Chapter 12: Interpenetration of International National Systems:


International Protection of Human Rights by States





ABSTRACT
There are two sections mentioned in this chapter, section A- the Spread of State Constitutions in the Liberal Model and section B- Human Rights Treaties within States’ Legal and Political Orders. The first section describes the constitutions supported by liberal political foundation and often describes the adoption of human rights and constitutionalism by many states during the last half of the 20th century (particularly with de-colonization and the end of the Cold War). Also noted, are the relationships between state constitutions and the international human rights regime. The first article on page 989 focuses on how constitutions, as basic state documents can vary radically in their significance as well as the characteristics of a constitution such as: popular sovereignty, genuine elections in a multi-party system, an independent judiciary and so on. This begs the question, what conditions will be most favourable for constitutionalism to be successfully established? The article by Yash Ghai, the Kenyan Bill of Rights: Theory and Practice on page 991, illustrates how the Bill of Rights in Africa came into effect and describes the issues associated with its adoption. The move towards constitutionalism in diverse states is analyzed. This includes the evolution of constitutionalism, rule of law and political liberation in Africa. Also analyzed are the constitutional realities and changes of Russia and Post-Communist Societies as each country with their own distinct features undergoes changes according to various methods utilized to bring about these transformations.
Section B deals with how different states view human rights treaties within their own domestic legal and political orders. The first article, ‘International Labour Conventions and National Law’, by V. Leary describes the efficacy of human rights treaties and the important role of national law in the recognition of such treaties. Issues raised here focus on how such treaties influence the national legal and political system, and also whether these treaties should be incorporated into the system, or remain separate from the state as part of an independent international law. Leary believes that the efficacy of human rights treaties depends essentially on the incorporation of their provisions in national law. International law determines the validity of treaties in the international system, but the legal system at the state level determines the amount of force behind each treaty within the state. There are two types of incorporation, legislative (dualist) and automatic (monist). Some will agree with the legislative incorporation of treaties where the validity of treaties depends on its enactment as legislation. Others will take the latter point of view and argue that ratified treaties become domestic law by virtue of their ratification. These approaches are demonstrated by the case studies of Japan, Germany the UK and Australia. The end of the section also begins to deal with issues regarding the role of the judiciary in determining domestic inconsistencies with international human rights treaties.


CRITICAL ASSESSMENT
As noted in the introduction to the chapter the role of the state is central to any discussion of human right violations and protections. The central theme of this chapter seems to be how states internalize international human rights conventions and laws and then balance the domestic laws with international obligations. This may be done in any number of ways such as constitutionalism, the internalizing of treaty norms through government and lastly through the judiciary in the form of judicial review. Each of these can essentially be observed as a method of attempting to reconcile international “norms” and obligations with domestic sovereignty (and legislative supremacy). However, the effectiveness of each of these methods can be questionable, thus creating some contention. The chapter proceeds to deal with several interpretations of the issue and methods used to address the corresponding problems.


Section A outlines the need for vibrant civil society and engagement of the people in Africa before liberal democratic constitutionalism can be meaningful. The case study of Kenya provides a critical, but optimistic analysis of its experience with constitutions and “liberal-democracy”. It would have been interesting to compare this experience with that of other African nations, however the other articles dealing with Africa are more focussed on evaluating the “big picture” (how to bring democracy into Africa while taking a somewhat culturally relativist position as done by Ramcharan, and