Ensuring compliance with international human rights law: the role of national authorities

Abstract

Introduction Since the general framework of international human rights law has been built in the 1960s to the 1980s, a new generation of questions has arisen, which focuses more on the effectiveness of that framework and, particularly, on its impact at national level. The role of national authorities is vital in this respect. International human rights can only be effective on the ground, where they really matter, if national courts, parliaments, and governments rely on them, and if civil society mobilizes in order to hold authorities accountable on that basis (see, e.g. D. Beyleveld, ‘The Concept of a Human Right and Incorporation of the European Convention on Human Rights’, (1995) Public Law , 577; C. Heyns and F. Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (The Hague: Kluwer Law International, 2002); O. Schachter, ‘The Obligation to Implement the Covenant in Domestic Law’ in L. Henkin (ed.), The International Bill of Rights. The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981), p. 311; on the role of national courts in applying international human rights, see B. Conforti and F. Francioni (eds.), Enforcing International Human Rights in Domestic Courts (The Hague: Martinus Nijhoff, 1997)). Pressure from below is especially important since neither foreign governments, nor international actors, can substitute for the role of local actors. As we have seen, international human rights treaties are specific in that they are concluded not in the interest of the parties, but for the benefit of the population under the jurisdiction of the parties. As noted by Louis Henkin, the implication is that ‘the principal element of horizontal deterrence is missing’: ‘the threat that “if you violate the human rights of your inhabitants, we will violate the human rights of our inhabitants” hardly serves as a deterrent’ (L. Henkin, ‘International Law: Politics, Values and Functions’, Recueil des cours , 216 (1989), at 253). Or, as Oona Hathaway puts it: ‘a nation’s actions against its own citizens do not directly threaten or harm other states. Human rights law thus stands out as an area of international law in which countries have little incentive to police non-compliance with treaties or norms’ (O. A. Hathaway, ‘Do Human Rights Treaties Make a Difference’, Yale Law Journal , 111 (2002), 1935 at 1938).