What are the challenges that you have faced around domesticating international law? What are the opportunities that exist today for practitioners doing this work?
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What are the challenges and opportunities today around domesticating international law?
Tue, 10/26/2010 - 8:04pm
#1
What are the challenges and opportunities today around domesticating international law?
There are obviously many challenges in the implementation of international human rights law in the domestic context. However, some of the main ones I have come across are:
In promoting prevention, the APT encourages States to put in place domestic legal frameworks including a specific prohibition on torture and the relevant procedural safeguards, and then to back this up with training for the relevant actors (eg judges, police, prison guards) to ensure that the law is put into effect. However, none of this is possible without political support, so it is very important to engage Parliamentarians and Ministers in the process.
In addition, the UN and other international organisations have a role to play in assisting and encouraging States to implement international law. It is a specialised field and not every country has the capacity to train and retain enough international lawyers to cover subjects ranging from trade to the environment to human rights. The same goes for independent lawyers and activist organisations preparing drafts to present to the government - help is available from organisations such as the OHCHR, APT and Amnesty International, to name but a few.
Hi Adam,
I know APT is really involved in promoting ratification of OPCAT. What messages work the best at the national level for pushing for ratification? We would like to begin to build public support for OPCAT in the US as a pragmatic way to prevent torture in US jails and prisons. Do you have suggestions for messaging and other strategies based on your experience elsewhere?
Hi Barbara,
As it happens we have just published our new OPCAT Manual which has a Chapter (Chapter IV) on OPCAT Ratification, and includes examples from our campaigns in several countries.
You can find it here: http://apt.ch/index.php?option=com_docman&task=doc_download&gid=784&Itemid=256&lang=en
Barbara,
I think the use of the national preventive mechanism in OPCAT is something that can be used to persuade governments that this will not be a foreign imposition. In terms of the UK I think one of the reasons for their relatively early embrace of OPCAT was the notion that it represented a domestication of international mechanisms. This also arguably has the impact of making the whole exposure to these standards more routine for government officials/police/prison officials and they become engaged in the dialogue around the standards so it is less likely to be confrontational.
We are eager to use these resources to work on a state by state basis to encourage existing monitors to use international standards and to try to establish monitoring bodies in states that don't already have them. Given the local nature of law enforcement and corrections in the US, the state is a good place to start to build experience and trust on these issues.
You make a very valid point-- lack of political will and outright opposition are certainly challenges. However, to those who think that having constitutionally provided rights is enough, I would argue that the constitutions of many countries leave much to be desired in the way of providing equal rights for all. For example, here in the U.S. we have still been unable to pass the ERA (Equal Rights Amendment), much less ratify CEDAW (the Convention on the Elimination of All Forms of Discrimination Against Women). In fact, the U.S. is the only industrialized democracy that has not ratified CEDAW. Yet recent administrations have been vocal in their support of women’s rights and have encouraged other countries to support them. This is one of many ways in which the U.S.’s attitude of exceptionalism is displayed.
I’m only picking on the U.S. because as a resident, I’m more aware of its actions, but it is certainly not the only country that engages in exceptionalism. The “do as I say, not as I do” stance assumed by many (typically powerful) countries is a major obstacle to the national realization of international human rights standards.
Does anybody have any examples of national groups or organizations that have devised strategies to hold their own governments accountable for their hypocritical policies on human rights? How have groups been fighting exceptionalism in regard to human rights? Perhaps one strategy is to publish a comparison sheet, action versus rhetoric, outlining the contradiction between the government’s public stance on human rights and the actual practice of human rights within that country (such as whether they have ratified international human rights conventions, etc.). This is a shame tactic, but are there more cooperative ways of working with the government?
Great question, Amanda! Yes, there are many groups that have devised innovative strategies around holding governments accountable to "practice what they preach." One powerful tactic/strategy that I am familiar with is writing shadow reports to United Nations monitoring bodies. "Shadow reports" are those reports written as a response to an official government report regarding a particular convention/treaty for which the government is a member. Since the U.S. is a party to the Convention Against Torture (CAT), the U.S. government has a duty to write reports to the Committee Against Torture (every x number of years) about what they have done to domesticate the CAT. Nongovernmental organizations can then write a "shadow report" to that same monitoring body (Committee Against Torture) to share more information about what is and what is not happening on the ground. It sheds light on issues that the government report may not include. NGOs in the U.S. have written shadow reports to the CAT, but I will let Joey and others talk more about that!
For more information on shadow reports, how to write them and how to use them, take a look at Paul Mageean's Tactical Notebook International Monitoring Bodies: Powerful tools for leveraging local change and our past online dialogue on this topic: Using Shadow Reports for Advocacy.
I look forward to reading more examples and approaches!
Amanda, it is such an important question. I believe people in less powerful countries struggle with the same problems, the rhetoric of the government often directly contradicts its actions. The question is how much space is available in each country for the actions by civil society.
In a context of a highly repressive government as Turkmenistan we have to focus on the international work as the government virtually does not allow local non-governmental organizations and media to function, brave individual activists and journalists have to work basically underground. We need to advocate more with Turkmenistan’s international partners: European Union and the US when they consider new trade and other economic cooperation agreements, private companies to ensure that they care about human rights issues, raise them with Turkmen government, use clear benchmarks in assessing “progress.” In other countries, where the activists can work – freely or under constraints- one can use international law as a reference for domestic advocacy: holding public hearings, litigating human rights violations domestically and internationally, publishing reports on violations of different rights, bringing attention of the media to the problems and others. The use of each tactic depends on specific circumstances.
Masha, I quite agree with you. Holding governments accountable for non-respect of their human rights obligations have consistently yielded positive results. For instance, during the mid 1990’s when Slovakia’s nationalist government adversely trampled on the rights of its Roma and Hungarian minorities; human rights activists, local HR NGOs employed most of the activities you mentioned viz the use of shadow reports, public meetings use of local and international media and by drawing the attention of intergovernmental institutions such as the Organization for Security and Cooperation in Europe (OSCE), the Council of Europe and coupled with threats of blocking Slovakia’s accession into the European Union for not meeting the legal and political criteria for acceding into the Union.
It is obvious, that the concerted efforts of local and intergovernmental organizations to hold Slovakia accountable for breaching its international human rights obligations, contributed immensely to changing the country’s behavior and making it a better place for human habitation today.
Columbus Igboanusi
League of Human Rights Advocates
Bratislava -Slovakia
You might be interested to know that my home country, Australia, has the opposite issue. It is a party to most of the core human rights treaties (including CEDAW), but takes a dualist approach which means the terms of the treaties have no force unless transposed into domestic law (with minor techincal exceptions in administrative law).
The really surprising thing, though, is that Australia has no bill of rights either in its Constitution or in legislation. As far as I'm aware, this is unique amongst Western democracies, so the US is not alone in its exceptionalism.
I could say much more, but I don't want to get too specific. Suffice it to say that in my experience combating such exceptionalism is hard slog, and it takes a long time to convince the relevant politicans/power brokers of the need for decent human rights protection for all. The usual tactics of lobbying, applying political pressure advisedly (as Amnesty and HRW do) and maintaining the public dialogue will eventually bear fruit with all but the most recalcitrant of Governments. It is critcal to win over the public, so that there are votes in human rights.
Having said that, an official nationwide consultation on the need for a bill of rights which was recently held in Australia failed to convince the Government, despite a positive outcome (see: http://www.humanrightsconsultation.gov.au/), so one shouldn't necessarily expect instant results even from apparently successful campaigns....
I have found it very useful to change approach when dealing with governments. One way of doing so is to 'befriend' rather than criticise. The usual approach of many human rights practitioners is to 'bash' rather than 'befriend'. I do think that if we work with not at (read bash) governments, there are higher chances of getting a positive reception and better chances of domesticating international human rights.
I give the examples of the Uganda Prison service that was were repulsive of human rights practitioners because they feared being bashed in the media and on radio by the human rights practititoners for their failure to meet human rights standards. When the approach was changed to that of constructive engagement rather than criticism; change from having the debate in their offcies rather than the media, several regulations were put in place and a process to amend the prison act was comenced and succesfully passed.
That i have found to be useful. The other thing that needs to be done is to put in context any failure to domesicate human rights rather than attack the symptom. Quite often there is a major cause say lack of government will. If that be the case, the little steps that the little guy at a government department makes in adminsitrative measures can be a useful entry point in domesticating international human rights standards.
I should note in this context that the Optional Protocol to the Torture Convention (OPCAT) is based on a cooperative model involving dialogue between the visiting body (be it international [SPT] or national [NPM]). This is analogous to the model adopted by the ICRC when visiting places of detention in conflict zones - the idea is really to improve conditions for detainees rather than to shame authorities or wage political battles.
In addition, there is a confidentiality clause in article 16 of the OPCAT which says it is the State Party which decides when the SPT's visit report may be published.
It is interesting to reflect on the relative merits of cooperative and denunciatory approaches. In my opinion it is good to have organisations which adopt both, so that the overall human rights effort employs both the carrot and the stick, so to speak. Conciliation and cooperation should not be seen as "weaker" if they get better results!
I also agree completely with Mr Opiyo above in that it is important to appreciate that a government, particularly the public service, is made up of individuals with a range of views, and that a "little guy" in a Ministry can be a useful entry point/sympathetic audience. Also, who knows how much influence this person may have in a decade or two?!
The last thing I would say on political will is that States can, on one level, be considered as a peer group. With the odd exception, none wants to be seen as a human rights abuser (ie the "bad guy"), so advocacy focussing on a State's reputation (esp. compared with its neighbours and allies) can be more effective than you might think.
I couldn't agree more, Adam! One of my favorite tactics is using some kind of ranking system to compare States' human rights records to others. I have seen 'grading' systems where States are graded on their record (A to F). I have seen others where States are ranked - the best are at the top of the list and the worst are at the bottom. And we know no one wants to be at the bottom! But in addition to just shaming States, an organization can make recommendations for how the State can move up on the ranking.
One group took advantage of the World Cup in South Africa this past year to help fans choose which team to cheer for based on the State's human rights record! Do you know of other examples?
I've been focusing as a German candidate attorney on the prospects of prosecution/litigation against corporations & their officers before the domestic courts of the corporations home state.
While jurisdiction of European home states is easy to establish (much easier than under the US system!), the major difficulties are:
I recently presented on the issue at the University of Witwatersrand in Johannesburg, here are the slides: http://goo.gl/c01P
Thank you, Robert, for sharing your challenges and for sharing your slideshow! You, and others, might be interested to know that New Tactics will be hosting at least two dialogues in 2011 on corporate accountability - one in February and another in April. I hope that you'll join us for that online conversation!
With regard to your challenges, I am curious to know if you are familiar with any resources that you and others could use when faced with these kinds of challenges. As I mentioned in another thread in this dialogue, ESCR-Net has a great caselaw database that might be helpful for you and others. I searched under 'corporate accountability' and found 4 cases. Are you familiar with other resources?
I would also be interested to know more about the last challenge that you listed - access to evidence. What is the barrier for accessing evidence? Lack of co-operation or is the bar for appriopriate evidence too high? I would have assumed (perhaps naively) that the victims would be the ones bring the claim against corporations.
Again, thanks for joining this dialogue, Robert! Please share any other resources that you're familiar with! (That goes for everyone!)
As Adam F points out, one of the challenges that arises when seeking to domesticate international human rights norms is domestic opposition to the international sphere. While domestic authorities are often open to international influences, there are also instances where underlying distrust of external influences hampers efforts to domesticate international human rights norms. This is partly based on concerns to protect State sovereignty and also partly based on a sense that external actors do not understand the various internal exigencies of the relevant domestic system. In order to overcome this opposition and to remove any basis for it, it is important to emphasise that the various international human rights norms are complementary to the peaceful and productive functioning of domestic systems; the norms are primarily a product of negotiations by States and so are designed to accommodate domestic interests. It is also important to be informed about the particular circumstances operating in the relevant domestic system. This can be achieved by making partnerships with local partnerships and exchanging information with those groups.
I do think that a lot of the light is being shone on the state as the key player in domesticating human rights norms. While this is correct, i do not think it is the only medium for domesticating human rights. If we target the local people to create a critcal mass that demands the respect for human rights, the state will have no option but to adopt these standards. The focus on the state alone leaves the important role that the masses can play do faciltiate the domestication of human rights.
In our campaign to ensure that a law is passed agansit torture in Uganda, we started by collecting signatures from the local people in the vilages. Kristin was here in Uganda and was in Kumi district, in the far east of the country where signatyres were collected. These signatures were then forwarded to the speaker of parliament as a demand of the people. Of course there were also other high level engagements but our point of start was the people who then put pressure to bear on the government. I am glad to report that a bill against torture is now before parliament and has had a first reading.
Exceptionalism seems to be proving the biggest challenge among powerful countries such as the United States in terms of accountability. Initially I was under the impression that the U.S. would have an easier time applying international law in a domestic context purely for the fact that it is so involved in shaping global human rights policies, (including the UDHR and other documents).
In my Human Rights Advocacy class we were able to learn about advocates involved in the CRPD and their efforts to promote the rights of persons with disability. I was surprised to hear that although the U.S. has yet to pass the CRPD through congress, many less developed nations have already implemented the CRPD into their domestic law. Is it possible that these lesser developed nations might have more opportunity to make their infrastructure accessible because it has yet to be established? What other advantages do these nations have over larger, more developed nations when it comes to domestication of international law, (including but not limited to the CRPD)? What are some characteristics of opportune countries for domesticating international law?
~Erin
One of the problems that I constantly face in using international human rights to do community education and organizing is that people are really impatient to see results. In every discussion, someone says that the government won't listen and that the international system hasn't done anything to force the U.S. or other countries to comply. For me, one benefit of using international human rights is that it focuses on the legal, political, and societal environment that sees human rights either protected or violated. By looking at structural or systemic causes, human rights practitioners can acheive more sustainable change. However, the flip side of this is that changing the legal and social structures that perpetuate human rights abuses is a very long process! Not only must legislators be convinced to draft new laws, itself no easy thing, but in order for those laws to have meaning, people need to support them - both the government officials charged with implementing them and the public who can either punish or ignore violations (something that happened with torture in the U.S. - no matter what the laws said, the public stayed silent or even supportive when the laws were broken, so the end result was human rights violations). To get long-lasting support requires shifting cultural values and norms. So people get impatient because changing the underlying structures takes so long, but that is really the only way to achieve change. How do other practitioners manage these expectations?
Great question, Madeline! Here at New Tactics, we encourage practitioners to understand the underlying structures and the long-term goal - but also to look at the steps that can be taken now with the resources that we have. When the terriain is analyzed (as well as oneself and their opponent), it is possible to develop a plan of action to bring you closer to your long-term goal. Applying innovative tactics along the way will allow you to move forward (hopefully forward) along your plan to acheive the long-term goal. The hard part is celebrating those small successful tactics and knowing that what you just accomplished (whether you brought together two conflicting groups, or convinced one local leader that femal genital cutting is harmful) is part of a bigger plan.
It will take lots of steps and lots of tactics to get to your long-term goal. You might not get there if you don't recognize what you've acheived and what mistakes you can learn from.
New Tactics uses many tools to help practitioners figure out their plan of action. One of these tools is called tactical mapping. This tool helps practitioners to visualize the terrain of their work. Once they have all the actors represented on the map, they can see how intervetions can be used to make a chain reaction, eventually reaching the long-term goal.The fact that the map is a visual representation of a plan makes it a good resource to keep coming back to every few months or each year, to see what has changed and what has been accomplished.
This is what came to mind when I read your comment, Madeline. I hope that others will have ideas for how to tackle this challenge!
I believe we have to continue to build a movement on these issues that includes different strategies and objectives that will appeal to different audiences. Some of the discussions we are having in this dialogue show how complex and sophisticated actions are required to implement particular standards into domestic law, or argue those standards in court cases. Those strategies are for the long term, providing building blocks for systemic change. We should also pay attention to short term objectives, like protection in individual cases, public education and events, campaigns that have easily achievable targets, in order to bring along supporters who may not be patient enough to wait for the long term. I think an organization like the Advocates for Human Rights does this really well, with hands-on projects that have shorter term results, like representing asylum applicants, but also involvement in normative campaigns or legislative change that take longer.
I echo many of Kristin and Barb's thoughts about mixing up the strategies and thinking about short term vs. long term victories. To frame it another way, I think that use of international law - having government's adopt and implement it - has to be one goal among many in any given campaign for justice. As Barb writes, focusing on indvidual cases and getting results will provide folks with a tangible example of how something may work and I think provide an emotional morale/boost to help people to fight on. I also think pushing for the adoption of international treaties or understandings is difficult where people are fighting for basics like housing, health care, etc.
I also think your question raises issues that are being highlighted in several commuity grassroots groups about sustainability that has been missing from organizing and activist circles (at least on the left in the US) for a very long time. I am starting to hear people press that it is not just the product that matters but the process that is used to obtain the result, and people need to focus as much on the process as on the product. I think this is diffcult when working in a not for profit organization where funding may rely on what goals have been achieved and what tangible results the group can show for the grant money bestowed (I could be wrong I am not in a not for profit). But where long term organizing and perserverance is needed to to change cultural values,norms, and laws, we need to figure out ways to organize in communtieis for the long haul, and where the commuty(ies) we work with feed us politically, mentally, and some would spiritually in order to sustain people to continue to press on year and year, particulalry where the work one may doing is not what they get paid for and there alot of other stressors in one's life. For example, it is hard to have the family and community members of those who are wrongfully impriosned and detained to continue to come back year after year while also stuggling to support or their family members on the outside or see their loved ones (if possible) who are incarcerated. I know this is a big topic discussed amongst many activists of youth at the Allied Media Conference (see http://alliedmedia.org/about/mission_vision) that made a big impression on me.
It is important to effect real change on the ground in terms of human rights observation and enforcement as well as locking in legislative developments in the form of new acts and regulations at the governmental level. On the one hand, legislative amendments without real change will simply cause further distrust of the government. On the other hand, adopting new practices on the ground may not result in permanent incorporation of human rights standards if these practices are not accompanied by legislation or other regulations. In terms of the process of achieving real change, Joey Mogul observes that:
At PJI we are also concerned that our processes are consistent with the end-results that we seek to attain. One means that we are developing to improve our processes is a code of conduct for all our members and volunteers. The code incorporates ethical standards and guidance for various situations in which our members may carry out their activities. Any suggestions or experiences in this respect will be appreciated.
Domesicating human rights does not simply mean having them in the law books but getting them practiced and aprpeciates by the people. Human rights in many ways and to far too many people are lofty terms that bear little if any meaning to them. They are contained in some documents and intruments that bear little if any meaing to them. The challange that many human rights practitioners face is making human rights meaningful to the people in the grassroot. What i have exprienced in my work is that when human rights is linked to other issues issues of poverty, health and development, it is recieved and understood very well by the local people. Therefore the need to link human rights to the social and economic problems of the people is a useful approach to domesticating human rights.
There is undoubtedly the challange of igonrance among the people esp. in Afrcia and Uganda in particular. But there are numerious attempts at resovling issues of health and poverty. If these efforts are jataposed with human rights, a lot of ground will be gained.
The other approach is the use of legislative bodies. In litigating cases, courts are more willing to apply international human rights law than ever before. The lawyers representing litigants have to extensively cite international human rights law for the courts to use them in their ruling. Court made made law (common law) forms a useful body of laws that can promote human rights. In Uganda, the constitutional court has found recourse in international human rights law in deciding cases of sedition, false news et al (striking the law from the statutes books). See for instance http://www.ulii.org/ug/cases/UGCC/2010/5.html, http://www.ulii.org/ug/cases/UGSC/2004/1.html
I want to preface my comment by saying that I am an undergraduate student at the University of Iowa with a strong interest in human rights, but only limited knowledge and understanding of international law. For that reason, I want to apologize in advance if my question is laughably simple and straightforward, or far too narrow in perspective.
In the aftermath of yesterday’s election, much of the discussion here in Iowa has surrounded the issue of judicial retention. With the vote to oust three Supreme Court Justices, many of us can’t help but see this as a devastating blow to not only same-sex marriage, but to the protection of civil and human rights in our state. Many of us are also deeply disappointed in the politicization of Iowa’s judicial branch. The American Family Association and other national organizations opposed to same-sex marriage were successful in pumping thousands (maybe millions) of dollars into the campaign against judicial retention.
Although I understand this situation in Iowa is very specific, I feel it exemplifies a critical issue in the domestication of international/human rights law. Because the Supreme Court Justices (at both local and national levels) have historically played a critical role in extending civil rights in the United States, how important do you feel the nature of the judiciary is to the domestication of human rights law? And if the politicization of the U.S. judicial branch continues, what does that mean for human rights in this country? I am fearful that if judicial retention appears on the ballot after every piece of progressive legislation is passed, the Supreme Courts in the U.S. will become (like everything else) directly responsive to the organizations with the most money. If the American electorate threatens to vote out their S.C. judges for any “activist” and “progressive” decisions, what are the ramifications for the extension of human rights law in the United States?
I apologize for proposing a question so specific to American politics and government (the recent election has dominated my thoughts today). I want to extend this same question to the international arena, as well. How important a role does any nation’s court system play in the domestication of international/human rights law? Do you think the establishment and protection of an independent judiciary is necessary in the domestication of human rights law? Or am I looking too narrow-mindedly at this issue as an American?