The Domestic Enforcement of International Covenants on Human Rights: A Theoretical Framework

This theoretical article discusses the domestic enforcement of international human rights and the theoretical footings of their legal authority. The author distinguishes between international conventions that represent a fusion of national interests and so require transformation to become domestically effective, and those that embody principles of practical reason already incorporated in the general will. He argues that the transformationist doctrine is applicable only to covenants that are products of executive discretion. A number of treaties have been concluded whose object is a transcendent common good of the human community. The transformationist doctrine has no logical relevance to these covenants as they do not pose a significant threat to sovereignty. He distinguishes between international human rights rules and principles. Human rights principles do not require confirmation by legislatures and may be properly considered not only in interpreting constitutional guarantees of human rights, but also as guides to the elaboration of the common law and as constraints to the operation of rules of decision. [The focus of this article is not specifically women's rights.]