The domestication of international human rights: An old but current challenge

The European Court of Human Rights is going through hard times at present. UK populist media and several key political figures in the country are leading an elaborated campaign against the Strasbourg-based Court (read, for example, about the story of the ‘powerful’ cat that managed to prevent the deportation of a foreign criminal). A few weeks ago, David Cameron went to Strasbourg to speak about the need to reform the Court. In the Prime Minister’s opinion, it does not serve anymore the purpose it was meant to fulfil when it was created in the post-War era. In Cameron’s view, the Court should abstain from interfering in fully democratic countries that have internal bodies and legislation intended to guarantee fundamental rights and liberties, even if the views expressed by those bodies (above all, the Parliament) do not match the opinions of the Court.

In a much surlier way, Venezuelan President Hugo Chávez has also criticised the equivalent of the Strasbourg-Court in the Americas, the Inter-American Court of Human Rights, after this Court ruled in favour of an opposition political leader who was seeking to challenge Chávez in the next election. A few weeks ago I wrote in this blog that the growing criticism against these two international human rights bodies could be a worrying sign of the decreasing relevance of the idea of human rights in global affairs. Is that so? Is there anything we can do about it? Fist of all, Chávez’s reaction is nothing but a desperate pre-electoral move. (It seems that he lives in an on-going electoral campaign anyway). In my view, human rights activists should not even bother. We must continue defending a Court that has traditionally applied very high standards in tracking States performance in human rights.

The UK-based campaign deserves some more attention. Amnesty International has reacted to Cameron’s ‘proposals’ arguing that they are more harmful than effective: “European Court of Human Rights is no small claims court”. The truth is that, even if Cameron is particularly vocal about it, his main point, namely, that international human rights bodies should not treat equally democratic and non-democratic countries, is widely shared outside the UK. Yesterday, the Supreme Court of Spain declared Baltasar Garzón not guilty for abuse of power when he tried to investigate the crimes committed under the Franco-dictatorship. Nevertheless, the Court considered that Mr. Garzón was wrong to investigate deaths under dictatorship. Spain enacted an Amnesty Law in 1977, less than two years after Franco’s death and more than one year before the adoption of the Constitution. The Supreme Court considered that the Amnesty Law does not allow any investigation of the crimes against humanity committed during the dictatorship (1939-1975). In particular, the ruling says (pp. 20-21):

The main point of the ‘transition’, highly praised national and internationally, was to obtain peaceful reconciliation between Spaniards, and both the Amnesty Law and the Constitution played a critical role in that historic time. (…) Precisely, since the ‘transition’ reflects the will of the Spanish people, no judge or court is allowed to challenge the legitimacy of that process in any way. (The Amnesty Law) is in force and, as such, it could only be repealed by the Parliament.

(Original text: La idea fundamental de la “transición”, tan alabada nacional e internacionalmente, fue la de obtener una reconciliación pacífica entre los españoles y tanto la Ley de Amnistía como la Constitución Española fueron importantísimos hitos en ese devenir histórico. (…) Precisamente, porque la “transición” fue voluntad del pueblo español, articulada en una ley, es por lo que ningún juez o tribunal, en modo alguno, puede cuestionar la legitimidad de tal proceso. Se trata de una ley vigente cuya eventual derogación correspondería, en exclusiva, al Parlamento.)

Although current international human rights law considers amnesties to be generally unacceptable when they are used to impede the investigation of serious human rights violations (as the UN Human Rights Committee reminded Spain in its Concluding Observations of 2008), the Supreme Court of Spain does not seem persuaded by it, since it believes that international human rights law does not apply in all countries in the same way. In a nutshell, paraphrasing the tourist slogan of the 1960s, Spain is different.

We are witnessing an increasing mistrust vis-à-vis international human rights bodies. Influential actors portray them as malicious foreign forces that intend to bypass democratic institutions and interfere with domestic affairs. This is not a new phenomenon, and now more than ever we ought to sustain the necessity of effective international human rights mechanisms. Yet, it is of critical importance, both for victims and for the efficiency of the process, to act at home before the case reaches the international forum. Therefore, we need to advocate the domestication of international human rights norms and principles, demanding internal bodies (from local councils to the Supreme Court) to adopt them as policy guidelines and binding rules. We must “localise human rights”, making them more locally relevant always in line with their inherent universality. The power of human rights cannot be measured by the internationalisation of human rights legislation, but rather by the extent to which these rights have been interiorised and applied by public authorities at both national and local levels.

Koldo Casla



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