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Australian Year Book of International Law |
Patricia Hyndman[∗]
I did not study international law during either my undergraduate or my postgraduate degrees taken at the University of London and once I became involved in human rights issues — well into my teaching career at the University of New South Wales — I realised what a serious gap this was. When I began to study the subject in my spare time a colleague recommended that I read the work of Don Greig. I soon recognised the excellence of this advice. For I found in Don’s writing great clarity, whatever the complexity of the subject matter being covered. Moreover, the obvious interest he always had in the area on which he was writing conveyed itself to the reader, so that learning was not a chore but rather I was carried along by the pleasure, the mastery of the topic, and the clear exposition that so clearly came through the text.
Other colleagues have commented on his unusual all-round competence in the whole field of international law. Indeed, Don has exhibited breadth and depth in all aspects of academic life as well, and in addition has wide interests and contacts in the world beyond. He is a distinguished scholar but, in order to pursue this career he has not shied away from onerous administrative duties, nor has he ever insisted on a narrow, specialist teaching, or research, role. He was Dean of the Faculty of Law at the Australian National University for many years, and a well-loved teacher and writer on diverse subjects in the law school curriculum. As well, Don is a generous colleague and facilitator, he is congenial and endlessly hospitable, and a very real friend.
It is hardly surprising then that so many people wished to contribute to a volume dedicated to him, that one volume set aside for this purpose proved to be inadequate to accommodate all of the contributions. Since I owe a good deal of my introduction to international law to Don, I hoped it might not be inappropriate to contribute something that is actually rather elemental: a consideration of some of the necessary realities behind the ‘on the ground’ implementation of the international standards of human rights. My objectives in this paper are, after a brief survey of the growth of modern international human rights law, to consider both constitutions and the constitutional protection of rights, and as well to look at some other factors which appear to be essential pre-requisites to the effective implementation, at the national level, of those obligations to accord human rights to their citizens, that are binding on governments under international human rights law.
As is well known, the modern system of international human rights law only developed after the Second World War, and the main tool in that development has been the drafting, and adoption, of a large number of international human rights instruments. The main impetus behind this activity was, of course, the growing awareness of the atrocities that had been perpetrated during the 1930s and early 1940s by governments, or by government agents, often against people who were their own citizens.[1]
The very idea of an international system that had as its aim the protection of individuals against violations of their rights by their own governments posed tremendous challenges to the traditional assumptions then underlying international legal theory. After all, international law regulates the relations between states. Disputes between governments over, for example, fishing rights and rights to mineral wealth on or near borders, are arbitrated according to its rules. States and not individuals are its subjects. The classical doctrine of international law is based on a premise of national sovereignty, of recognition of a state’s integrity and of non-interference with both its territorial boundaries and its internal affairs.
Following from this premise, the behaviour of governments towards their own people within their own territory, however draconian, was regarded as something entirely ‘within the domestic jurisdiction’ of the state in which those actions took place.[2] Any criticisms or interferences by other states in such ‘internal’ affairs of the offending state were regarded as illegitimate.[3]
In sharp contrast to this limiting effect of the concept of national sovereignty that prevailed for so many years, modern international human rights law recognises that all people, whosoever and wheresoever they may be, are entitled to the observance of an internationally accepted minimum standard of basic rights, and that the obligation to promote and protect these rights is binding on their governments under international law. It follows from this that it is, today, a breach of a state’s international obligations if it violates these standards, no matter that the breaches concern the rights of its own citizens and take place within its territorial boundaries.[4]
The rights, and the protection systems created to ensure the implementation of those rights (now set out in many different international instruments), far surpass anything envisaged when the current impetus began approximately 60 years ago. International human rights law is still largely treaty-based. The development, drafting and adopting of these treaties has been mostly due to the work of inter-governmental organisations. These include the efforts of the United Nations at the international level and at the regional level, efforts of the regional systems of government in Africa, the Americas and Europe. Some non-governmental organisations (NGOs) have also played an active role in the drafting of major international instruments and in the generation of ideas and input,[5]
and other inter-governmental organisations have taken leading roles on other issues. The Commonwealth, for example, has played a strong role in matters such as the abolition of apartheid, and the movement towards de-colonisation.[6]
In recent years international human rights activities have multiplied, and human rights instruments, and mechanisms for the enforcement of the protected rights, now exist both at the universal (that is, under those instruments open to ratification by any state) and at regional levels (that is, under the human rights laws that have developed in the European system; the Inter-American system and that of the Organisation of African Unity). Large numbers of international human rights instruments have been ratified, or acceded to, by states in all parts of the world, and the ratifying governments have undertaken obligations, binding upon them under international law, to implement the terms of the treaties in question. Today, enforcement mechanisms of varying degrees of effectiveness exist at both the regional and international levels.
All of this activity has resulted in the setting of internationally accepted standards as to human rights which, under the provisions of modern international law, should be accorded by all governments to the people in their territory. This is a great achievement. Once achieved, however, it is not to these international texts but rather to the constitutional arrangements that prevail within any given state at the particular moment in time that we must look in order to determine whether or not the basic human rights textually assured to the individuals within any state’s borders are, in reality, likely to be honoured and protected there. That is because, in the final analysis, it will be the constitutional organisation within a state, the strength of a state’s civil society, and the independence and character of its own domestic rights protection mechanisms that will provide the essential clue to the likely effectiveness of the protection which can realistically be expected in relation to the proclaimed rights of the individuals within its boundaries.[7]
Whatever modern globalisation may have achieved in terms of world-wide influences on individual lives, it is still very much at the national level that the rights of individuals are either breached or protected. That is to say, it will be in the state in which people reside where they will experience breaches, or enjoy protection, of their rights. Here it is that people may be arbitrarily arrested, held incommunicado without charge or trial, without access to family, or access to a lawyer, and where, perhaps, they may be tortured. Here it is that small children may be forced to work for long hours in appalling conditions, where education, cultural rights, economic rights, adequate health care, reasonable pay, etc, will be denied to them, and where their parents may be denied social rights, as well as the right to freedom of thought and expression, or the right to family life. Conversely, if rights are observed, it will be in their home state where individuals will receive effective protection from breaches such as those listed above. Individuals will, for example, if arrested and detained, reasonably expect to receive humane treatment while in detention, to be brought before a judicial officer within a limited, and specified, period after arrest and, if charged, to be accorded a fair trial.
Although international and regional mechanisms now exist to ensure the implementation of human rights standards by governments, and although these are an enormous step forward and can be, and are, utilised successfully, by both individuals and states, they are a remedy of last resort.[8] They are inevitably out of reach in any case, if only for logistical reasons, for many people whose human rights are most seriously under threat. Clearly, remedies that are close at hand, and easily accessible, local structures, organisations and practices that serve to strengthen the implementation of rights and to lessen the likelihood of the occurrence of breaches, are necessary pre-conditions if protection is to be provided to those whose rights are violated and who are not able to utilise distant, expensive or complex mechanisms.
I turn now, therefore, to look, not at the international and regional systems that exist today for human rights protection, but rather at aspects of constitutions and constitutional organisation, at the systems that operate at the domestic level and, as part of that consideration, to discuss some of the structures that appear to be significant in determining the likelihood that rights guaranteed (whether under universal, regional, constitutional or ordinary domestic law) to the individuals in any given state will, in reality, be effectively delivered to the individuals in that state.
The constitutional organisation of a state implies very much more than will be found in any formal document entitled The Constitution. This will be the position no matter which state is under discussion, no matter what the age of its constitutional document, and no matter how extensive the ambit of its constitutional provisions.
A constitution has been defined as ‘the whole system of government of a state, the collection of rules which establish and regulate or govern the government’.[9] In this sense obviously all states must have some sort of constitution. The term is also used more narrowly, in the sense of a specific legal document, often entitled The Constitution. Such a document will generally set out the framework and principal organs of government and their relation to each other.
The United Kingdom has no constitution in this narrow sense yet, undeniably, it has a constitution. Clearly, therefore, in this case at least, the state’s constitution must be found from other sources. It is in fact to be found in a variety of places. It exists partly in enacted law, such as the statute providing for the Union of England and Scotland, more recently in the statutes devolving power to the Scottish Parliament, the Welsh National Assembly and the arrangements for Northern Ireland and, since October 2000, in the Human Rights Act 1998. The United Kingdom Constitution is also to be found partly in the common law (the body of law developed over the centuries by the judges in cases coming before them), and partly in the conventions or traditions that inevitably surround the workings of any constitutional system that has been established for some time.[10]
Although less immediately obvious, even the presence of a formal written document or, as is the case in some states (for example, Australia, Canada, and the United States) of several formal written documents,[11] does not preclude the need to consult other sources in order to discover the constitutional organisation of the state in question. This is because no constitutional document, standing alone, is able to present a complete, or totally accurate, description of the mode of government of the state in question.
The document itself, for a number of reasons, is only a skeleton: ‘the basic charter of our society, setting out in spare but meaningful terms the principles of government’.[12]
It is not possible from a reading of a constitutional document to gain an accurate appreciation of how, and by whom, power is exercised, nor to gain an accurate understanding of the checks and balances to the power conferred in the text on certain office-holders, nor will it yield up an accurate picture of the abuses of power that may be perpetrated.
One reason for the inability of constitutional documents to portray, adequately, the constitutional organisation of any particular state is that any constitution whose text has been in existence for some time will have had its effect modified by practices which have grown around it. The Constitution of the United States is over 200 years old, yet its text has been amended very little during the past two centuries. To an extent this state of affairs is accommodated by the growth of conventions that condition, and mould, the way in which the various bodies to which a constitution gives power actually exercise that power, or, in certain instances, do not exercise the power.[13] Conventions are a means of modifying the system of government to make it compatible with the requirements of a changing society and acceptable to the needs of the population in the present, rather than to the needs of the population which existed at what may now be the very remote time of drafting.[14]
For example, it is a convention (not always observed as the then Prime Minister, Gough Whitlam, discovered to his dismay in 1975) that the Governor-General of Australia exercises certain of the powers conferred on that office by the Australian Constitution,[15] not at his own discretion, but as advised by his ministers, particularly as advised by the Prime Minister.[16] Such a curtailment of the power of the Australian Governor-General is not apparent from the text of the Constitution. There the power is bestowed upon the office in absolute terms.[17]
Another reason for the failure of written constitutions to present a total picture of their state’s government is that many of them are enacted in a context of already existing traditions and structures, and assume, without necessarily incorporating any text to this effect, the continuing operation of these traditions. In different jurisdictions many different assumptions underlie constitutional documents but are not incorporated in them.
Because of this, a constitutional document can never be considered in a vacuum. However complex, it will never give a complete picture. It must be considered in the context in which it was drafted, and in the context of the traditions, history and culture of the state in question. These factors may be, in themselves, of great complexity. To take the example of Sri Lanka: an unusual, and multifaceted, legal context forms the back-drop to the state’s constitutional arrangements, not to mention the impact of its different religions, its rich history, and its varying ethnic groups, their different customs, alphabets and languages, and the issues that exist between them. One of these surrounding factors, that of the Sri Lankan legal system, has been described as ‘a legal museum’ containing, as it does, elements of the laws of the main ethnic groups overlaid with systems introduced by colonists.[18] Hence, in Sri Lanka, as elsewhere, in order to gain anything approximating a real appreciation of their import, the terms of the constitutional text must be considered against the backdrop of the history, the fabric of the society, the complexities of its laws and practices, and against the other defining events that gave rise to, and now hone, the impact and operational effect of the text.
To take another example from a quite different jurisdiction: the Prime Minister and Cabinet are nowhere mentioned in the Australian Constitution. Their existence was simply assumed, as was the whole system of responsible government.[19] Another, equally surprising, omission is that there is no provision for the judiciary in the Constitution of the Australian state of New South Wales. The courts had been set up by earlier laws and the formal constitution was enacted in that context.
This brings us to a third reason why the constitutional text itself can never, standing alone, give a true or comprehensive picture of the constitutional arrangements in any particular state. This is the simple fact that many important provisions of constitutional significance are frequently contained in other, ordinary, statutes. In many states ordinary legislation provides the detailed rules for the conduct of elections. Such rules are of great importance in a democratic system but very little mention of their requirements is made in many constitutions. Furthermore, frequently the statutes containing these and other matters of constitutional significance may be amended by later, ordinary, statutes. Such amendment need not follow any of the strict rules that may be demanded for the alteration of a provision of the text of the formal constitution, and of course will not appear in that text. Nonetheless, it may have significant implications for the constitutional government of the state in question.
Fourthly, the common, or judge-made, law is an additional, and constantly evolving, source of constitutional rules in the common law world. For example, the concept of ‘the rule of law’ was developed by judge-made law. This concept requires that actions of government officials will always be justified by legal authority.[20] Under a constitutional arrangement that incorporates the rule of law, the government is not empowered to take action against a citizen simply by virtue of the fact that it is the government. There must first be some specific law authorising the taking of the action.[21] This requirement is of very great significance in the relationship of the citizen to the government, but does not have, as its source, a rule incorporated into a constitutional document.
Furthermore, rules that are developed by judges tend to continue their development and to adapt to changing conditions as new cases arise before the courts. Again, these are changes that will not be found in formal constitutional texts.
Judge-made law affects the constitutional organisation of a state in another way as well. This is through the interpretation, by courts, of the constitutional document itself. Judicial interpretation can help to update the constitution and adapt it to the changing needs of the society it regulates. On the other hand judicial interpretation can operate to give the provisions a rigid and unhelpful meaning. In either event this interpretation will not be incorporated into the text of the constitutional document, and must be learned about, and then taken into consideration, if the true impact of any constitutional text is to be anticipated with any degree of accuracy.[22]
Most states have written constitutions. Generally, the appearance of a constitutional document follows some momentous transformation in the character of the government of a state; for instance, the granting of independence by a metropolitan power to a former colony.
The fact that the occasional state does not possess a written constitution is explicable on historical grounds. In the case of the United Kingdom the reason is that although there have been many upheavals in the course of the history of the British Isles, such as the revolution of 1688, the Union of England and Scotland (and now devolution, or attempted devolution, of power to Scottish, Welsh and Irish entities), the gaining of the Empire and its loss, the development of the Commonwealth, entry into the Common Market, et cetera, none has required a complete restructuring of government. The existing system has simply adapted to accommodate the changes as they have occurred.
In the United Kingdom there is an absence of a culture of constitutional rights, and many former parts of the British Empire remain influenced to some extent by this British constitutional and legal theory. The theory has, as its basic premise, the concept of the supremacy of parliament. All rights in the United Kingdom are protected only by ordinary legislative enactment or by judge-made law.[23] Rights are seen always to be subject to the overriding power of the legislature to repeal or amend any earlier legislation and to override any judge-made law. For this reason the protection of rights in the United Kingdom depends on traditional common law strategies: the assumption of the rule of law, of legislative, and of judicial, sanity, and presumptions in favour of individual liberty. Of course, with the United Kingdom membership of the Council of Europe, and the changes brought about by that membership, with the Human Rights Act 1998 (UK) which came into effect in October 2000 partially incorporating the provisions of the European Convention on Human Rights[24] into domestic United Kingdom law,[25] the underlying assumptions may gradually change. Nonetheless, this legislation, as with all statutes of the United Kingdom Parliament, could, in theory at least, be repealed by Parliament whenever it sees fit.[26] Indeed, the theory of parliamentary sovereignty, which is held so dear in the United Kingdom, has proved one of the major stumbling blocks and cultural difficulties with the idea of Britain’s ‘entry into Europe’.[27]
If a state has a written constitution then special procedures, additional to those procedures required to amend or repeal ordinary legislation, may be required to secure the alteration of the formal constitutional document. This is the case in many states.[28] Where a process different to the normal law-making process is required in order that the constitution might be amended, the constitution is said to be rigid or controlled.[29] On the other hand, if a written constitution may be amended by ordinary legislation, it is said to be flexible or uncontrolled.[30] If a constitution contains no provision requiring a special amendment procedure, then, according to a judgment of the Privy Council [31] none will be necessary and an uncontrolled constitution (such as those of the states within Australia) will require no greater formality for amendment than does any ordinary statute.[32]
In the past decade numbers of new constitutions have been adopted, particularly in central and eastern Europe, but also elsewhere, for example, in Ethiopia, South Africa, and Fiji. From some of these experiences, it would seem that with use of an appropriate process, new constitutions can have the potential of bringing about a considerable degree of acceptance of compromise, and also of inspiring community commitment to make the new text work. The recent South African Constitution provides an example.[33 ]
Indeed, community commitment may be inspired even though the text of the proposed constitution itself will not be likely to gain anything approaching a consensus on all, or even on most, points. If the new constitutional document is seen as being, overall, reasonable, fair and workable, if there has been wide participation in its development, then there can arise a feeling of ownership of the project, and a commitment from the society as a whole to endeavour to make it work.
Experience seems to indicate that, in order to arrive at this position, certain essential pre-requisites must be met.[34] Community involvement from the early stages is important. A significant factor in the South African experience seems to have been the very real effort made to ensure that wide consultation took place, well in time, to enable real input into the draft constitutional text from many different groups. Contacts, although not as many or as varied as would have been desirable, were achieved with groups that were particularly difficult to reach, such as women who, during the day, were working in the fields and who, in the evenings and early mornings were running the household.[35]
These efforts to encourage participation across the community in turn fostered a realistic dialogue and exchange, and an appreciative, concerned and committed community response. During this dialogue different approaches, different perspectives and the reasons behind them, were articulated. Whether or not these perspectives were finally adopted, they were, and could be seen to be, taken into account, and given serious consideration before the drafting was agreed. In other words, the different view points had been made, heard, and genuinely taken into account. This background made compromises more acceptable regarding the final text.[36]
There is a natural tendency to assume, when faced with problems such as the intractability of violent ethnic conflict, that unpleasant concessions are required from all sides, and that the solution if, indeed, any solution can be envisaged as possible at all, could only be a compromise that can satisfy no-one, which must, instead and inevitably, leave all parties feeling aggrieved: feeling that they have given too much ground whereas others have given too little.
But negotiation is not inevitably synonymous with unpleasant concession. As long as negotiation is thoughtfully planned, and thoughtfully and fairly carried out, it can result in the discovery of common aims and aspirations. After all it is likely, in the final analysis, that the real aims of most groups in any society — for security, freedom from fear and want, the enjoyment of human dignity and democratic rights, and for expression of humanitarian values — are not so very far apart. It is also likely that it will be discovered, even in strife-torn states, that many accommodations already exist that do allow for differences and yet are not the cause of friction. To take an example from the present strife-torn community within Sri Lanka, there remains still today the acceptance of the existence, and of the operation of, the different personal laws that apply to the different communities[37 ]that make up the wider society.[38]
Those states that are party to the major international human rights treaties have undertaken obligations, binding in international law, to bring into effect (sometimes immediately,[39 ] and sometimes progressively to the maximum of available resources)[40] a whole spectrum of rights, that is, civil, political, social, economic and cultural, and group and other rights, and to ensure that their domestic laws, policies and practices are in conformity with those treaties’ provisions. One of the ways in which many governments seek to begin to provide this protection is through the insertion of rights provisions into the most important written text of the state, that is into its constitution. Hence, frequently, one of the starting places for a discussion of the provision made for human rights protection in any given state will be the rights terms of that state’s constitution.[41]
Clearly, the wording of the rights that receive constitutional protection is of the utmost importance. That wording must not, for instance, narrow the protection that is accorded by those international human rights treaties to which the government in question is a party.[42] If the wording of the constitutional text is narrower than that of the international treaties to which it purports to give effect, the state will not be acting in conformity with its international undertakings.
As well, the wording of the rights protected by the constitution must not purport to narrow the scope of rights protected under international customary law. International customary law is binding on all states regardless of their ratification of, or refusal to ratify, relevant international instruments. An example in the field of human rights law is the prohibition of genocide. This is now a crime under customary international law, hence all states are required to observe this prohibition, whether or not the state in question has ratified the Convention on the Prevention and Punishment of the Crime of Genocide.[43]
The wording of a state’s constitution may be drafted so as to comply exactly with the requirements of international law but, despite this, the protection accorded to individuals residing in that state may, for one reason or another, fail to reach the requirements of the international legal obligations that bind the state. If this is the case, that government will, despite its achievement of constitutional textual compliance, still be in breach of its obligations under international law.[44] This can be illustrated by the consideration of two examples.
In the first, the protection of human rights in (the imaginary state of) Ruritania appears in the form of a Bill of Rights incorporated into that state’s written constitution. These provisions are carefully worded to comply with Ruritania’s obligations under the major international human rights treaties, all of which it has ratified. So far, on the surface, all looks well. However, closer examination of the actual constitutional organisation in Ruritania reveals a despot, wielding absolute power, who has recently, through the use of armed violence (which he is able to command as a consequence of his great wealth), wrested control from a properly elected government. This despot now, despite the apparent constitutional protection of rights, regularly, and arbitrarily, orders arrests and executions without trial of any person he considers not to be a supporter. He has curtailed the freedom of the press and the media, and due to his grip on the main organs of state he is able to take all these actions with impunity.
The mechanisms in Ruritania (most of which were initially established by the earlier democratically elected government to ensure the accountability of government), such as the State Human Rights Commission and the Office for Governmental Transparency to name just two, are now simply not sufficiently well-resourced and supported. They are also not staffed currently by personnel appropriately independent and qualified to be able either to maintain independence from the executive, or to carry out properly the mandates which, under the terms of the relevant legislation, are apparently conferred upon them.
The real constitutional arrangements of Ruritania, as opposed to those to be found in the texts of its constitutional document and national laws, are very different to the constitutional arrangements of the second imaginary state in this example, the state of Utopia. Utopia has a practically identical constitutional text, and has also ratified all of the major international human rights instruments, but here the similarities cease. In Utopia there exist effective and well-resourced human rights mechanisms, an informed and active community, real freedom of speech and expression, a pluralist parliament elected by the people in a free and fair election, and a Chief Minister who governs both with the consent of the electorate and in accordance with the requirements of the rule of law.
Although it is certainly desirable to enact the protection of human rights into a state’s constitution, this enactment alone will not ensure the effective protection of rights. Numbers of other factors need to be present. For instance, it is vital that individuals, and particularly those individuals who are in the greatest danger of having their rights breached (generally the poor, the under-privileged and under-educated, and those without easy access to information) know that they do possess rights, know the content of those rights, know that these rights can be enforced, and of the ways in which this can be done. It is essential also that national enforcement mechanisms are made easily, and sensitively, accessible.[45]
This type of protection will not be achieved by merely inserting rights clauses into formal texts. Legislative provision for the equal treatment of small minority groups, for instance, will not, of itself, ensure the realisation of such equality. The provision of real equality of opportunity is a complex task, and requires time, and more than simple legislation for its achievement.
To take just one example, some of Australia’s minorities, and indigenous groups in particular, have experienced inequalities and disadvantages that go back over many years. Frequently, the factors that gave rise to particular needs (lack of access to educational facilities, inadequate information concerning the social security system, lack of facility with the English language) make it highly unlikely that those who are most in need of legal protection will be in a position to be able to take advantage of generalised protection provisions. Because people in disadvantaged groups lack power, their options are restricted and they lack access to avenues that may be available without too much difficulty to members of more privileged groups.[46] As well, structures and attitudes in any community, in themselves significant contributing factors to many inequalities and disadvantages, change slowly even when appropriate legislative provisions have been put into place. Frequently, fundamental re-orientation will be required, and this will generally call for long-term educational programs, and involve the need for administrative, and community, as well as legislative, action and support.
Many different kinds of mechanisms exist that can be utilised to facilitate the protection of human rights at the domestic level. The account which follows is drawn from examples to be found in common law states. My field of expertise does not allow me to stray into other arenas, but no doubt many comparative measures could be found in states with other forms of legal system.
Some of the more obvious implementation mechanisms are domestic Human Rights Commissions and the Office of the Ombudsman. The establishment of these institutions often, although not always, follows concern about particular human rights situations. The institutions do of course, differ in different jurisdictions but, typically, the powers with which Human Rights Commissions are endowed include the power to examine government legislation and practice for compatibility with the existing international human rights obligations of the state. Ombudsmen, on the other hand, generally conduct investigations in relation to charges of maladministration in government departments. In some instances they look also into defects in laws and in administrative practices.
The mere establishment of a Human Rights Commission or of an Office of Ombudsman does not, of itself and without more, automatically ensure the observance of human rights standards by the establishing government, although it is likely to assist. To be effective such bodies must be given both real power and real independence, and be established in such a way as to ensure that they are able to command high respect in the community. Hence, the establishing legislation will need, for example, to set out clearly the powers, functions, and the mode of appointment, and dismissal, of the bodies’ officers. It is also essential that the institutions have financial autonomy and adequate continuing funding, and be made as accessible as possible to those who need their services. Thus, informal and flexible procedures will be necessary, as will be free access to complainants. As well, such bodies need power to compel cooperation from government departments, and their effectiveness should be encouraged by provisions such as those to ensure that their recommendations go directly to the highest authority, and not to an intermediate body that may have an interest in the non-implementation of the proposals.[47]
Other examples of national mechanisms that serve, often very effectively, to protect human rights include a wide variety of complaint structures that allow individuals to appeal against adverse bureaucratic decisions and actions and include, also, judicial remedies developed by the courts to provide review for people affected by the ever increasing reach of officialdom. Protection for human rights may be provided as well by ordinary legislation dealing with particular issues, for example freedom of information legislation, issues that may well have been brought to the forefront of public attention by the activities of concerned local NGOs.
In addition, in some states it has been possible to persuade judges to take into account international human rights norms when they consider cases before them, and sometimes this has been done even though the state in question does not have a Bill of Rights, such as Australia. Some NGOs have been particularly active in this regard, holding seminars for judges to alert them to this possibility. The Aspen Institute (New York), the Commonwealth Secretariat, Interights (London), and the International Commission of Jurists (Geneva) have all held workshops highlighting the opportunities that exist for judges to do this.[48] Such teaching has not been the province of NGOs alone (the Commonwealth Secretariat is an intergovernmental organisation) and some universities host facilities for such training.[49] As well, the Office of the United Nations High Commissioner for Human Rights has conducted a wide variety of human rights education programs within different states at all levels of society.
There are other examples of domestic mechanisms as well. Some governments have set up citizens’ advice bureaus, many finance free or subsidised legal services to people otherwise unable to afford them, or give advice to particular categories of people in need of assistance. NGOs also are involved in this kind of work: an instance is the advice given to asylum-seekers by NGO refugee organisations in many states.
Some governments, and some NGOs, make available programs through which people can learn both about their human rights and how best to enforce them. As well, both governments and NGOs have developed new forms of training to better equip para-legal personnel, and many of these people will assist in the protection of human rights. [50] In addition, specific mechanisms have been established to deal with complaints of particular kinds, for example, anti-discrimination tribunals and equal opportunity bodies. A different but often effective approach is to have recourse to the media, to politicians, local government members or parliamentarians. They often can be of assistance in obtaining redress for breaches or in achieving better protection for human rights.
Societies do not have to be wealthy in order to take these measures: examples of almost all the mechanisms and approaches described above can be found in use today in small Pacific island states, bearing testimony to the enterprise both of the governments there and of the NGOs.[51]
However comprehensive the protection of human rights appears to be from a perusal of a state’s constitutional text, and however extensive the acceptance by a government of international and regional human rights instruments, texts alone cannot guarantee that the rights enumerated within them will, in fact, be translated into real and effective protection of those rights. Similarly, however grand the text of a new constitution, that text will not carry with it, among the population at large, a real willingness to work together to bring its aims to fruition, if it has been imposed by the governing elite without consultation and involvement with the population it purports to serve. It is vital for the individuals within a society to feel they have some ownership of a constitution. This in turn will encourage active community participation, an essential element in the translation of constitutional terms into effective governance.
Likewise, the establishment of specific bodies to protect human rights at the national level, such as a Human Rights Commission, or the Office of the Ombudsman cannot, by themselves, achieve a great deal. Such offices, as is the case with other domestic mechanisms established to bring about the protection of rights, will be effective only when they are established according to criteria to promote their independence and effectiveness, and when they operate within a society in which there are active non-governmental associations, where there is freedom of expression, and a responsible press.[52]
It is towards constitutionalism, used here in the sense of broadly implying an order with an accountable government, an independent judiciary, and a system of regular, free and fair multi-party elections,[53]
and not to a perfect constitutional text, that we must aim if human rights are to receive effective enforcement at the national level. After all, it is at the national, not at the international level that the implementation of these international human rights standards is crucial, since it is within states, and not in outer space, where the violations occur.
[∗] Fellow, Wolfson College, Cambridge. Parts of this paper have been published elsewhere. P Hyndman, ‘Constitutional Law and Government’, Canberra Series in Administrative Studies, Occasional Paper 2 (2nd ed, 1992); P Hyndman, ‘Cross Cultural Perspectives on Human Rights Law and Policy in Australia’ in A A An-Naim (ed), Human Rights in Cross-Cultural Perspectives (1992) 295.
[1] The catalyst for the international approach was that, in the 1930s and 1940s, the leaving of the protection of individuals to the government of the territory in which they habitually lived, or in which they found themselves, proved to be a disastrously inadequate system. The atrocities perpetrated in Stalinist Russia in the 1930s cost the lives of an estimated six million of its own citizens and caused untold suffering to millions of others. The persecution of the Jews, and other minority groups such as the Roma, by Nazi Germany resulted in the deaths and suffering of millions of people, many of them German nationals.
[2] P Sieghart, The International Law of Human Rights (1984) 11, 12, 14.
[3] Ibid 14.
[4] Ibid 14, 15.
[5] For instance, Amnesty International played a large part in the drafting of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/46 (1984) and the International Commission of Jurists in the drafting of The Convention on the Rights of the Child, GA Res 44/25 (1987), and more recently NGOs have had a very high input into treaty drafting, eg, the NGO involvement in the drafting of the Landmines Treaty, and in the drafting of The Statute of the International Court: H J Steiner and P Alston, International Human Rights in Context: Law, Politics, Morals (2nd ed, 2000) 940.
[6] See eg, ‘The Modern Constitution’, Address by Commonwealth Secretary-General, to the Irish Association, issued by Information Division, Commonwealth Secretariat, London 10 December 1998, 5.
[7] ‘Without effective access to justice there is no effective legal protection of human rights. That is why the parliaments, governments and courts of every state have a positive duty to translate the ideal of effective access to justice into practical reality.’ A Lester, ‘Access to Justice’ (1996) 10 Interights Bulletin 53.
[8] Either another government must be prevailed upon to make a complaint before the relevant implementation mechanism, or, where individuals are able to, and do, bring a complaint, there will be a need to satisfy provisions such as the one contained in the Optional Protocol to the International Covenant on Civil and Political Rights (1966) 999 UNTS 171 art 5(2) which states: ‘The Committee shall not consider any communication from an individual unless it has ascertained that: … (b) The individual has exhausted all available domestic remedies …’.
[9] K C Wheare, Modern Constitutions (2nd ed, 1966).
[10] See generally, A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1965).
[11] Eg, Australia has seven written constitutions.
[12] Poe v Ullman [1961] USSC 144; 367 US 497, 540 (1961).
[13] Although, it may legitimately be asked whether traditions had managed sufficiently to keep up with changes, when the recounting of votes in the 2000 Presidential election became such a contested issue in both the Florida courts, and in the United States Supreme Court.
[14] In the United Kingdom, while much legal power remains where it was several hundred years ago, that is with the monarch, it is by convention exercised only in accordance with the advice of ministers responsible to parliament.
[15] Commonwealth of Australia Constitution Act 1900 (UK).
[16] See further P Hyndman, ‘Constitutional Law and Government’, Canberra Series in Administrative Studies, Occasional Paper 2 (2nd ed, 1992) 44-46.
[17] Ibid.
[18] Sri Lanka has been, at different stages, colonised by three European powers: by the Portuguese in the early sixteenth century (although little Portuguese influence remains in the legal system), followed by the Dutch who brought with them Roman-Dutch law but also left many features of the local system intact, and drew up codes of some of the local customs. In the eighteenth century the British took over, and gradually, and for the first time, brought the whole island under colonial control. Eventually the Privy Council in London was made the final appellate court, and the English doctrine of precedent and common law was introduced. As a consequence of this part of its history, in Sri Lanka today, there is a combination of: local laws; Roman-Dutch law; statutes enacted in the United Kingdom; an overlay of English common law; modern enacted and judicial Sri Lankan law, the personal laws of different communities and, of course, unofficial regulation that still continues in the form of local values and social and religious practices. P Hyndman, ‘The Law and the Veddhas of Sri Lanka: Vanishing Aborigines?’ (1987) 2 Law and Anthropology 215, 223.
[19] Although some recognition of the concept of responsible government is given in the Australian Constitution, see ss 61, 64.
[20] See further, A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1965) 183-205.
[21] Ibid.
[22] Eg, the implication, in the process of interpretation by the Supreme Court of India, of art 21 of the Indian Constitution, that its words ‘no person shall be deprived of life and personal liberty except according to procedure established by law’ must include the requirement that the detained person is entitled to trial within a reasonable time, or to release pending trial, since a ‘speedy trial … is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21’. See eg, Hussainara Khartoon v Home Secretary, State of Bihar [1979] AIR 1369. On interpretation by that court of the issue of freedom of religion, see S Sorabjee, ‘Jurisprudence of the Indian Supreme Court on Freedom of Religion’, (1997) 11(3) Interights Bulletin 87-92. The interpretation of s 51(v) of the Australian Constitution provides a simple illustration of judicial interpretation operating to adapt a Constitution to the changed circumstances in which it must operate. By s 51(v) the Federal Parliament is given power to legislate upon matters concerning ‘postal, telegraphic, telephonic and other like services’. This has been interpreted to include devices such as television not contemplated at the time of drafting.
[23] See B Gaze and M Jones, Law, Liberty and Australian Democracy (1990) 27 and ch 2, 23-72.
[24] The European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), 213 UNTS 222.
[25] And with other acceptances, for instance the acceptance by the United Kingdom in 1997 of the European Community Charter of the Fundamental Social Rights of Workers 1989.
[26] There are, in fact, a number of fundamental rights stated in legislative form in the United Kingdom, many in statutes of great antiquity, but all are contained in legislation that could, theoretically, at any time be repealed by parliament. Of course, political reality can in fact make repeal of certain provisions untenable. For instance, in the Magna Charta (1215) provisions such as the following find expression: ‘no freeman shall be taken or imprisoned, or disseized of his freehold or liberties or free customs, or be outlawed or exiled or liberties or free customs, or be outlawed or exiled or otherwise destroyed, and that the King will not pass upon him or condemn him but by lawful judgement of his peers or by the law of the land’; ‘we will sell to no man, we will not deny or defer to any man, either justice or right’.
[27] The United Kingdom’s membership of the European Community has been a major challenge to the English dualist tradition. Accommodating the concept of parliamentary supremacy and the direct effect of Community law has been both contentious and complex (see eg, R v Secretary of State for the Home Department; Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696. One way in which the dualistic approach has been tempered is through the growing recognition, both domestically within the United Kingdom, and internationally, that many of the norms set forth in international human rights treaties, such as the ECHR, have the status of customary international law, and so are part of domestic law, another has been to recognise that certain rights set out in the Convention are common law rights, eg, concerning the right of freedom of expression in Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534. Another is through the common law presumption that parliament does not intend to legislate inconsistently with the state’s international obligations.
[28] See eg, s 128 Australian Constitution ss 104,105.
[29] The Constitution of the Commonwealth of Australia is rigid in this sense (see s 128), although certain sections may be altered by ordinary legislation.
[30] See eg, Wheare, above n 9. Wheare has suggested that whether or not a constitution should be described as ‘rigid’ should depend, not on whether or not it required special amendment procedures, but instead by the frequency with which it has been altered in fact.
[31] McCawley v The King [1920] AC 691.
[32] It is possible for constitutions that are basically flexible in the above sense to contain a few sections for which a special amendment procedure is required, eg, ss 7A, 24A, Constitution of New South Wales, Constitution Act 1902 (NSW), an otherwise flexible document.
[33 ] On the whole process leading to the adoption of the Constitution of South Africa, see H Ebrahim, The Soul of a Nation — Constitution-making in South Africa (1998).
[34] Ibid.
[35] Ibid.
[36] Professor Yash Ghai has some interesting observations on issues concerning human rights as a framework for negotiating inter-ethnic claims in the context of constitution–making, and draws comparisons between the South African approach, and that of less apparently successful constitutional experiments, such as that of Fiji: see eg, his paper on this topic delivered at the February 1999 symposium on Constitution-Making, Conflict and Transition in Divided Societies, organised by the Cunliffe Centre for Constitutionalism, University of Sussex ,and the Initiative on Resolution and Ethnicity, at the University of Belfast. See also Y Ghai, ‘The Implementation of the Fiji Islands Constitution’, Inaugural Lecture, Citizen’s Constitutional Forum, Inaugural Lecture, Constitutional Matters Series, University of the South Pacific, August 1998.
[37 ] The plurality of different laws forming the basis of the legal system of Sri Lanka were briefly discussed earlier. Hyndman, above n 18, 223.
[38] On issues of constitutionalism and ethnic conflict see N Tiruchelvam, ‘Constitutionalism and Diversity’, in Neelan Tiruchelvam Selected Writings: Human Rights, Constitutionalism, Diversity and Pluralism (2000) 37-55.
[39 ] Eg, International Covenant on Civil and Political Rights, (19 December 1966), 999 UNTS 171; 6 ILM 368.
[40] International Covenant on Economic, Social and Cultural Rights, (19 December 1966), 993 UNTS 3; 4 ILM 360.
[41] To take the Constitution of Sri Lanka as an example, its Chapter III contains a more comprehensive chapter on fundamental rights than did its predecessors. Many of the rights that receive protection under the ICCPR are included as well as the possibility of providing special protection for the advancement of women. There are additional protections in other parts of the Constitution also, eg, in the security of tenure provisions for the judiciary.
[42] The Constitution of Sri Lanka does, in its wording, narrow the protection of some of the rights that the state has undertaken to observe under international law as a consequence of its ratification of treaties, for instance arts 4 and 15. These two provisions allow, respectively, the proclamation and maintenance of declared states of emergency, and derogation from certain rights provisions, in a wider range of circumstances than those allowed by the ICCPR, which Sri Lanka has ratified.
[43] (9 December 1948), 78 UNTS 277.
[44] Along with many other states, Sri Lanka has been found wanting here. See eg, the annual reports: Sri Lanka, State of Human Rights Report, published each year since 1993 by a Sri Lankan, non-governmental organisation in Colombo, The Law and Society Trust. The UN Human Rights Committee has noted, more than once, that in its legal system the United Kingdom does not ‘ensure fully that an effective remedy is provided for all victims of violations of the rights contained in the Covenant’, see UN Doc/CCPR/C/79/Add55/ (1995).
[45] A meeting was convened in Addis Ababa in May 1998 in preparation for the enactment of legislation to establish an Office of the Ombudsman and of a Human Rights Commission. (The establishment of these two institutions is required by art 55(14) and (15), respectively, of the Ethiopian Constitution.) The meeting was attended by over 1,000 participating Ethiopian legislators, security chiefs, regional governmental personnel, judges and lawyers, who spent several days of discussion as to the necessary prerequisites if these institutions were to be made effective for Ethiopians in Ethiopia. One recommendation made at this meeting was that, in order to facilitate the use of these bodies, complainants should be enabled, indeed encouraged, to invoke the help of the Ombudsman by a variety of informal methods, such as by means of letters, telephone or facsimile, or indirectly through non-governmental organisations, community leaders, etc. (The author was one of the rapporteurs for some sessions of the conference whose proceedings and papers are to be published by Kluwer.) Another example of efforts to ensure the expeditious accessibility to mechanisms to address human rights complaints, is the implication read into art 21 of the Indian Constitution, of the right to a speedy trial, or release pending trial, by the Indian Supreme Court. See above n 22.
[46] See further, G Bird, ‘The Role of Law in a Multicultural Society’ in J Jupp (ed), The Challenge of Diversity, Policy Options for a Multicultural Australia (1989) 255.
[47] On human rights commissions generally, see J Hatchard, National Human Rights Institutions: A Manual (1993).
[48] For instance, since 1988 a series of judicial colloquia has taken place concerned with the application of international human rights norms within domestic legal systems. The meetings have been held under the auspices of the Commonwealth Secretariat and Interights. The eighth was held in Bangalore, India, in December 1998. The papers are published by the two organisations under the title: Developing Human Rights Jurisprudence, Vol 8, Eighth Judicial Colloquium on the Application of International Human Rights Law, London, 1999.
[49] Eg, Dalhousie University in Halifax, Nova Scotia, Canada, hosts a Judicial Institute which is involved in the training of magistrates and judges in Commonwealth countries.
[50] To take just one illustration of training to increase the observance of human rights standards, numerous NGOs in India have been involved in programs to educate parents, employers and children about the hazards to child labourers, and to teach them that these children have rights and the content of those rights. They encourage people to think about how to begin to deal with the social and economic consequences of not relying on children to be bread-winners, and endeavour to change social standards and mores about exploiting children in the labour force. They also push for the drafting, enacting and (most importantly) enforcement of standards of protection for children who work.
[51] For a fuller description of these kinds of mechanisms, and ways in which they have been utilised in the protection of rights at the domestic level see P Hyndman, ‘Government Mechanisms to Protect Human Rights: Some Examples in Pacific Countries’, Seminar on Human Rights Organisations in Asia and the Pacific, Chinese Association for Human Rights, Taipei, 1991, 53-92.
[52] ‘The mere existence of a constitution, however comprehensive, will do little to create a stable environment for democracy and development unless people know and understand its provisions, have faith that their governments will not overrule it, and believe that their rights as promulgated within it, will indeed be upheld. Therefore, the existence of an independent judiciary and legislature, a free and competent press, and a vibrant civil society are all necessary to ensure that constitutional provisions are translated into reality.’ A Ould-Abdallah, ‘The Rule of Law and Political Liberation in Africa’, (1998) 60 ICJ Review, 29.
[53] See further, Steiner and Alston above n 5, 990-999.
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