CONFLICTS BETWEEN DOMESTIC AND INTERNATIONAL LAW CARLOS JOSE GUTIERREZ*

INTRODUCTION

The theme assigned to me-conflicts between domestic and international law-has very deep theoretical roots. It deals with part of the problem of defining the relationship that can or must exist between international law and domestic legal systems and, more specifically, determining which law has priority. In discussing this problem, I cannot avoid a certain amount of personal anguish, because it sets two legal disciplines-to both of which I am closely related-against one another, and those disciplines offer contradictory answers. Having devoted my graduate studies principally to international law, and having subsequently come in close contact with the teachings of Hans Kelsen, I tend to sympathize with the position that assigns priority to international law. On the other hand, in view of my present interest in constitutional law, I am also inclined to respect the priority of a national constitution in any legal system and to recognize international law as superior to all laws except the constitution, as, for example, the Constitution of Costa Rica expressly proclaims.' At the same time, I must admit that neither of these opposed theories seems conclusively superior to the other. Kelsen's doctrine of the priority of international law2 provides a coherent, rational, and unitary scheme for the development of a single system of law for the whole human race. Within that system, each juridical component plays a precise and concordant role. Unfortunately, as Justice Holmes recognized, the law is not a product of logic; it is a product of experience. 3 Experience suggests that national judicial systems resist harmonious subordination within an international legal framework. It is not surprising that so *

Professor of Law, University of Costa Rica.

1. 2.

CONsTrrucioN POLITICA art. 7 (Costa Rica). H. KELSEN, PRINCIPIOS DE DERECHO INTERNACIONAL PUBLICO (Buenos Aires: Ateneo,

1965). Although Kelsen is not alone in propounding this theory, he is its most brilliant exponent. 3. O.W. HoLMEs, THE COMMON LAw 1 (1923).

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distinguished an international scholar as Charles Rousseau would affirm the primacy of international law while recognizing that it is difficult to find in international practice anything to confirm either the supremacy 4 of international law or that of the domestic juridical order. For the most part, constitutional law scholars ignore the problem and, from a point of view focused on the domestic juridical system, start with the proposition that the constitution holds primacy over all existing law.5 In the few instances in which they examine the relationship between constitutional and international law, they clearly assign priority to the former. 6 International lawyers, however, criticize these scholars for failing to recognize that the international community is as fundamental and real as the national community, and that the international community exerts a substantial and specific influence over the domestic order within each individual state. These initial remarks may provoke some of the lawyers present to defend their own theories on this subject. It is also possible that, given the significance and depth of the controversy and the form of my opening remarks, some of the organizers of this seminar might feel that I have departed from the subject assigned to me. The remaining part of this lecture, however, will address the topic. I will be speaking about domestic laws that set forth the basic rights of individuals and social groupslaws that appear in the majority of constitutions-and the subject of our inquiry itself: the American Convention on Human Rights, which is an international treaty. II.

Two BASIC PRINCIPLES

Identifying the basic elements of the problem may lend precision to the theme of this conference. One such element lies in the explication offered by George Gurvitch. 7 He divided legal systems into partial systems-those that regulate specific activities, such as commercial law, labor law, and penal law-and whole systems--those that attempt full regulation of the conduct of the international community. Because we are dealing with whole legal systems that possess different characteristics, friction among them is inevitable. Each system has certain characteristics superior to those of the other. Domestic legal systems have, for example, a better capacity to create a legal structure, while the international system excels and affirms its priority in other respects, such as its 4. C. RoussEAu, DERECHO INTERNACIONAL PUBLICO 15 (1966). 5. See, e.g., I. BURGOA, I DERECHO CONSTITUCIONAL MEXICANo 342-47 (1973); P. BisCARETI DI RUFFIA, DERECHO CONSTITUCIONAL 144-55 (1973); L. SANCHEZ AGESTA, PRINCIPIOS

DE TEORIA POLITICA 329-85 (1976). 6. See V. PEREZ SERRANO, TRATADO DE DERECHO POLrrIco 73 (1976). 7. G. GURVITCH, SOCIOLOGIA DEL DERECHO 269-71 (1945).

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greater reach and better capacity to embody justice and represent the common interest. Hence, Gurvitch concludes, the most that can be achieved between the two orders is an unstable equilibrium, which will depend upon the importance given to one order, or the effectiveness one has over the factors given priority by each of them. On the other hand, part of the controversy does not rest on the nature of the two orders, but on what we may call the Austin-Kelsen conceptwidely encountered among jurists-that explains law as a mandate or conjoined set of mandates. 8 The problem with this concept is that when we only see law as a set of mandates, then on encountering two whole juridical orders, we are obliged to ask which is to prevail over the other. The moment it is admitted, however, that not all juridical norms are derived from imperatives, and once the role played by social consensus in the formation of norms is recognized-that is, that the rules that must be obeyed are based upon agreement among the components of a society-the possibility of achieving harmony between the international legal order and national legal orders increases. III.

GECK'S THEORY

This consensual role is precisely that attributed to international treaties by Wilhelm Karl Geck in his recent article. 9 He views international law as basically a law of coordination, founded on the principle of consensus. The emergence of a series of new states--states that have not contributed to the formation of international custom-has had as one result an increase in the importance of treaty law, which has come to form a codified international law. This has given greater flexibility to, and made possible better coordination of, international law, because that law is formed by a series of microsystems-bilateral treaties-and by broader treaties on which principles of regional and worldwide validity are founded. In this manner, international law has become more precise, more predictable, and more effective. IV.

THE SOLUTION GIVEN BY THE INTER-AMERICAN CONFERENCE

I have drawn attention to Geck's theory because it agrees fully with the manner in which the American Convention on Human Rights attempts to solve the problem. Article 2 of the Convention clearly states that: Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the J.

8. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED & THE USES OF THE STUDY OF JURISPRUDENCE (1954); H. KELSEN, TEORIA GENERAL DEL DERECHO Y DEL ESTADO (1949). 9. Geck, The Coificationof InternationalLaw in the United Nations.- Promoting and Obsruncting Factors and their Results, 17 LAW AND STATE 21-44 (1978).

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States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms. 1O

At first sight, therefore, the problem seems not to exist. Ratification of the Convention implies acceptance of the obligation to guarantee the exercise of all the rights recognized by it. By accepting this obligation, the state assumes the duty to harmonize its domestic legislation with the norms of the Convention. To do this, the state can rely on the cooperation of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Under article 41(b), the Commission has the power to "make recommendations to the governments of the member states, when it considers such action advisable, for the adoption of progressive measures in favor of human rights within the framework of their domestic law and constitutional provisions as well as appropriate measures to further the observance of those rights.1I According to article 64, the Court may give consultative opinions "regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states" 1 2 and "regarding the compatibility of any. . . domestic laws with the aforesaid international instruments."13 Parenthetically, I should add that, in my opinion, this will be one of the very few functions that the Court will be able to carry out effectively, at least as long as the number of countries willing to recognize its jurisdiction does not increase. V.

FORESEEABLE PROBLEMS

However rational, diplomatic, and skillful this solution may appear to be, it is not free of problems. It is appropriate, therefore, to review the principal conflict situations that can be visualized. The first of these is presented by the nonratifying states. As the government of Ecuador clearly pointed out when subscribing to the Convention,14 nothing forces a government to ratify the Convention. This is evidenced further by the long period that elapsed between the approval 10. American Convention on Human Rights, art. 2, signed Nov. 22, 1969, OEA/Ser. K/XVI/1.1, Doc. 65, Rev. 1, Corr. 1 (1970) [hereinafter cited as American Convention], rrprntedin INTER-AMERICAN COMMISSION ON HUMAN RIGHTS [IACHR], HANDBOOK OF EXISTING RULES

PERTAINING TO HUMAN RIGHTS, OEA/Ser. L/V/II. 50, Doc. 6, at 27 (1980).

11. Id art. 41(b). 12. Id art. 64(1). 13. Id art. 64(2). 14. The Delegation of Ecuador has the honor of signing the American Convention on Human Rights. It does not believe that it is necessary to make any specific reservation at this time, without prejudice to the general power set forth in the Convention itself that leaves governments free to ratify it or not.

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of the Convention in 1969 and its coming into force in 1978-a period of time expended in obtaining the eleven ratifications required. I believe that the reluctance of a number of states to accept the obligations imposed by the Convention clearly delayed its entry into force and will delay further the Convention's application to the entire hemisphere. Nevertheless, the Convention constitutes an essential component of the inter-American system as we conceive it today. Hence, we can assume that for a long time the inter-American system will have a dual system in respect to the protection of human rights. The civil and political rights recognized by the Convention1 5 will be in force in the ratifying states. On the other hand, the economic, social, and cultural rights recognized by the OAS Charter' 6 will be in force for all member states. There is no doubt that the Inter-American Commission on Human Rights will have a very sensitive mission to perform in trying to act uniformly while applying two different sets of rules. Among the nonratifying states, there is the very special situation presented by the United States. It is impossible to ignore the fact that the American Convention on Human Rights remained in limbo for many years. Had it not been for President Carter's decision to require respect for human rights as a condition for friendly relations with the United States, the Convention would still be in that state of limbo. President Carter's decision-maintained with an evangelist's zeal in many cases, restrained in others by economic or strategic considerations-has led many countries to ratify the Convention, even though they were not zealously convinced of their obligations in this field. Nevertheless, the United States, the government that made possible the requisite ratifications for the Convention to enter into force, has not ratified it. One of the principal reasons for that failure to ratify is the conflict between the Convention and the statutes of several states of the United States. Article 4(1) of the Convention protects the right to life, and adds that "[t]his right shall be protected by law, and, in general, from the moment of conception.' 7 This paragraph conflicts with the laws of those states that have established a woman's right to an abortion without medical or legal justification. The right to an abortion is presently a very controversial subject in the United States. Strong movements ask for its abrogation, while others defend it. The arguments on both sides are couched in strong religious terms. By ratifying the present terms of the Convention, the United States government could upset the balance 15. 16.

17.

American Convention, su6ra note 10, arts. 3-25. OAS CHARTER arts. 31, 43, 47. American Convention, supra note 10, art. 4(1).

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in an extremely volatile political controversy. An example of that controversy could be seen in the denunciation of the federal government made before the Inter-American Commission on Human Rights by one of the groups involved; a denunciation based on the fact that the Supreme Court had upheld the constitutionality of laws favoring abortion. Such a case highlights the frailty of attempts to give priority to international law when confronted by the immediate reality of internal legal controversies. A very different type of conflict exists in the case of Costa Rica. Irrespective of their ideological beliefs, the last four governments of Costa Rica have made great efforts to appear very firm in their defense of human rights. It was in Costa Rica that the 1969 conference that approved the Convention was held. On March 2, 1970, only four months after the Convention was subscribed, Costa Rica became the first country to ratify it. Indeed, it is the only country that has ratified the optional clauses concerning the jurisdiction of the Commission and the Court. This fact weighed heavily in the choice of Costa Rica as the seat for the latter. Despite all these attestations, Costa Rica has not complied fully with the obligation set forth in article 2 of the Convention. It has not fully harmonized its internal legislation with the prescriptions of that article. At least one right established by the Pact does not exist in the internal laws of Costa Rica. That right is the right of correction or reply, set forth in article 14.18 In the last decade, three bills have been introduced in the Costa Rican Legislative Assembly that would allow a citizen to publish a correction or clarification of any statements made by another that questioned his honor or disparaged his reputation or his ability to perform his job. The medium that published the accusation would be required to carry the reply. In each instance, the communications media-press, radio, and television-strongly opposed and effectively blocked any legislation in this area. In 1978, the law faculty at the University of Costa Rica noted that the opposition to the legislation continues even though the American Convention has taken effect. This could give rise to a truly odd situation: the Costa Rican government could be denounced before the Commission and taken to the Inter-American Court for not having complied with articles 14 and 2 because of acts committed by private concerns and not because of acts committed by public officials. The broad and general manner in which Costa Rica has accepted its obligations could, in that case, become the very grounds on which its government could be condemned. 18. Id art. 14.

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VI.

THE GREAT CONFLICT

Of course, the great conflict between the American Convention and domestic law is not one of the problems we have thus far described. It is the conflict that will arise in countries that have ratified the Convention only because of political pressure, either domestic or international, and not because of conviction or agreement with the text of the Convention. As a point of clarification, the first ratifications of the Pact were by governments that believed that the promotion of human rights was a worthwhile cause and were unafraid to subject their actions and those of their successors to the scrutiny of international tribunals. The ratifications witnessed during the last two years, however, have not grown out of that same deep conviction. There are some who have accepted the obligations of the Pact formally but do not appear willing to accept them in practice. It might be argued that, even if such is the case, there is no conflict, for each of those nations recognizes internally, by its constitution, the same rights of individuals and groups that are currently recognized in the constitutions of the majority of the civilized nations, however lacking they may be in enforcing them. This line of reasoning, however, is only a revitalization of the old legal myth that maintains that from the legal point of view it is enough to have norms, even if they are not enforced. If, instead of "law in books" we demand "law in action," to use the classic image of Roscoe Pound,' 9 then there is no doubt that in those cases in which conflict exists between the norms of the Convention and the regular practice of ratifying states, denial of the existence of the conflict is nothing but self-deception. It could also be argued that violations of the Convention are not cases of conflict, but infractions-actions contrary to legal order-that expose the transgressor government to the sanctions specifically established in the Convention. In my judgment, this thesis is valid only in cases of isolated acts committed by government officials-acts that can either be subject to sanction within the domestic legal order or, in case of its failure for any reason, be taken to the organs created by the Convention. When, however, we are not dealing with isolated acts, but rather, with systematic policies maintained by governments, we no longer can speak in terms of simple violations but must recognize a real conflict between the domestic legal order and the international instrument that establishes duties that the state does not intend to fulfill. 19.

Pound, LawinBooksandLawinAction, 44 AM. L. REV. 12 (1910).

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CONCLUSION

Given the very deep theoretical roots of this subject, I could have approached it from the point of view of de legeferenda, as a simple difference of rational schemes. But I cannot see it from that point of view. In regard to the American Convention on Human Rights, in the present period in the life of Latin America, the great conflict lies between international law that views the individual as endowed with an irreducible dignity and domestic legal systems that deny him that dignity. Faced with these facts, I cannot do less than to conclude by recalling the words of Konrad Lorenz who, after extensive study of animals, was able to develop a number of profound observations on mankind. Among these, he wrote that if "man is not by nature as bad as the Book ' '20 of Genesis affirms. . . he is not as good as our modern life demands.

20.

Lorenz, Sobrela Agresibn. cpretendido mal, 21 SIGLO 280 (1971).