|Image from : www.cbc.ca|
An individual may find a remedy in the domestic courts if the constitution guarantees fundamental rights enshrined in specific provisions. A country may choose to be monist or dualist in its' adherence to international law. In order to understand the nature of international law its' sources must be discussed. Article 38, paragraph 1 of the statute of the court describes the sources of international law which includes: international conventions, international custom, general principles of law recognized by civilized states and subject to provisions of article 59, judicial decisions and teachings of highly qualified publicists.
Gardiner in his classification excludes treaties as general international law stating that treaties create right and duties only to those who are signatories. The Vienna convention 1969 defines treaties as "an international agreement concluded between states in written form and governed by international law" Gardiner maybe right in his statement about treaties. The highest number of reservations have been made to the Convention on the Elimination all forms of Discrimination Against Women (CEDAW). Article 14 of the International convention on Civil and Political rights (ICCPR) is subject to the highest number of reservations. The US has not yet ratified the convention on the rights of the child. The US has also made reservations to Article 6 right to life and Article 7 Prohibition against torture which are non-derogable rights.
Although US has derogated from these rights the decision in Hamdan v Rumsfield illustrates that there are instances in which the domestic courts may give effect to rights within their discretion. President Bush had created a military commission to try prisoners of war and declared the claimant Hamdan had committed acts triable by the commission. Supreme court ruling stated the commission was not constitutional as it violates the rules established by uniform code of military justice and Article 3 common to all Geneva conventions concerning right to a fair trial and prohibition on torture and indefinite detention.
Alston and Goodman has commented on the role of customary international law as indispensable to an adequate understanding of the human rights regime. In Filartiga v Pena Irala, for the purpose of the Allen Tort Statute, torture was considered to violate law of nations. It was decided that prohibition against torture has become part of customary international law. The decision in Filartiga was influenced by the Universal Declaration of Human Rights. UDHR is not a treaty nor is it an international agreement. Thus it has no legally binding force. There is an argument that because it was adopted by members of the General Assembly by vote it can be seen as an authoritative statement of the international community.
In Filartiga it was further argued that a declaration creates an expectation of adherence and ''in so far as the declaration is gradually justified by state practice a declaration may become custom'' The UDHR can be made effective in national law by being incorporated into a national constitution and the constitution may go on to specify whether or not international agreements have been made law. Article 39 (1) b of the South African constitution requires judges to take into account international law in judicial interpretation. Brownlie's statement thus creates a distinction between standard setting convention and general international law and in the above paragraphs the binding nature of agreements was discussed. As far as the UDHR is concerned one may say that it has a nuanced understanding.
Eleanor Rooselvelt and scholars such as Rossalyn Higgins has advocated on the universalist position of human rights. They take the position that rights are universal and indivisble and should apply to every human being equally. There is an opposing school of thought on part of cultural relativists those who take the position that rights are not universal but should be made culturally relevant. Thus regional documents on Human rights were made such as the Bankock declaration of human rights, Cairo declaration of human rights and the Islamic declaration of Human Rights. The 'asian values debate' by cultural relativists state that human rights are culturally dependant and the principles embedded in the UDHR are only products of Western political history and a universal attempt to extend western liberal ideals to the rest of the world in the form of cultural imperialism.
Therefore the rights embedded in the UDHR is not universal but is in contention with rights of other cultures and such countries prefer local and traditional approaches to justice. In conclusion to the discussion on Brownlie's arguement it must be said that human rights problems do occur in specific legal contexts and remedies to violations of human rights depends on the context in which human rights are recognized.
-International protection of Human Rights subject guide University of London International Programmes.
-Alston and Goodman International Human rights.
-Steinor and Alston International Human Rights in context Law Politics and Morals.