Bringing Home Global Rules - Term Paper Example

BRINGING HOME GLOBAL RULES One of the distinct fields to emerge in the aftermath of the Second World War is the international human rights law. Though there is a substantial body of norms of international human rights law, the mechanism to enforce it universally has remained weak. However, domestic courts have also been not very active in its implementation, primarily due to different interrelation between international law and municipal law. As fundamental human rights and freedoms are inherent in all humankind and find expression in constitutions and legal systems throughout the world and in the international human rights instruments (Kirby, 2005), invoking international human rights law in domestic courts, therefore, merits special consideration. As Kirby write, “In most countries whose legal systems are based upon the common law, international conventions are not directly enforceable in national courts unless their provisions have been incorporated by legislation into domestic law. However, there is a growing tendency for national courts to have regard to these international norms for the purpose of deciding cases where the domestic law - whether constitutional, statute or common law - is uncertain or incomplete…. While it is desirable for the norms contained in the international human rights instruments to be still more widely recognised and applied by national courts, this process must take fully into account local laws, traditions, circumstances and needs.” There are many impediments for direct application of international human rights law, factors like state sovereignty, the dualist view on the relation between international law and municipal law and implementing legislation. However there has been an interesting development where jurist and human right activists are identifying themselves with a unified international community (Barak-Erez, 2004). This trans-judicial communication is seen not only in the application of international norms, but also in the recourse to comparative law, particularly in the area of constitutional law. Let’s take a closer look at how far the following four countries have adopted the international law to protect and promote human rights. AUSTRALIA When a treaty is ratified, although it becomes binding on Australia in international law, it does not become part of the law of Australia unless it has been given the force of law by statute (Gibbs). Except in the case of a treaty of peace, which obviously can affect the rights of enemy aliens, a treaty not incorporated by statute does not affect the rights or liabilities of Australian citizens. Although the principle has been consistently stated by courts of the highest authority, it is subject to some important qualifications. One of them was introduced by the decision of the High Court in Minister for Immigration and Ethnic Affairs v. Teoh. Ah Hin Teoh was a Malaysian citizen living in Australia under a temporary entry permit. He was convicted of drug offences and sentenced to six years imprisonment. His permanent entry permit was refused and it was ordered that he be deported. However the fact that his children lived in Australia gave the case an interesting twist. The Court (McHugh J dissenting), considering the ratification of the UN Convention on the Rights of the Child, declared it the best interests of the children would be a primary consideration. Teoh's Case has been an example for many Federal Court deportation cases. Incidentally, it is the sole example of the pervasive effects of international law on national law. The Australian Constitution neither mentions international law nor the role such norms should play in the interpretive process (Williams and Hovell, 2005). While earlier drafts of the Constitution incorporated greater reference to the relationship between international treaties and the domestic legal system, these were removed from the version that was enacted. It has been interpreted by the High Court to enable the Parliament to pass laws that implement any obligation that the federal executive assumes under an international treaty or convention. Given that the Constitution is silent on the use of international law in its interpretation, the issue has been left to the judiciary to resolve. The approach that has generated the most debate is Kirby J’s ‘interpretive principle’ applied in his dissent in Kartinyeri v Commonwealth. His Honour referred to the prohibition in international law of ‘detrimental distinctions on the basis of race’ and applied this to support his conclusion that the federal Parliament’s race power ‘does not extend to the enactment of laws detrimental to, or discriminatory against, the people of any race (including the Aboriginal race) by reference to their race.’ The issue has several strands. It includes a perception that the body of international law has expanded to such an extent that its use might overwhelm any domestic system that allowed itself to be influenced by it. Similarly, the view is often expressed that international law is not relevant to the Australian people, as it is a body of principles applicable to states and not their citizens. Few Australian lawyers have practised in the area (although the number is now increasing). In these circumstances, a lack of familiarity with a source of law that appears to be monolithic in scope and of a different nature than traditional domestic legal materials perhaps explains, although does not excuse, the reluctance of Australian judges to use international law in constitutional interpretation. SOUTH AFRICA According to South African Constitution’s Interpretation of Bill of Rights 39 (1) (c), a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; must consider international law; and may consider foreign law. For over forty years, from 1948 to 1990, South Africa was in conflict with both the international community and international law (Dugard, 1997). Apartheid, premised on race discrimination and the denial of human rights, was contrary both to the law of the UN Charter and to the norms of human rights. International law received no constitutional recognition and was largely ignored by the courts and lawyers. But now South Africa is a democratic state, with a democratically elected Parliament. Human rights and racial equality are constitutionally protected, and there is a new attitude towards international law. The South African Constitution expressly incorporates international law into the domestic legal system in four main ways (Hovell and Williams, 2005): self-executing provisions of international treaties approved by the National Parliament form part of the law of South Africa unless inconsistent with the Constitution or an Act of Parliament; customary international law forms part of the law of South Africa unless inconsistent with the Constitution or an Act of Parliament; when interpreting legislation, courts ‘must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.’ This principle has been held to ‘apply equally to the provisions of the Bill of Rights and the Constitution as a whole’; when interpreting the Bill of Rights in the Constitution, ‘a court, tribunal or forum ... must consider international law’. However, of the 228 cases decided by the Constitutional Court over the decade from 1995 to the end of 2004, international law received detailed consideration in only 32 (or 14 per cent) of all cases. Judges seem to consider international law on an ad hoc basis rather than having thorough regard to international law in each case. UNITED KINGDOM According to United Nation’s International Norms and Standards Relating to Disability (Part I. National Frameworks), the relationship of international law to municipal law is based on two principal schools of law.  The dualists regard international law and municipal law as separate and municipal law can apply international law only when it has been incorporated into municipal law. Incorporation can result from an act of parliament or other political act, or given effect by the courts.  On the other hand, monists regard international law and municipal law as parts of a single legal system. According to this theory, municipal law is subservient to international law.    England is an example of the dualist model of international law. A treaty has no effect in English domestic law, unless it is made part of it. Once a treaty is incorporated into English Law, it is fully enforceable in the courts. But the fact that a treaty is part of the English Law will not necessarily mean that individuals have a cause of action arising from the treaty. There will only be incorporation if the treaty changes domestic law, or if it requires the raising of revenue or alteration of taxation. As in the case of many treaties in the field of foreign relations, ratification is a formality and incorporation is not required.  An unincorporated treaty has no formal standing in English Law. If it conflicts with statute or common law, the latter will prevail. An incorporated treaty becomes part of the law of the land, but it has no special position. There has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness (McCruden, 2000). This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the use of comparative judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will (and/or should) use jurisprudence from other countries in order to help in arriving at decisions on the interpretation of the Act. UNITED STATES According to United Nation’s International Norms and Standards Relating to Disability (Part I. National Frameworks), in the United States, ratified human rights treaties and customary international law are both law of the land. The Supremacy Clause of the United States Constitution makes all Treaties made or which shall be made under the Authority of the United States… the "Supreme Law of the Land". Under the Supremacy Clause, the law of the land is binding on the federal government as well as on state and local governments. In the U.S. not all treaties, by their terms, mandate domestic applications that affect private parties. Such treaties, therefore, are not self-executing, even though they are ratified and are part of the law of the land according to the Supremacy Clause. Since a private right is largely contingent on the existence of a right of action, additional legislation is needed to grant individuals private rights pursuant to such treaties.     Self-executing treaty doctrine stipulates that not even the few U.S. ratified human rights treaties would necessarily be binding on domestic courts. Unless a court deems a treaty to be self-executing, the treaty will bind domestic courts only if Congress has passed legislation for the specific purpose of implementing the treaty provisions domestically. While the U.S. Constitution assigns the power to make and adopt treaties to the federal government, several state and local governments have adopted human rights treaties. The main tenets of American constitutionalism such as separation of powers and federalism often shape the posture of courts in determining issues bearing on international law (Bianchi, 2004). The different nature of international law and its potentially pervasive effects on domestic law are frequently a cause for US courts to reject its proper implementation. At the base of this attitude, which seems to be the prevailing one at the moment, lies the perception that the fundamental postulates of the domestic legal order, as enshrined in the Constitution, cannot be altered by a body of law which does not exclusively emanate from the national societal body. References: Barak-Erez D., (2004). The international law of human rights and constitutional law: A case study of an expanding dialogue. International Journal of Constitutional Law, Vol 2, 611-632 Bianchi A. (2004). International Law and US Courts: The Myth of Lohengrin Revisited. European Journal of International Law. Vol 15 (4) pp 751. Dugard J., (1997). International Law and the South African Constitution. European Journal of International Law Vol 8 p 77 Gibbs H., Teoh: Some Reflections. Retrieved on May 29, 2008 from http://www.samuelgriffith.org.au/papers/html/volume15/v15chap7.html International Norms and Standards Relating to Disability (Part I. National Frameworks, United Nation. Retrieved on May 28, 2008 from http://www.un.org/esa/socdev/enable/discom101.htm Kirby M., (April 2005). International Law: The Impact on National Constitutions. Retrieved on May 26, 2008 from http://www.asil.org/pdfs/kirbygrotius050401.pdf Mccrudden C. (2000). A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights. University of Oxford - Faculty of Law. Oxford Journal of Legal Studies. Vol. 20, pp. 499-532 Williams G. and Hovell D., (2005). A Tale of Two Systems: The Use of International Law in Constitutional Interpretation in Australia and South Africa. Melbourne University Law Review. Vol 29 p 95-130 Read More