legislation that provides for the domestic application of a treaty without
incorporating the detailed contents of the treaty.
15. In practice, however, many countries adopt a hybrid of a monist and dualist
approach. For example, some States give primacy to their respective
constitutions thus requiring a constitutional amendment for certain treaties to
become part of the domestic law, while some States require enabling
legislation. Others States pursue one or the other approach depending on the
nature of the subject matter covered by the treaty.
16. The Palestinian Basic Law does not provide detail on the relationship between
international law and domestic law.
C. Human rights as the guarantor of human dignity
17. The rationale of human rights can be summarised as the guarantee of human
dignity.34 As part of that guarantee of human dignity, human rights standards
are also concerned to ensure that power is exercised in an accountable
manner. As such dignity, human rights and the rule of law are intimately and
intrinsically linked. Power, in this context, to all intents and purposes means the
State. However, there are arguments that it is not just the State that exercises
power and violates human rights standards but that non-State actors, such as
the actions of terrorist groups can also amount to a violation of human rights.35
18. Human rights standards seek to realise their aims of dignity and accountability
in four ways:
Firstly, human rights identify certain core values which are essential to the
realisation of human dignity. These range from protection from torture to
private life, from the right to a fair trial to an adequate standard of living.
Second, the extent to which these rights can be balanced or even derogated
from, taking into account the public interest, is considered.
Third if particular rights can be lawfully interfered with, the legality, necessity
and proportionality of that interference is measured, taking into account
protection from discrimination.
Finally, where there is a reasonable assertion that an individual’s human
rights are (or maybe) being violated, that individual is entitled to an effective
remedy.
19. Internationally recognised human rights standards therefore require the
government policy and decision-makers to factor into that process certain key
universal principles. This imposes a level of discipline and rigour upon
government agencies, which if they ignore, or if they misapply those human
rights standards, ought to be held accountable before an independent and
impartial court.
34
35
Article 1 UDHR; preamble to UN Charter.
See section V.D. below.
25
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