INTERNATIONAL SYMPOSIUM "DOMESTIC LAW IN A GLOBAL UPSWING? THE STRAINED RELATIONSHIP BETWEEN INTERNATIONAL AND DOMESTIC LAW"
30-31 May 2016, Berlin, Germany
Since the end of the last century Civil Society Organisations (CSOs) have been very successful at the international level in promoting human rights in all areas of society. The Charter of Fundamental Rights of the EU, the Statute of the International Criminal Court, the Convention to Protect the Rights of Disabled Persons, the Climate Protection Treaty, the Landmines Convention Campaign or the Aarhus Convention are examples of the successful lobbying of CSOs. The extensive rights and obligations which have been set out in these international conventions would not have been possible without CSOs. Awareness campaigns and lobbying for their central concerns often required a long stamina for these organisations. CSOs became an integral part of the global stage and are members of negotiations, commissions, international conferences, etc.
By contrast, at the national level the space for CSOs is shrinking in several countries. The Russian so-called Foreign Agents Law provides a “role model” for several countries like Hungary, Egypt, Zimbabwe, China and Israel. Authoritarian states see foreign CSOs as agents from other countries. They are bullying indigenous NGOs with overly harsh bureaucratic rules and threats of punishment. By ignoring International Human Rights conventions like the European Convention on Human Rights and the International Convention on Civil and Political Rights, the work of NGOs faces new challenges under authoritarian governments. The new approach of those governments seems to act at the expense of international law and in favour of the domestic law. Shrinking spaces for NGOs is only one side of the coin.
In December 2015, Russia adopted a law allowing it to overrule judgements from the European Court of Human Rights (ECHR). The Russian constitution takes precedence under the new Duma law. The new law provides the constitutional court the right to declare international court orders unenforceable in Russia, if they contradict the constitution. It specifically aims to “protect the interests of Russia” in the face of decisions by international bodies responsible for human rights.
Although the cases are different, there are debates in the UK, Switzerland and Italy similar to the Russian case regarding the relationship between domestic and international law. In the negotiations leading up to the signing to the Lisbon Treaty, Poland and the United Kingdom secured a protocol opting out of the EU Charter of Human Rights. The opt out states that that the ‘Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or actions of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.’
David Cameron published a paper in 2014 called “Protecting Human Rights in the UK“. The aim of the conservative initiative is to replace the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into UK law by a domestic Bill of Rights and to weaken the precedence of the rulings of the European Court of Human Rights (ECtHR) by granting this court only an advisory role.
Not only in the UK but also in Switzerland the relationship between domestic and international law is under discussion. The Swiss popular initiative „Swiss Law precedes Foreign Law“ was launched 2014 by the conservative party Swiss People’s Party. The goal of this initiative is to give Swiss law precedence over international law.
The International Court of Justice was challenged by the Italian Constitutional Court, which did not accept its ruling in the case Germany vs. Italy. The International Court of Justice had acknowledged the customary law of sovereign immunity and subsequently that the state of Germany enjoys immunity. The action of Italy for compensation for Nazi crimes was therefore dismissed. The Italian Constitutional Court found that the Italian Constitution barred Italian Courts from applying the International Court of Justice’s judgement and that the Italian law implementing the judgement was in fact unconstitutional. Of course the described cases are very different, in Italy a measure to implement international law was ruled unconstitutional, in the UK and Switzerland the initiatives reveal scepticism towards International law.
But this is not the end of the story, the latest developments in Poland show that governments not only try to weaken international law but also try to get the political predominance over their constitutional court. The opinion of the Venice Commission qualified the measures of the Polish government and the Polish parliament in this conflict with the Polish Constitutional Court as an assault on the fundamental values of human rights, democracy and the rule of law:
‘(A)s long as the situation of constitutional crisis related to the Constitutional Tribunal remains unsettled and as long as the Constitutional Tribunal cannot carry out its work in an efficient manner, not only is the rule of law in danger, but so is democracy and human rights.’
The aim of the international Symposium organised by the EU-Russia Civil Society Forum on 30-31 May 2016 in Berlin was to discuss these developments and new challenges and try to assess their impacts for further cooperation of CSOs with parliaments, political parties, professionals, governments and the public.
We are very happy that the Symposium was connected with the View or download programme here Expert conference on the occasion of 40 years of Moscow Helsinki Group anniversary year, also organised by the CSF in Berlin. The discussion of the relationship between international and domestic law as a common theme of the Symposium and the Expert conference gave the participants a good opportunity for mutual discussions and exchange.
The Symposium was organised in partnership with the German-Russian Exchange and support of the German Ministry of Foreign Affairs.