human Rights institutions such as the Council of Europe, the organization for security and cooperation in Europe, the United Nations,, imember of the European court of Human Rights, and had the ambition of joining the Organization for Economic Co-operation and Development the European Union, Schengen states etc, etc. I believe, the founders of Slovak Republic had in mind of creating a democratic and multicultural state which will abhor all traces of communiism
Moreover, the defunct constitution of former Czechoslovakia recorgnised the charter of fundamental rights and freedoms as part of the contitution. In addition, the constitution of Slovakia is recorgnised as the fundamental law of the land and all laws emanate or are rooted in the constitution. Hence it was not a problerm for this language to be accepted and enshrined into the constitution.
Kristin, In Kyrgyzstan the civil society managed to get a lot of strong provisions in the Constitution. The one that international treaties are part of the legal system stayed in the text (it actually was phrased like that from the beginning but there was proposals to change to the "legislation".) Kyrgyzstan is sadly known for an uncountable number of Constitutional reforms – it seems to happen every two years. In such context, getting a good standard into the text of the Constitution is only a partial victory; the real struggle starts with adopting the laws required for such provision to be implemented and with enforcement of such laws. But for sure, having strong constitutional protections helps.
Columike, thank you for sharing your thoughts on domesticating international law. I am curious about the human rights laws that are adopted into governmental laws, such as in Slovakia. Are these laws defined as being of a human rights nature? Or are they simply interspersed within the various standard or typical laws of a country or state? And what kind of effect would defining a law as a "Human Rights Law" do for the country that adopts it?
I wonder if it would be beneficial (if human rights laws were defined as such) to have the retribution for any abuse be in some way different than the retribution of a common law. I say "common law" to refer to laws that would not fall under the "Human Rights" category. Nevertheless, depending on how one defines certain human rights, almost every law or regulation could fall under that category. Can certain laws be defined as being "Human Rights Laws". And could the retribution to any abuses of these laws include education about international human rights? And would that be effective?
These questions are for anyone reading, and I could be completely off subject here, but these questions popped into my mind when reading columike's comment. Just thought I would throw it out there!
Human Rights are realized on the ground through various means, one of which is the recognition by States of these rights by incorporating them in their own legislation, thus creating a self-binding pledge to respect such rights. This, in turn, empowers the judiciary to deal with violations of those rights and ensures that prosecutors and judges have the legal basis to charge such violations.
Although some rights and their corollary obligations - such as the prohibition against torture - have reached a certain stature under international law which requires their observance regardless of their implementation at the national level, the absence of a legal text prohibiting torture is problematic. What we mean to say by "a certain stature" with respect to torture, for example, is that because of the importance of the values it protects, the prohibition against torture has evolved into a "peremptory norm" (non-derogatory) and it enjoys a higher rank in the international hierarchy compared to treaty law or even ordinary customary rules. This has for consequence that the rule cannot be derogated from by States. This principle was ruled by the International Criminal Tribunal for the Former Yugoslavia under the pen of Judge Cassese (world renowned professor of international law, first President of the ICTY and currently first President of the Special Tribunal for Lebeanon) in the trial judgment against Anto Furundzija in 1998: http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf
Theoretically, this means that a State's responsibility can be engaged if there is a breach of this rule, regardless of the absence of a national law prohibiting torture. However, the reason we say the absence of domestic implementation is problematic flows from the fact that by adopting a law prohibiting torture, States positively undertake to eradicate this crime and express their engagement towards this goal. Additionally, national legal systems do not always resort to international criminal law to solve internal matters. We can observe even in developed countries some reluctance on behalf of some members of the judiciary in applying international legal texts (although we also do observe examples of national judges borrowing from international treaties, custom and even jurisprudence).
For these reasons, implementing national legislation that enshrine human rights can only be beneficial to ensure the respect of those rights and see them properly dealt with by national institutions.
Alex Demirdjian & Matthew Gillett for
The Peace and Justice Initiative
I think the point made about empowering the judiciary by way of domesticating international standards is important. While of course domesticating such standards is not going to produce overnight success in terms of protecting rights on the ground, it is an important first step and does allow judges the means to begin to engage in this sort of work assuming they want to. From our experience in Northern Ireland it was always very difficult, if not impossible, to persuade judges to consider international human rights standards while those remained outside UK law. However, after the incorporation of the ECHR into domestic law, via the Human Rights Act, the judiciary became much more open to human rights based arguments. This applied even to those judges that might have seemed hostile to such notions.
What has happened as a result is that those international standards have become a feature of legal argument in the courts and that has had a definite impact on the ground although that clearly is a longer process.
To continue the topic of the importance of the use of international law by the domestic courts and share with the colleagues the blog post of James A. Goldston of the Open Society Justice Initiative on the International Crminal Court and the principle of the complimentarity. http://blog.soros.org/2010/08/complementarity-and-the-struggle-for-justice/ James Goldston argues that "National trials are important for many reasons. They are located closer to the evidence, victims, and witnesses. They are more cost-effective than international tribunals. The judgments of national courts may carry more authenticity for local populations. And they are essential, since, at best, the ICC can prosecute only a few, most responsible perpetrators of mass atrocities—leaving countless others untouched by the law."
I definitely agree with this statement. In fact, inasmuch as the ICTY had three mandates (trying those responsible for violations of IHL, bringing peace to the region and encouraging reconciliation), I think that no matter how hard one tries, there is a certain disconnection between international courts and the local population that is supposed to benefit from these trials. In fact, international trials are also supposed to send a message at, obviously, the international level: war crimes and crimes against humanity must not go unpunished. However, it is hard to say what impact international courts have on peace, stability and reconciliation. More importantly, one could argue that local courts may play a greater role in deterring future violations of IHL in the country where the violation took place.
The reasons behind the creation of international or internationalized courts include the existence of an ongoing conflict (the ICTY was created in the middle of the war in Bosnia and Herzegovina), the collapse of a national judicial system or the incapacity of national courts to properly try crimes. Consequently, the ad hoc tribunals have their raison d'être.
Nevertheless, I suspect that national courts will have a wider impact: national courts are established in the country of origin of the perpetrators, and although this may sound to be superficial, proximity does play a great role in restoring rights and giving the population a sense of justice. This is not meant to downplay the role of international courts, which work hard at establishing the truth about the crimes and recording the stories of the victims, but clearly the ideal scenario is to see the local judiciary embrace those principles and standards enshrined in international law and put them in action at the national level.
Even with regard to a non-derogatory right, such as the prohibition against torture, we have seen governments like ours trying to get out of its international obligations. That is why we must constantly work to ensure that the international standards are firmly implanted in domestic laws and to their fullest extent. The notorious Office of Legal Counsel memos that were drafted by lawyers in the Bush administration sought to interpret the US legal definition of torture under the implementing legislation adopted by Congress after the US ratified the Convention Against Torture. (Sections 2340-2340A of title 18 of the United States Code). John Yoo, who drafted the most infamous of these memos, the "Bybee Memo," exploited a slight variation in the language of the US law which defines torture as an act "specifically intended to inflict severe physical or mental pain or suffering" instead of the CAT definition ("an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person"). Yoo interpreted the US law to require that the torturer specifically intend to torture, limiting criminal responsibility only to sadists and exempting those who are motivated by other reasons.
This experience provides a cautionary tale -- when we implement international standards into domestic law we must make certain that they are not diminished in a way that provides exemptions that were not intended.
International human Rights instruments/laws are prepared with varieties taken into consideration. Some are taken from the experience and practices of human rights values from countries that both respect as well as those that grossly violate them. That is why it is always put to many experts and worked on for many years. As these International instruments are agreed upon it promises to provide for world peace as it is respected there will be mutual understanding.
Its domestication is a clear commitment that a nation/state party is committed to keeping the world peace starting with its national and persons within its borders.
Domesticating International law strengthens the protection, promotion, and re-enforce human rights in a country. It brings to high focus and on national/country’s agenda the issues of that international law.
I agree with Jarwlee and think that we need a stronger global advocacy for the implementation of the international law and jurisprudence in domestic legal systems. General statements like "states should respect their international obligations” are quite obvious and, at least in theory, enjoy the global consensus. However, once we speak about specific application to the international norms in an individual case, as for example, advocating that a state should implement Views of the UN Human Rights Committee, the rhetoric changes. We start hearing “these are not our obligations, these are just recommendations”, “it is not a judicial body and we are not going to follow what it says,” not speaking of a complete silence as a response. I would be very interested to learn what tools others use in order to ensure that the decisions of the international judicial or quasi judicial bodies are implemented nationally.
When we speak about domesticating international law, it is, indeed, important to pass domestic legislation that would adhere to the international norms and preferably, provide even higher standards of protection. While ensuring that such laws are adopted is often extremely difficult, it is only the first step. In countries with poor respect of the rule of law – such as Central Asian states - domestic laws are often ignored as well. The progressive laws stay on the books and do not lead to the change of practice. Therefore, we see the legislative reform as a tool for future advocacy, often the significance of the new laws is rather symbolic.
While working at the Youth Human Rights Group in Kyrgyzstan, I was engaged in the Constitutional reform five years ago. We argued strongly that the Constitution should keep the clause that “international treaties are part of the legal system of Kyrgyzstan,” not just part of the “legislation.” It meant a lot to us in order to push for further references to the jurisprudence of the UN treaty bodies, to ask for the human rights norms to be included not only to the laws, but also to different regulations and be used by the courts. It is still an uphill battle to achieve domestication of the human rights norms in practice.
I wonder how domestication of rights changes when you are dealing with rights that are less carefully defined in international and domestic law. Torture is something where there are many legal standards that can be compared and then the most protective or effective used as a basis for law. This becomes more difficult when dealing with something like the right to housing. Though some national courts have adjudicated this right (I am thinking of South Africa specifically) there is not the same legal rigor that would make it easy to see if laws and practices were in conformity, or to recommend best practices. There is so much variation in the cultural, economic, and developmental context between countries, it makes it difficult to decide how to set a common standard of "affordability." It can end up with a situation where activists have to resort to "I know it when I see it" in regards to human rights violations, which can weaken their argument and loses one of the strengths of using human rights in the first place, namely that it provides universal standards for governments to meet. I think this is an area that could really benefit from activists collaborating to create a national framework setting out what exactly constitutes a minimum standard, for instance, but this kind of coordination is often lacking, especially in the U.S. where there is not yet a unified movement to frame housing, etc as a human rights issue.
And I didn't answer the question!
In cases like this, domestication may be less a case of incorporating a legal framework created at the international level and more about building widespread societal acceptance of the idea that food, housing, unions, etc are human rights and then building up from that base to set the appropriate national standards.
Interesting point, Madeline! I agree, it would be so helpful if we had a widespread social acceptance of the idea that these basic human needs are human rights and to set up standards. I wonder if we'd be able to agree on that later part...
In case anyone did want to use a legal framework for protecting and domesticating economic, social, cultural rights, I wanted to share this great resource. ESCR-Net has developed an online human rights case law database. I filtered by 'housing rights' and there were about 12 cases that matched - and one was in the US! It's a great collection of human rights law cases from all over the world. Check it out.
Madeline, I am just curious if you see the report by the UN Special Rapporteur's on adequate housing after her visit to the US this fall was useful for you to moving the issue of affordability forward? Is it a useful tool in general for the advocacy in the US? http://www.ohchr.org/EN/Issues/Housing/Pages/CountryVisits.aspx
I think something like the Special Rapporteur's report is a great example of trying to create standards on the right to housing, but also points out some of the tricky issues. For instance, the report mentions that the U.S. government thinks people should spend no more than 30% of their income on housing, and anything above this is unaffordable. As an abstract standard, this is a good way of judging the overall performance of the U.S. in guaranteeing affordable housing (not good), but it is more difficult to move into the realm of an adjudicadable standard applied to individual situations. I can think of several legitimate, non-human rights-violating reasons why someone would pay more than 30% of their income for housing - for instance, they plan to stay in their home for many many years and so are willing to pay more than 30% early on with the expectation that their wages will rise over time and cut the percentage of money they spend on housing. Or their expenses for other goods are not high, and so they choose to over-spend on housing. So it is a handy marker by which to judge overall performance, but it doesn't necessarily lend itself to law-making. I think we will eventually come up with creative ways to insert ESC rights into the legal system, but it will be a slower process. I'm excited to be part of it, though - pushing the envelope of how people in the U.S. have viewed these issues.
International laws are borne out of the desire to protect human rights. Human rights are very close to international law as the both seek the survival and existence of the human person.
With signing the accession and ratification to international instrument, it is largely the civil society that it must times insure that their governments adhere to the provisions of these instruments. In the civil society work in advocacy and/or service delivery activities these standards and practices are highlighted bringing their governments on terms with these standard and practices.
“Domesticating” international law is the process of including the provision, standards and practices etc into the national jurisprudence of the country. It could be by executive degrees, passage of laws ratification or accession of the international instruments. It could be executive degrees, passage of laws ratification or accession of the international instruments. It could be as in some countries that all signed, acceded international instruments’ provision become automatically applicable in the national laws.
Rights don’t need to be domesticated to be realized. Rights are to be respected with or without be documented into laws. This is the aspect of life that cannot be turned over as the disrespect result to violence instability, etc.