Part I. National Frameworks. 2/5

1. International Law and National Frameworks

This section explores the framework for the protection of rights of persons with disabilities at the national level. This exploration covers the adoption of international law into municipal law, the available mechanisms under national law for the protection of violations of human rights and the role of non-governmental organizations in monitoring the protection of the rights of persons with disabilities.

In an effort to give legal recognition to normative rights, States follow different practices in "internationalizing" treaty norms, that is, incorporating treaties within the state's legal structure so that the provisions can be implemented by state authorities.

International human rights law can have a great impact on national systems, regardless of which of the two scenarios described above applies. National courts may look at international and regional human rights norms in deciding how to interpret and develop national law. International and regional human rights law can be used in national human rights mechanisms in different ways including, basing the human rights claim on international or regional law, where such law is part of national law, or has otherwise been incorporated into national law; using the international and regional human rights law as an aid to the interpretation of national law provisions and using international human rights law as the minimum standard of protection which national law should attain.

The next sections set out how and by what means or methods, international human rights law and its implementation in national law has developed.

1.1 Sources of International Law:

Article 38 of the Statute of the International Court of Justice sets out the following sources of international law: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; d) judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for determination of rules of law.

1.2 The Role of Custom

Customary law is critical to the role of human rights law.  The domestic enforceability of customary international law is manifest in the case of Filartiga v. Pena-Irala: "In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights … In the modern age, humanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest…" (630 F. 2d 876, 89 ( 2d Cir.1980)). Two issues were made clear by this case. Firstly, customary international law is a matter of universal jurisdiction, so that any national courts may hear extra-territorial claims brought under international law. Secondly, domestic court may discover international legal principles by consulting executive, legislative and judicial precedents, international agreements, the recorded expertise of jurists and commentators, and other similar sources.

There also exists a class of customary international law, jus cogens, that has peremptory force and cannot be abrogated by domestic law or treaty. Jus cogens is generally deemed self-executing. When domestic courts apply treaty law and other rights established by express accord, they usually look to the language and legislative history of the norms involved to locate the intent to enforce them locally. If such an intent exists, these agreements are regarded as self-executing.

1.3 The Role of Treaties

Even though the sources of international law are not hierarchical, treaties gain some degree of primacy among the sources of international law. Treaties serve different purposes. Some treaties have far reaching political impact such as peace settlements, alliances and nuclear testing bans. Others though less political, involve relationships between governments or government agencies and affect private parties. Most significantly, human rights conventions have sought to extend protection to all persons against governmental abuse. A treaty is formed by the express consent of its parties. A treaty's text may permit some reservations, thus allowing a greater number of States to enter into a treaty at the sacrifice of certain objectives and purposes of the treaty.

1.4 International Law in Municipal Law

Even though international law requires a State to carry out its international obligations, the processes used by a State to carry out its international obligations will vary for example, from legislation, executive and/ or judicial measures.

States also follow different practices in incorporating treaties within the state's legal structure so that the provisions can be implemented by state authorities. In some countries, international (and at times regional) human rights law automatically becomes a part of national law. In other words, as soon as a state has ratified or acceded to an international agreement, that international law becomes national law. Under such systems treaties are considered to be self-executing. In other countries, international human rights law does not automatically form part of the national law of the ratifying state. International law in these countries is not self-executing, that is, it does not have the force of law without the passage of additional national legislation.

States incorporate treaties and norms into their domestic laws by specific "transformational" devices. The automatic incorporation of ratified treaties by constitutional provision, which has been called general transformation, mandates domestic enforcement without legislative action beyond ratification. A second method, special transformation, requires legislation in order to give treaties domestic effect.

In the absence of special agreements, a State will decide how to carry out its international obligations. For example, in the United States, the Federal government will decide whether an agreement is to be self-executing or should await implementation by legislation or appropriate executive or administrative action.

In the United States unless a court deems a treaty to be self-executing, the treaty will bind domestic courts only if Congress has passed legislation for the specific purpose of implementing the treaty provisions domestically. Another promising route for directly incorporating international human rights norms into U.S. law is the argument that these norms are binding as customary international law or jus cogens, a subset of customary laws that are so fundamental that they are non derogable. The human rights values embodied in the U.N. Charter, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights are all elements of customary international law that are rapidly establishing themselves as jus cogenss, if they have not already achieved their status.

The case of Filartiga v. Pena Irala, heralded a trend towards the domestic incorporation of customary international law. The Filartiga court recognized that the law of nations is a dynamic concept, which should be construed in accordance with the current customs and usages of civilized nations, as articulated by jurists and commentators. It held specifically that U.S. law directly incorporated customary international law principles prohibiting deliberate government torture. Moreover, in the most controversial aspect of its opinion, the Filartiga court held that an old rarely invoked federal jurisdictional statute, the Alien Tort Statute, created an implied right of action for violations of customary international law. In Paquete Habana (175 U.S. 677, 20 S.Ct.290), the Court reaffirmed the domestic status of customary international law in the United States. Relying on scholarly sources, the Court acknowledged a long-held customary norm against seizing the coastal fishing vessels of a belligerent. The court held that international law is part of the United States law, and must be ascertained and administered and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.

1.5 Locating Human Rights Law in Municipal Law

Any law that can be used to promote or protect human rights may be considered to be part of human rights law. Human rights law can be found in national constitutions, legislation and unwritten common law. National constitutions increasingly reflect a commitment to human rights. At times the rights are listed in a separate section generally known as a bill of rights.

1.6  Two Basic Conceptions about Constitutions

A Constitution is a body of rules that establishes and regulates a Government by laying down checks and balances and limitations of governmental authority. Most constitutions also include a Bill of Rights. These rules are sometimes justiciable in a court of laws and sometimes merely aspirational and hortatory but no less effective in regulating Government than the law stricto sensu. A second kind of constitution is an unwritten constitution for example such as in England, New Zealand, Canada and Israel. These countries have no written constitution in one single document, but rather a number of Basic Laws, that are primary laws guiding society. In the absence of a formal codified set of laws, tradition and existing legal and political systems may provide enduring constitutional principles.

If the rights of disabled persons have been recognised within the Constitution, the political powers of the nation must respect them, as long as the Constitution is not modified. There is, therefore, supremacy of Constitutional Law over any other inconsistent law which voids any law or any act of Government which violates the Constitution.

1.7  International Law and Municipal Law Interface

An international treaty seldom stipulates how the States should implement its provisions, leaving it to each State to decide how that obligation will be executed on the domestic plane. One notable exception involves the right of access and to effective remedies guaranteed in human rights treaties. There is no rule of general international law that all treaties must have effect in domestic law.  Many treaties have no domestic legal consequences and do not require implementation through the national legal systems of the States Parties. The freedom to choose some methods of implementation is also guaranteed in the International Covenant on Civil and Political Rights, article 2:  "Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant." However, article 14 and 50 guarantee a right of access to courts.

Four main methods are generally available for the implementation of international human rights instruments in domestic law:

1. Direct incorporation of rights recognised in the international instruments into a bill of rights in the national legal order;
2. Enactment of different legislative measures in the civil, criminal and administrative laws to give effect to the different rights recognised in human rights instruments; 
3. Self-executing operation of international human rights instruments in the national legal order; and
4. Indirect incorporation as aids to interpret other law.

For States that are not Parties to the relevant human rights treaties, generally accepted standards of human rights are legally binding upon them according to customary international law.

The relationship of international law to municipal law rests on two principal schools of law.  The dualists regard international law and municipal law as separate and municipal law can apply international law only when it has been incorporated into municipal law. Incorporation can result from an act of parliament or other political act, or given effect by the courts.  On the other hand, monists regard international law and municipal law as parts of a single legal system. According to this theory, municipal law is subservient to international law.   

England is an example of the dualist model of international law. A treaty has no effect in English domestic law, unless it is made part of it. Once a treaty is incorporated into English Law, it is fully enforceable in the courts. But the fact that a treaty is part of the English Law will not necessarily mean that individuals have a cause of action arising from the treaty. There will only be incorporation if the treaty changes domestic law, or if it requires the raising of revenue or alteration of taxation. As in the case of many treaties in the field of foreign relations, ratification is a formality and incorporation is not required.  An unincorporated treaty has no formal standing in English Law. If it conflicts with statute or common law, the latter will prevail. An incorporated treaty becomes part of the law of the land, but it has no special position. The relationship between incorporated treaties and other legislation is the same as the relationship of two statutes to each other. Parliament is supreme in the sense that it can pass legislation that is inconsistent with any international treaty obligations which, nevertheless binds the United Kingdom at the international level.

An example of a monist model is the Netherlands legal system. For the operation of treaties and the orders of international organizations within the legal system, no national order is required to convert international law into national law. International law operates automatically, as such, within the national legal system. Therefore, certain treaties are considered constitutional law where they limit or extend the powers of Dutch offices based on national constitutional law. Examples of this are the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights.

Finally, between these two models there are a number of variants; however, many of them are only theoretical constructions. In the United States, for instance, treaties are expressly supreme law of the land and can be self-operative, creating individual rights and duties in domestic legal processes.

In the United States, ratified human rights treaties and customary international law are both law of the land. The Supremacy Clause of the United States Constitution makes all Treaties made or which shall be made under the Authority of the United States… the "Supreme Law of the Land" (U.S. Const.art. VI Cl. 2). Under the Supremacy Clause, the law of the land is binding on the federal government as well as on state and local governments. According to the U.S. Supreme Court, the treaty power authorizes Congress to legislate under the Necessary and Proper Clause in areas beyond those specifically conferred on Congress (Missouri v. Holland 252 U.S. 416 (1920)).

In the U.S. not all treaties, by their terms, mandate domestic applications that affect private parties. Such treaties, therefore, are not self-executing, even though they are ratified and are part of the law of the land according to the Supremacy Clause. Since a private right is largely contingent on the existence of a right of action, additional legislation is needed to grant individuals private rights pursuant to such treaties.    

Self-executing treaty doctrine stipulates that not even the few U.S. ratified human rights treaties would necessarily be binding on domestic courts. Unless a court deems a treaty to be self-executing, the treaty will bind domestic courts only if Congress has passed legislation for the specific purpose of implementing the treaty provisions domestically.

While the U.S. Constitution assigns the power to make and adopt treaties to the federal government, several state and local governments have adopted human rights treaties. For example, in the absence of federal ratification on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), San Francisco has incorporated principles of CEDAW into binding local law.

In order to achieve an effective improvement in the exercise of disabled persons human rights, it is important to understand the mechanisms that exist and the remedies they can provide.  Much of this Resource addresses the potential of human rights mechanisms in this context.  Before analysing the available international instruments in the area of disability, an examination of the procedure and remedies provided by the national level will be made.

1.8 The Role of the Constitution in Municipal Law

National constitutions increasingly reflect a commitment to human rights. At times the rights are listed in a separate section generally known as a bill of rights.   Drafters of recent constitutions often consider the language of international and regional norms in fashioning their guarantees. Some of the possible constitutional provisions that affect human rights are:

• Right to non-discrimination
• Right to equal treatment in specified spheres, such as employment or the court system, or in all spheres of life
• Right to freedom from violence
• Other civil and political rights available to people including, for example, the right to assembly, to free speech, to worship as one chooses, to privacy etc.
• Other economic and social rights available to all people, including for example, the right to health care, housing and education

1.9 The Supremacy of the Constitution

The Constitution is said to be the supreme law of the land (For explicit claims, see inter alia, the Constitution of Australia, Preamble; the Canadian Constitution Act, 1982, Art.552; the Constitution of Italy, Art.1; the Constitution of Ireland, Art.6; the Constitution of Japan, Art. 98; and the Constitution of the United States, Art. 6. For implicit claims, see inter alia, the Constitution of India, Arts. 251 and 254; the Basic Law of Federal Republic of Germany, Arts. 20 (3), 23,28 (1) and (3), 37, 56, 64(2), 70, 87 a(2), 98(2), and 142). The Constitution is the source of all political power within the nation.

The logical consequence of the superiority of the Constitution is that all acts of the legislature, repugnant to the Constitution will be void. Therefore, these acts will not bind either the courts or the citizens. The constitutionality of every law and every act of the Government is one of the most important political principles of democracies and universally accepted rule of law norms. Consequently, including the civil rights of persons with disabilities within the Constitution seems to be the most effective way in which to protect their human rights and fundamental freedoms of persons with disabilities.

1.10 Judicial Review of Legislation

The right of a constitutional court or the highest court of the land to declare certain laws unconstitutional is termed the power of judicial review. 

The very essence of civil liberty consists of the right of every individual to claim the protection of the laws, whenever one receives an injury; one of the main duties of government is to protect the rights of all persons. Access to courts and the right to an effective remedy are fundamental rights included in article 8 of the Universal Declaration of Human Rights and articles 2 and 14 of the International Covenant on Civil and Political Rights.

A successful rights claim may have wider impact and lead to the reform of legislation or policies found to violate the rights of persons with disabilities.  Advocates can thus take test cases or impact litigation cases to court to challenge policies or laws, which discriminate against disabled persons.

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