V-c. The Role of National Law
National governments, not international organizations, are the primary agents for the realization of human rights. The international human rights instruments are concerned primarily with the responsibilities of states to their own people, not to people elsewhere. The United Nations and other global agencies may be called to action when national governments fail to assure the realization of human rights, but those situations are exceptional. The international community has an important role to play in setting out widely accepted guidelines, but once general principles are set out in international human rights agreements, the primary locus of human rights work is within nations. The front line of responsibility for the realization of human rights is in national governments.
A major issue with regard to international treaties is the question of whether, for States Parties, they prevail over national law, and thus may be invoked directly in national courts. In a monist legal system, treaties are self-executing. This means that upon ratification a treaty is regarded as part of the national law, and it may be invoked in the national courts. In contrast, in a dualist system, national law and international law are viewed as two separate legal systems. In dualist systems, treaties are viewed as non-self-executing, meaning that legislative action must be taken to incorporate the principles of the treaty into national law. Only national law, and not international law, may be invoked in national courts.
When they ratify international human rights agreements, nations may choose to make reservations saying that they take the international human rights agreements that they ratify to be non-self-executing. The United States has made a practice of doing this. Nevertheless, Jesse Helms of the Senate Foreign Relations Committee has blocked U.S. ratification of several human rights agreements on the grounds that he could not accept any international agreement that would override the powers of the U.S. Congress.
The distinction between monist and dualist systems was once regarded as simple and straightforward, but it has now become muddled. National courts frequently invoke international law even in dualist systems, if only to take note of that law’s strong moral imperatives. Many nations with monist systems nevertheless modify their national law to conform to the international treaties they have ratified, and thus give them greater strength and visibility. National lawmaking is used in both cases to set out local interpretations of international law.
Norway has a paragraph in its constitution that commits the nation to the realization of human rights. However, the status of the international human rights agreements in relation to Norway's national law had been uncertain. To remedy this, in October 1998 the Norwegian parliament passed a law saying that the European Convention for the Protection of Human Rights and Fundamental Freedoms and its associated protocols, together with the two international human rights covenants and other international human rights agreements, were, in effect, part of national law. They further specified that in case of conflict between national law and the international agreements, it would be the international agreements that prevail. A review of the law was initiated to identify possible areas of conflict and to modify the national law so that it would conform with the international agreements.
Whether in monist or in dualist systems, it is important to assure that human rights are clearly articulated in national law. Following ratification of international human rights instruments, concretization of human rights in national law reinforces, and is a major sign of, commitment to those rights.
To simply assert the existence of a right within a nation when it is not actually established in that nation’s law may make it appear that no legislative action is needed. For example, in one study (Cook 1996), the authors observe that adequate nutritious food is a basic human right, and on that basis view it as applying everywhere, including the United States. As a consequence, they do not address the fact that the United States has ratified neither the International Covenant on Economic, Social and Cultural Rights nor the Convention on the Rights of the Child, and has consistently refused to recognize subsistence rights in its courts (Good 1984). It is true that the people of the United States have the human right to adequate food, like everyone else. The problem is that United States government has not made a commitment to assure its realization, as indicated by its failure to ratify the relevant international human rights agreements.
We argue later, in Subsection VI-h, on Having vs. Realizing Rights, that one should determine whether people have particular rights in their nation's legal system before trying to assess the degree to which those rights are realized. There is not much use to arguing that a right exists and has not been realized when what is really needed is new legislation to firmly establish the legal right within the nation.
When states undertake obligations to honor particular human rights by becoming parties to international human rights agreements, they are expected to elaborate their understandings of those obligations by spelling them out in their own national law. Indeed, there is a positive obligation to do this. In the International Covenant on Civil and Political Rights, article 2, paragraph 1 says that the States Parties must take steps to realize the rights in the covenant, "including particularly the adoption of legislative measures". Paragraph 2 says:
Where not already provided for by existing legislative or other measures, each State Party to the prevent 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 recognized in the present Covenant.
In the International Covenant on Economic, Social and Cultural Rights, article 2, paragraph 1 says that States Parties will undertake to take steps to achieve the rights recognized in the covenant "by all appropriate means, including particularly the adoption of legislative measures."
Article 4 of the Convention on the Rights of the Child begins by saying:
States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.
While international bodies, intergovernmental or nongovernmental, may help to elaborate the meaning of the human rights in international agreements, the most important interpretation is that made by the government that is to carry out the corresponding obligations. Except in very extreme situations, interpretations cannot be imposed on them. As noted earlier, in Subsection IV-a, the international human rights system is not based on having some sort of superior international authority tell countries what they must do. It is based on the principle of consent: nations are bound by those rules to which they agree to be bound.
In principle, internationally recognized rights can be realized within nations even if those rights are not articulated in national law. However, they are much more likely to be realized when there is well-crafted law regarding these rights at the national level. National legislation provides highly authoritative articulation of the commitments accepted by the nation-state. It is a means of codifying and legitimizing institutionalized governmental action. National law can then become a major instrument through which human rights are realized. Lawmaking can be a potent instrument for accelerating that realization.
Repeating the key elements of a human rights system identified earlier, in Subsection V-a, we can say that writing national law regarding human rights means clarifying
- The nature of the rights holders and their rights;
- The nature of the duty-bearers and their obligations corresponding to the rights of the rights holders; and
- The nature of the agents of accountability, and the procedures through which they assure that the duty bearers meet their obligations to the rights holders. The accountability mechanisms include, in particular, the remedies available to the rights holders themselves.
Many different kinds of legislation may be adopted in relation to food and nutrition issues, for feeding programs, fortification, food quality control, trade practices, and so on. However, in most such legislation the consumer has no specific entitlements. For example, where salt iodization is mandated by law, usually the salt industry is answerable only to the government. Consumers have no powers under the law, so neither the industry nor the government is answerable directly to consumers themselves. In the perspective adopted here, food and nutrition legislation can become a form of human rights legislation only when consumers have specific, explicitly described entitlements under the law.
The motivating idea underlying the nutrition rights vision is that malnutrition of different kinds can be reduced by establishing clear entitlements in the law, and assuring the implementation of that law. The establishment and effective implementation of such law will not be the solution to the malnutrition problem. Rather, it should be viewed as one among many instruments for addressing the challenge, one that must be used together with other more conventional means such as feeding, health, education, and sanitation programs.
The nutrition rights approach does not replace existing programs for alleviating malnutrition, but rather it builds on and uses them. A nutrition rights approach can make the usual kinds of programs more efficient and effective by making them more decisively goal-directed. Under such an approach, government no longer delivers services just to deliver services. Many nations already have substantial nutrition programs in place, but they are not organized in a unified, goal-directed effort. A nutrition rights framework can provide a basis for aligning these assets so that they act together systematically to achieve the goal of eliminating malnutrition.
Human rights of every kind should be concretized locally through well-crafted national law. The law should specify individuals' entitlements and also the corresponding governmental commitments. It should specify the response mechanisms and the accountability mechanisms through which those obligations will be fulfilled. Effective implementation of comprehensive law of this sort can be a potent means for assuring that human rights are realized.
Well-crafted law spells out the means for its own implementation, with clear specification of agencies and their procedures. Of course the fine detail must be left to lower-level statutes and regulations, but the basic mandates for the implementation mechanisms can be set out in the law. In its early stages, international human rights law simply set out standards and norms. However, as that law evolves, we see that it goes beyond clarifying standards and norms to also describe mechanisms and procedures for assuring that the rights are realized.
In contemplating possibilities for national action, the adoption of formal law may not be politically feasible in the short run. Nevertheless, proposals can be formulated in the form of principles, or guidelines, or perhaps codes of conduct. These formulations could be viewed as possible precursors to future law, and could be used in the intervening period as lobbying instruments.
Some of the principles proposed for international instruments, such as those in FIAN's proposed Code of Conduct on the Right to Adequate Food, might usefully be adapted for national level codes, guidelines, or laws. Indeed, adoption of some of these principles may be more feasible at the national level than at the global level, at least in the short term.
Care must be taken not to view lawmaking as an end in itself. As Eide observes:
The transformation of economic, social and cultural rights into positive law, whether in constitutions or in statutory law is, however, not enough. The rights must be realized in fact, which may require comprehensive administrative measures and social action. The success of the transformation depends on the evolution of a human rights culture where individuals accept both their own rights and their duties to the community which makes the enjoyment of rights possible (Eide, Asbj�rn 1995a, p. 30).
National lawmaking is important, but its importance should not be exaggerated. Legislation is only one of many possible means of action by government, and there are many possibilities for action by nongovernmental actors. In addition to making new laws, national governments can use their executive and judicial powers in many different ways. Governments can help achieve human rights objectives by making adjustments in fiscal policy, export policy, welfare programs, agriculture support programs, etc.
Drafting and lobbying for appropriate national legislation is not the only means for assuring realization of human rights, but it is an important one. Moreover, focusing on possible legislation is a good means for working out the meaning of particular human rights in specific settings.
The lawmaking process can be understood as a form of referendum, a means for systematically assessing the views and positions of those in power. In a democracy, the views of the population at large have great influence in shaping the law, but lawmaking also takes places in non-democracies, reflecting the views of the dominant power holders.
In general, the law, like other economic and social systems, tends to favor the interests of those who are more powerful, in both democracies and non-democracies. Consider the extensive body of law many countries have to protect property rights. Nevertheless, the law can be used to serve the interests of those who are less powerful. Human rights law is one of those areas of law that is distinctly designed to serve the interests of those who are less powerful.
The adoption and implementation of well-crafted national law requires not only legal language, but also an advocacy process to assure that it is acceptable to legislators and those behind them. Lobbying for new law is a focussed process of political advocacy devoted to establishing new sustained patterns of governmental behavior. By helping to clarify individual positions and helping to build consensus on those positions, drafting legislation can become an instrument of political action for the realization of human rights. Thus, carefully crafted legislation based on strengthening the entitlements of the poor can become a potent means for reducing malnutrition.
Continue to V-d. Basics of International Relations
Subsection V-c last updated on October 12, 1999