3.4 Role of NHRIs in domestically incorporating international human rights law
NHRIs have an active and ongoing responsibility to advise the State on the incorporation of international human rights law into the domestic sphere, in States where this is a requirement.7
Some institutions have the legal authority to review and comment on all human rights-related legislation and/or policy at the domestic level, to ensure its compliance with international law. Other institutions may be asked to do so as part of the legislative drafting and policy development process. Even where neither the enabling legislation nor administrative practice requires it, however, an institution may use its general authority to advise government, Parliament, the Judiciary or any other competent bodies and to intervene in discussions on proposed legislative and/or policy initiatives.
National human rights institutions can influence the domestic application of international instruments by asking the following questions:
Has the international instrument been ratified by the State? If so, NHRIs can argue that the State is obliged to incorporate the international instrument in national law. If not, the NHRI can develop and implement a programme that is meant to move the State towards ratification. Similarly, if the State has ratified the instrument but listed reservations on its application, the NHRI can document the impact of those reservations and attempt to influence the State to remove them.
UNCTs can have an active role in assisting NHRIs to advocate for the implementation of international obligations. They can provide information about the ratification of instruments and about domestic implementation of international human rights instruments. Where the State has ratified treaties, NHRIs may concentrate on determining whether they are being fully implemented.
Is implementing legislation required?8 When required by the domestic legal system, the NHRI can actively encourage the State to pass legislation incorporating the treaty into domestic law.9 NHRIs can also review draft legislation to make sure that the provisions are fully consistent with the treaty obligations. If not, or if legislation is being prepared but not yet in force, UNCTs can engage with NHRIs to illustrate how changes in policies and practices can still have an important impact on the human rights situation on the ground, using or modifying existing legislation to ensure that its application is consistent with international law.
Is the State willing to take the necessary steps to pass implementing legislation? If so, the NHRI should provide support and advice. NHRIs can lobby the State, and argue before the judiciary that unincorporated conventions – if ratified can still have an effect on domestic law. For example, in common law jurisdictions, there is case law to the effect that where ambiguity exists in domestic law, the State’s domestic law will be interpreted in a way that is consistent with the State’s international treaty obligations.10
Is there implementation in practice? Too often, the passing of legislation is seen as the end and not the beginning of the process to meet international standards. The formal requirement of legislative enactment is not generally sufficient for a State party to meet its obligations.
For all core international human rights treaties, laws are a critical first step, but not the only step. For example, the Human Rights Committee issued General Comment no. 3 for Art. 2 of the ICCPR:
The Committee notes that article 2 of the Covenant generally leaves it to the States parties concerned to choose their method of implementation in their territories within the framework set out in that article. It recognizes, in particular, that the implementation does not depend solely on constitutional or legislative enactments, which in themselves are often not per se sufficient.11
The assessment of “effective implementation” also depends on a wide range of policy instruments such as programmes, directives and administrative measures. As well, actual practice may or may not be in conformity with the measures and norms that have been put into place: this also requires assessment.
Monitoring is an important way to ensure that legislative and policy initiatives are being successfully implemented. NHRIs identify and monitor the implementation of key human rights standards, and should use the results of these monitoring activities to promote more effective implementation measures.
8 Although some instruments suggest that they are self-executing regardless of whether the system is dualist or monist, General Comment No. 9 from the CESCR strongly suggests at paragraph 8 that States formally adopt or incorporate the ICESCR in national law.
9 See, for example, "OHCHR Handbook for National Human Rights Institutions on Economic, Social and Cultural Rights. P. 83. The Covenant itself requires that “all appropriate means, including particularly the adoption of legislative measures,” should be taken to satisfy the State’s obligations to “take steps” to achieve the realization of economic, social and cultural rights (art. 2.1).”
10 See also R v Secretary of State for the Home Department ex p. Brind [1991] AC 696, at p. 747; Attorney General of Botswana v Dow 1994 (6) BCLR 1, at 29-30.
11 Human Rights Committee, “General Comment No. 3, Art. 2: Implementation at the National Level”, (Thirteenth session, 1981), Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 4 (1994).