COMPILATION OF INTERNATIONAL NORMS
AND STANDARDS RELATING TO DISABILITY
Part I. National Frameworks. 2/5
  
1. International Law and National Frameworks
The next sections set out the sources of international law and how and by what means or
methods, international human rights law and its implementation in national law has
developed.
1.1 Sources of International Law:
Article 38 of the Statute of the International Court of Justice sets out the following
sources of international law: a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states; b) international custom,
as evidence of a general practice accepted as law; c) the general principles of law
recognized by civilized nations; d) judicial decisions and the teachings of the most
highly qualified publicists of the various nations as subsidiary means for determination
of rules of law.
1.2 The Role of Custom
Customary law is critical to the role of human rights law. The domestic
enforceability of customary international law is manifest in the case of Filartiga v.
Pena-Irala, [12] Two issues were made clear by this case. Firstly,
customary international law is a matter of universal jurisdiction, so that any national
courts may hear extra-territorial claims brought under international law. Secondly,
domestic court may discover international legal principles by consulting executive,
legislative and judicial precedents, international agreements, the recorded expertise of
jurists and commentators, and other similar sources.
There also exists a class of customary international law, jus cogens, that has
peremptory force and cannot be abrogated by domestic law or treaty. Jus cogens is
generally deemed self-executing. When domestic courts apply treaty law and other rights
established by express accord, they usually look to the language and legislative history
of the norms involved to locate the intent to enforce them locally. If such an
intent exists, these agreements are regarded as self-executing.
1.3 The Role of Treaties
Even though the sources of international law are not hierarchical, treaties gain some
degree of primacy among the sources of international law. Treaties serve different
purposes. Some treaties have far reaching political impact such as peace settlements,
alliances and nuclear testing bans. Others though less political, involve relationships
between governments or government agencies and affect private parties. Most significantly,
human rights conventions have sought to extend protection to all persons against
governmental abuse. A treaty is formed by the express consent of its parties. A
treaty’s text may permit some reservations, thus allowing a greater number of States
to enter into a treaty at the sacrifice of certain objectives and purposes of the treaty.
1.4 International Law in Municipal Law
Even though international law requires a State to carry out its international
obligations, in general, the processes used by a State to carry out its international
obligations will vary for example, from legislative, executive and/ or judicial measures.
States also follow different practices in internationalizing treaty norms that is
incorporating treaties within the state’s legal structure so that the provisions can
be implemented by state authorities. In some countries, international (and at times
regional) human rights law automatically becomes a part of national law. In other
words, as soon as a state has ratified or acceded to an international agreement, that
international law becomes national law. Under such systems treaties are considered
to be self-executing. In other countries, international human rights law does not
automatically form part of the national law of the ratifying state. International
law in these countries is not self-executing, that is, it does not have the force of law
without the passage of additional national legislation.
States incorporate treaties and norms into their domestic laws by specific
"transformational" devices. The automatic incorporation of ratified treaties by
constitutional provision, which has been called general transformation, mandates domestic
enforcement without legislative action beyond ratification. A second method, special
transformation, requires legislation in order to give treaties domestic effect.
In the absence of special agreements, a State will decide how to carry out its
international obligations. For example, in the United States, the Federal government
will decide whether an agreement is to be self-executing or should await implementation by
legislation or appropriate executive or administrative action.
In the United States unless a court deems a treaty to be self-executing, the treaty
will bind domestic courts only if Congress has passed legislation for the specific purpose
of implementing the treaty provisions domestically.
A route for directly incorporating international human rights norms into U.S. law is
the argument that these norms are binding as customary international law or jus cogens, a
subset of customary laws that are so fundamental that they are non derogable. The human
rights values embodied in the U.N. Charter, the Universal Declaration of Human Rights, and
the International Covenant on Civil and Political Rights are all elements of customary
international law that are rapidly establishing themselves as jus cogens, if they have not
already achieved their status.
The case of Filartiga v. Pena Irala [13], heralded a
trend towards the domestic incorporation of customary international law. The Filartiga
court recognized that the law of nations is a dynamic concept, which should be construed
in accordance with the current customs and usages of civilized nations, as articulated by
jurists and commentators. It held specifically that U.S. law directly incorporated
customary international law principlesprohibiting deliberate government torture.
Moreover, in themostcontroversial aspect of its opinion, the Filartiga court held
that an old rarely invoked federal jurisdictional statute, the Alien Tort Statute, created
an implied right of action for violations of customary international law. In Paquete
Habana[14], the Court reaffirmed the domestic status of customary
international law in the United States. Relying on scholarly sources, the Court
acknowledged a long-held customary norm against seizing the coastal fishing vessels of a
belligerent. The court held that international law is part of the United States law,
and must be ascertained and administered and administered by the courts of justice of
appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination.
1.5 Locating Human Rights Law in Municipal Law
Any law that can be used to promote or protect human rights may be considered to be
part of human rights law. Human rights law can be found in national constitutions,
legislation and unwritten common law. National constitutions increasingly reflect a
commitment to human rights. At times the rights are listed in a separate section generally
known as a bill of rights.
International human rights law can have a great impact on national systems. National
courts may look at international and regional human rights norms in deciding how to
interpret and develop national law. International and regional human rights law can be
used in national human rights mechanisms in different ways including, basing the human
rights claim on international or regional law, where such law is part of national law, or
has otherwise been incorporated into national law; using the international and regional
human rights law as an aid to the interpretation of national law provisions and using
international human rights law as the minimum standard of protection which national law
should attain.
1.6 Two Basic Conceptions about Constitutions
A Constitution is a body of rules which establishes and regulates a Government by
laying down checks and balaces and limitations of governmental authority. Most
constitutions also include a Bill of Rights. These rules are sometimes justiciable in a
court of laws and sometimes merely aspirational and hortatory but no less effective in
regulating Government than the law stricto sensu. A second kind of constitution is
an unwritten constitution for example such as in England, New Zealand, Canada and Israel.
These countries have no written constitution in one single document, but rather a number
of Basic Laws, that are primary laws guiding society. In the absence of a formal codified
set of laws, tradition and existing legal and political systems may provide enduring
constitutional principles.
If the rights of disabled persons have been recognised within the Constitution, the
political powers of the nation must respect them, as long as the Constitution is not
modified. There is, therefore, a supremacy of Constitutional Law over any other
inconsistent law which voids any law or any act of Government which violates the
Constitution.
1.7 International Law and Municipal Law Interface
An international treaty seldom stipulates how the States should implement its
provisions, leaving it to each State to decide how that obligation will be executed on the
domestic plane. One notable exception involves the right of access and to effective
remedies guaranteed in human rights treaties. There is no rule of general international
law that all treaties must have effect in domestic law. Many treaties have no
domestic legal consequences and do not require implementation through the national legal
systems of the States Parties. The freedom to choose some methods of implementation is
also guaranteed in the International Covenant on Civil and Political Rights,
article 2: "Where not already provided for by existing legislative or other
measures, each State Party to the present Covenant undertakes to take the necessary steps,
in accordance with its constitutional processes and with the provisions of the present
Covenant, to adopt such legislative or other measures as may be necessary to give effect
to the rights recognised in the present Covenant."
Four main methods are generally available for the implementation of international human
rights instruments in domestic law:
- Direct incorporation of rights recognised in the international instruments into a bill
of rights in the national legal order;
- Enactment of different legislative measures in the civil, criminal and administrative
laws to give effect to the different rights recognised in human rights instruments;
- Self-executing operation of international human rights instruments in the national legal
order; and
- Indirect incorporation as aids to interpret other law.
For States that are not Parties to the relevant human rights treaties, generally
accepted standards of human rights are legally binding upon them according to customary
international law.
The relationship of international law to municipal law rests on two principal schools
of law. The dualists regard international law and municipal law as separate
and municipal law can apply international law only when it has been incorporated into
municipal law. Incorporationcan result from an act of parliament or other political act,
or given effect by the courts. On the other hand, monists regard
international law and municipal law as parts of a single legal system.
According to this theory, municipal law is subservient to international law.
England is an example of the dualist modelof international law. A treaty has
no effect in English domestic law, unless it is made part of it. Once a treaty is
incorporated into English Law, it is fully enforceable in the courts. But the fact that a
treaty is part of the English Law will not necessarily mean that individuals have a cause
of action arising from the treaty. There will only be incorporation if the treaty changes
domestic law, or if it requires the raising of revenue or alteration of taxation. As in
the case of many treaties in the field of foreign relations, ratification is a formality
and incorporation is not required. An unincorporated treaty has no formal standing
in English Law. If it conflicts with statute or common law, the latter will prevail. An
incorporated treaty becomes part of the law of the land, but it has no special position.
The relationship between incorporated treaties and other legislation is the same as the
relationship of two statutes to each other. Parliament is supreme in the sense that it can
pass legislation that is inconsistent with any international treaty obligations which,
nevertheless binds the United Kingdom at the international level.
An example of a model is the Netherlands legal system. For the operation of
treaties and the orders of international organizations within the legal system, no
national order is required to convert international law into national law. International
law operates automatically, as such, within the national legal system. Therefore, certain
treaties are considered constitutional law where they limit or extend the powers of Dutch
offices based on national constitutional law. Examples of this are the European
Convention for the Protection of Human Rights and Fundamental Freedoms and the International
Covenant on Civil and Political Rights.
Finally, between these two models there are a number of variants; however, many of them
are only theoretical constructions. In the United States, for instance, treaties are
expressly supreme law of the land and can be self-operative, creating individual rights
and duties in domestic legal processes.
In the United States, ratified human rights treaties and customary international law
are both law of the land. The Supremacy Clause of the United States Constitution makes all
Treaties made or which shall be made under the Authority of the United States… the
"Supreme Law of the Land". [15] Under the Supremacy Clause,
the law of the land is binding on the federal government as well as on state and local
governments. [16] According to the U.S. Supreme Court,[17]
the treaty power authorizes Congress to legislate under the Necessary and Proper Clause in
areas beyond those specifically conferred on Congress.
In the U.S. not all treaties, by their terms, mandate domestic applications that affect
private parties. Such treaties, therefore, are not self-executing, even though they are
ratified and are part of the law of the land according to the Supremacy Clause. Since a
private right is largely contingent on the existence of a right of action, additional
legislation is needed to grant individuals private rights pursuant to such treaties.
Self-executing treaty doctrine stipulates that not even the few U.S. ratified human
rights treaties would necessarily be binding on domestic courts. Unless a court deems a
treaty to be self-executing, the treaty will bind domestic courts only if Congress has
passed legislation for the specific purpose of implementing the treaty provisions
domestically.
While the U.S. Constitution assigns the power to make and adopt treaties to the federal
government, several state and local governments have adopted human rights treaties. For
example, in the absence of federal ratification on the Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW), San Francisco has incorporated
principles of CEDAW into binding local law.
In order to achieve an effective improvement in the exercise of disabled persons human
rights, it is important to understand the mechanisms that exist and the remedies they can
provide. Much of this manual addresses the potential of human rights mechanisms in
this context. Before analysing the available international instruments in the area
of disability, an examination of the procedure and remedies provided by the national level
will be made.
1.8 The Role of the Constitution in Municipal Law
National constitutions increasingly reflect a commitment to human rights. At times the
rights are listed in a separate section generally known as a bill of rights.
Drafters of recent constitutions often consider the language of international and regional
norms in fashioning their guarantees. Some of the possible constitutional provisions that
affect human rights are:
- Right to non-discrimination
- Right to equal treatment in specified spheres, such as employment or the court system,
or in all spheres of life
- Right to freedom from violence
- Other civil and political rights available to people including, for example, the right
to assembly, to free speech, to worship as one chooses, to privacy etc.
- Other economic and social rights available to all people, including for example, the
right to health care, housing and education
1.9 The Supremacy of the Constitution
The Constitution is said to be the supreme law of the land. [18] The
Constitution is the source of all political power within the nation.
The logical consequence of the superiority of the Constitution is that all acts of the
legislature, repugnant to the Constitution will be void. Therefore, these acts will not
bind either the courts or the citizens. The constitutionality of every law and every act
of the Government is one of the most important political principles of democracies and
universally accepted rule of law norms. Consequently, including the civil
rights of persons with disabilities within the Constitution seems to be the most effective
way in which to protect their human rights and fundamental freedoms of persons with
disabilities.
1.10 Judicial Review of Legislation
The right of a constitutional court or the highest court of the land to declare certain
laws unconstitutional is termed the power of judicial review.
The very essence of civil liberty consists of the right of every individual to claim
the protection of the laws, whenever one receives an injury; one of the main duties of
government is to protect the rights of all persons. Access to courts and the right to an
effective remedy are fundamental rights included in article 8 of the Universal Declaration
of Human Rights and articles 2 and 14 of the International Covenant on Civil and Political
Rights.
A successful rights claim may have wider impact and lead to the reform of legislation
or policies found to violate the rights of persons with disabilities. Advocates can
thus take test cases or impact litigation cases to court to challenge policies or laws,
which discriminate against disabled persons.
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[12] "In the twentieth century the international community
has come to recognize the common danger posed by the flagrant disregard of basic human
rights … In the modern age, humanitarian and practical considerations have
combined to lead the nations of the world to recognize that respect for fundamental
human rights is in their individual and collective interest…"
[13] 630 F. 2d 876, 89 ( 2d Cir.1980).
[14] 175 U.S. 677, 20 S.Ct.290.
[15] U.S. Const.art. VI Cl. 2.
[16] U.S. Const.art.VI, sec. 1,cl.2. "This
Constitution, and the Laws of the United States which shall be made in pursuance thereof;
and all treaties made, or which shall be made, under the authority of the United States,
shall be the Supreme Law of the Land".
[17] Missouri v. Holland 252 U.S. 416 (1920).
[18] For explicit claims, see inter alia, the Constitution of
Australia, Preamble; the Canadian Constitution Act, 1982, Art.552; the Constitution of
Italy, Art.1; the Constitution of Ireland, Art.6; the Constitution of Japan, Art. 98; and
the Constitution of the United States, Art. 6. For implicit claims, see inter alia, the
Constitution of India, Arts. 251 and 254; the Basic Law of Federal Republic of Germany,
Arts. 20 (3), 23,28 (1) and (3), 37, 56, 64(2), 70, 87 a(2), 98(2), and 142.
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