The balancing between and among Nationally and Internationally Incorporated Fundamental Rights
Some remarks about these particular collisions
By Dr Arnulfo Daniel Mateos Durán
Arnulfo Mateos is a Postdoctoral Researcher at the University of Heidelberg (Germany). Arnulfo holds a Bachelor's degree from the National Autonomous University of Mexico and a Master’s degree (Legum Magister) and a PhD in Law from the University of Heidelberg, Germany. The title of his thesis is “Das Verhältnis zwischen nationalen und inkorporierten internationalen Grundrechten in der innerstaatlichen Rechtsordnung” (The relation between national and international incorporated fundamental rights in the national legal order).
The incorporation of international rights catalogues through international treaties into the national legal systems has been a common practice for some States in certain regions of the world during the decades after the World War II (e.g. the American Convention on Human Rights in America, the European Convention on Human Rights in Europe and the African Charter on Human and People’s Rights in Africa). The reasons behind the incorporation of such international treaties are diverse: some States aim to improve the protection offered by the national constitutional rights through the incorporation of the international rights catalogues, others, to benefit from the legitimizing effect on the national legal system by the incorporation of these treaties. In other cases, such incorporation is a requirement for the participation in an international regional multilateral treaty, e.g. the Council of Europe. Each State can establish some reserves to some parts of the international treaties and generally States are free to decide the rank of the international norms inside their legal systems (for example, the European Convention on Human Rights does not establish a fix rank to the State parties). In this sense, every State shows a unique dynamic between its inner norms.
The goal of this brief contribution is to show some particularities of the balancing between competing nationally and internationally rights at the national level. In some cases, two competing rights cannot be satisfied at the same time, but the Constitution (or the international treaty) requires the realization of both rights to the greatest extent possible given the legal and factual possibilities. The balancing consists of the establishment of priority for one of these competing rights according to the characteristics of the case. This contribution will study the collision of competing constitutional rights with the rights contained in incorporated international treaties at the national level. In order to achieve clarity during the development of this contribution, I will use the concepts of “national fundamental rights” to describe the rights contained in the national Constitution and “international incorporated fundamental rights” to describe the rights contained in international treaties. According to Martin Borowski, the concept of “fundamental right” is adequate to describe the rights at national and international level because both types of rights present the same structure.
This contribution has the following objectives: I. To explain the current situation and relation between national and international incorporated fundamental rights; II. To establish the tensions between these two types of fundamental rights; III. To justify the use of balancing as a way to solve these collisions and prove the limits of other interpretation tools like the pro homine principle; and IV. To portray the characteristics of the balancing between national and international incorporated fundamental rights.
The importance of this topic is inmense because collisions between national and international incorporated fundamental rights are becoming more common in some national legal systems. For example, in Mexico, the Supreme Court of Justice has addressed the tension between the “preventive prison vs principle pro homine”, while in Germany the Federal Constitutional Court has issued a decision on the collision between “the right to strike vs. the constitutional prohibition of this right to public servants”. The establishment of criteria to solve these collisions is becoming a more needed discussion given the exponentially increasing number of these cases.
1. State of the Art
Even though the original goal of international fundamental rights was the construction of a subsidiary and minimal protection for the individuals against violations of their liberties and rights by States at the international level, thanks to the establishment of international courts issuing binding judgements for national states, the effect of the incorporated international fundamental rights at national level has reached a protection similar to the national fundamental rights. This is even more visible in the States that have not only incorporated these international fundamental rights into their legal systems, but also have given them a constitutional rank, such as Austria and Mexico. In this sense, the effect of international incorporated fundamental rights shows different impact in different States. This latter statement becomes more complicated due to the fact that the problem known as the “fragmentation of the international law” also affects international treaties with fundamental rights since the number of treaties that contain and protect fundamental rights is vast, and thus, the chances of collision increases.
Against this backdrop, the occurrence of some collisions or tensions between and among national and international incorporated fundamental rights inside the different national legal systems is understandable.
Contradictions between national and international law are not an unknown phenomenon.
Most States have developed some solutions for the inner contradictions between and among national and international norms. Despite the different solution mechanisms adopted by States, it is possible to see some general deference granted to international norms by the national organs and courts, especially, for the norms of international treaties that are under the supervision of an international court. This deference can also be seen with regard to the international incorporated fundamental rights. One example of this deference can be found in the German legal system with the constitutional principle of “friendly interpretation of the German Basic Law to international law” (Grundsatz der völkerrechtsfreundlichen Auslegung des Grundgesetzes). According to this principle, parliamentary statutes are to be interpreted in accordance with the content of incorporated international law and the interpretation of the rights of the German Basic Law should observe the content of the rights of the ECHR.
2. Parallel rights catalogues at national level
One specific problem can be seen in the protection offered by international incorporated fundamental rights to classic well-known rights (right to equality, to free speech, to life, etc.) because the incorporation of the international rights catalogues has indirectly produced duplicity in the protection existing at the national level. This is to say that most national legal systems with incorporated international rights catalogues have generally two, or more, norms regulating the same right. For instance, in the German legal system coexist three norms that protect the freedom of conscience and religion, Art. 4 of the German Basic Law, Art. 9 of the ECHR and Art. 10 of the CFR, which are all protected and applicable to all individuals in Germany. In most cases, these international rights catalogues have similar content to most modern constitutions (as it can be seen in the aforementioned example). So, in this sense, strong contradictions between the content of a constitutional right with its international counterpart are not common.
Nevertheless, the real problem arises when one constitutional right is restricted by one international incorporated right or vice versa. In most cases, the collisions between and among national fundamental rights are solved through the use of proportionality, more precisely, its last prong, in other words, proportionality stricto sensu or balancing. Proportionality with all its prongs (adequacy, necessity, proportionality stricto sensu or balancing) is an adjudication legal tool to justify restrictions to fundamental rights. However, given the international status of the incorporated fundamental rights, questions such as whether the balancing between national and international incorporated fundamental rights is different at all compared to the one between national rights, still remain unanswered. Furthermore, the collisions between and among national and international incorporated fundamental rights represent a particularly complex challenge given the special content that they protect, in other words, the liberties and goods of the individuals.
Many national legal systems grant a higher rank to the international norms inside the legal system hierarchy (for example, Switzerland, Austria and Mexico). One common reason behind this higher rank is the likelihood of reducing possible contradictions between national and international norms because the higher rank would make the international norms immune to derogation against other national norms, for example, parliamentary statues. Avoiding these contradictions is important because, in certain circumstances, the breach of an obligation contained in an international treaty could lead international responsibility for the national state. However, as Raffaela Kunz correctly stated, some national courts have solved the contradictions between national and international incorporated fundamental rights through balancing with no regard to the rank of the international incorporated fundamental rights. This raises the question whether it is possible to define some main criteria for the balancing between national and international incorporated fundamental rights.
3) Collisions between rights as a concurrence of jurisdictional competences?
First of all, the collision between and among national and international incorporated fundamental rights should not be reduced to a mere collision or concurrence of competences between national and international courts. It is true that the balancing between national and international courts can result in contradictory outcomes . For example, in the cases of Caroline von Hannover and Axel Springer AG between Germany and the European Court of Human rights, the balancing between the two competing rights (freedom of expression vs. personal privacy) carried out by the national and the international courts lead to different results reviewing the same cases, each giving priority to the either right. It should be noted that after the incorporation of the international rights catalogue into national law, international incorporated fundamental rights have become part of the national law and, therefore, national courts can interpret their content and justify restrictions to the protection given by them. The problem for national Judges consists in the existence of two or several rights catalogues, which are binding for all the organs of the states but from a different source. The latter cannot be said for most international courts because their parameter of control consists only in the international treaty under their supervision; unlike the national courts, who are bound to the national and the international incorporated fundamental rights catalogues.
4) Alternatives to balancing?
The solution for the problems derived from the collisions between constitutional and international human rights is not a simple hierarchization between the national and international courts. It should also focus on the most important goal: the establishment of the best protection possible offered by the national and international dimensions of rights. The contradictions between constitutional and international human rights caused by the different sources of the rights catalogues demand some harmonization in order to avoid contradictions inside the national legal system, especially for the national states that have incorporated the international fundamental rights catalogues with a constitutional rank.
It could be argued that the collision between constitutional and international human rights can be solved without the balancing of competing rights, instead, only by using other legal tools like the pro homine or pro persona interpretation, which have been explicitly recognized in some national constitutions, like Art. 1, para. 2 of Mexican Constitution, and internationally in Art. 29 the American Convention on Human Rights and Art. 53 of the European Convention on Human Rights . This tool can offer a better answer to these contradictions, even though, this is not always the case, as will be explained below.
The pro homine or pro persona interpretation consists of the expansion of the scope of the protection offered by the different norms contained in the same right. In other words, such interpretation gives priority to the norm that offers broader protection and fewer restrictions for the respective right. At first glance, it could be considered a positive aspect that the protection given to a certain right improves with the use of this interpretation. Thanks to this criterion, collisions between national and international incorporated fundamental rights could be avoided by giving priority to either right over the other. However, expanding the scope of protection given to a certain right increases the probability of a collision between this expanded right against other rights (either national or international). In this sense, a “more” in the protection of right A could also mean a “less” in the protection of right B. Moreover, in the case of the existence of two rights catalogues at the national level, the limits of the pro homine or pro persona interpretation seem clearer. For example, in the collision of two rights, A and B, if the protection offered by the national fundamental rights catalogue is broader for right A, then, using the pro homine interpretation will give priority to the national norm protecting right A. However, if according to the international fundamental rights catalogue the right B should have priority instead, then, there is no way to solve this collision, because in both cases, the pro homine interpretation is respected, but the collision still remains. The last example shows how the pro homine or pro persona interpretation cannot give an answer to the collision of national and international incorporated fundamental rights.
5) Robert Alexy’s reconstruction of balancing
Nevertheless, if balancing is a necessary solution for the collision between and among national and international incorporated fundamental rights, does it resemble the balancing between and among national fundamental rights? The use of balancing has gained importance and momentum in many constitutional legal systems. Robert Alexy deserves a special mention for his “weight formula” that he developed based on the distinction between rules and principles in the jurisprudence of the German Federal Constitutional Court. Together with the use of proportionality (and therefore, its third prong, in other words, balancing), Alexy’s reconstruction of the balancing between national fundamental rights has gained recognition in several national and international courts. For example, the Mexican constitutional case law has recognized the criteria developed by Alexy and the Inter-American Court of Human Rights has used the structure of the “weight formula” in the case “Kimel vs. Argentina” in the balancing of two competing rights. However, it is still open to debate whether the weight formula can be applied to the collision of national and international incorporated fundamental rights. The weight formula was conceived as a tool to strike a balance between competing national fundamental rights, but it was not developed to deal with the problems presented by the international incorporated fundamental rights.
A proper application of the “weight formula” to the collisions between national and international incorporated fundamental rights exceeds the frame of this contribution. For instance, the use of this type of balancing should be accompanied with a proper dogmatic model. This means that, even if a new variation of the Robert Alexy’s “weight formula” is proposed, a proper explanation of the relation between these two types of fundamental rights inside the constitutional legal framework is required.
6) Possible elements for an adequate balancing between national and international incorporated fundamental rights
Nevertheless, it is possible to present some important key elements of this type of balancing, which can offer a better understanding of the collision between national and international incorporated fundamental rights. For example, the jurisprudence of international courts, like the European Court of Human Rights, plays an important role in the balancing of the competing rights done by national courts. In the jurisprudence of some constitutional courts the use of the international case law as an argument in the balancing of competing rights can be seen. Just to mention one example, the German Federal Constitutional Court has recognized in the decision on the “preventive detention” the importance of the case law of the European Court of Human Rights for balancing competing rights (personal freedom vs public’s right to safety).
The binding effect of previous decisions can be conceived as a formal principle. According to Robert Alexy, formal principles require the optimization of “duly issued and socially efficacious norms”. One example is the principle of democracy, which lends a “special weight to the decisions of parliament” and requires that the legislature takes the majority of important decisions for society. The formal principles can also be balanced in combination with substantive principles (fundamental rights) against other colliding substantive principles. The use of formal principles in the balancing of competing rights can be considered a form of respect by the national courts for the acts of the democratic legislator (in the form of parliamentary statue and bills that restrict fundamental rights). However, it would be too simplistic to think that the deference granted to the national legislator via formal principles could be replaced by the binding effect of the case law of international courts during the balancing between national and international incorporated fundamental rights. In other words, the special weight given to the decisions (jurisprudence) of international courts is not equal to the one given to the legislator. Moreover, even the international organs and courts recognize the important role of the national democratic legislator (principle of democracy). For this reason, proper reconstruction of the balancing of national and international incorporated fundamental rights should consider the use of “two formal principles”: first, the binding effect of the acts (bills and statues) of the democratic legislator and second, the binding effect of the international jurisprudence. A study of how this reconstruction should be presented and which weight assign to these principles goes beyond the scope of this contribution. Nevertheless, this reconstruction is possible.
These are just some remarks regarding the balancing of national and international incorporated fundamental rights. The national courts restrict in one way or another the national and international incorporated fundamental rights through the balancing of both dimensions of protection, even if the criteria that should be considered in this type of balancing remain unclear. However, the lack of such criteria could lead to situations that could be detrimental to the application of international incorporated fundamental rights at the national level. Bringing clarity in these types of collision is always welcome. This contribution aims to lay down some ideas for the debate of this kind of rights collision.
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