The Constitutional Variable in the Domestic Influence of International Human Rights Treaty Law

The Constitutional Variable in the Domestic Influence of International Human Rights Treaty Law

Malcolm Langford, University of Oslo

At the 1953 conference on the constitutional future of Nigeria, a Nigerian delegate suggested including a bill of rights in the new constitution. Oliver Lyttleton, Secretary of States for the Colonies and chair of the conference, responded by saying that the Nigerians could put ‘God is Love’ into their constitution if they so wished, but not while he was in the chair… Yet by 1959 the Colonial Office supported the incorporation of a bill of rights into the Nigerian constitution (Parkinson, 2007:1)

A cursory review of the field concerned with the domestic influence of international human rights treaty appears to reveal a binary approach to the role of constitutional bills of rights.[1] On one hand, there is a view that constitutions are central since the primary role of international human rights law is to provide a modular ‘light on the hill’. We should thus not look to international law and mechanisms for any significant impact but rather to its legal and institutional reflection at the domestic level (Alston 2003). On the other hand, Simmons (2009) amongst others tests the hypothesis that international human rights treaties law and its monitoring apparatus have direct influence on domestic politics and various outcome indicators of human rights, and finds evidence of a modest but significant impact. While Simmons mentions the role of international law in affecting legal arguments in court, the impact of treaties on constitutional rights and their formal means of enforcement is seemingly not analysed –the phrases ‘constitution’ or ‘bill of rights’ are not even to be found in the index. Obviously Simmon’s methodology could be expanded to include constitutional incorporation of enforceable international treaty-like rights as an independent impact variable. This would be particularly justifiable on the basis that the provision of a domestic judicial remedy for violation of treaty rights is sometimes articulated as a right in itself.[2]

But this observation on the different assumptions and methodologies on the role of constitutions is more important for the ‘impact evaluation enterprise’ than simply the addition of an additional indicator. It potentially reveals that the degree of constitutional incorporation delineates and shapes the space in which international treaties play a domestic role. Drawing from anecdotal experience, we can put forward the hypothesis that an international human rights treaty plays a greater role in countries where the rights in the treaty have not been constitutionally incorporated. Where they are incorporated, we can only expect treaties to play an accessory role; they only become relevant where particular rights, or aspects of them, are excluded and there is uncertainty over the interpretation of the rights which international jurisprudence could potentially clarify. The principal argument for this position is that constitutions contain greater domestic legitimacy and currency as part of a localized social contract and, instrumentally, are likely to be more enforceable through the available of judicial as opposed to quasi-judicial procedures. Thus, we can casually observe in a country such as South Africa that international human rights treaties have largely played an ancillary role in domestic advocacy, mobilisation and litigation due to the effective constitutional incorporation of almost the entire ICCPR and ICESCR. However, such a hypothesis would need to be moderated to take account of the enforcement potential of domestic courts. International treaties, and particularly their complaint mechanisms, are likely to retain greater influence where domestic enforcement mechanisms for constitutional rights are weak or particular groups find little favour with the courts.

Putting this together, we could posit that the domestic constitutions are both an independent and dependent variable in determining the influence of international treaty law. They reflect a possible implementation of those treaties but that very reflection appears to affect the degree to which the treaty is then further relevant in the country.

We thus have a codependency conundrum. How does one determine impact when part of it may be transmuted through an intermediary? The way forward is to separate the two roles of the constitutional bill of rights. The easiest one to capture is the role of the constitution as dependent variable, whether qualitatively or quantitatively, since we can observe or quantify the constitutional reflection of treaty (in terms of substantive rights, rule of law and justiciability) and thus adjust our expectations for the direct impact of international treaty law. Creation of such quantitative data for inclusion in regressional analysis poses a range of challenges in itself but they are not insurmountable with sufficient resources. Inclusion of this dependent variable could actually be significant in revealing greater impact of international treaties than previously found, particularly in qualitative studies.

However, assessing the constitution as an independent variable is possibly more challenging since untangling the causes behind the final text of a constitutional bill of rights is fraught with difficulty. Even when the constitutional text is largely correlated with a treaty, one cannot leap quickly to a conclusion of causation, or a finding of no causation when the text is seemingly uncorrelated. Louis Henkin (1989: 13), in his attempt to measure the impact of the US constitution on the comparative development of bills of rights sums up the problem nicely:

One would have to trace not only obvious borrowings but also those that are implicit, not only direct adoptions or adaptations from the United States but also from others previously influenced by the United States, and contributions by the United States to the Zeitgeist, to the spirit and ideas of the times. One would have to attempt to disentangle multiple strands, notably, for example, the reciprocal influences of English, French and American ideas, persons, and events in the last half of the Century; the impact of the French Declaration on the Rights of Man and of the Citizen and the US Bill of Rights in Latin America in the nineteenth Century; or the contributions in recent decades of US constitutional ideas and the Universal Declaration of Human Rights, the latter itself a product of multiple influences. One might try too, to sort out the influences of ideas from that of power and image. The history of the influence U.S. ideas would have to be chronological as well as logical, and would have to attempt to place the influence of ideas in the changing context political, cultural and economic influence as the place of the United States in international affairs has changed over decades and centuries.

The causes behind the construction of constitutional texts are, and probably should be by definition, be complex. There are likely to be strong legal influences as well as political, economic and cultural influences at the domestic, vertical (international) and horizontal (comparative) levels. Thus a fair amount of detective legwork is needed if one wants to go beyond correlation. Parkinson’s (2007) exhaustive comparative case study work on a related question of why the British Foreign Office supported inclusion of bills of rights in constitutions in decolonization between 1953 and 1962 revealed that the traditional two views – that it was to protect national minorities or reflected Britain’s ratification of the European Convention on Human Rights – could not account for the diversity of cases. He concludes that the driving force was to stop violence in the immediate post-independence period and possibly lay the foundations for the development of a strong civil society. Thus a possible role of the ECtHR in influencing one major constitutional actor in this process, the United Kingdom, was muddied by a range of other political and cultural explanations.

In thinking about the possible impact of the treaty on the constitutional drafting process, we are also confronted with different ways in which treaties can have an impact, which reveals again the problem of correlative methods. Treaties appear to play four possible roles in the drafting process: they (1) present an easy template for drafting (2) can be taken as evidence of the Zeitgeist on human rights (3) represent international obligations that must be complied with through incorporation and (4) provide an incentive to include domestic remedies to avoid direct complaints to international human rights treaties bodies. The question is then how do we rate these different impacts? And does it matter if there were was no mens rea, no intention to comply, but simply actus reus, whereby the treaty is used as a simple template. More difficult, how does one compare these influences with the wider range of influences listed above?

The proposed paper for The Domestic Consequences of International Human Rights Treaty Ratificationwould not seek to provide any authoritative answer to the two roles of constitutions. Rather it would first attempt to make an empirical contribution to the understanding of how international treaty law influences constitution-making through a comparative case method, in this case the examination of four countries. The states to be selected would be those who entered a constitutional drafting process after signing, ratifying or evincing an intention to ratify the two principal international human rights treaties, ICCPR and/or ICESCR. The proposed countries (very much open for discussion) are South Africa, Colombia, an Asian country (Nepal/Papua New Guinea/East Timor) and a Western country (Canada in or Finland). Secondly, the case studies would look (more briefly) at the dependent variable hypothesis and see to what extent international treaties were relevant in framing the space for the further influence of treaties and how international human rights treaties continued to have effects.

References

Alston, Philp (2003), Interview in Malcolm Langford (ed.), Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies (Geneva: Centre on Housing Rights & Evictions), pp. 162-163.

Henkin, Louis (1989), ‘Introduction’, in Louis Henkin and Albert Rosenthal (eds.), Constitutionalism And Rights: The Influence of the US Constitution Abroad (New York: Columbia University Press), pp. 15.

Parkinson, Charles (2007) Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories (Oxford: Oxford University Press).

Simmons, Beth (2009), Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge: Cambridge University Press).

[1]For this note, I am using ‘constitutional bill of rights’ in a broad sense to include directly enforceable rights included in an constitution, directive principles which may have some legal weight and the incorporation of international human rights standards into the constitution or even statute law whereby the international standards have precedence over ordinary statutory law.

[2] See Article 28 UDHR, Article 2(3) ICCPR and General Comment No. 9 of the UN Committee on Economic, Social and Cultural Rights.