V. How to Apply the Law
This page will highlight a few areas for analysis.
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How to Apply the Law
Once you have determined which agreements apply to your country, whether they have the force of law, and whether there are any international or regional bodies governing the agreements, you can move forward with deciding how to build a case to espouse an international claim in case of a violation by the State or generally to generate joint efforts to move for reform of the domestic law to comply with relevant international agreement and make provision for domestic remedies in compliance with such agreements. Remember that if a country has ratified a treaty but not the relevant optional protocols allowing for cases to be brought that you must use other types of advocacy to advance your position.
- Determine which courts are relevant and which have jurisdiction. Remember, as noted above, many treaties require you to move a case through the domestic system first before you can bring it before any international body.
Are there relevant domestic courts or administrative remedies? This may include customary or religious courts, and may even include alternative forms of dispute resolution if these are required first steps in your country. Note that the UDHR says that everyone had the right to “effective remedy by the competent national tribunals” for violations of fundamental rights (Article 8).
- To determine which courts are relevant, you must return to your original research on which domestic laws apply to your issue.
- You must also consult the agreements themselves to determine if they require your state to develop judicial remedies.
- If so, and these remedies are not available, you may have additional grounds for bringing a case to an international body.
What is the jurisdiction of regional or international bodies?
- These bodies may have jurisdiction to adjudicate the case and/or to enforce its findings. You can determine this jurisdiction by looking to the international agreements establishing the body and the treaty that you will be using to bring the case.
- Identify the responsible party.
- In most cases, you will be challenging the practices or laws of a particular country, and therefore the state itself will be the defendant.
- In some cases, most notably in international criminal law, an individual or non-State actor may be the defendant, but the State may still have a due diligence responsibility.
- Who has the right to petition or submit a claim?
- As above, you must refer to both domestic law and international agreements to determine who has the right to bring a case before which body. In many cases, access to courts will be restricted to member states and the Commission on Human Rights (e.g. the African Court on Human Rights and the Inter-American Court of Human Rights). In other cases treaties permit individuals to institute legal claims against non-observing States (e.g. the European Human Rights Court). Individuals who believe that their rights have been violated must first lodge a complaint with the Commission and have that body rule on the admissibility of the claim.
- What is the cause of action?
- The case law you identified in the previous section should be very helpful here.
- What is the role of council or NGOs dedicated to Human Rights?
- It is important to know if a lawyer is required to institute a claim, especially in the case of a claim before court. In most cases, human rights violations involve more than one person and joint action may be necessary. It is always advisable before instituting a claim to consult a lawyer to ensure that adequate research is carried out and relevant precedents are obtained to support the claim. In many countries, NGOs perform this function and in others Legal Aid is available to assist indigent litigants.
Initiating Complaints under CEDAW
The procedure for complaints about a State’s violation of Convention rights is set out in the Optional Protocol to CEDAW. Only those States that have ratified the Optional Protocol are bound by it. This means that complaints may only be brought against States that have ratified the Optional Protocol. Complaints are called ‘Communications’ and are submitted by an individual or group of individuals within the jurisdiction of the State, to the Committee for adjudication. Often NGOs are involved in preparing and submitting Communications on behalf of individuals or groups. The Committee will make an initial assessment of admissibility (i.e. whether it has jurisdiction to hear the case and whether the procedural requirements are satisfied) and, if admitted, adjudicate on the merits of the case. The Committee can make findings about whether there have been violations of the individual’s rights due to an act or omission of the State and can recommend remedies.
Ultimately, the path to challenging a law or practice might not be straightforward. Following the initial research steps will allow you to identify if it may be a good way to approach your issue, and following the steps in the previous section should allow you to determine if you can bring a case. Your final steps will be to begin the legal process in whatever way you have identified.
Alternatively, if you find the legal process is not the best way to pursue change, you may wish to use the support of international agreements in other types of advocacy work.