In some cases, individuals have the right to appeal directly to international bodies to enforce states human rights obligations. This is the case, for example, with the European Convention on Human Rights (ECHR). But in some countries, like the United Kingdom, national courts cannot apply the ECHR and can take it into account only in very limited ways. The ECHR is about to be incorporated into national law in the UK but this will by no means resolve the dilemma that has faced that country with regard to fulfilling its treaty obligations under the ECHR. There are two main sources of international law, customary law and treaties. These two sources are applied in very different ways by domestic courts. In addition, constitutional rules may have modified or entirely altered the traditional approach to incorporation.
International Customary Law
The basic and ancient common law rule on customary international law is that it should be applied by courts as part of national law since it must have received the assent of the country to become customary law. However, national courts have proved reluctant to actually apply customary law, except where the matter in question is considered to be of an inherently international nature, such as the treatment of diplomats or vessels on the high seas. Thus in West Rand Central Gold Mining Co v R, the Court held that a customary rule would only be applied where it had clearly been assented to by the UK and satisfactory evidence had established that "it can hardly be supposed that any civilised state would repudiate [the rule]."
Obviously it would be necessary to establish to the satisfaction of the court that a given human right had customary status before it might be applied. A UK court recently suggested that only a limited number of gross violations of rights, such as genocide, slavery, torture, arbitrary detention and racial discrimination would qualify.
The question of how to deal with inconsistencies between international and national law is more problematical. To some extent the status of customary law depends on the answer to the "incorporation" versus "transformation" debate. According to the former, custom automatically becomes part of the legal system whereas according to the latter some act, of either the legislature or the courts, is necessary to "translate" custom into national law. This was of cardinal importance in Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529 (CA), where one issue was whether a customary rule, once recognised by British courts, was frozen by the doctrine of precedent or whether the rule, for purposes of national law, was deemed to change and evolve along with the international custom. A majority of the court took the incorporation approach, holding that "English courts must at any given time discover what the prevailing international law rule is and apply that rule…." National parliaments clearly have the power to override customary norms by statute, although courts should do their best to interpret the provisions in a way that renders them compatible. It is unclear whether common law rules override customary law.
In Chung Chi Cheung v The King [1939] AC 160, Lord Atkin stated that when faced with a customary rule, UK courts "will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals." [emphasis added] In The Paquete Habana 175 US 677 (1900), the US Supreme Court stated: "[W]here there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to [customary international law]." These cases imply that common law cannot be overridden by custom. In practice, courts have been very reluctant to allow human rights claims purely on the basis of customary law.
Perhaps the most important example of this was the application of the rule prohibiting torture in a case in the US, Filartiga v Pena-Irala. 630 F. 2d 876 (2d Cir. 1980) Mr. Filartiga, a Paraguayan citizen living in the US, brought a tort action against Mr. Pena-Irala, also a Paraguayan, for wrongfully causing the death of his son. The case was brought under the Alien Tort Statute which provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The Second District Court agreed that torture was contrary to international customary law and held that Pena-Irala had indeed committed torture, awarding the plaintiffs judgement for $10 million. The Alien Tort Statute is an important vehicle for promoting human rights, although it is limited by its restriction to actions in tort.
Treaties
It is quite clear that under the common law, treaties do not have force of law in the national system. They may, however, be incorporated into national law through ordinary legislation as has been proposed for the ECHR in the UK.
It is the executive which has the power to enter into treaties whereas the legislature is the only body which can pass legislation. It is, therefore, possible that a state will be unable to fulfil its international obligations because the legislature refuses to enact legislation necessary to give effect to a given treaty.
Unincorporated treaties are not, however, completely irrelevant. It is well established that ambiguities in legislation should, where possible, be construed by the courts in such a way as to give effect to treaty obligations.
In Derbyshire County Council v Times Newspapers Ltd [1992] All ER 65 (CA), the UK Court of Appeal outlined the circumstances in which domestic courts may rely on the ECHR, including to resolve uncertainties or ambiguities in a statute, to determine how courts should exercise discretion and to resolve uncertainties in the common law.
Further, Principle 7 of the Bangalore Principles, adopted by a high level judicial colloquium in 1988, states that it is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes - whether or not they have been incorporated into domestic law - for the purpose of resolving ambiguity or uncertainty from national constitutions, legislation or common law. The scope of application of human rights treaties has been interpreted narrowly in the UK, for example to exclude application to administrative, as opposed to court, discretion.
In R v Secretary of State for the Home Department, Ex Parte Brind, [1991] 2 WLR 588 (HL) the issue was whether the Home Secretary had acted properly in exercising his discretion to prevent both independent broadcasters and the BBC from broadcasting words spoken by certain organisations, including the political arm of the Irish Republican Army, Sinn Fein. The House of Lords held that the executive was not bound by the ECHR when exercising its discretion. Where the legislation in question was passed specifically to bring domestic law into line with international obligations, however, those obligations would be relevant to the exercise of administrative discretion. This restrictive interpretation has not been followed in other common law jurisdictions.
In New Zealand, for example, the Court of Appeal held in Tavista v Minister of Immigration [1994] 1 LRC 421, that the minister of Immigration's argument that he was entitled to ignore international instruments, specifically the Convention on the Rights of the Child, when considering an application for residence from the father of a New Zealand citizen, was "deeply unattractive". A couple of important cases from Australia have significantly extended the impact of human rights treaties in that jurisdiction. In Mabo v Queensland (1992) 66 ALJR 408, the High Court reversed the previous common law position and recognised the status of native title. The court held that Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), allowing nationals to effectively appeal cases to the UN Human Rights Committee, meant that the relevant international standards should henceforth influence the common law.
In Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, Mr. Teoh, the husband and father of Australian citizens, was refused residence status and became subject to deportation from Australia. The High Court went even further than in the Mabo case, holding that ratification of the Convention on the Rights of the Child created a legitimate expectation that administrative decisions would, in the absence of indications to the contrary, conform to the requirements of that Convention.
Constitutional Rules
National constitutions obviously vary considerably. Some, like the Canadian Constitution, say nothing about the applicability of international law in national courts. In this case, the ordinary common law rules apply.
The US Constitution, in contrast, provides at Article 6 that treaties are part of the "supreme law of the land" and as such should be applied by judges. Acts of Congress, however, are also "supreme" and therefore on an equal footing with treaties.
Another significant limitation to the domestic use of treaties is the doctrine of self-execution which holds that treaties can only be applied by courts if they establish rules which the drafters intended should stand alone.
Constitutions in a number of civil law countries provide that treaties are part of the law of the land and superior to local legislation. Article 55 of the French Constitution, for example, provides that treaties, once ratified and published, take precedence over local legislation.
This approach has been followed in a number of countries although non-publication has frequently been used to prevent application of the treaty. A different approach has been adopted in South Africa where Article 39(1)(b) of the 1996 Constitution provides: "When interpreting the Bill of Rights, a court, tribunal or forum… must consider international law." [Emphasis added] The Constitution is the supreme law, invalidating inconsistent laws or conduct (Article 2). While this does not render international law superior to legislation or government practice, it does at least ensure that it must be taken into account where human rights issues are raised.
In conclusion it tends to be rather difficult to get common law courts to use international human rights law. The most common use is in construing statutes which are ambiguous or unclear, although courts in a number of countries have also started using treaties when reviewing administrative discretion. Perhaps the most effective way of ensuring that international human rights are taken into account by domestic courts is to require them to do so in the Constitution. Even this route, however, can lead to less than entirely satisfactory results as requirements such as self-execution and publication may still allow states to avoid their obligations.
Toby Mendel
ARTICLE 19
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