The first in the series of the papers presented by Justice Haleem, between 1981-1989
presented at the Judicial Colloquium held under the auspices of the Commonwealth Secretariat, London, at Bangalore, India, February 24-26, 1988
THE DOMESTIC APPLICATION OF INTERNATIONAL HUMAN RIGHTS NORMS:
Significance of Human Rights:
The quest for human rights and human dignity is a phenomenon of contemporary life of universal dimensions and immense significance. The Concept of Human rights is a concept of world order. It is a determination for so structuring the world that every individual’s human worth is realized, and every individual’s human dignity is protected.
Human Rights are based on international consensus. They include the right not to be subjected to torture, to cruel, inhuman or degrading treatment or punishment, or to arbitrary arrest, imprisonment or execution. Human Rights also include the right not to have one’s home invaded and the right to fair, prompt and public trial.
A State is considered to violate international law if it practices. Encourages or condones:
(b) Slavery or Slave Trade,
(c) The murder or causing the disappearance of individual’s,
(d) Torture or other cruel, inhuman or degrading treatment or punishment,
(e) Prolonged arbitrary detention,
(f) Systematic racial discrimination, or
(g) Consistent Patterns of gross violations of Internationally recognized human rights.
Human rights are of broad application. They apply not only to countries that have recognized these rights in their legal institutions, but to virtually all countries.
Human rights are not controversial in the sence that other political and econimic issues are. These are recognized in the constitution of many countries whose political principles are otherwise quite divergent.
Human rights express universal requirements of social justice. The International commitment to implement human rights is a commitment ot encourage the development of just institutions in every society.
Read at judicial colloquim, held under the auspices of the common wealth Secretariat,
London, at Bangalore (India) from 24th to 26th february, 1988.
These rights are inalienable in the sence that a person who has them cannot voluntarily and irrevocably divest himself of them by gift sale or transfer to another person.
The history of mankind can be described as the history of the long struggle assert and then to protect human rights. The concept has made a remarkably sudden enter into the International vocabulary. These has become a very live issue in the conduct of world affairs, and the world as a whole is now seized with the issue of the human rights.
EQUATION OF HUMAN RIGHTS AND RULE OF LAW:
Human rights can be enforced in settings where the rule of law prevails. The American conference on world peace through the rule of law, held at san jose, costa rica in june 1961 agreed that the effective protection of the fundamental human rights of the individual is the indispensable basis for achievement of a sound legal order based on peace and justice. Similar conferences of continental scope held in Nigeria, India, Thailand, ceylon, Japan, Brazil and italy yielded identical conclusions and they were given universal expression in the “ Declaration of General Principles for a world rule od law”, adopted at the first world conference on “World Peace through the rule of law” held in july 1963, at athens in greece. A consensus emerged that all state and persons must accept rule of law in the world community. It was suggested that in International matters, the individuals, the juridical person the states and the international organization must all be subject to the international law, deriving rights and incurring obligations thereunder. And the conference concluded that international law and legal institutions must be based on fundamental concepts of fairness jusitce and human dignity.
In 1949, the international law commission in Article 14 of its Drafts Articles on rights and duties of States”Formulated the basic principle of the state system as follows:
Every state has the duty to conduct its relation with other states in accordance with the principle that the sovereignty of each state is subject to the supremacy of international law.
The Important point is that the peoples of the world now have an established institutionalized process through which they can freely and unambiguously expect their expections about policy, authority and control in relation to human rights.
The General principle establishing international accountability and the right to censure is now regarded as a settled law. Any state may pursue international remedies against any other state for a violation of the customary international law of human rights. The International court of justice gave currency to this adea in the barcelona traction case by suggesting in a dictum that “basic rights of the human person” create obligations erga omnes. Since the judgement of the P C I G in the barcelona traction case, there was been a growing acceptence in contemporary international law of the principle that all states have a legitimate interest in and the right to protest against human rights violations wherever they may occur, regardless of the nationality of the victims.
The recognition of inalienable human rights and the recognition of the individual as a subject of international law are synonymous. To that extent they both signify the recognition of a higher fundamental law not only a part of states but also, through International Law, on the part of the organized international community itslef. Such Fundamental law constitutes legal order. The recognition and protection of human rights have now assumed the comlexion of legal rights of individuals and of legal obligations of state and of the united nation as a whole. Members of the united nations are under a legal obligation to act in accordance with these purposes. It is their legal duty to resoect and observe Fundamental human rights .
INTERNATIONALIZATION OF HUMAN RIGHTS:
The adoption of the UN charter ushered in a process leading to the gradual internationalization of human rights through the rule of law. The UN Declaration clearly envisages the important role that the rule of law plays for the realization of the goal of respect universal human rights. The Declaration mentions: “its is essential, man is not to be compelled to have recourse, as a last resort rebellion against tyranny and opression, that human rights should be protected by the rule of law”.
The very objective of the maintenance of international peace and security being directly linked to the assurance of respect for human rights can be attained only through the process of internationalization. Former secetary general of the united nations, u thant in his human rights day message on December 10, 1965, Pointed out that “ We need constantly to remind ourselvesthat the united nations is firmly committed to the proposition that the eventual objective of all its function and activities is the well-being of individual men and women and also the freedom and opportunity to find their worth as human beings, whatever their race, language, religion or political belief.”
The UN charter introduced a significant change in the pre-existing legal conceptions by requiring the member states to pledge themselves to take joint and separate action in cooperation with the organization in order to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. These provisions impose legally binding obligations on the member states. To the extent that the charter create these obligations no UN member states can claim that human rights as such are a matter within its domestic jurisdiction. The UN law-making practise indicates that the obligation to these rights will be deemed to be violated if a state systematically pursues governmental polices denying the enjoyment of these rights on a large scale, particularly rights that are more basic. This internationalization of human rights has greatly reduced, if not made practically insignificant, the domestic jurisdiction defence that was available to states under the international law of the pre-world was 2 era.
THE UN CHARTER:
The united nations charter, after reaffirming, in the preamble, faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women, pronounces in article 1(3) that one of its purposes is to promote and encourage respect for human rights and for fundamental freedoms for all without distinction on account of sex or other ground. Of particular significance is article 8 which reads:
The United Nations shall placed no restriction on the eligibility of men and women to participate in any capacity and under conditions of equality in its principle and subsidiary organs.
The founding of the united nation in 1945 with the signing of the UN charter marked the first agreement among nation to promote and observe human rights and fundamental freedoms for all. The first defination of what actually was meant by human rights was not delineated until 1948 in the UN universal declaration of human rights. Since then the declaration was come to be regarded as basic international law, augmented later by the Interntional covenant on civil and political rights and the International covenant on economic, Social and Cultural rights. In addition, agreements on a regional basis have been established by the organization of the American states as well as by the european comvention for the protection of human rights and fundamental freedoms.
The General Assembly, or the Economic and Social council, or any other competent organ of the United Nations, are authorised to issues a situation arising from any alleged non-observence by a states or a number of states of their obligation to respect human rights and freedoms. The object of such discussion may be the initiation of a study of the problem under the aegis of the united nations; it may be recommendation of a general nature addressed to the concerned state and drawing its attention to the propriety of the drawing of bringing about a situation in conformity with the obligation of the charter thus the pressure of the public openion of the world as expressed through these channels is made to bear upon the recalcitrant state.
A dispute or situation ceases to be essentially within the domestic jurisdiction of a state of its nature or repercussions are such as to constitute a direct or potential threat to international peace and security. The correlation between peace and observance of Fundamental human rights is now a generally recognized fact. The United Nations, as the guardian of peace, is qualified of intervene whenever those rights are threatened.
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS:
One of the accomplishments of the United Nations has been to consolidate the principle that human rights are a matter of international concern and that the International community is entitled to discuss and to protect human rights. As a part of the UN mission. The UN charter of human rights was adopted on december 10, 1948. The UN charter of human rights contains 30 articles, the first 21 are generally identified as civil and political ranging from prohibition of torture and arbitrary arrest to the freedoms of speech, assembly, religion and emigration and the right to vote by secret ballot. The remaining articles include the so-called economic, Social and Cultural rights, such as the right to work, education and adequate standard of living, Social security, any vocations with pay.
The UN charter of human rights envisages that all human beings are born free and equal in dignity and rights and everyone has the right to life liberty and the security of person. It also declares that no one shall be held in slavery or servitude and no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. It asserts that everyone has the right to recognition everywhere as a person before the law and that no one shall be subjected to arbitrary arrest, detention or exile.
When the Universal Declaration was adopted unanimously is December 1948 by the General Assembly, the stated expectation was that it mirrored merely a common standard of achievement, devoid of legal authority and enforceability. In the early three decades subsequent to its adoption, however, the Universal Declaration been affirmed by numerous resolution of United Nation’s entities and related agencies; invoked and reinvoked by a broad range of decision makers, National and and transnationaljudicial and others; and Incorporated in many international agreementsand national constitutions. The result is that the universal declaration is now widely acclaimed as a magna carta of mind, to be compiled with by all actors in the world arena. What began as more common aspiration is now hailed both as an authoritative interpretation of the human rights provisions of the Un charter and as established customary law, having the attributes of jus cogens and constituting the heart of a global bill of rights.
THE UN COMMISSION ON HUMAN RIGHTS:
The UN commission on human rights has demonstrated considerable ingenuity in fashioning remedies which combine diplomatic contacts with the Government conciliation, fact finding and embarrasment to the state involved in the violation of the human rights. The United Nations has begun to experiment with two approaches which require further exploration: add to the victims and technical assistance to governments.
The Secretary General, javier perez de cuellar noted in his address of Feburary 15, 1983 to the UN commission on human rights.
“It is a source of encouragement that in the human rights programme of the United Nations in recent years, attention has been given not only to dealing with violations, but to providing assistance to Governments, at their request, in strengthening their laws and institutions for restoring respects for human rights, as well as providing assistance to victims of violations of Human Rights”.
HUMAN RIGHTS TREATIES AND CONVENTIONS:
Respect for Human Rights is a proper subject for discussion bilaterally and multilaterally for a through exchange for views on their implementation. Widely ratified international conventions establishing effective organs for enforcement are the method through which the International community aspires to protect human rights. In the history of International relations this is a very recent goal and the international community has only begun to implement it.
Like other international law human rights law is made by bilateral and multilateral treaties and by conventions for the protection of Human Rights. There is also customary human rights law made by national practise with a developed sense of legal obligations. Treaty law overrides contrary provisions of domestic legislation. A human rights treaty protects all persons within the jurisdiction of the signatory states.
Modern Human Rights treaties are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting states. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the state of their nationality and all other contracting states. In concluding these Human rights treaties, the state can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other states, but also individuals within their jurisdiction.
The UN charter and the two convenants are by no means the only multilateral effort at promoting human rights. There are over 20 treaties now and they include, inter alia, (a) the convention on the prevention and Punishment of the crime of genocide, (b) the international convention on the elimination of all forms of racial discrimination, (c) the convention concerning the abolition of forced labour, (d) the American convention or Human Rights, (e) the convention relating to the status of the refugees, (f) the convention on the reduction of statelessness, (g) the convention on the political rights of women, (h) the convention on the nationality of married women and (i) the convention on on the elimination of all forms of discrimination Against women.
These Convention create binding legal obligations on the parties to them.
The adoption by the General Assembly of the Convenant on Economic, Social and Cultural rights. The convenant on political and civil rights, and the optional protocol to the convenant on political and Civil Rights. Marks the beginning of a long process of investiture of a great idea with the substance of power capable of producing effective change in all realms of personal, National and international life. These International treaties are binding commitments of states towards their own citizens, towards one another and towards the community of nations to ensure, observe and safeguard human rights. By transforming International concern with human rights into legally binding international obligations, the covenants have laid the groundwork for the erection of International institutions and procedures which are meant to give concrete expression to these obligations.
It is not only on the global level that efforts to promote Human rights take place; by and large, some of the most innovative attempts have occurred on regional levels. Indeed, it appears that regional arrangements have most rapidly advanced the commitment of nations to human rights.
THE EUROPEAN SYSTEM:
Perhaps a prominent regional achievement is the European convention for the protection of Human Rights and Fundamental freedoms. The European convention established a commission and a court for handling both state and individual complaints.
The some instances individuals are able to assert their human rights in court or other appropriate forums. For example, the European convention on human rights and the optional protocol to the covenant on civil and political rights establish specific procedures for the bringing to complaints by private individuals where the Nation concerned has agreed to such a procedure.
In the law of Human Rights, it has long been apparent that the mere creation of international standards may be meaningless if it is unaccompained by appropriate institutional enforcement mechanisms at the transnational level. The european commission and the court of Human Rights, and the council of europe, are generally considered to be the most effective existing enforcement institutions, in spite of their geographical scope.
The European convention on Human Rights represents more than a common standard of achievement. It imposes upon the contracting state parties a certain body of legal principle which they are obliged to to conform to. In specific cases compliance with this law is ensured by the use of the convention’s enforcement machinery. The convention forms an integral part of the domestic law of many of the contracting state parties. The Convention’s provisions are deemed to maintain great validity whether or not a prior legislation on the subject exist at the domestic levels. The basic function of this machinery consists primarily of examining and determining whether domestic law as it stands complies with the provisions of the convention. Although constructed upon tenets of traditional treaty law, the convention law transcends the traditional boundaries drawn between international and domestic law.
THE AFRICAN SYSTEM:
The International Human Rights movement reflects, to a large extent, the liberal, Individualist tradition of civil and political liberties. There is something very new in the present attempt by the Organization of african unity to embody a list of collective or proples’s rights in the human righrs convention that provides for the enforcement of those rights. With the drafting in 1981 the african charter on Human Rights and people’s rights, meaningful steps are being taken in that direction.
THE INTER-AMERICAN SYSTEM:
The American convention on Human Rights entered into force in 1978. The Convention establishes two supervisory organs, the Inter-American commission on Human Rights and the Inter-American Courts of Human Rights. The court is a judicial institution of the Organization of the American States (OAS) in matters relating to Human rights. It has the power to decide disputes relating to the interpretation and application of the convention to states which have accepted the court’s contentious jurisdiction. The decisions of the court in these cases are final and binding for the parties to the disputes. The role of the court as a judicial judicial institution of the OAS is grounded in its advisory jurisdiction. These openions are important also for the contributions they make to the development of International Humans Rights Law.
IMPLEMENTATION OF HUMAN RIGHTS NORMS:
Since treaties cannot be made by the states for the violation of Human Rights. Even the absence of treaties for the protection of Human Rights cannot create a vacum. The scholars tend to agree with the elementary proposition that publi polices do not allow states to violate severally such norms as they are prohibited from violating jointly with other states. Judge mosler of the ICG, who deserves credit for coining the phrase “public order of the international community”, characterized such order as consisting of principles and rules the enforcement of which is of such vital importance to the international community as a whole that any unilateral action or any agreement which contravenes these principles can have no legal force. The reason for this follows simply from logic; the law cannot recognized any act either of one member or of several members in concert, as being legally valid if it is directed against the very foundation of law.
There are three main approaches to the international implementation of Human Rights. The first approach is on the Government-to-Government level. This may be through bilateral diplomacy or resort by a government to multilateral machinery. The difficulty with this approach is that Governments are often reluctant to complicate diplomatic relations by bringing human rights complaints against other government. The approach is to give individuals direct access to aninternational commission or tribunal. Such a right is available to an individual to petition the european commission and the european court of human rights and he can also invoke the optional protocol of the convention on racial Discrimination. This approach is feasible between countries which share a substantial degree of consensus on Human Rights standards. The Third approach is through an international executive who can influence Government action through fact finding. Publicity and persuasion.
HUMAN RIGHTS JUS COGENS:
The notion of peremptory norms of International law (jus cogens)is ‘a norm accepted and recognized by the International community of states as a whole as a norm from which no derogation is permitted. The Principle of jus cogens restricts the freedoms of state to make agreements at variance with these peremptory norms. Its moral and deterrent effect is is of perticular importance in the present context of internal and international violance. The rules of customary International law that require the states to abstain from the violation of human rights constitute jus cogens and all agreements made in contravention of these rules are considered illegal. Judge mosler of the ICJ took account of the dignity of the human person and declared that obligations to protect human rights faal in the domain of jus cogens. Third state have the right and duty to question the illegal act, and to refrain from recognizing it or giving it legal effect.
Many of the polices about Human Rights would appear to be so intensely demanded that they are acquiring not merely the status of International concern, but also that of jus congens and of a global bill of rights. The nations suggest that the great bulk of the contemporary human rights principles are identifiable as jus cogens. The view finds support in the statement of judge tanaka of ICJ that the law concerning the protection of human rights may be considered to belong to the jus cogens. Thus all rule of general international law created for a humanitarian purpose constitute jus cogens.
THE RELATION BETWEEN INTERNATIONAL HUMAN RIGHTS NORMS AND DOMESTIC LAW:
The relation between international law and municipal law is a question of determining what are the most appropriate juridical means of achieving, in state legal syatems, the aims and intentions lying behind the rules established by international law. The obligations imposed on a state by international law with a view to ensuring the implementation, in municipal law, of the terms of an international treaty to which the said state in a party, are the means of guaranteeing harmony and material agreement between the two legal orders. A state has an obligation to make its municiple law conform to its undertakings under treaties to which it is a party. With regarded to interpretation, however, its is a principle generally recognized in national legal syatems that, in the event of doubt, the national rule is to be interpreted in accordance with the state’s international obligations.
A matter is essentially within the domestic jurisdiction of the state only if it is not regulated by international law or of it is not capable of regulation by international law. In the modern age of economic and political interdependence, most questions which, on the face of it, appear to be essentially domestic are, in fact, essentially international.
A valid domestic jurisdiction defence can no longer be found on the proposition that the manner in which a state treats its own nationals is ipso facto a matter within its domestic jurisdiction. A Government’s human rights policy is no longer prima facie a domestic matter. A state engaging in gross violations of human rights is considered to be violating the united nations charter obligations and consequently is not protected by the domestic jurisdiction clause of the charter. It is, therefore, apparent that under international law the subject of human rights is not deemed to be inherently domestic in nature.
So far, a major deficiency in the development of Human Rights law is one of enforcement. The implementation of human rights law largely depends on the consent of nations. However, even if that consent is forthcoming, an adverse judgement against consenting nations may or may not be effectively enforced. Currently, the implementation and enforcement of human rights law are largely depended on voluntary compliance, moral pressures, and other forms of influence.
The questions arise as to why do Governments adhere to numerous human rights treaties? Why do they repeat and vote for formulas that produce resolutions and declarations, and establish bodies designed to promote the implementation of the legal norms proclaimed in these instruments? The answer no doubt is that they find it difficult to vote against what is deemed to be good, what a vast majority of people of the world want, and what consequently makes good political sense for Governments to be for, if only to give lip service to. The vast body of international human rights law as is available today is testomony to the fact that Governments know that the appeal, the yearning, and the demand for human rights is universal. It has been brought on by the universality of mankind’s suffering and the world wide awareness produced by the speed with which news travels in world. Today, unlike in the past, what happens in any part of the world is flashed instantaneously to all parts of the world, provoking sympathy, protests, and empathy. (See the remarks of the judge of the Inter-American court of Human Rights, professor thomas buergenthal, in the Proceedings of the 75th Anniversary Convocation of the American Society of International Law, (Washington D.C. April 1998)
The time has come for world citizens to stop thinking of human rights and human needs as internal affairs. Human needs are coming to be regarded as a first charge on the world’s resources. And human rights are becoming a first charge on the public conscience of people anywhere. The issue of human rights, in the very recent past, has penetrated the international dialouge. It has become an active ingredient in in interstate relations and has burst the sacred bounds of national sovereignty. No nation can any longer claim not to know what human rights are; nor can any nation now assert that the manner in which it treats its ownnationals is free from international scrutiny.
In the present context of world society, a principle is recognized that the jurisdiction of a state to entertain claims of human rights is determined by the position that the state has acquired in the comity of nations at a particular time. In its Tunis and Morocco Nationality decress opinion, the PCIG (Series B No.4 at p.24, 1923) declared that the question whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question; it depends upon the development of international relations. The Court’s analysis indicate that the phrase “the development of international relations” has reference to the legal obligations assumed by states with regard to a specific subject.
In its advisory opinion on Namibia, the ICJ declared the extension continuation of apartheid in nimibia to be a violation of the purposes and principles of the charter. In 1967, by an overwhelming vote, the Economic and Social Council (ECOSOC) extended the interpretation of the UN charter to reach beyond racial discrimination, authorizing the commission on human rights to study situations which reveal a consistent pattern of violations of human rights, as exemplified by the policy of apartheld.
An inspiring recommendation of experts in respect of the protection of human rights is that the various provisions of international agreements can be interpreted by domestic courts. It would be worthwhile for the domestic courts to declare any variance with the peremptory norms of human rights as void and the courts may find it appropriate to terminate any existing agreement which is in conflict with that norm. the openion merits consideration that General Assembly resolutions in respect of human rights should be given legal effect by domestic courts as indicative of a general consensus of customary international law. such resolutions can give an important impetus to the emergence of new rules needed for the promotion of Human Rights.
It is important for the protection of human rights and for the realization of the rule of law that domestic courts be allowed to review the acts of foreign states when such enquiry is necessary to determine the nature of human rights violations. This practise does not violate the recognized principles of sovereign immunity. The domestic courts can have an obligation to determine whether foregin acts of states comply with the requirements of international law. Where the foreign acts violates a generally accepted principle of international law in the domain of human rights, the domestic courts fulfil their role by refusing to accept the policy of the foreign legal system.
Article 27 of the international law commission’s”Draft Articles on states responsibilities”provides that an aid or assistance given by a state to another state for the commission of an internationally wrongful act, wherever such incidents are reported, in itself constitutes an internatioanlly wrongful act. The domestic courts can entertain claim arising out of an alleged violation of human rights and these claims cannot be defeated by the act of state defence since the international law of human rights contemplates external scrutiny of such acts. The balancing of the function of the domestic courts and those of international tribunals requires the domestic courts to entertain the petition of those whose human rights have been violated.
If international protection of human rights is to respond concretely to the inperatives of the age, it must be institutionalized and if human rights are to be protected internationally, they must be juridically defined and be made contractully binding. The domestic courts can become the most effective means by which international conventions could be implemented and become effective.
Effective enforcement of remedies requires that they be articulated as effectively as possible, that they get along with judges obviously are the people who can be most effective in this articulation. Private non-governmental organization, in compiling information on the human rights practices of the various countries can undertake an examination of the independence of lawyers and judges and of the entent to which judges are subjected to political pressure in various countries.
A task that the domestic courts often face in the area of international human rights norms is that of determining adequacy of procedural alternatives. Here the doctrine of selective incorporation assumes special significance. Under this doctrine, the specifics of the international human rights norms can be progressively applied to all those states which constitute the comity of nations. The states should be able to afford flexibility in the implementation of domestic constitutional values.
The domestic application of human rights norms is now regarded as basis for implementing constitutional values beyond the minimum requirments of the constitution. The international human rights norms are in fact part of the constitutional expression of the liberties guaranteed at the national levels. The domestic Courts can assume the task of expanding these liberties. The exercise of judicial power to create an order of liberties on a level higher than the respective constitutions is now considered to be an ingredient of judicial activism. The present thinking at the international level supports an expanded role of norms. The reappraisal enables the domestic Courts to extend to citizens, via state constitutions, greater protection of internationally recognized human rights. This type of Court actvisim is commanding appreciation over the world.
A consciousness is now emerging that in the sphere of human rights the citizen of a particular state is no less a citizen of all other states and that each citizen is entitled to due process of law and the equal proctection of laws from all the state Governments. This legal revolution which has brought human rights law to the fore does not inhibit the independent protective forse of domestic law, for without it, the full realization of liberties cannot be guaranteed. The principle stated by Mr.bradly of the United States Supreme Court in 1886 in the case of boyd versus United States (116 US 616) has started attraction great attention, after the lapse of a hundred years, at the international level. The principle states that constitutional provisions for the security of persons and property should be liberally construed and it is the duty of the (domestic) courts of law to be watchfull for the constitution rights of the citizens”.
It is now being felt that the protection of international humans rights can ensure the maintenance of constitutional structures of Governments at the national level. Obviously, the genius of the written constitutions of national states resides not in any static meaning, but in the adaptability of the great principle of the constitution to cope with the problems of human rights. The universal approach maintains that every such principle must be of wider application than the circumstances giving rise to it at the domestic level. National constitutions are not short-lived documents designed to meet passing occasion. The demands of international peace and security have assumed responsibility for their care, and therefor, in their application, the domestic contemplation is enlarged to incorporate international contemplation. This is surely an important and a high significant development of constitutional jurisprudence. Adopting the premise that domestic Courts can be trusted to safeguard international human rights, it well can be appreciated that domestic Courts can provide a double forse of protection for the rights of citizens, thus the domestic courts can thrust themselves into a position of prominence in the struggle to protect the people arbitratry intrusions of their freedoms.
The attention of national states of international human rights norms in resulting in the birth of a transnational legal science and of a system whose basic postulates can survive without challenge, in this last phase of the 20th century and the ensuing 21st century. An argument is now being forcefully made that the newly developing formal aspects of international human rights norms, alongwith their logic, their style of reasoning, their levels of generalization, and their techniques of interrelating liberties and universals, cases and concepts, are indeed superb. The new legal methodology of human rights point to the recognition of the structural unity of the total human society. The emrgence of human rights law is much more than an intellectual achievements and it is much more than a method of reasoning or a method of organizing thought. The substantiation of international human rights norms is part of a larger process of attempting to reconcile law and equity, justice and mercy, equity and freedom. It is now being viewed as the equation of Allah Almighty and the mankind. It is a new vision of the ultimate destiny of man which the courts of law can upgrade and enhance for the welfare of the humanity as a whole.
Dmoestic legislative Protection Of International Human Rights Norms:
It is now considered important for the states concerned to be able to have the first opportunity for providing remedies would require specific legislation for domestic incorporation. Some would like to see this idea expressed in more forcefull terms to lay a legal obligation upon states either to incorporate it in the treaties or to have essentially identical terms in corporated in written constitution by their amendments. This suggestion emphasizes the need of convincing the national Governments of incorporating legislation on human rights in such a way in that national courts might in fact utilize of human rights norms. The domestic courts can take cognizance of a human rights violation more easily in a shorter time than an international Courts.
It is of cardinal importance of domestic legislation of human rights that violation by every country be treated with equal attention, with the same due process, and with severity proportional to the offence. The states can be persuaded to accept the interpretations of courts of law based on domestic legislation of fellow states. The courts of law can also examine, on the petition of affected persons, whether the states concerned have complied with their human rights obligations.
Direct Application Of International Law By Domestic Courts:
I think the enforcement machinery that exists domestically to protect human rights should resemble the enforcement machinery that exists internationally. The domestic courts can be successfully enlisted in the process of enforcement. It is the prestige of domestic courts that can persuade the executive and the legislative branches of government to comply with the decisions taken by the domestic courts in the sphere of human rights. The domestic courts can, however, look to the respective national constitutions as the best protections of human rights. An illustrious example of this observation in provided by the US Supreme Court in its decision in the case of Brown versus Board of Education (347 US 483-1954). It appears that international norms played a large part in bringing about the Supreme Court`s decision in this case. The prestige of the court itself was enhanced because the decision solved an international problem of human rights pertaining of segregation in schools and in that fashion brought the United States Of America into confirmity with international law.
The domestic Court can find it useful to consistently interpret and apply international law of human rights. Since there are few international tribunals and their jurisdiction is very limited, domestic Courts can play a major role in the interpretation and development of international law in this sphere. The international organizations, in their turn, can accord substantial weight to judgments of domestic Courts.
The problem of bringing about actual remedies in domestic jurisdiction in analogous to problem of bringing about remedies internationally. The domesti Courts now face the challenge to root their decisions as solidly an as effectivly as possible in international human rights legal norms. The greater degree to which international legal norms become know to domestic courts, the better the chance or justice despensation in this field.
It appears to me that national Courts may be used as a forum for enforsement for international human rights. If we cannot harness those courts, the prospects of private initiation and effective enforsement of human rights are bleak. But securing a long-term extention of national jurisdiction in matters such as these will require more than simply persuading the judiciary on a case by case basis. Terms such as”act of state”, “political Question”, “separtion of powers”, etc., even though they are still relevent in the domain of international law., have acquired a different status in the context of human rights. The new perspective enables the courts of law to accord greater weight to the concept of human rights whenever it competes with the “act of state” defence. The concern should therefore be addressed systematically by according predominance to the concept of human rights over the “act of state” defence.
Human rights are so important as to deserve simultaneous attack at the domestic level by legislation, governmental administration and non-governmental functioning.
A UN Human Rights Tribunal:
A desirable long range solution would be to establish, through a special protocol, a UN Human Rights Tribunal which would be empowered to apply not only the international Bill of Human Rights, but the entire corpus juris of international human rights adopted under the aegis of the United Nations. The UN Human Rights Tribunal Could be given authority to give advisory opinions, or to decide, on the basis of reciprocity, disputes between states pertaining to the interpretation or application of particular human rights instruments. It can also entertain complaints from individuals, or various groups, or organizations, against the states concerned. The human rights tribunal can maintain effective coordination and meaningful equation with domestic Courts in the united nations member countries.
Incorpporation Of International Human Rights Norms In National Constitutions:
The pakistan constitution has the distinctive privilege of incorporation in its Chapter I abouttwo-third of the 30 fundamental human rights enumerated in the UN Charter of Human Rights. These rights are incorporated in provisions ranging from Article 8 to Article 28. the constitutions declares that “any law, or any usage having the forse of law, in so far as it is inconsistence with the rights conferred by that chapter (of the constitution), shall, to the extent of such consistency, be void”. The pakistan constitution has accorded recognition to rights pertaining to the security of persons, dignity of man, freedom of movement, assembly, association, speech, religion and protection of property. The constitution provides safeguards against arrest and detention, against discrimination in services and against taxation for puposes of any particular religion. The constitution also guarantees equality before law and equal protection of law. In addition, the constitution sets out the principles of policy in Articles 31 to 40 and makes each organand authority of the state responsible to act in accordance with these principles. The principles are concerned with the promotions of local Government institutions, participation of women in national life, protection of minorities and faimlies, social justice, economic and social well being of people and the promotion of international peace. These principles are indentical in nature and scope to civil and political rights forming part of the international level. Even though the principles of policy are not justicable, yet the mere fact that the national courts have been called upon, in collaboration with all other organs of state, to promote international peace, goodwill and friendly relation , among all nations, impliedly authorizes domestic Courts to interpret constitutional provisions in consonace with the sprit of the international law of human rights.
The Supreme Court of the United States of America has often employed human rights precepts are legally relevant standards if juridicaids to incorporate constitutional and statutory norms. This is what judges are most comfortable with, and it is worth pursuing this as a strategy. Indeed, use by the domestic Courts can be made with express or implicit expectation that fundamental constitutional rights constitute legal principles. History demonstrates that there is a humanrights purpose behinds most amendments to the US Constitution. This precept can be emulated in other national settings. Human rights can be incorporated directory by the judiciary as the basis for its decisions. The international law of human rights does recognize the capacity of private plaintiffs to litigate its rules in domestic Courts. The national courts can serve as an effective mechanism for the protection and extension of civil liberties and they can operate with great forse for the coordinated international role.
In my view, courts should be viewed not in isolation but as a coordinate sourse of governmental power, as an integral part of the larger political system. In the present context of world society the legitimacy of the domestic Courts and the power judges exercise in human rights litigation are founded on the on the unique competence of the judiciary to perform a distinctive social funtion which is to give concrete meaning in application to the public values embodied any authoritative legal text such as the chapters on fundamental human rights in the national constitution. The capacity of judges to give meaning to public values inherent in the concept of fundamental human rights turns not on some personal moral of expertise, but on the method by which a public molarity at the domestic level must be construed. One feature of that process that signifies the role of domestic courts in the implementation of international human rights norms in the dialogue that judges usually conduct. They listen to all grievances, hear a wide range of interests, speak back, and assume judicial responsibility for what they say. The foremost task of the judges of domestic Courts at it has assumedpromienence in the domain of human rights is to weighttheir fundamental commitment to individual rights and group rights against the competing sentiments of nationality, the prejudices of race, the intrests of ethnic groups, the demands of justice, cultivation of virtue, the impulse of compassion, the higher callings of truth and salvation, and the allure of prosperity.
Even some success in the international human rights field, however small, will make this world a little better place to live in. And that, after all, is what law is all about.