aging members of the armed forces to regard themselves as citizens to the fullest extent
possible, respect for democratic institutions is enhanced.
3. Relationship between International Human Rights Law and
National Law
An initial difficulty that members of the armed forces may encounter in enforcing their human rights stems from the sometimes weak legal status of those rights within the domestic
legal system.
Many states have constitutional provisions providing that treaty obligations (such as the
human rights provisions discussed earlier) are automatically part of domestic law and, in
some cases, giving them priority.
In other states (so-called dualist systems), however, treaties concluded by the executive do
not automatically become part of the law of the land and, therefore, do not modify legal
rights and duties. While the state is bound in international law, if a change in rights and
duties under domestic law is required, there must be specific national legislation.30 Some
states have passed legislation to give international human rights obligations a particular
domestic legal status, e.g., placing a duty on the courts to interpret legislation in the light of
these commitments where possible but without overriding plainly inconsistent legislation.
In many states, whether or not international treaties have a privileged status, domestic
constitutional provisions overlap with the content of these human rights obligations.
Irrespective of these differences, it is relatively common for either parliamentary or other
constitutional bodies to vet draft legislation with reference to human rights standards.
Even in the absence of specific constitutional provisions or other legislation, domestic
courts frequently refer to international human rights standards, for example:
“(a) as a foundation of the constitution;
“(b) as relevant to the determination of the common law;
“(c) as a declaratory statement of customary international law which is itself part of
the law of the land;
“(d) as evidence of public policy; and
“(e) as relevant to the interpretation of a statute.”31
30 See, for example, the “Parlement Belge” case, English Court of Appeals, 1880, Probate Division Reports,
Vol. 5, 1880, p. 179.
31 A New Zealand Guide to International Law and its Sources, Report 34 (Wellington: New Zealand Law Commission, 1996), p. 23, available at <http://www.lawcom.govt.nz/UploadFiles/Publications/Publication_38_101_
R34.pdf>.
35
Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel
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