Self-executing right
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Self-executing rights in international human rights law are rights that are formulated in such a way that one can deduce that it was the purpose to create international laws that citizens can invoke directly in their national courts.[1] Self-executing rights, or directly applicable rights, are rights which, from the viewpoint of international law, do not require transformation into national law. They are binding as such and national judges can apply them as such, as if they were national rules.
From the viewpoint of national law it may be required that all international law be incorporated into national law before becoming valid. This depends on the national legal tradition.
In order to decide whether a rule is self-executing or not, one must only look at the rule in question. National traditions do not count. A rule that says that states should guarantee freedom of expression to its citizens is self-executing. A rule that says that states should take all the necessary measures to create enough employment is not. Non-self-executing rules of international law only impose the obligation on states to take measures and to create or alter legislation. Citizens or national judges cannot invoke these rules (and demand employment as in the previous example) in a national court. This means that international law that is not self-executing must be transformed into national law. The priority of international law remains a fact, whether this law is or is not self-executing. A state cannot invoke its national law as a reason not to respect its international obligations. In case of non-self-executing rules, it is obliged to change its national law or to take certain measures. It violates international law if it does not do so.[2] In this case, a national judge can only decide that her state should modify national law or take certain measures. She cannot invalidate national law that contradicts non-self-executing international law. She can only declare national law null and void if it contradicts self-executing international rights. Most human rights contained in the main human rights treaties are self-executing and can be invoked by individuals in a national courtroom,[3] although this is the case more for civil rights than for economic and social rights.
[edit] References
- ^ Pieter Kooijmans, Internationaal publiekrecht in vogelvlucht, Wolters-Noordhoff, Groningen, 1994, p. 84-85.
- ^ "[T]he general principle of international law is that a state cannot plead a rule or a gap in its own municipal law as a defence to a claim based on international law", M. Akehurst, A Modern Introduction to International Law, London: Harper Collins, 1991, p. 43. "The fact that a conflicting domestic provision is contained in the national constitution does not absolve the State Party concerned from international responsibility", A. Rosas, in D. Beetham, Politics and Human Rights, Oxford: Blackwell, 1995, p. 67.
- ^ Art. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHR) states that "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention", which means that the rights are self-executing and do not need further legal transformation.
