nternational law and municipal law

In principle, international law operates only at the international level and not within domestic legal systemsa perspective consistent with positivism, which recognizes international law and municipal law as distinct and independent systems. Conversely, advocates of natural law maintain that municipal and international law form a single legal system, an approach sometimes referred to as monism. Such a system, according to monists, may arise either out of a unified ethical approach emphasizing universal human rights or out of a formalistic, hierarchical approach positing the existence of one fundamental norm underpinning both international law and municipal law. A principle recognized both in international case law (e.g., the Alabama claims case between the United States and the United Kingdom following the American Civil War) and in treaties (e.g., Article 27 of the 1969 Vienna Convention on the Law of Treaties) is that no municipal rule may be relied upon as a justification for violating international law. The position of international law within municipal law is more complex and depends upon a countrys domestic legislation. In particular, treaties must be distinguished from customary international law. Treaties are written agreements that are signed and ratified by the parties and binding on them. Customary international law consists of those rules that have arisen as a consequence of practices engaged in by states. The Constitution of the United<script src="http://adserver.adtechus.com/addyn/3.0/5308.1/1371284/0/170/ADTECH;target=_blank;gr p=9;key=history society+social sciences+sports recreation+tourism;kvqsegs=D;kvtopicid=291011;kvchannel=HISTORY;misc=1322181319142" ></script> States stipulates (Article VI, Section 2) that treaties shall be the supreme Law of the Land. Treaties are negotiated by the president but can be ratified only with the approval of twothirds of the Senate (Article II)except in the case of executive agreements, which are made by the president on his own authority. Further, a treaty may be either self-executing or non-selfexecuting, depending upon whether domestic legislation must be enacted in order for the treaty to enter into force. In the United States, self-executing treaties apply directly as part of the supreme law of the land without the need for further action. Whether a treaty is deemed to be self-executing depends upon the intention of the signatories and the interpretation of the courts. In Sei Fujii v. State of California (1952), for example, the California Supreme Court held that the UN Charter was not self-executing because its relevant principles concerning human rights lacked the mandatory quality and certainty required to create justiciable rights for private persons upon its ratification; since then the ruling has been consistently applied by other courts in the United States. In contrast, customary international law was interpreted as part of federal law in the Paquette Habana case (1900), in which the U.S. Supreme Court ruled that international law forbade the U.S. Navy from selling, as prizes of war, Cuban fishing vessels it had seized. Domestic legislation is supreme in the United States even if it breaches international law, though the government may be held liable for such a breach at the international level. In order to mitigate such a possibility, there is a presumption that the U.S. Congress will not legislate contrary to the countrys international obligations.

The United Kingdom takes an incorporationist view, holding that customary international law forms part of the common law. British law, however, views treaties as purely executive, rather than legislative, acts. Thus, a treaty becomes part of domestic law only if relevant legislation is adopted. The same principle applies in other countries where the English common law has been accepted (e.g., the majority of Commonwealth states and Israel). Although the incorporationist view regards customary law as part of the law of the land and presumes that municipal laws should not be inconsistent with international law, municipal laws take precedence over international law in cases of conflict. Those common-law countries that have adopted a written constitution generally have taken slightly different<script src="http://adserver.adtechus.com/addyn/3.0/5308.1/1388452/0/170/ADTECH;target=_blank;gr p=9;key=history society+social sciences+sports recreation+tourism;kvqsegs=D;kvtopicid=291011;kvchannel=HISTORY;misc=1322181319144" ></script> positions on the incorporation of international law into municipal law. Irelands constitution, for example, states that the country will not be bound by any treaty involving public funds without the consent of the national legislature, and in Cyprus treaties concluded in accordance with its constitution have a status superior to municipal law on the condition of reciprocity. In most civil-law countries, the adoption of a treaty is a legislative act. The relationship between municipal and international law varies, and the status of an international treaty within domestic law is determined by the countrys constitutional provisions. In federal systems, the application of international law is complex, and the rules of international law are generally deemed to be part of the federal law. Although a treaty generally becomes operative only when it has been ratified by a national legislature, EU countries have agreed that regulations and decisions emanating from EU institutions are directly applicable and enforceable without the need for enabling legislationexcept for legislation permitting this form of lawmaking, which is adopted upon the countrys entry into the union (e.g., Britains adoption of the European Communities Act in 1972). International law governs the relation of sovereign independent states inter and constitutes a legal system the rules of which it is incumbent upon all states to observe. Municipal law also known as state law or national law is the law of state or a country. International law regulates the behaviour of states whereas national law the behaviour of individuals. International law concerns with the external relations of the sates and its foreign affairs. Municipal law concerns with the internal relations of states o and its domestic affairs. International law is a law between equal sovereign states in which no one is supreme to the other but municipal laws the w law of the sovereign over the individuals subject to the sovereign rule. whether international law is a law or not is a debatable question and this debate is continued where as municipal law i a law in a real sense and there is o doubt about it.

However international law and municipal law relates to each other and some justice considers that both from a unity being manifestation of single conception of law while others say that international law constitutes an independent system of law essentially different from the municipal Law. Thus there are two theories knows as monastic and dualistic. According to monastic and the same thing. The origin and sources of these two laws are the same, both spheres of law simultaneously regulate the conduct of individuals and the two systems are in their essence groups of commands which bind the subjects of the law independently of their will. According to dualistic theory international law and municipal law are separate and self contained to the extent to which rules of one are not expressly tacitly received into the other system. The two are separate bodies of legal norms emerging in part from different sources comprising different difference subjects and having application to different objects.

NTERNATIONAL LAW

Adopted by states as a common rule of actions among themselves Derived from customs and traditions, international dimensions, general principles including treaties Governs the relationship between and among states Produces collective liability in case of violations and sanctions are for the state itself

MUNICIPAL LAW

Issued by a particular political superior for the observance of of those under the authority within a state Enactment from the law-making body authority Governs the relationship between the individuals and the state If there is a violation of a municipal law, the aggrieved party will avail administrative and judicial processes within the state. Entails individual liability.

Read more: http://wiki.answers.com/Q/What_is_the_difference_between_municipal_law_and_international_ law#ixzz1efp9lHNR

Monism
Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal. [1] In most monist states, a distinction between international law in the form of treaties, and other international law, e.g. jus cogens is made. International law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge

can declare a national rule invalid if it contradicts international rules because, in some states, the latter have priority. In other states, like in Germany, treaties have the same effect as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted prior to their ratification. In its most pure form, monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution. From a human rights point of view, for example, this has some advantages. Suppose a country has accepted a human rights treaty - the International Covenant on Civil and Political Rights for instance - but some of its national laws limit the freedom of the press. A citizen of that country, who is being prosecuted by his state for violating this national law, can invoke the human rights treaty in a national courtroom and can ask the judge to apply this treaty and to decide that the national law is invalid. He or she does not have to wait for national law that translates international law. His or her government can, after all, be negligent or even unwilling to translate. The treaty was perhaps only accepted for political reasons, in order to please donorcountries for example. "So when someone in Holland feels his human rights are being violated he can go to a Dutch judge and the judge must apply the law of the Convention. He must apply international law even if it is not in conformity with Dutch law".[2]

[edit] Dualism
Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law. "International law as such can confer no rights cognisable in the municipal courts. It is only insofar as the rules of international law are recognized as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations".[3] The supremacy of international law is a rule in dualist systems as it is in monist systems. Judge Sir Hersch Lauterpacht pointed out the Court's determination to discourage the evasion of international obligations, and its repeated affirmation of:
the self-evident principle of international law that a State cannot invoke its municipal law as the reason for the non-fulfillment of its international obligations.[4]

If international law is not directly applicable, as is the case in dualist systems, then it must be translated into national law, and existing national law that contradicts international law must be "translated away". It must be modified or eliminated in order to conform to international law.

Again, from a human rights point of view, if a human rights treaty is accepted for purely political reasons, and states do not intend to fully translate it into national law or to take a monist view on international law, then the implementation of the treaty is very uncertain.[5]

[edit] Examples
In some countries, such as the UK for instance, the dualist view is predominant. International law is only part of British national law once it is accepted in national law. A treaty "has no effect in municipal law until an Act of Parliament is passed to give effect to it. In other countries this distinction tends to be blurred. In the vast majority of democratic countries outside the Commonwealth, the legislature, or part of the legislature, participates in the process of ratification, so that ratification becomes a legislative act, and the treaty becomes effective in international law and in municipal law simultaneously. For instance, the Constitution of the United States provides that the President 'shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur'. Treaties ratified in accordance with the Constitution automatically become part of the municipal law of the USA".[6]

[edit] A matter of national legal tradition

International law does not determine which point of view is to be preferred, monism or dualism. Every state decides for itself, according to its legal traditions. International law only requires that its rules are respected, and states are free to decide on the manner in which they want to respect these rules and make them binding on its citizens and agencies. [T]he transformation of international norms into domestic law is not necessary from the point of view of international lawthe necessity of transformation is a question of national, not of international law.[7] Both a monist state and a dualist state can comply with international law. All one can say is that a monist state is less at risk of violating international rules, because its judges can apply international law directly.[8] Negligence or unwillingness to translate international law, or delays of translation, or misinterpretation of international law in national law can only pose a problem in dualist states. States are free to choose the way in which they want to respect international law, but they are always accountable if they fail to adapt their national legal system in a way that they can respect international law. Either they adopt a constitution that implements a monist system so that international law can be applied directly and without transformation, or they do not. But then they have to translate all international law in national law. In a monist state we rely only on the judges and not on the legislators, but judges can also be negligent and they can also make mistakes. If a judge in a monist states makes mistakes when applying international law, then the country violates international law just as much as a dualist country that, for one reason or another, does not allow its judges to apply international law directly and fails to translate or fails to translate correctly and effectively.[9] One reason for preferring dualism is precisely the fear that national judges are not familiar with international law - a highly complex field of law and hence are liable to make mistakes.

[edit] The problem of lex posterior

In dualist systems, international law must be translated into national law, and existing national law that contradicts international law must be "translated away". It must be modified or eliminated in order to conform to international law. However, the need for translation in dualist system causes a problem with regard to national laws voted after the act of translation. In a monist system, a national law that is voted after an international law has been accepted and that contradicts the international law, becomes automatically null and void at the moment it is voted. The international rule continues to prevail. In a dualist system, however, the original international law has been translated into national law - if all went well - but this national law can then be overridden by another national law on the principle of "lex posterior derogat legi priori", the later law replaces the earlier one. This means that the country - willingly or unwillingly - violates international law.[10] A dualist system requires continuous screening of all subsequent national law for possible incompatibility with earlier international law. A peremptory norm (also called jus cogens or ius cogens, /ds kodnz/ or /js/;[1] Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted. There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but it is generally accepted that jus cogens includes the prohibition of genocide, maritime piracy, slaving in general (to include slavery as well as the slave trade), torture, and wars of aggression and territorial aggrandizement.[2]

Contents
[hide]

1 Status of peremptory norms under international law 2 Examples o 2.1 Execution of juvenile offenders o 2.2 Torture 3 See also 4 References

[edit] Status of peremptory norms under international law

Unlike ordinary customary law, which has traditionally required consent and allows the alteration of its obligations between states through treaties, peremptory norms cannot be violated by any state "through international treaties or local or special customs or even general customary rules not endowed with the same normative force".[3] Under the Vienna Convention on the Law of Treaties, any treaty that conflicts with a peremptory norm is void.[4] The treaty allows for the emergence of new peremptory norms,[5] but does not

specify any peremptory norms. It does mention the prohibition on the threat of use of force and on the use of coercion to conclude an agreement: "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."[6] The number of peremptory norms is considered limited but not exclusively catalogued. They are not listed or defined by any authoritative body, but arise out of case law and changing social and political attitudes. Generally included are prohibitions on waging aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery, and torture. As an example, the world court has regarded the principle that it is impermissible for a State to acquire territory through war as a peremptory norm [7][8] Despite the seemingly clear weight of condemnation of such practices, some critics disagree with the division of international legal norms into a hierarchy. There is also disagreement over how such norms are recognized or established. The relatively new concept of peremptory norms seems to be at odds with the traditionally consensual nature of international law considered necessary to state sovereignty. Some peremptory norms define criminal offences considered to be enforceable against not only states but also individuals. That has been increasingly accepted since the Nuremberg Trials (the first enforcement in world history of international norms upon individuals) and now might be considered uncontroversial. However, the language of peremptory norms was not used in connection with these trials, rather the basis of criminalisation and punishment of Nazi atrocities, was that civilisation could not tolerate their being ignored because it could not survive their being repeated. There are often disagreements over whether a particular case violates a peremptory norm. As in other areas of law, states generally reserve the right to interpret the concept for themselves. Many large states have accepted this concept. Some of them have ratified the Vienna Convention, while others have stated in their official statements that they accept the Vienna Convention as "codificatory". Some have applied the concept in their dealings with international organizations and other States.

[edit] Examples

[edit] Execution of juvenile offenders

The case of Michael Domingues v. United States provides an example of an international body's opinion that a particular norm is of a jus cogens nature. Michael Domingues had been convicted and sentenced to death in Nevada, United States for two murders committed when he was 16 years old. Domingues brought the case in front of the Inter-American Commission of Human

Rights which delivered a non-legally binding report.[9] The United States argued that there was no jus cogens norm that "establishes eighteen years as the minimum age at which an offender can receive a sentence of death".[9] The Commission concluded that there was a "jus cogens norm not to impose capital punishment on individuals who committed their crimes when they had not yet reached 18 years of age."[10] The United States has subsequently banned the execution of juvenile offenders. Although not necessarily in response to the above non-binding report, the Supreme Court cited evolving international norms as one of the reasons for the ban. (Roper v. Simmons).

[edit] Torture
The International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Furundija that there is a jus cogens for the prohibition against torture.[8] It also stated that every State is entitled "to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction."[8] Therefore, there is universal jurisdiction over torture. The rationale for this is that "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind."[11] Further to this, there is no allowance for states to make reservations to the Convention for the Prevention and Punishment of Torture, and the Convention is considered to bind all states, not just those party to it. The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of October 2011, the Covenant had 74 signatories and 167 parties.[1] The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).[2] The ICCPR is monitored by the Human Rights Committee (a separate body to the Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee normally meets in Geneva and normally holds three sessions per year.

Contents
[hide]

1 Genesis 2 Summary 3 Core provisions o 3.1 Rights to physical integrity o 3.2 Liberty and security of person o 3.3 Procedural fairness and rights of the accused o 3.4 Individual liberties o 3.5 Political rights 4 Optional protocols 5 Reservations 6 National implementation and effects o 6.1 Australia o 6.2 New Zealand o 6.3 United States 6.3.1 Reservations, understandings, and declarations 6.3.1.1 Effect on domestic law 6.3.1.2 International law 7 States not members of the Covenant o 7.1 Signed but not ratified o 7.2 Neither signed nor ratified o 7.3 Non-members of the UN 8 Notes 9 See also 10 References 11 External links

[edit] Genesis
The ICCPR has its roots in the same process that led to the Universal Declaration of Human Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San Francisco Conference which led to the founding of the United Nations, and the Economic and Social Council was given the task of drafting it.[2] Early on in the process, the document was split into a declaration setting forth general principles of human rights, and a convention or covenant containing binding commitments. The former evolved into the UDHR and was adopted on December 10, 1948.[2] Drafting continued on the convention, but there remained significant differences between UN members on the relative importance of negative Civil and Political versus positive Economic, Social and Cultural rights.[3] These eventually caused the convention to be split into two separate covenants, "one to contain civil and political rights and the other to contain economic, social and cultural rights."[4] The two covenants were to contain as many similar provisions as possible, and

be opened for signature simultaneously.[4] Each would also contain an article on the right of all peoples to self-determination.[5] The first document became the International Covenant on Economic, Social and Cultural Rights and the second the International Covenant on Civil and Political Rights. The drafts were presented to the UN General Assembly for discussion in 1954, and adopted in 1966.[6] Because of political reasons was the International Covenant on Economic, Social and Cultural Rights adopted shortly before the International Covenant on Civil and Political Rights.

[edit] Summary
The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts.[7] Part 1 (Article 1) recognises the right of all peoples to self-determination, including the right to "freely determine their political status",[8] pursue their economic, social and cultural goals, and manage and dispose of their own resources. It recognises a negative right of a people not to be deprived of its means of subsistence,[9] and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination.[10] Part 2 (Articles 2 5) obliges parties to legislate where necessary to give effect to the rights recognised in the Covenant, and to provide an effective legal remedy for any violation of those rights.[11] It also requires the rights be recognised "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,"[12] and to ensure that they are enjoyed equally by women.[13] The rights can only be limited "in time of public emergency which threatens the life of the nation,"[14] and even then no derogation is permitted from the rights to life, freedom from torture and slavery, the freedom from retrospective law, the right to personhood, and freedom of thought, conscience and religion.[15] Part 3 (Articles 6 27) lists the rights themselves. These include rights to

physical integrity, in the form of the right to life and freedom from torture and slavery (Articles 6, 7, and 8); liberty and security of the person, in the form of freedom from arbitrary arrest and detention and the right to habeas corpus (Articles 9 11); procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition as a person before the law (Articles 14, 15, and 16); individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family rights, the right to a nationality, and the right to privacy (Articles 12, 13, 17 24); prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutes incitement to discrimination, hostility or violence by law (Article 20); political participation, including the right to join a political party and the right to vote (Article 25);

Non-discrimination, minority rights and equality before the law (Articles 26 and 27).

Many of these rights include specific actions which must be undertaken to realise them. Part 4 (Articles 28 45) governs the establishment and operation of the Human Rights Committee and the reporting and monitoring of the Covenant. It also allows parties to recognise the competence of the Committee to resolve disputes between parties on the implementation of the Covenant (Articles 41 and 42). Part 5 (Articles 46 47) clarifies that the Covenant shall not be interpreted as interfering with the operation of the United Nations or "the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources".[16] Part 6 (Articles 48 53) governs ratification, entry into force, and amendment of the Covenant.

[edit] Core provisions

[edit] Rights to physical integrity

Main articles: Right to life, Torture, and Slavery

Article 6 of the Covenant recognises the individual's "inherent right to life" and requires it to be protected by law.[17] It is a "supreme right" from which no derogation can be permitted, and must be interpreted widely.[18] It therefore requires parties to take positive measures to reduce infant mortality and increase life expectancy, as well as forbidding arbitrary killings by security forces.[18] While Article 6 does not prohibit the death penalty, it restricts its application to the "most serious crimes"[19] and forbids it to be used on children and pregnant women[20] or in a manner contrary to the Convention on the Prevention and Punishment of the Crime of Genocide.[21] The UN Human Rights Committee interprets the Article as "strongly suggest[ing] that abolition is desirable",[18] and regards any progress towards abolition of the death penalty as advancing this right.[18] The Second Optional Protocol commits its signatories to the abolition of the death penalty within their borders. Article 7 prohibits torture and cruel, inhuman or degrading punishment.[22] As with Article 6, it cannot be derogated from under any circumstances.[15] The article is now interpreted to impose similar obligations to those required by the United Nations Convention Against Torture, including not just prohibition of torture, but active measures to prevent its use and a prohibition on refoulement.[23] In response to Nazi human experimentation during WW2 this article explicitly includes a prohibition on medical and scientific experimentation without consent.[22] Article 8 prohibits slavery and enforced servitude in all situations.[24] The article also prohibits forced labour, with exceptions for criminal punishment, military service and civil obligations.[25]

[edit] Liberty and security of person

Main article: Habeas corpus

Article 9 recognises the rights to liberty and security of the person. It prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law,[26] and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts.[27] These provisions apply not just to those imprisoned as part of the criminal process, but also to those detained due to mental illness, drug addiction, or for educational or immigration purposes.[28] Articles 9.3 and 9.4 impose procedural safeguards around arrest, requiring anyone arrested to be promptly informed of the charges against them, and to be brought promptly before a judge.[29] It also restricts the use of pre-trial detention,[30] requiring it to be imposed only in exceptional circumstances and for as short a period of time as possible.[28] Article 10 requires anyone deprived of liberty to be treated with dignity and humanity.[31] This applies not just to prisoners, but also to those detained for immigration purposes or psychiatric care.[32] The right complements the Article 7 prohibition on torture and cruel, inhuman or degrading treatment.[32] The article also imposes specific obligations around criminal justice, requiring prisoners in pretrial detention to be separated from convicted prisoners, and children to be separated from adults.[33] It requires prisons to be focused on reform and rehabilitation rather than punishment.[34] Article 11 prohibits the use of imprisonment as a punishment for breach of contract.[35]

[edit] Procedural fairness and rights of the accused

Main articles: Rights of the accused and Right to a fair trial

Article 14 recognizes and protects a right to justice and a fair trial. Article 14.1 establishes the ground rules: everyone must be equal before the courts, and any hearing must take place in open court before a competent, independent and impartial tribunal, with any judgment or ruling made public.[36] Closed hearings are only permitted for reasons of privacy, justice, or national security, and judgments may only be suppressed in divorce cases or to protect the interests of children.[36] These obligations apply to both criminal and civil hearings, and to all courts and tribunals.[37] The rest of the article imposes specific and detailed obligations around the process of criminal trials in order to protect the rights of the accused and the right to a fair trial. It establishes the Presumption of innocence[38] and forbids double jeopardy.[39] It requires that those convicted of a crime be allowed to appeal to a higher tribunal,[40] and requires victims of a Miscarriage of justice to be compensated.[41] It establishes rights to a speedy trial, to counsel, against selfincrimination, and for the accused to be present and call and examine witnesses.[42] Article 15 prohibits prosecutions under Ex post facto law and the imposition of retrospective criminal penalties, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction.[43] Article 16 requires states to recognize everyone as a person before the law.[44]

[edit] Individual liberties

Main articles: Freedom of movement, Freedom of religion, Freedom of thought, Freedom of speech, Freedom of assembly, and Freedom of association

Article 12 guarantees freedom of movement, including the right of persons to choose their residence and to leave a country.[45] These rights apply to legal aliens as well as citizens of a state,[46] and can be restricted only where necessary to protect national security, public order or health, and the rights and freedoms of others.[47] The article also recognises a right of people to enter their own country.[48] The Human Rights Committee interprets this right broadly as applying not just to citizens, but also to those stripped of or denied their nationality.[46] They also regard it as near-absolute; "there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable".[46] Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to be able to be appealed and reviewed.[49] Article 17 mandates the right of privacy.[50] This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby nullifying prohibitions on homosexual behaviour,[51] however, the wording of this covenant's marriage right (Article 23) excludes the extrapolation of a same-sex marriage right from this provision.[52] Article 18 mandates freedom of religion.[53] Article 19 mandates freedom of expression.[54] Article 20 mandates sanctions against inciting hatred.[55] Articles 21 and 22 mandate freedom of association. These provisions guarantee the right to freedom of association, the right to trade unions and also defines the International Labour Organisation.[55][56] Article 23 mandates the right of marriage.[57] The wording of this provision excludes coverage of same-sex couples from protection by this marriage right, however it does not prohibit the recognition of same-sex marriage by a signatory country.[58] Article 24 mandates the right to a nationality.[59]

[edit] Political rights

Article 3 provides an accessory non-discrimination principle. Accessory in the way that it cannot be used independently and can only be relied upon in relation to another right protected by the ICCPR. In contrast, Article 26 contains a revolutionary norm by providing an autonomous equality principle which is not dependant upon another right under the convention being infringed. This

has the effect of widening the scope of the non-discrimination principle beyond the scope of ICCPR.

[edit] Optional protocols

There are two Optional Protocols to the Covenant. The First Optional Protocol establishes an individual complaints mechanism, allowing individuals to complain to the Human Rights Committee about violations of the Covenant.[60] This has led to the creation of a complex jurisprudence on the interpretation and implementation of the Covenant. As of October 2011, the First Optional Protocol has 114 parties.[61] The Second Optional Protocol abolishes the death penalty; however, countries were permitted to make a reservation allowing for use of death penalty for the most serious crimes of a military nature, committed during wartime.[62] As of December 2010, the Second Optional Protocol had 73 parties.[63]

[edit] Reservations
This section requires expansion.

A number of parties have made reservations and interpretative declarations to their application of the Covenant. Argentina will apply the fair trial rights guaranteed in its constitution to the prosecution of those accused of violating the general law of nations.[1] Australia reserves the right to progressively implement the prison standards of Article 10, to compensate for miscarriages of justice by administrative means rather than through the courts, and interprets the prohibition on racial incitement as being subject to the freedoms of expression, association and assembly. It also declares that its implementation will be effected at each level of its federal system.[1] Austria reserves the right to continue to exile members of the House of Habsburg, and limits the rights of the accused and the right to a fair trial to those already existing in its legal system.[1] Bahamas, due to problems with implementation, reserves the right not to compensate for miscarriages of justice.[1] Bahrain interprets Articles 3 (no sexual discrimination), 18 (freedom of religion) and 23 (family rights) within the context of Islamic Sharia law.[1] Bangladesh reserves the right to try people in absentia where they are fugitives from justice and declares that resource constraints mean that it cannot necessarily segregate prisons or provide counsel for accused persons.[1]

Barbados reserves the right not to provide free counsel for accused persons due to resource constraints.[1] Belgium interprets the freedoms of speech, assembly and association in a manner consistent with the European Convention on Human Rights. It does not consider itself obliged to ban war propaganda as required by Article 20, and interprets that article in light of the freedom of expression in the UDHR.[1] Congo, as per the Congolese Code of Civil, Commercial, Administrative and Financial Procedure, in matters of private law, decisions or orders emanating from conciliation proceedings may be enforced through imprisonment for debt.[1] Denmark reserves the right to exclude the press and the public from trials as per its own laws. Reservation is further made to Article 20, paragraph 1. This reservation is in accordance with the vote cast by Denmark in the XVI General Assembly of the United Nations in 1961 when the Danish Delegation, referring to the preceding article concerning freedom of expression, voted against the prohibition against propaganda for war.[1] Gambia, as per it's constitution, will provide free legal assistance for accused persons charged with capital offences only.[1] The United States has made reservations that none of the articles should restrict the right of free speech and association; that the US government may impose capital punishment on any person other than a pregnant woman, including persons below the age of 18; that "cruel, inhuman and degrading treatment or punishment" refers to those treatments or punishments prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the US Constitution; that Paragraph 1, Article 15 will not apply; and that, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14, the US government may treat juveniles as adults, and accept volunteers to the military prior to the age of 18. The United States also submitted five "understandings", and four "declarations".[64]

[edit] National implementation and effects

The International Covenant on Civil and Political Rights has 167 states parties, 67 by signature and ratification, and the remainder by accession or succession. Another five states have signed but have yet to ratify the treaty.[1]

[edit] Australia
The covenant is not enforceable in Australia, however, AHRC legislation [65] allows the Australian Human Rights Commission (AHRC) to examine enacted legislation [66] (to suggest remedial enactments[67]), its administration[68] (to suggest avoidance of practices [69]) and general compliance [70] with the covenant which is schedule to the AHRC legislation.[71]

[edit] New Zealand

While New Zealand has not incorporated the ICCPR into law, it took measures to give effect to many of the rights contained within it by passing the New Zealand Bill of Rights Act in 1990.

[edit] United States

[edit] Reservations, understandings, and declarations
See also: Vienna Convention on the Law of Treaties

The United States Senate ratified the ICCPR in 1992, with five reservations, five understandings, and four declarations.[64] Some have noted that with so many reservations, its implementation has little domestic effect.[72] Included in the Senate's ratification was the declaration that "the provisions of Article 1 through 27 of the Covenant are not self-executing",[73] and in a Senate Executive Report stated that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts."[74]
[edit] Effect on domestic law

Where a treaty or covenant is not self-executing, and where Congress has not acted to implement the agreement with legislation, no private right of action within the U.S. judicial system is created by ratification. Sei Fujii v. State 38 Cal.2d 718, 242 P.2d 617 (1952); also see Buell v. Mitchell 274 F.3d 337 (6th Cir., 2001) (discussing ICCPR's relationship to death penalty cases, citing to other ICCPR cases). Thus while the ICCPR is ostensibly binding upon the United States as a matter of international law, it does not form part of the domestic law of the nation.
[edit] International law

Prominent critics in the human rights community, such as Prof. Louis Henkin[75] (non-selfexecution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust[76] ("Rarely has a treaty been so abused.") have denounced the United States' ratification subject to the non-self-execution declaration as a blatant fraud upon the international community, especially in light of its subsequent failure to conform domestic law to the minimum human rights standards as established in the Covenant over the last fifteen years. In 1994, the United Nations' Human Rights Committee expressed similar concerns: Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed.[77] Indeed, the United States has not accepted a single international obligation required under the Covenant. It has not changed its domestic law to conform with the strictures of the Covenant. See Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002) (noting that Congress has not done so). Its

subjects are not permitted to sue to enforce their basic human rights under the Covenant, as noted above. It has not ratified the Optional Protocol. As such, the Covenant has been rendered ineffective, with the bone of contention being United States officials' insistence upon preserving a vast web of sovereign, judicial, prosecutorial, and executive branch immunities that often deprives its subjects of the "effective remedy" under law the Covenant is intended to guarantee. In 2006, the Human Rights Committee expressed concern over what it interprets as material noncompliance, exhorting the United States to take immediate corrective action: The Committee notes with concern the restrictive interpretation made by the State party of its obligations under the Covenant, as a result in particular of (a) its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, nor in time of war, despite the contrary opinions and established jurisprudence of the Committee and the International Court of Justice; (b) its failure to take fully into consideration its obligation under the Covenant not only to respect, but also to ensure the rights prescribed by the Covenant; and (c) its restrictive approach to some substantive provisions of the Covenant, which is not in conformity with the interpretation made by the Committee before and after the State partys ratification of the Covenant. The State party should review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose. The State party should in particular (a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war; (b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and (c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.[78] As a reservation that is "incompatible with the object and purpose" of a treaty is void as a matter of international law, Vienna Convention on the Law of Treaties, art. 19, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) (specifying conditions under which signatory States can offer "reservations"), there is some issue as to whether the non-self-execution declaration is even legal under domestic law.

[edit] States not members of the Covenant

The majority of states in the world are parties to the ICCPR. As of November 2010 the following 27 states have either not yet signed the convention, or have signed but have not yet ratified the convention.[79]

[edit] Signed but not ratified

1. 2. 3. 4. 5. People's Republic of China (1998-10-05)[notes 1] Comoros (2008-09-25) Cuba (2008-02-28) Nauru (2001-11-12) Palau (2011-09-20)

6. 7.

So Tom and Prncipe (1995-10-31) Saint Lucia (2011-09-22)

[edit] Neither signed nor ratified

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. Antigua and Barbuda Bhutan Brunei Burma (Myanmar) Fiji Kiribati Malaysia Marshall Islands Federated States of Micronesia Oman Qatar Saint Kitts and Nevis Saudi Arabia Singapore Solomon Islands Tonga Tuvalu United Arab Emirates Vatican City (through the Holy See)

[edit] Non-members of the UN

1. 2. Taiwan (Republic of China)[notes 2] Kosovo [notes 3]

3. Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels. While, as far as the law of the state is concerned, these may be distinct categories of law, international law is largely uninterested in this distinction and treats them all as one. Similarly, international law makes no distinction between the ordinary law of the state and its constitutional law. 4. Article 27 of the Vienna Convention on the Law of Treaties provides that, where a treaty conflicts with a state's municipal law (including the state's constitution), the state is still obliged to meet its obligations under the treaty. The only exception to this rule is provided by Article 46 of the Vienna Convention, where a state's expression of consent to be bound by a treaty was a manifest violation of a "rule of its internal law of fundamental importance".[1]

5. [edit] Notes
6. The term municipal law is used in two different ways. In one sense, municipal law is simply any law which applies internally within a nation, in contrast with international law. The Constitution of Australia, for example, would be classified as municipal law

because it is concerned with the internal governance of Australia. On the other hand, the Convention on the Rights of the Child is part of international law. In another sense, the term is used specifically to describe the body of law utilized within a given municipality. 7. The distinction between municipal and international law in the first sense is important. As a general rule, international law is deemed as binding and it will take precedent unless a nation can demonstrate that an aspect of a treaty or similar agreement runs contrary to one of its fundamental values. For example, in the unlikely event that an international law banning women from voting was passed, undoubtedly a number of nations would refuse to comply with it under the argument that it would undermine the value of equality which is enshrined in their cultural and legal precedents. 8. If there is a conflict between international and municipal law it may be necessary to bring it to an international court for arbitration if no agreement can be reached. International laws are usually structured in a way which is designed to avoid such conflicts. The drafting of international legal agreement is lengthy in part because of this reason, as each participant in the process must obtain approval from her or his home nation before moving forward. 9. In the sense of the laws within a municipality, municipal law includes the municipal code, ordinances, and other regulations along with bylaws. This law is usually established by a governing body within the municipality for the purpose of running the municipality smoothly and maintaining public order. Other laws can also apply within a municipality. For example, a city might not have a specific ordinance against murder, but if someone murdered someone within city limits, prosecution would take place under state or provincial law. 10. Violations of municipal law can subject people to various penalties such as fines or jail time. People should be aware that ignorance of local ordinances is not accepted as an excuse for violating them. Most municipal codes are reasonably similar but people who are not sure about the legality of a given activity should consult a lawyer.