The Applicability of International Law of Human Rights in Internal Judicial Order

Abstract

Nowadays, individuals are allowed to rely on and invoke the international human rights Law derived from international Conventions, provided that such international Law becomes a part of the national positive Law. The international treaties on protection of fundamental human rights integrate into the national legal order, either by the way of domestic supplemental laws or regulations (Dualist system), or merely by their ratification and their publication in the official Gazette (Monist system).In the absence of international rules to determine unified criteria to be referred to with respect to direct applicability, it is actually difficult to identify the treaties on protection of human rights that are applicable directly in the domestic legal order, in particular in the States that have adopted Monism in their legal order. Relevantly, the legal doctrine and the case law have adopted two criteria to identify which clauses of an international Convention are self-executing. The first criterion is related to the persons that are subjected to the international statute -the subjective criterion- and the second criterion refers to the level of normativity of the latter statute -the objective criterion-. Even so, the task is still difficult, as it was recently testified in the Hissène Habré Case by the tough controversy on the so-called self-executingness of the United Nations Convention against torture.