ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS LAW BY DOMESTIC COURTS: A THEORETICAL AND PRACTICAL STUDY

Abstract

There is a substantial body of norms of international human rights law, both in international conventions and customs. However, the international mechanism to enforce human rights world wide is rather weak. On the other hand, domestic courts have remained largely unutilized as concerns enforcing international human rights law. This is primarily owing to different state perceptions concerning the interrelation between international law and municipal law, and the resultant diverging views they take to implement norms of international law in the state territories. This tends to weaken the international human rights enforcement regime. There is a need to emphasize the legal and binding nature of international obligations and to involve domestic courts to ensure compliance. The importance of and contemporary movement for the protection and promotion of human rights has further underlined this need. The increasing recognition of individuals as subjects of international law, especially international human rights law, has added new dimension. Invoking international human rights law in domestic courts, therefore, merits special consideration. Factors of state sovereignty, the dualist view on the relation between international law and municipal law and implementing legislation, appear to be impediments for direct application of international human rights law, for it is argued that as long as treaty-making is primarily executive prerogative, the legislature ought not to be by-passed in implementing treaties. However, to overcome these impediments, it is suggested that legislative approval precede ratification of treaties, or legislature effectively participate in the process of ratification. This will benefit the so-called ‘democratic deficit’ of the process of treaty-making, and facilitate direct application of international human rights law by domestic courts. Many countries of the world, especially in Continental Europe and Latin America, which hold a monistic view, are increasingly opting for this model of human rights compliance. This would greatly enhance the protection and promotion of human rights.