Law Vision
Domesticating international human rights
Muhammd Habibur Rahman
The old aphorism of Sir William Blackstone that the law of nations is part of the law of the land is not honoured in his home country. Unlike a few countries like the Netherlands, international human rights are not automatically received as domestic laws. The history of the International Bill of Human Rights, and provisions for ratification with reservation, and non-ratification of an international covenant like ICCPR by big powers like the UK indicate that the international convention for human rights needs to be ratified for application in national jurisprudence.
In 1978, on the question of whether a bill of rights should be formulated for the United Kingdom, it was observed in the Report of the Select Committee of the House of Lords (1978):
"In any country, whatever its constitution, the existence or absence of legislation in the nature of a Bill of Rights can, in practice, play only a relatively minor part in the protection of human rights. What is important, above all, is a country's political climate and traditions. There is, the committee thinks, common ground both among those who favour and those who oppose a Bill of Rights, and they received no evidence that human rights are, in practice, better protected in countries which have a code of fundamental human rights embodied in their law than they are in the United Kingdom."
Since 1990 many countries have introduced international human rights treaties or standards into their constitutional law. The constitution might stipulate that international human rights treaties must be recognised and respected. Or the constitution might mandate that interpretation and application of the constitutional human rights provisions accord with international human rights treaties and standards. Or the constitution might stipulate that the agencies of the state must guarantee implementation of basic human rights and international human rights.
Another direction would be to establish a law that would give international human rights conventions the status of domestic law, what is known as "domestication" of international human rights standards. We find examples of this method among both, countries that have a formal written constitution and those whose constitutions are unwritten.
As for countries without written constitutions, the more typical model is that of passing special legislation to introduce the International Bill of Rights into domestic law. New Zealand's "Bill of Rights Act" of 1990, and Hong Kong's 1991 "Bill of Rights Ordinance" put the standards in the ICCPR into effect. They have higher legal status than ordinary domestic laws.
In 1990 Latvia issued its "Declaration on the Accession of the Republic of Latvia to International Instruments Relating to Human Rights." The declaration announced Latvia's intention to put into effect some 53 of the United Nations international human rights instruments, including the UDHR, the ICESCR and the ICCPR. In 1997 Latvia acted to bring the ECHR into domestic law, as well as to recognise the jurisdiction of the European Commission of Human Rights and the European Court of Human Rights.
The UK's 1998 Human Rights Act demands that the judiciary must take into account the opinions of the various institutions created under the ECHR to interpret the Convention, including the European Court of Human Rights, the European Commission of Human Rights, and the Committee of Ministers, no matter whether the act demands that new legislation and legal interpretations must be in accord with the ECHR. Before the second reading of any bill the government minister in charge of the bill must issue a "statement of compatibility" in which it is declared that the law accords with European human rights standards. The Act renders illegal any behaviour by any public authority which violates European human rights standards.
Ireland drafted its 2001 "European Convention on the Human Rights Bill" to render the ECHR into domestic law. Its principal provisions were: (1) judicial interpretation and application of the law must be in accord with Ireland's national obligations under the ECHR, regardless of when the domestic law was enacted, in other words all of Ireland's domestic law must come into accord with the standards set by the ECHR; (2) when the high court or supreme court of Ireland is weighing a case on appeal it may, at its own initiative or on request of one of the parties when there is no other legal relief available, declare that any law of Ireland is not in accordance with the obligations under the ECHR, and when the high court or supreme court so declares it must forward the declaration to Ireland's parliament; (3) all of Ireland's government agencies must carry out the exercise of their authority in accordance with Ireland's national obligations to the ECHR, so that all of Ireland's state behaviour will be in accordance with its regulatory mandate; (4) should people believe that their rights are being violated by the behaviour of any state institution, and when there is no other path of legal remedy, they may bring suit before the high court demanding compensation for injury.
In 2001 the UNDP, in its Human Development Report, recommended five things for the advancement of human rights. Four out of the five recommendations were to ensure that governments make references to human rights in their constitutions, and remove contrary laws.
Incorporation of international human rights law in national jurisprudence may be done (i) by ratification of an international covenant or treaty, or (ii) by necessary amendments in the Constitution, where there is a written Constitution, or (iii) by making new laws, or (iv) by the courts in their law-making power. Of these four methods, incorporation of human rights by ratification of an international covenant is the most convenient. Incorporation of a particular human right by amending the Constitution may be the most difficult, often requiring votes of two-thirds of the members of parliament. Opportunities may be rare for the courts to intervene suo- motu. Implementing human rights by legislation will depend on the willingness of the legislature and its time-constraint in law making. In many a country, because of lack of legislative time, recommendations of bodies like law commissions cannot be expeditiously given effect to. In this country, and I believe in many other countries, laws existing from before 1950 may be adjusted by a general repealing and amending bill. After the Constitution came into effect, a repealing and amending bill was passed in our country.
Despite the presence of well-structured legal institutions like the Court and the Bar, sophisticated investigating and prosecuting agencies, and prevailing general awareness of citizens' rights, violations of human rights are taking place in developed countries like the USA and the UK. The law and order problem, or over-zealousness of the executive for the maintenance of law and order, or sheer abuse of power, or unexplained negligence/violation of human rights appear to be a human condition common in every human society. We do not think there will be any end to such violations soon. We are to take continuous measures, both remedial and preventive, against this human disease.
Democracy and human rights were our war-cries in the War of Liberation. We invoked them in the preamble to our constitution, and made it one of the fundamental principles of state policy that the republic would be a democracy in which fundamental rights, and freedom and respect for the dignity and worth of the human person, shall be guaranteed. Most of the human rights mentioned in the United Nations declaration for Human Rights, 1984, are enumerated as fundamental rights in our Constitution. Further, the right to move the High Court Division for the enforcement of such rights is recognised as a fundamental right and is guaranteed.
Our lawyers and judges are more familiar with the human rights mentioned in the constitution and statutes of the country. Our existing laws are, by and large, not in contravention of the international human rights bill. The constitutional matters involving human rights are only raised in the Supreme Court. In the lower courts lawyers are ordinarily busy with crimes and land-rights. Our familiarity with human rights conventions calls for more awareness and recognition of the problems and challenges of applying them in our national jurisprudence.
The author is Former Chief Advisor of the Caretaker Government (1996) and Former Chief Justice of Bangladesh.
