There are many different approaches to domesticating international human rights law. How do you use international law (treaty ratification, litigation, legal reform, victim offices, training, education, etc) and what determines your strategy/approach?
Share your experiences, ideas and questions in this discussion thread by adding your comments below.
There are many facets to domesticating international human rights law. Popular and political support must be rallied, laws must be adopted or amended, practices and procedures adapted, those who implement the laws must be trained, and often new institutions must be established to effect these changes. One key landmark on the road to domestic human rights enforcement is the adoption of legislation incorporating international human rights provisions and principles. Existing features of international law can assist with this process. For example, when members of the Peace and Justice Initiative assisted Ghana by reviewing its International Criminal Court implementing legislation, they looked to the relevant established instruments, such as the Rome Statute, the Elements of Crimes, the Rules of Procedure and Evidence, and the Court’s Regulations, in addition to various available guides to implementation and model laws. Existing experience working in international law can also assist in the process. The members drew on their collective experience from working in the field of international criminal law to enhance the advice they provided. In that respect, it was particularly beneficial to have members with a broad range of experience working for the Prosecution, Chambers and Defence in international litigation.
Of course, adopting legislation is insufficient on its own to ensure effective domestication of international human rights norms, as has been pointed out in other threads during this Dialogue.
As Columbus points out:
Members of PJI have assisted with training practitioners, judges, government officials, and others involved with human rights implementation in a variety of countries, primarily with respect to international criminal law. Have other participants carrying out trainings picked up useful strategies to enhance their trainings? Have trainees reported that certain aspects of these trainings are particularly important for them? Any accounts of suggestions are appreciated.
Matthew Gillett for The Peace and Justice Initiative
Matthew,
I agree that incorporating standards is not enough and that in many jurisdictions further training is necessary. I have done a lot of human rights training, particularly in the Middle East with a range of different actors including lawyers, NGOs, prosecutors, judges and government officials. What has often struck me is the extent to which, even in countries which have a poor human rights record, there is an appetite for real engagement on the issues. I rarely come across a refusal to discuss the hard issues. I think one of the key things is to open the discussion and training with prosecutors and judges. To a large extent these are the people that need to be convinced of the merits of a human rights based approach and can, if they are persuaded, begin to deliver change. If they are shown examples of how it has worked elsewhere they are always more open to trying similar things.
The other point I would make is that, in the context of Northern Ireland, we were always very resistant to international "experts" telling us how to improve things. I think a humble approach is important which does not simply tell people what they should do but really engages with them and the nuances of their own national or regional situation.
Matthew, at Youth Human Rights Group in Kyrgyzstan, one of successful training initiatives was an advanced course for a group of practicing defense lawyers and NGO lawyers on the complaints to the Human Rights Committee. YHRG first conducted two basic introductory level training for a larger group of participants and then selected 30 lawyers for an in-depth training with about five three-day thematic sessions over a year. The training looked at different groups of rights under ICCPR and experts presented on how to litigate different violations. We hoped not only to boost litigation to the UN committee, but also thought that by taking into account the possibility of a future HRC complaint lawyers will start paying more attention to human rights violations during exhausting of domestic remedies, in local courts. A number of now best human rights lawyers in country are graduates of this course that – even if for a limited extend – changed the approach of several lawyers in domestic litigation. While it becomes expensive, it was definitively worth to invest into more in-depth training of a smaller group of lawyers. You can see a report of this training program at http://sites.google.com/site/hrimplementation/obucenie-professionalnyh-grupp
International law can be used in a variety of ways. Firstly, they can be employed by lawyers, judges and prosecutors to decide cases dealing with particular aspect of international law such as the Human Rights, humanitarian issues, armed conflict, international trade, airspace, maritime issues etc that are brought before national or international courts.
On the other hand, International law forms the basis on which nations take unilateral or collective punitive actions against recalcitrant states that violate their obligations arising from binding conventional or treaty laws.
Strategy emplolyed
When confronted with the the problems of denial of human rights violations by the state, members of the League of Human Rights Advocates decided to train local people who worked as volunteer monitors of human rights in their respective local communities. Through their efforts reports of egregious human rights violations were brought to fore. Subsequently, the reports attracted international condemnations and concerns from member states. Hence, the denial of violations stopped and human rights situation ameliorated.
Columbus Igboanusi
League of Human Rights Advocates
Bratislava Slovakia
Thank you for introducing the strategy that the League for Human Rights Advocates used in Slovakia, Columbus! I wanted to let everyone know that they can read all about this approach in the Tactical Notebook titled Making the Global Local: Applying Global Agreements to Local Enforcement of Human Rights Laws (written by Columbus, himself).
This notebook describes the creation and functioning of a systematic volunteer network of human rights monitors in Slovakia, maintained by the League of Human Rights Advocates (LHRA). The LHRA believes that its grassroots monitoring of local compliance with international human rights commitments assists and encourages the state and its apparatus to live up to its international obligations. The LHRA’s investigatory work, public education efforts and high-level contacts with international human rights NGOs also enable it to put considerable pressure on the Slovak government to live up to its international commitments. The LHRA’s volunteer monitors thus help achieve justice for local Roma people and others suffering human rights abuses. In addition, since LHRA monitors are themselves Roma activists living in Roma communities. The LHRA training process empowers them and their communities to understand and stand up for their rights.
Have others used a similar approach in other countries? How have you trained communities to monitor violations, in order to hold local and national governments accountable? Thanks!
We specialize in anti-torture litigation and advocacy, domestic and international. I think the litigation is an important tool not only to either remedy the violations, or at least – help the victim to establish the truth - but also it is an acid test of different anti-torture reforms. The litigation helps us to see what happens with all the laws and regulations when they come down to an individual, who often suffered flagrant abuses. Unfortunately, the difference between law in the books and their implementation is often striking.
In addition, we try to help NGOs and governments in Central Asia to move forward with legal reforms, in particular, to create models for the independent bodies for the investigations of torture allegations or so called “code of conducts” for the police.
I would like to ask: do you run into problems when your activities are often seen as “controversial” by the governments – such as litigating human rights cases where the state is a respondent, and at the same time cooperating with government by helping with legislative reforms and training. We take these activities as complementary, they reinforce each other, but it not always the opinion of the governments.
Litigation is a very important way of putting into play international laws, which have found their ways into domestic legal system of various countries. Through litigation, advocates invoke international human rights laws in the pursuit of their course. Most often, human rights advocate who litigate cases of human rights abuse before courts of laws or administrative institutions are seen to be controversial by governments. This is quite correct.
One of the major activities of my organization is litigation of cases of human rights abuses especially, racism and racial discrimination. Through litigation we bring into light and to the attention of the domestic legal community, the application of new laws such as the European Commission Directives on racial equality (anti-discrimination law) in the defense of such rights as equality in employment, equality in access to housing, health care, right to quality education etc.
The government and the domestic legal community see our actions to be “controversial”. Yes, controversial as our actions we may seen, but we are deeply accurate and correct in applying the new European Union law to the defense of human rights within the European Union. Human rights advocates should not be deterred when the government or other public servants tag our actions to be controversial, provided we are sure we are doing the right thing at the rights time.
Columbus Igboanusi
Thanks for the responses. It’s reassuring to know that others have also seen a real enthusiasm to engage in human rights advancement in domestic jurisdictions as well as positive results as experienced by the League of Human Rights Advocates. We note that it’s certainly important to adopt a humble approach when offering assistance to domestic authorities and will always endeavour to do so. After providing some insights, Masha asks:
As Masha says, promoting human rights standards through training sessions for governmental officials and other relevant actors can be reconciled with litigating human rights cases in which the State is the respondent in terms of ideals – both are aimed at improving the observation of human rights standards. These are also critical ways of domesticating international human rights law in a comprehensive manner.
We would add the cautionary observation that organisations providing training to governments, while also assisting with litigation to which the government is responding, should ensure that they are not creating a conflict of interest for themselves, which may affect their client/s. Of course this depends of the specific circumstances of the case and the subject matter being dealt with. However, there is a possible risk of undermining the human rights litigation if a conflict of interest is ultimately found – so it pays to be careful in these circumstances.
This changes with every situation. The bulk of my work is suing police officers in the US who have engaged in torture or CIDP, or for wrongfully convicting and falsely arresting my people. I also represent several LGBT individuals, including many who are transgender or gender non-conforming and I have heard too many horror stories about they way they are treated when in police of jail custody. I have had the opportunity to represent some transgender woman who have sought to challenge the abuses they have suffered, including have their genitalia physically touched to determine their gender or a forced gynelogical exam.
The biggest problem is the fact that all custodial settings are gender segregated, and I think the police and jail guards have no idea how to humanely, let alone, properly determine a person's gender for purposes of a search or detainmment in a cell when that person is does not fit a "traditional" or "normative" gender. They don't know where someone should go in a cell (with men or women, and they think a person's genitalia is the only way to determine their gender, I don't agree but I do understand it is complicated). To me, this is a very obvious place where policies and training are not only necessary, but potentially very productive in trying to stop these violations and gross abuses (I do not feel the same with respect to other forms of training). I think those of us familiar with these issues and the deficient policies and training materials could be of great service in trying to help draft and implement these devices for the police and jail guards, but I do think we are branded as not only "controversial" but untrustworthy and they fear us being at the table or entering the door at the training academy.
We then have to work with community organizations and the potential reformers in the departments so that they can take the information to advocate for necessary changes. We also just have to do more popular education, like publishing articles, etc. Where branded in this controversial and adverserial role, I think we have to play that role and continue to challenge the department, and work with others to play more of a conciliatory role. I know this may not work for all, but maybe some.
Thanks for sharing your thoughts, Joey. It seems to me like it is necessary to have a number of groups approaching an issue like this from different angles (your group putting the pressure, another group helping to create the training resources, etc) - but the important thing is to make sure everyone is communicating with each other so these approaches can be coordinated! Otherwise, having different approaches can sometimes be harmful to you reaching your objective.
How have you (everyone reading this dialogue) been able to coordinate group in a situation like this? How we can we, as the human rights community, do a better job of communicating, coordinating and collaborating?
Hi everyone,
I wanted to share an example of how an international human rights treaty was adopted on the local level. This example, documented in our online database of tactics, comes from San Francisco, California:
WILD was founded in June 1996 as a response to the previous year’s United Nations Fourth World Conference on Women, held in Beijing. After its inception, WILD began lobbying the city of San Francisco to become the first city in the United States to pass a law following the principles of CEDAW.
Because this Convention has not been ratified by the United States, it cannot be invoked on a national level. Seeking to make the international document binding on a local level, and use it to help combat issues such as discrimination and domestic violence within the city, WILD worked with government officials, public citizens, and members of advocacy groups focused on domestic violence, poverty, and health issues. Testimony on the relevance of CEDAW in the lives of local women was presented to government officials at a public hearing in the fall of 1997. In April 1998 the city passed the ordinance, requiring city departments to review budgets, employment policies, and the delivery of services within a context of gender and human rights, and allocating funds to help these departments put the ordinance into practice.
You can read the entire tactic example here.
Are you familiar with similar examples of bring international principles directly to the local level? How effective is this approach? Can this eventually lead to the adoption of the treaty on a national level?
Hi Kristin,
APT has seen some interesting examples of action at the local level recently. In Brazil and Argentina, some torture preventive mechanisms (agencies which visit places of deprivation of liberty) have been designated by State/Province-level governments even though the federal governments in both countries have yet to implement their national prevention mechanisms (NPMs) under the Optional Protocol to the Convention Against Torture (OPCAT).
The reasons behind this are (dauntingly) complicated, but broadly speaking there were national consultations after both countries became party to the OPCAT (which Brazil did in 2007 and Argentina did in 2004), but to date neither process for designation/establishment of a national mechanism is complete. However, some State and Province governments were motivated to take independent action and forged ahead with their own plans inspired by the OPCAT and the international visiting regime it sets up. I should emphasise that this is not necessarily problematic, because the federal proposals most likely to be approved foresee the existence of state/province-level mechanisms, so in the end it is hoped that the national and sub-national mechanisms will function as a cohesive whole.
In fact, with a bit of luck this action at the sub-national level will encourage the national governments in Brazil and Argentina to complete their NPM processes sooner rather than later.
For more details on NPM processes in all of the countries where APT works, please visit www.apt.ch. Currently the information on NPM Status is in PDF form, but we are in the process of developing a new database with all of this material which is due to be launched on the 16th of November.
If you are interested, you can access the full text of the OPCAT here: http://www2.ohchr.org/english/law/cat-one.htm
In the US, we are very limited in using international law in the courts. It is practically impossible to directly litigate a violation of any of the human rights treaties in US courts. While the US government has signed and ratified many treaties, it fails to pass self-executing legislation that would allow us to directly litigate a violation of the treaty, but instead we have to use civil rights laws we have on the books. Many of the exising laws fail to afford the full protection or remedies offered or intended in the human rights treaties. The US government also fails to submit ourselves to the jurisdiction of most of the international treaty bodies, like the UN Committee Against Torture or bring cases to the ICC. But the US still has to meet with the UN treaty bodies and be reviewed to determine they are complying with the treaties.
Even though we are very limited in using international laws, we still have the option of taking our human rights violations to the international treaty bodies and asking them to take a position on whether there is a violation and whether the US government has caused and or failed to redress the violation. If we are to get a favorable comment, then we bring it back to our communities, and use it to name the violation, and then blame and shame our governmental authorities to take action.
For example, in a series of torture cases stemming from Chicago, Illinois, USA, known as the Chicago Police torture cases, we were able to raise the fact that white police detectives who were responsible for torturing over 110 African American men and women were never criminally prosecuted in the US during the UN Committee Against Torture's periodic review of the US in 2006 (thanks to Barb Frey and the Midwest Coalition of Human Rights who wrote a shadow report that included the cases and put them on the Committee's agenda). Fortunately, members of the UN Committee were outraged to learn of these domestic cases (they were already well informed of the US government's use of torture at Abu Ghraib and Guantanamo Bay) and when issuing its concluding report and recommendations, the Committee directly cited the Chicago Police torture cases, noting the impunity law enforcement officials enjoy in the US. The Committee went on to note the limited investigation and lack of prosecution in the cases and called on the US government to bring the perpetrators to justice. Due to organizing work on the ground, the UN Committee's findings were covered in all of our local press, and it helped us garner national and international attention. The UN findings, as well the media attention, moral vindication and morale boost provided by the UN findings, really helped us continue to push for justice in the cases and call on the US governmental officials to step in and prosecute. While our local officials were never going to prosecute the local police officers, the US government's federal proseuctors finally initiated a criminal prosecution of the torture ring leader a year and half after the UN Committee issued its findings and just this past summer the torture ring leader was convicted of perjury and obstruction of justice for lying about the torture he and others committed (he could no be prosecuted for the torture acts themsleves because the statute of limitations had expired).
Strategically speaking, I think the use of the UN Convention Against Torture and corresponding treaty body helped us convey the gravity of these violations (naming) and then blaming and shaming the US government to take some substantive action.
For more information on the cases and the efforts, here is an article that describe the decades long campaign for justice in these cases. http://www.newtactics.org/sites/newtactics.org/files/Final_NPAParticle.pdf
Stratefically speaking, I think use of the treaty bodies in the US is a great tool to use, but I think it is really important to do the work on the ground first. Due to both ignorance of interantional law and treaty bodies, along with outright hostility to international law here in the US, a finding from a treaty body will carry no weight and will not jump start progress. It think work has to be done on the ground for the finding to mean something.
International laws set the basis for the state to assess its national standards and practices on human rights. These laws are measurement used by responsive governments and civil society to increase the productive lives of its people and beneficiaries.
Strategies are determined considering the content/provisions of the law. However, it is always good to begin the domestication with education/awareness, research on the issues of the international and use in your advocacy to domesticate such law.
In the case with Liberia on the UNCAT and OPCAT domestication, follow, the ratification we began the education and created awareness on the issue of torture and is monitoring and documenting cases of torture in Liberia.