Challenges to Effective National Implementation of Human Rights Standards for Persons with Mental Health Issues
National Constitutional Arrangements and International Law Obligations
Treaties create a binding obligation upon state parties under international law. However, whilst all human rights treaties do require state parties to ensure domestic implementation of their obligations, the extent to which treaty standards find expression and create nationally enforceable rights depends on a particular state’s constitutional approach to international law. The reality is slightly more nuanced but, broadly speaking, states adopting a ‘monist’ approach tend not to regard international and national law as two distinct systems. Rights identified in international or regional human rights treaties ratified by their governments will therefore be automatically incorporated into, and take effect, within their domestic laws.
On the other hand, those states adopting a ‘dualist’ approach seek to protect their national sovereignty by regarding the two systems as separate and require the enactment of specific domestic legislation to give expression to the rights at national level. The United Kingdom for instance adopts a dualist approach to international and regional treaties, and for the ECHR to be incorporated into the UK legal framework, the enactment of the Human
Rights Act 1998 was thus required. The Human Rights Act gives effect to such rights within the United Kingdom by requiring public authorities (e.g., government departments, local authorities, the police, courts and hospitals) to act in a way that protects and respects the ECHR of individuals, for legislation to be interpreted insofar as it is possible with such rights and for the courts and tribunals to interpret questions concerning such rights in accordance with the jurisprudence of the ECHR. The rights identified in other international treaties that have been ratified by the United Kingdom, such as the CRPD, ICCPR and ICESCR, are not given effect nationally in the same way. This means that wherever a conflict between the rights in these treaties and ECHR then, currently, ECHR will prevail.
Whichever constitutional approach to international law is adopted, national courts may be influenced by the state’s international obligation to respect such rights but there is no guarantee that they will enforce them unless they are given effect nationally. Where such effect is not provided nationally then a state party’s obligations remain those under international law only. In these situations, rights identified in treaties are enforceable only through the relevant treaty’s implementation mechanisms such as periodic reporting, interstate complaints and, where a state expressly consents, individual complaints or communications. These methods are, however, relatively more cumbersome and less effective than national remedies (such as applications to national courts or tribunals) for rights violations.
Another significant factor relating to international treaty implementation is that many treaties, including the CRPD, require ratification after signature by a state in order to become legally binding on that state. This reflects the fact that signature of a treaty is an act of the state’s executive, which will often require the subsequent approval by, or at very least debate in, its legislature before it becomes so binding. Whilst it appears to be generally accepted that an obligation of good faith exists that after signature and prior to ratification that the state will not frustrate the object of the treaty (International Law Commission 1966), clearly a significant delay in or failure to eventually ratify a treaty implies a lack of national commitment, by the executive or the legislature, to such treaty objectives. It is therefore worth noting that, at the time of writing, around 30 of the 159 signatories to the CRPD have yet to ratify it. In addition, 85 of the 92 signatories to the Protocol to the CRPD (recognising the right of individuals, groups and third parties to submit complaints to the CRPD’s oversight body, the Committee on the Rights of Persons with Disabilities) so far have failed to ratify it. However, in both respects, it is informative that LMICs are roughly equally represented amongst those showing lack of, or delay in, ratification.
-  Section 6.
-  Section 3.
-  Section 2(1). It should be noted, however, that courts and tribunals are not permitted to declare legislation provisions that are incompatible with ECHR rights invalid. They can simply make a declaration ofincompatibility (section 4). It is then in the UK Parliament’s discretion whether it takes the necessarymeasures to remedy such incompatibility. In the meantime, the national legislation stands despite beingincompatible.