1.2.5 Can the NHRI apply international standards domestically?
Core protection issues require that States take steps to ensure that rights are realized at the State level. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. NHRIs, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of State’s obligations under international human rights law. Cessation of an ongoing violation is an essential element of the right to an effective remedy.
How does the right contained in an international or regional instrument become part of national or domestic law? This question is central to the issue of justiciability, which refers to the ability to use human rights standards before the courts or enforce them more generally. Legislative steps can be accomplished through existing laws, or by incorporating new laws designed to bring international rights into the domestic sphere. The application of international law standards at the domestic level depends in part on the country’s legal traditions and constitution.
Most common law jurisdictions are “dualist,” meaning that, as a general rule, an international instrument will only have legal enforceability if it has been incorporated into law by national legislation.4 For instance, Commonwealth nations such as Canada and India5 follow this common law tradition, as do most Anglophone nations in Africa.6
In contrast, many countries with civil law systems are “monist”, and accept ratified instruments automatically as part of domestic law. This means that rights and duties exist without the need for specific legislation.7 The Netherlands,8 France and Germany take a similar approach,9 as do other countries with a civil law tradition, including several Francophone countries in Africa.
4 Commonwealth Secretariat, Handbook on Ratification of Human Rights Instruments (London: Human Rights Unit, 2006) at 47. http://www.thecommonwealth.org.
5 P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th revised ed. (New York: Routledge, 1997) at 66.
6 A. Katz, “An Act of Transformation: The Incorporation of the Rome Statute of the ICC into National Law in South Africa” (2003) 12 African Security Rev, 4 at 26. However, some Anglophone countries in Africa do not follow this tradition. Article 144 of the Namibian Constitution of 1990 provides that “unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.”
7 Commonwealth Secretariat, supra, at 47-48.
8 Malanczuk, supra, at 67-68.
9 Article 25 of the Basic Law for the Federal Republic of Germany states that, “the general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.”