Mainstreaming human rights norms is difficult because at the end of the day, a nation-state will preserve its sovereignty and autonomy. There is a de facto preference of domestic constitutional law, rather than the de jure international law. It is left up to the individual government to sign a treaty, ratify it, and enforce the provisions. The responsibilities of incorporation, statutory interpretation, and remedial action are almost entirely left to the signatories. It is a particularly dangerous notion to ignore human rights norms, in respect of domestic statutes.
With human rights violations all over the world, from the United States to Sudan to Cambodia, it is undesirable for nation states to avoid a world perspective of human rights. To be isolationist to the point of dismissing human rights standards is to spit in the faces of human rights victims of genocide and those stripped of due process rights. (Steiner 1009 to 1011, Jenks)
Commonly, domestic legislation clearly conflicts with ratified international conventions; and a national judge must decide; in which he or she will have an inherent bias towards constitutional law. In addition, the “lex posterior degorat legi priori” rule is a way from national governments to override convention provisions. A treaty can be seen as “lex specialis” so that later laws are exempt. (Steiner, 1003-1004) Democracies may preach mainstreaming human rights standards in law, but in practice, some governments take matters into their own hands. This illustrates how ignoring international law in domestic law is dangerous to human rights norms.
Critics of international law often will say it is not law at all because there is no “teeth.” There is no efficient or centralized judiciary, executive, or legislative. In this sense, international law is sometimes weaker than domestic law. What makes international law binding is “opinion juris” and “pacta sunt servanda.” The sense of legal obligation and the rule that treaties must be followed are what solidify international law. (Goldsmith, 3-15) It is true that until a nation-state ratifies a treaty, it is not law.
Another problem is that member states of a treaty do not always agree about what state action counts as state practice. For example, the United States disagrees with many other European countries about what constitutes torture and physical, coercive interrogation techniques. The dangers of disagreeing on human rights standards are inconsistency, inefficiency, increased human rights violations, and lack of progression in human treatment. (Kreimer, Goldsmith, 23, Jenks)
Effectively, it is a president or leader’s commitment to a treaty that makes international and domestic law one in the same. (Goldsmith: A Theory of International Agreements, 93, Nincic) Without important officials behind a signed treaty, the document is worthless. Likewise, new treaties are more powerful when a larger, financially stable nation signs on.
In this discussion, there are issues of incorporation, statutory interpretation, the liability of public authorities, and remedial action. After a nation-state signs an international treaty, it has to ratify it to make the treaty part of substantive domestic law. For example, the United Kingdom Rights Act of 1998 incorporates only some of the provisions from the European Convention of Human Rights. A Convention is interpreted and enforced in a signatory nation by their court system. When domestic and international law contradicts, the higher courts make a Declaration of Incompatibility. The Court has an obligation to enforce the treaty until domestic legislation is reformed. Another aspect is the Courts must hold public authorities (i.e. police officers and federally funded institutions) accountable for actions in violation of the Convention (Steiner).
Using Great Britain as an example, their government takes a great deal of power from the international community, which is hazardous to human rights norms in some situations. In the United Kingdom, Parliament has the ability to make any legislation it wants because its members are democratically elected and appointed. Saying this is dangerous to human rights because it means Great Britain is declaring it has the power to ignore international standards if it so chooses (Steiner).
The United Kingdom is not the only world leader ignoring human rights. An example of defiance of international law in preference of domestic law is the case of Japan. Japanese Courts tend to ignore international human rights law, even though treaties are formally higher than statutes. In addition, the Japanese judiciary is reluctant to find faults in both domestic and international law; showing much judicial restraint and dismissing valid human rights violations claims. Since domestic law must be revised when ratifying a treaty; Japan has made significant positive change in the human rights of women and aliens. (Steiner, 1006-1008)
Yet another major nation known to abuse international law, the nation of Germany is equally reluctant to enforce international human rights law. There are several reasons and challenges as to why the Bundesverfassungsgericht, Germany’s Federal Constitutional Court, ignores human rights norm. First, customary international law and human rights standards are not included in legal education or practical training, so attorneys and judges may be ignorant. A second obstacle is the inability or difficulty in finding German translations. Last, there is the problem of many norms existing in customary law; yet not in tangible text. Furthermore, it is much easier and more practical to uphold statutory, Constitutional law over international law because there is extensive case law and literature on domestic law. The significance is in Germany’s attitude towards the European convention. In consequence, the European Court of Human Rights has found Germany to be excusing its numerous violations. (Steiner, 1005-1006)
The United States is one of the most hypocritical world superpowers regarding human rights. Often domestic and international legal procedures overlap in objectives. United States law prohibits torture and other cruel, inhuman, or degrading treatment or punishment. International human rights standards, of which the U.S. is a party to, include the Torture Convention and the International Covenant for Civil and Political Rights. Congress passed a law in 1994 increasing the penalties of American officials who commit torture, to fines and twenty years of imprisonment. In circumstances where the tortured victim is killed, the death penalty or life in prison is to be determined. (www.humanrightsfirst.org, Maynes)
There are several international treaties prohibiting action that the U.S. has taken. Article 17 of the Third Geneva Convention says that “no physical or mental torture, nor any form of coercion, may be inflicted on prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.” Even though the U.S. upholds international human rights standards in signing the Torture Convention (with specific provision), American officials have committed grave breaches of the Third Geneva Convention. The U.S. Senate ratified this treaty to make it domestic law and the courts have played a large role in interpretation of the Torture Convention. (www.humanrightsfirst.org, Maynes)
The de facto preference of domestic law rather than human rights norms is particularly dangerous concerning The Convention Against Torture and the treatment of POW’s and the like in war. For example, in the case of Hamdi v. Rumsfeld, Hamdi, an American citizen from Louisiana had moved to Afghanistan and joined the Taliban. U.S. officials captured him in Afghanistan and brought him back. He was detained without charge and stripped of all due process and human rights. The President, George W. Bush, declared him an illegal combatant by an Executive Order. Hamdi could be held without charge until the end of the war (the War on Terror could go on forever theoretically). The treatment of Yesar Hamdi violated various Geneva Convention provisions and numerous international conventions. This case is dangerous for international law because it is creating precedent and even justifications for other nations to abuse human rights of their own citizens, foreigners, and the production of legal loopholes (Lokaneeta, 2008, www.humanrightsfirst.org).
Along the same lines, extraordinary rendition and black sites conducted by the U.S. are inherently dangerous to the realization of human rights norms. Time and time again, military tribunals and seemingly limitless executive power have been defended in the U.S. Constitution. In a film titled, “The Detainees Speak,” illustrates the story of a preacher, Abu Omar, who was picked up by U.S. officials in Italy. He was tied up, diapered, and put on a Gulf Stream jet; where he was subsequently taken to a black site. Abu Omar endured fourteen months of physical, sexual, and mental torture and heard not one word of why he was being held. The man’s story and many others show how U.S. interests are held above international law regarding human rights. The United States essentially sends their dirty work to others, such as the Secret Egyptian Police for interrogation and torture. The black sites, these secret jails, existed all over the world; with one outside Kabul, Afghanistan, Romania, and Poland. George W. Bush ordered these sites to be emptied last year, but it is arguable how many of these actually were and the flooding of Guantanamo Bay. (Lokaneeta, 2008, www.humanrightsfirst.org)
In contrast to America’s human rights system, the Supreme Court of Israel ruled in 1999 that no torture or inhuman treatment has a place in democracy. With all the terroristic and personal attacks on Israeli citizens, this Judgment Concerning the Interrogation Methods Implied by the General Security Services is a testament to national security and international human rights standards by protecting citizens abroad.
Playing devil’s advocate, it is important to note the significance of domestic interest. Sovereign nations must choose their own interests over others sometimes, to sustain one’s own nation. For example, even though some U.S. government officials knew about the Holocaust and Hitler’s tyrannical rule during World War II, America stayed out as long as possible to preserve its economy and peoples. In light of this example, the human rights system was developed after the end of WWII to create an enforcement mechanism of basic rights in all sovereign nations.
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