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Human Rights Through The Rule of Law

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Using International Law for Gender Equality




B. Legal Background

II. Bringing a Claim in Domestic Court Using an International Law


A. Using a Human Rights Treaty in Domestic Court

CEDAW has been cited by domestic courts in over 20 countries in cases addressing women's equality and gender justice. Our CEDAW Case Bank link: http://www.globaljusticecenter.net/tools/casebank/index.html] is a compendium of these ground-breaking decisions from around the world. This section describes for the non-lawyer how human rights treaties have been used in domestic courts. This discussion will provide an understanding of how to understand these decisions and the process through which they came about and thus how to better use them in your own advocacy.

Signature and Ratification.

In order to understand how a treaty affects a country, you have to figure out whether your country has actually ratified the treaty in question. There are two steps a country must take to ratify the treaty. First, it must sign the treaty which usually involves a dignitary or head of state actually signing a printed copy of the treaty. Second, it must ratify the treaty. This usually involves the legislature or other law-making body to vote the treaty into power. For example, in the United States, if the President signs a treaty, the Senate must approve the treaty by a 2/3 vote ("advice and consent" of the Senate) in order for the President to then ratify it. Once a state has signed and ratified a treaty, it is said to be a "party" to the treaty. The term "states parties" refers to the group of countries which are party to a treaty.

Signature but NO Ratification.

If a state has signed but not ratified the treaty, it has not yet affirmatively obligated itself to the provisions outlined therein. However, according to the Vienna Convention on the Law of Treaties, Article 18, when a country has signed but not ratified a treaty it is still obligated to "refrain from acts which would defeat the object and purpose of [the] treaty" [link: http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf]).

For example, if a state has signed but not ratified CEDAW, it would defeat the object and purpose of CEDAW for the country to implement domestic legislation which on its face discriminates against women. In this regard, the state's actions are arguably actionable under Vienna Convention, Article 18 (not that this is "arguable" because there has never been a case testing Article 18).

Treaty Enforcement.

As discussed above, once a treaty is ratified, depending on how the state approaches international law, the treaty will either automatically be part of domestic law (and thus enforceable in courts), or its provisions will only take effect once the legislature has implemented the treaty obligations through domestic law. Note that if a country's existing laws abide by the set out treaty obligations, no new laws need to be passed to specifically comply with the treaty. The existing laws will do.

B. Customary International Law

Understanding customary international law (CIL) is important to women's rights advocates. As will be discussed below, certain tenets of women's rights, such as rape as a war crime, can be argued by the advocate to be part of CIL and thus part of a state's obligations towards its citizens.

Definition.

CIL is law is not written down, as in a treaty, but can be found through two components:

(a) uniform and consistent state practice; and
(b) a states' belief that it is legally obligated to follow the custom (opinio juris)

Uniform and Consistent Practice.

There must be a recurrent and repetitive practice between countries for this to give birth to a customary rule. Major departures from this rule may negate the existence of custom, but minor deviations are not enough to do so.

There is no real consensus on how long it takes for custom to arise. This generally depends on the issue in question. Also, customary law is not simply a question of how many state's "tread the path" but also on the size of the foot prints of particular states. As expected, the practice of states with more weight internationally will have greater standing than states which may have less sway within the geographical and political area in question.

Opinio Juris.

Opinio juris refers to a belief by the State concerned that the practice being interpreted as CIL has been undertaken by the country as a legal obligation. As countries regularly and repeatedly act in a specific way to each other, the expectation starts to arise that this behavior becomes expected of them in future dealings. When this expectation evolves into a belief that this behavior in future dealings becomes both a right and obligation, the practice becomes customary international law.

It is generally thought that state practice is the objective element of custom while opinio juris is a subjective element of custom. Evidence of opinio juris can sometimes be found in statements made by a state when engaging in relevant conduct or general assembly resolution.

Using CIL.

The concept of CIL is difficult for non-lawyers and even lawyers to grasp. Indeed, many law scholars regularly debate the status and use of CIL. But regardless of its theoretical status, practically speaking, using CIL in domestic and international courts has proven to be very useful in human rights and gender justice in the course of the past century.

If a country has not ratified a treaty, then depending on the legal norm in question and the acceptance of that norm in the country in question (along with a cross-section of similarly situated nations), advocates can argue that these treaty obligations are actually part of CIL, and thus still binding upon the state in question. For example, it could be argued that while a country may not have ratified CEDAW, many of the provisions set out therein, such as women's equality rights and access to justice, are already part of CIL that binds the state nonetheless.

It is important to recognize that while all states recognize the validity of CIL, some countries will be less inclined to apply customary law in its courts. However if CIL is found, arguments can always be made that a country should apply CIL, as recognized in the Vienna Convention, Article 38(1) [link: http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf]: "The court who functions is to decide in accordance with international law such disputes as are submitted to it, shall apply... (b) international custom as evidence of a general practice accepted as law."


CASE STUDY: The Road from General Assembly Resolution to a customary law?
Universal Declaration of Human Rights


The Universal Declaration (1948) was created by the UN General Assembly without a dissenting vote. In formal terms, it is not a legally binding, but possesses only moral and political force. Preamble: a common standard of achievement for all peoples and nations.

The question is whether the Declaration has subsequently become binding by way of custom? The Declaration has had a marked influence upon the constitutions of many states and upon the formulation of subsequent human rights treaties and resolutions.

Proclamation of Tehran (1968). UN International Conference on Human Rights stressed that the Declaration constituted an obligation for members of the International community

Vienna Convention and Programme for Action (1993). Universal Declaration referred to as a 'source of inspiration' and the 'basis for the UN in making advances in standard setting as contained in the existing international human rights instruments.
The establishment of the UN High Commissioner of Human Rights in April 1994 is seen as further evidence of the centrality of the Universal Declaration as binding custom within International Human Rights Law.

"Violence against women" as part of CIL.

It seems absurd that customary international law does not already exist condemning violence against women in all forms, but unfortunately there are many countries whose laws do not protect women as they should. Here are some specific difficulties in recognizing this norm as part of CIL:

  • private violence against women is not formally condemned as illegal in many societies
  • the violence may be tolerated on social, traditional or religious grounds and such is excluded from international concern
  • there is a difficulty for women's groups voices to make an impact through official government channels in order to be considered opinio juris.

This is a place where the work of women's rights advocates can be incredibly helpful. Through advocacy both in and outside the courtroom, the better educated the public and different governments become on issues of violence against women, the more this practice, in all its forms will be condemned. Also the more decisions using CEDAW [link: http://www.un.org/womenwatch/daw/cedaw/] and SCR 1325 [link: http://www.unfpa.org/women/1325.htm] the more evidence can be cited to for the evolution of this norm across the globe. Women's rights advocates should be aware of how their actions can truly change global legal trends and in fact how advocacy in one country can help improve the rights of women everywhere.

C. Peremptory Norms (Jus Cogens).

Definition.

A legal norm becomes a peremptory norm, or jus cogens, as states recognize the norm as quintessential to a notion of a just society. These norms are so widely accepted as wrong that there can never be a situation in which they are justified (i.e. non-derogable). For example, there would never be a situation in which slavery or genocide would be accepted by society; however, given certain wartime situations, one could imagine an abridging of our freedom of speech.

Jus Cogens is defined by the Vienna Convention on the Law of Treaties, Article 53 as:

A norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. See http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

Also, Article 44(5) states that if a treaty provision violates a jus cogens norm, the entire treaty is void, not just the offending article(s).

List of Peremptory Norms

While the list of accepted peremptory norms is not solidified, the generally accepted list includes but is not limited to: genocide; slavery or slave trade; torture or other cruel, inhuman, or degrading punishment; summary execution; prolonged arbitrary detention; war crimes or crimes against humanity; and piracy. See Customary International Law of Human Rights, Restatement (Third) Foreign Relations Law of the United States. See also David Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine, DUKE J. COMP. & INT'L L. (2005) at "http://www.law.duke.edu/journals/djcil/articles/djcil15p219.htm#F36%23F36."

Key Features.

Peremptory norms represent the top of the international legal hierarchy and take precedence over national law at the international level and other sources of international law.

They protect the most compelling and essential interests of the international community as a whole and invalidate treaty law and other 'ordinary' rules of customary international law not endowed with the same normative force.

A peremptory norm permits no derogation, thereby creating a deterrent effect against contrary state practice that shapes and limits the legislative powers of sovereign nation-states with respect to the given principle.

Peremptory norms identify the ethical underpinnings of the international system and legally obligate states to uphold them. For some peremptory rules, this relationship gives rise to universal jurisdiction. The universality principle enables any state to arrest and prosecute those who have violated certain jus cogens norms and is restricted by neither territory nor nationality.

Recognizing New Peremptory Norms.

During the drafting of the Vienna Convention some members of the International Law Commission (ILC) suggested that a peremptory norm could be identified by the following objective criteria:

whether the norm is incorporated into norm-creating multilateral agreements and is prohibited from derogation in those instruments;

whether a large number of nations have perceived the norm to be essential to the international public order, whereby the norm is reflected in general custom and is perceived and acted upon as an obligatory rule of higher international standing;

whether the norm has been recognized and applied by international tribunals, such that when violations occur, the norm is treated in practice as a jus cogens rule with appropriate consequences ensuing.

Rape as Jus Cogens?

It can be argued that although the prohibition of rape has not been formally designated as jus cogens rule by the courts, its peremptory status, like that of torture is likely to become an important normative standard within the international legal system.

Under international humanitarian law, there is evidence of a norm prohibiting rape could arguably rise to the level of jus cogens. For example, the jurisprudence of the Yugoslav and Rwanda Tribunal recognizing sexual violence as war crimes, crimes against humanity and instruments of genocide and torture, the inclusion of various forms of sexual violence in the ICC Statute, the increasing attention given to gender violence in international treaties and UN documents and statements by the Secretary General.

The domestic law of every state in the world outlaws rape. The universality of this general norm regarding the prohibition of rape elucidates the existence of a widespread rule and the practice ingrained in the legal conscience of the international community.

Kadic v Karadzic (1995): Croat and Bosnian Women filed tort actions alleging various atrocities including brutal acts of rape, forced prostitution, forced impregnation, torture and summary execution. The US Second Circuit Court recognized that "acts of murder, rape, torture and arbitrary detention" had long been recognized as violations of the most fundamental norms of the law of war and direct violations of international law (70 F.3d 232,242 (1995)).

Although, the court did not address the question of jus cogens specifically. The case provides implicit confirmation that the international disapproval of violent sexual acts is so fundamental and so compelling that the prohibition amounts to a jus cogens rule.

Growing consensus confirms that the interest of the international community in prohibiting rape is both morally and legally a value so basic and fundamental to the international public order that this prohibition has acquired the status of jus cogens. By developing the legal capacity to prosecute rape as a serious violation independently from other peremptory norms, states will be compelled to ensure accountability and deter future violations. After centuries of disregard, it is time to firmly establish a non-derogable protection against rape as a high level constitutional principle of the international legal system.

For more information on this issue, see David Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine, DUKE J. COMP. & INT'L L. (2005) at "http://www.law.duke.edu/journals/djcil/articles/djcil15p219.htm#F36%23F36".