Introduction to Human Rights Week 3: The sources of Human Rights V. Establishment in the States' legal order Let us focus for a moment on the establishment of Human Rights in the States' legal order. This establishment is a phenomenon which strongly vary according to States and to their respective constitutional traditions. It should be remembered that States remain free to adhere to and to ratify Human Rights treaties. There are many reasons why a State decides to commit to an international treaty which aims at assuring the respect of human dignity. Most of the time, it is not just for legal considerations but it is often for political, institutional, historical or economical considerations. The process that leads States to implement Human Rights considerably vary according to the following categories of States. There are two broad categories of States: the ones which chose a dualist structure and the ones which chose a monist structure in the field of the respect for international law. In the case of dualist States, the entry into force of a treaty does not necessarily go together with its automatic integration in national law. According to this approach which clearly distinguishes international law and national law, a treaty must not only be ratified on the international stage to commit the State. The treaty commits the State on the international stage but in order for the State to be nationally committed, the treaty must be nationally received by an approbation act, which is generally a law, before being implemented. It is easy to see what it means in the field of Human Rights. Let us take the example of the United Kingdom which has very early ratified the European Convention on Human Rights after its adoption in the early 1950s. Nevertheless, because this State is characterized by a dualist tradition, the Convention could not express direct effects as long as it was not formally integrated into national law. This is what happened much later, at the end of the 20th century, with the adoption of the Human Rights Act from 1998. It is thanks to this Act that the Convention could integrate the legal order of this country. Indeed, the Convention then became an ordinary law affected in the State. The monist States have a different approach which is founded on the osmosis between international and national laws. For these States, the treaty can immediately express its effects at the national level once it enters into force at the international stage. In this perspective, there is no need to resort to the passing of an incorporation law in order for the treaty to express its effects. Let us take the example of the European Convention on Human Rights again. Let us see this time how Switzerland uses it. Switzerland ratified the European Convention on Human Rights in 1974, almost 25 years after the adoption of this instrument by the Council of Europe. However, since the ratification of the Convention by Switzerland, the treaty was immediately effective under the national law. The treaty expresses similar effects to the ones of fundamental rights which follow from the national constitutional law. The optimal and most beneficial effect of Human Rights is the one that happens when these rights are integrated in the national law and when they are able to be invoked the same way as fundamental national rights. The two sources can then be simultaneously plead before the national authorities, according to specific procedures' control to each States. The same person can therefore take both advantages of the rights established by the Constitutional law of his/her State, and of the ones guaranteed by international law. The person can invoke the two rights. This is important in the theory and in contemporary practice of Human Rights. Fundamental rights and Human Rights coexist with each other. They have the same goal but they result from different historical normative instruments that can however apply simultaneously in the same trial. From a legal point of view, these cases of coexistence raise problems of legal definition, interpretation and resolution. This is quite complex. We will have the opportunity to discuss the matter later. I would like to highlight that the issue is even more complex today. Indeed, the development of international instruments of protection on the universal and regional stages bring us to witness today some coexistence between Human Rights. The same guarantee can indeed be used by different international instruments of different origin and nature. In order to resolve the coexistence between fundamental rights and Human Rights, two very important principles have been initiated to legally govern these scenarios: the principle of subsidiarity and the principle of the right that gives the best protection. With subsidiarity, we find again the rule that we evoked earlier: Human Rights have not been conceived to supplant or to substitute for fundamental rights but to ensure a complementary protection with the one given by national law. I repeat, these guarantees do not aim at replacing the protection given by fundamental rights. On the contrary, they aim at completing, supervising and reinforcing the national protection when this one turns out to be inadequate or defaulting. In this perspective, Human Rights are not opposed to fundamental rights. They are not the enemies of fundamental rights. Nevertheless, their national implementations have to lead to an evaluation that brings to choose the guarantee which grants the most favourable protection to the beneficiary. This is where the second principle that we mentioned comes in: the primacy of the most favourable norm. According to this principle, the simultaneous application of two or more guarantees derived from national constitutional law and from international human rights law should lead to the identification of the guarantee which offers the best protection, which is the most favourable and the most beneficial for the holder. In other words, since Human Rights have been created to ensure the respect of human dignity, their aim is really, I repeat, to complete and to supervise national law. They also aim at choosing the most favourable protection for their holders. It would be against Human Rights philosophy to use a less favourable protection which follows from international human rights law in order to lower the protection of fundamental rights which follows from national constitutional law. The primacy of the most favourable norm is inherent in history, in philosophy and in the very notion of Human Rights. This is so true that several international Human Rights instruments are explicitly enshrined to this principle. The aim is to provide a better understanding, a better implementation and a better application of Human Rights on the national level. We can refer to Article 5, paragraph 2 of the two UN Covenants. They stipulate that, I quote: "There shall be no restriction upon or derogation from any of the fundamental human rights [...] existing in any State Party [...] to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that [the two Covenants do] not recognize such rights or that [they recognize] them to a lesser extent." In this perspective, Human Rights aim at ensuring a kind of safeguard, a minimum level of protection, as I mentioned earlier. In other words, Human Rights are capable of expressing their effects only if the non-application or the wrong application of national fundamental rights lead to the violation of this minimum level of protection. There is an ambiguity. Human Rights are ambiguous because they are directed against States which have to implement and respect them in their national harem of protection. I think that we clearly see the importance and the extent of the responsibility which falls to the international bodies charged to watch over the respect of Human Rights at supra-state level. We are now going to talk about this subject.
