Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context.

Vol. 15 No.5 (May 2005), pp.403-405

HUMAN RIGHTS BROUGHT HOME: SOCIO-LEGAL PERSPECTIVES ON HUMAN RIGHTS IN THE NATIONAL CONTEXT, by Simon Halliday and Patrick Schmidt (eds). Oxford: Hart, 2004. 292pp. Hardback. £30.00 / $60.00. ISBN: 1-84113-388-4

Reviewed by Christopher Waters, School of Law, University of Reading. Email: c.p.m.waters@reading.ac.uk

The starting point of this book is that while human rights standards are often adopted by states through international instruments, these standards do not automatically protect individual rights domestically. The goal of this collection, edited by Simon Halliday and Patrick Schmidt, is to consider when and how international human rights standards can be internalized. To be clear, however, this is not the sort of internalization that is discussed in every undergraduate textbook of public international law (the monism versus dualism question of whether implementing legislation is needed to give effect to international obligations), but rather a socio-legal look at how formal adherence to human rights standards is or is not made effective on the ground. As such it is a welcome addition to the growing literature on the interplay between international and domestic human rights.

The book focuses on how the European Convention on Human Rights (ECHR) has been “brought home” in the United Kingdom and its western European neighbors (the use of UN human rights instruments is addressed superficially and no attention is paid to other regional rights regimes such as that of the Organization of American States). Indeed, the title of this book, HUMAN RIGHTS BROUGHT HOME, is a twist on the UK Labour Party’s announcement in the mid-1990s that it would “bring human rights home” by incorporating ECHR rights directly into domestic law (Labour Party 1996). A year after coming to power in 1997 the new Labour government fulfilled that pledge by passing the Human Rights Act (HRA) through Parliament. Among other things, the Act requires British courts to interpret legislation in line with the ECHR and allows them to declare legislation incompatible with ECHR rights. Several chapters of this book use empirical research to consider whether the first years of the HRA’s life brought about a sea change in the legal system, as was predicted prior to the Act’s coming into force in 2001. While admitting that it is still too early to gauge impact with accuracy, chapters on courts, local government and legal proceedings involving children conclude that some changes have taken place but that the effect has largely been muted. What is then required for what might be termed deep human rights implementation at the domestic level? Possibilities explored here include reliance on national human rights institutions (human rights commissions, ombudsmen), the adoption of successful litigation strategies by interest groups (a theme much more developed in the US than in the UK), and the elusive if important concept of human rights [*404] culture shifts among both legal actors and the public.

All ten chapters are strong, though I will single out two for their broad view of the interplay between international and national human rights law. In a chapter written by Denis Galligan and Deborah Sandler, and entitled simply “Implementing Human Rights,” the authors highlight the fact that international and domestic legal orders both occupy the field of human rights. There are, however, basic structural tensions between the international and national human rights regimes, since they each have different starting points, logic and even language. While the structural tension is not insurmountable, “an appreciation of the autopoetic character of the two orders, and of the consequential incompatibilities when brought together, is the first stage in understanding the implementation process” (p.28). The progressive development of rights owes much to the international legal order. It is on the international plane where key instruments – including the Universal Declaration of Human Rights – galvanized the post-war human rights movement. Classically speaking, however, international law is concerned with treaties and customs between states, not relations between states and individuals. How international legal norms are implemented domestically is generally not the concern of international law and, indeed, could not be given the vastly different arrangements – both within monist and dualist states – available for domestic reception. Although there are circumstances where the international community might intervene directly to enforce human rights norms (“humanitarian intervention” for example), indirect means such as encouragement (or shaming) are more common. To understand how international standards might be made to matter on the ground, we ultimately need to look to the domestic stage. Here, the extent of constitutionalism, the existence of strong but checked administrative bodies and the provision of remedies will determine whether rights are made to matter for ordinary citizens.

In Mikael Rask Madsen’s chapter, “France, the UK and the ‘Boomerang’ of the Internationalisation of Human Rights (1945-2000),” the interplay between the domestic and international spheres is further developed. Rather than only considering how international norms are implemented into the domestic sphere, Madsen looks at how the domestic legal system influences the international order as well. Considering the UK and French experiences, he notes that human rights had unintended consequences for those countries. From 1945 the two weakened powers projected themselves onto the world and European stages as the “true authors of the concept of human rights” (p.57). The Council of Europe was a forum in which to act free of cold war constraints and to showcase the ideals of the two states. The UK and France not only assumed that their national laws complied with the ECHR, they were confident that “the ECHR constituted merely a Europeanisation of their own particular national practices of civil rights and ‘libertés publiques’” (p.58). Following the post-war period of externalizing British and French thought, the “boomerang” effect began to take hold. Madsen suggests that, from around 1970, “the subsequent development of an increasingly [*405] autonomous European regime of human rights saw the UK and France become the two most regular customers before the Court and Commission in Strasbourg” (p.58). Madsen not only describes this phenomenon of ‘exteriorisation’ and then ‘homecoming’ but also explores the reasons for these changes. In doing so he canvasses broad political and social movements (decolonization and the welfare state), as well as strategies pursued by individuals, civil society and governments. Madsen’s ability to contrast the strategies – and even personalities – of jurists on the different sides of the Channel is a particularly appealing aspect of this chapter.

Empirical studies do exist to show that there is no automatic link between formal accession to a human rights treaty and the implementation of the treaty’s standards domestically (Hathaway 2002). Less obvious is when and how the international-domestic link can be made successfully. This book provides a fine regional case study of rights internalization.

REFERENCES:

Labour Party. 1996. BRINGING RIGHTS HOME: LABOUR’S PLANS TO INCORPORATE THE EUROPEAN CONVENTION ON HUMAN RIGHTS INTO UK LAW. London: Labour Party.

Hathaway, Oona A. 2002. “Do Human Rights Treaties Make a Difference?” 111 YALE LAW JOURNAL 1935-2042.

*************************************************