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When the civil rights of persons with disabilities have been incorporated within the Constitution or an international convention ratified by the State, the domestic courts must enforce them. Certainly, once the International Human Rights Conventions have been ratified by the State and have acquired formal validity in the domestic legal system, they must necessarily be applied by the courts. No obstacles related to their international origin can hinder their application. Unfortunately, this does not always occur, mainly due to the courts’ lack of familiarity with international law. Indeed, access to courts and the right to an effective remedy are customary human rights.
There are two situations in which this problem may arise. Firstly, when there is a piece of legislation, which is in conflict with the Constitution or an international treaty; secondly, when it is the Government itself, which violates the rights of the disabled persons, despite the right established within the Constitution or an international treaty or customary law.
Regarding the first point, in Chile, a number of judicial precedents evidence that Chilean courts have tended to rely on international law in deciding a case, thus, ensuring the superiority of international law under domestic statutes. There are also important cases in which the automatic incorporation of customary international law has been recognised by the courts and applied accordingly. There are also cases where the courts have upheld domestic law above international law. This is particularly the case when the conflict arises between a treaty and a subsequent contradictory statute, since the court may be inclined to apply the rule enacted later in time. This is yet another consequence of having assigned a treaty the same legal hierarchy as a domestic statute. If the conflict arises between a rule of international law and a provision of the Constitution, the situation will be further complicated by the fact that courts will generally approach the question with added caution. This, of course, is not a peculiarity of the Chilean case, but of many other legal systems, as well. There is no question that from the viewpoint of international law, the argument that constitutional provisions prevail over treaties would not stand. From the point of view of a constitutional court, however, it is most probable that the Constitution will be upheld, unless its very clauses might provide for the supremacy of the international rule.
In Germany, international human rights and fundamental rights guaranteed in the Basic Law overlap to a large extent. The Basic Law begins with a catalogue of fundamental rights which opens in article 1 paragraphs 1-3 with a pledge of the German State to respect and protect individual rights: "The dignity of man shall be inviolable. To respect and protect it shall be the duty of all State authority." The German people, therefore, acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
The following basic rights shall bind the legislature, the executive and the judiciary as directly enforceable law:
The catalogue of individual rights in the Constitution of the Federal Republic of Germany contains many rights, which have parallels in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The extensive case law of the Federal Constitutional Court establishes a protection for these constitutional rights which in most cases is both broader and stricter than the international guarantees.
The same can not be said about economic, social and cultural rights. Their constitutional implementation was approached with much less rigor. These rights are generally interpreted as programmatic clauses which obligate governments and legislatures to pursue social policies, but do not create individual claims.
International law in Germany is accorded a rank above all other domestic laws in the hierarchy of norms. Germany is a party to all important human rights treaties. Nevertheless, in many cases, German courts seem so confident about the high standard of individual rights protection granted by the Basic Law, that they do not even bother investigating a violation of international human rights.
In the United States, both treaties and customary international law are supreme law of the land, binding the Executive, States within the federal system, and federal and state courts. However, federal legislation may sometimes prevail domestically over the treaty of it is last in time and non of the exceptions to the "last in time" rule apply. There is a split as to whether a federal statute or customary law prevails.
In Japan, treaties have the force of law and override statutes by the Japanese parliament. Because treaties have such a privilege status in Japan, it is extremely wary of acceding to a human rights treaty. Although Japan has not ratified many human rights conventions, it has ratified some of the most important ones within the last fifteen years. Upon ratification of these treaties, Japan revised its laws extensively to bring them into conformity with the requirements of the treaties.
Even though international law has domestic legal force in Japan, those international human rights instruments, which lack a legally binding character are not regarded as having the force of law. Binding character under international law is a prerequisite for the domestic force of law.
Concerning the second point, it is a common assumption that both the defence of superior orders and the immunity of State organs for official acts are losing their efficacy as obstacles in ascertaining the responsibility of the perpetrators of serious violations of human rights. Nevertheless, this approach is not unanimously shared by domestic courts all over the world. The consideration of human rights as a limit on Government action depends on the constitution of each country.
Besides the constitution itself, two considerations seem to play a major role in the decisions of the domestic courts regarding political acts:
a) The gravity in the particular case of the violations of the human rights
b) The consequences of a further prosecution by the courts in terms of political stability
If the rights of persons with disabilities are merely customary international law in a particular country, national courts must be able to enforce these rights exhaustively and in a fully independent way.
In Germany, international law stemming from non-treaty sources is introduced into the German legal system via article 25 of the Constitution of the Federal Republic of Germany, which contains the following incorporation clause: " The general rules of public international law shall be an integral part of federal law. They shall take precedence over the laws and shall directly create rights and duties for the inhabitants of the federal territory." This means that no additional implementing legislation is required. These general rules are accorded a rank above all other domestic laws in the hierarchy of norms. In litigation, where doubts arise about the existence of a general rule of international law, this issue can be solved by way of reference to the Federal Constitutional Court.
Nevertheless, in many countries, national courts will most often prefer their national constitutions and their national legislation to a customary international law, which they usually simply ignore. Although the civil rights of the disabled people are international customary law for those countries, which are not Parties to the International Human Rights Covenants, their enforcement will be better achieved through constitutional law or the international conventions themselves.
Human rights, in general, and human rights of disabled persons in particular, must be enforced mainly by the domestic courts. The reasons are:
1- While most human rights treaties provide for independent supervisory and
implementing procedures and organs, few states -perhaps with the exception of the parties
to the European Convention for the Protection of Human Rights and Fundamental Freedom-
have accepted the optional clauses or protocols concerning the right of individuals to
have recourse before such organs (The American System, however, is different).
2- Secondly, even where contracting Parties have allowed such individual rights, the role
of domestic courts remains critical, since, as a general rule, the route to international
remedies remains blocked until full exhaustion of domestic remedies has occurred.
Community Law is without any doubt, the most effective international law system. Although the European Union does not have a particular competence or policy in the field of human rights, its effectiveness as well as the relationships between national courts and the European Court of Justice merit some considerations.
The European Union is much more than an international organisation. It is an integration process, and despite the fact that any Member State can withdraw as long as there is not any legal obstacle to do so, it is very difficult to imagine a State withdrawing due to the increasing interdependence among the Member States.
The backgrounds of the European Union are several treaties. Their development, called Community Law, is quite an original contribution to international law. It is an effective and original system whose main principles, regarding its relationships with the domestic courts, are discussed below:
1) Division of Competence - Obligations of the Member States
The Member States, by accepting to be bound by the treaties, have transferred certain
powers to the Community Institutions, thus suffering a loss of national autonomy. Both the
Community Institutions and the Member States must respect the division of competence
resulting from the treaty or from secondary Community Law. The Member States shall abstain
from any measure, which could jeopardise the attainment of the objectives of the Treaty
and shall take any appropriate measures to ensure fulfilment of the obligations arising
out of the Treaty or resulting from action taken by the institutions of the Community
(article 5). The European Court of Justice has repeatedly emphasised that the fundamental
principle of article 5, which implies an obligation of the Member States to implement
Community Law in such a way that it receives uniform application throughout the Community
and that its useful effect is ensured.
2) Legal Effect of Community Law in the Municipal Legal Order
Direct Applicability or Direct Effect - these terms indicate that the provisions of the
Community Law which affect the legal rights and duties of private individuals of the
Member States, without any domestic legislative act, may be enforced by action before
municipal courts. Relating to conflicts between legal systems there is the Supremacy
Question to ask. The supremacy of the Community Law over national law is one of the key
concepts of the Community. In numerous occasions the Court has confirmed the supremacy of
Community Law whether explicitly9 or implicitly. Nevertheless,
the Court of Justice cannot purport to apply Community Law in the Member States. It can
only declare that it is applicable and their Courts must follow it10.
3) Enforcement and Implementation of Community Law: The European Court of Justice / The
Role of
National Courts
The competence of the Court of Justice reaches four fields:
The first one is the review of the legality of Community Acts. The Community treaties allow the Community institutions to act in specific fields only and under several restrictions. The Court of Justice is charged with the legal review of such provisions.
a) Action for annulment
Whenever an act of a Community organ does not fulfil the necessary conditions the Court
can annul it. Nevertheless, the right to bring an action for annulment has been
restricted.
b) Action against failure to act
If an institution is obliged to take action on the benefit of a particular person and does
not act, this person can bring an action against this institution.
Pleas of illegality against irregular regulations, which support a particular decision addressed to an individual.
The second task is the preliminary ruling; the Court of Justice is in charge of interpreting the Community Law. In this sense the procedure of preliminary ruling promotes uniform interpretation of the Community Law within all Member States. When applying Community Law, this procedure allows national courts to meet questions of interpretation of Community Law or of validity of acts of Community institutions. In fact, national courts are supposed to make these questions when the answers are necessary in one particular case. So, the individual, unable to bring an action against regulations, may request his national court to ask a preliminary ruling on the validity of a regulation of the European Union and in this manner ensure that incorrect regulations will not be applied.
The third main competence is to provide actions against member states. When the European Commission or another Member State alleges than a Member State has violated the Community Law, the court of Justice may have to decide whether the allegation is well founded. The Court thus reviews the application of the Community Law by the Member States.
Last but not least, the Court of Justice controls the legality of Community Law; its application has been attributed to the national courts. These courts must apply Community Law, as part of their national legal system, between individuals and their States, as well as between individuals mutually. In this sense, when applying Community Law, the preliminary rulings are an effective way to help national courts in their daily work.
9 e.g.: ECJ Case "Costa versus ENEL"
10 ECJ Case 34 / 67
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