Human Rights Brief
A Legal Resource for the International Human Rights CommunityTraining Judges to Incorporate International Law into Domestic Courts
by Monika Talwar and Tomás Ojea Quintana
GeneralFrom November 10 - 14, 1997, the Inter-American Development Bank (IDB) and the Washington College of Law (WCL) will host approximately 45 judges, prosecutors, and public defenders from 18 different Central and Latin American countries for a training session. The training session will be led by ten human rights experts from Latin America and the United States, as well as five professors from WCL. The aim of the project is to familiarize the participants with international law precepts. The program will also train them to incorporate international law, particularly inter-American human rights norms, into their domestic decisions.
The training project, through the impetus of WCL professors, will be implemented by the Center for Human Rights and Humanitarian Law. The Center is involved due to their success with the Inter-American Human Rights Moot Court Competition, the Human Rights Digest project, and the publication of materials on human rights. Based on the Center's achievements, the IDB dedicated money to work with WCL in promoting judicial reform and strengthening respect for fundamental human rights. Many lending institutions have made forays into judicial reform, but without much success, due to a lack of accountability and a failure to provide impact assessments. In this case, accountability is assured because the IDB is closely involved in the organization of the training. In addition, an impact assessment is expressly provided for and will be one of the Center's priorities.
Training GoalsThe IDB/WCL project falls within the framework of judicial reform and the strengthening of the administration of justice. The IDB/WCL project deals with fundamental rights closely related to the judiciary, such as the right to a judicial remedy, the right to due process, the right to a decision within a reasonable time, and the right to an impartial and independent court.
The project planners targeted appellate judges and judiciary members for several reasons. They make and affect judicial decisions on a daily basis and can have a strong influence on judges at lower levels. The organizers felt that these participants would be a better audience than supreme court judges because supreme courts tend to hear only a few, exceptional cases. Appellate judges, on the other hand, hear many more cases and have the potential to create binding decisions. A small number of supreme court judges, however, will be targeted to contemplate a judicial reform process that incorporates human rights.
The project aims to convince the participants that they can create international responsibility and consequences as a result of their domestic cases. The participating members have expressed an interest in learning more about the content of international law and how it can be applied domestically. They are uncertain as to the application of international law either directly or through federal legislation. Most importantly, the participants need to be made aware that their decisions can create international responsibility for their countries.
Training ProgramThe training schedule will provide the participants with a familiarity of the most significant international instruments protecting fundamental rights. The training will rely on a manual prepared by the Center for Human Rights and Humanitarian Law. The manual will be published after the session and will be made available on the Center's website. The trainers and experts will guide the sessions, encouraging judges to express their opinions and raise issues. The training will proceed as follows:
Monday: This session will explore the relationship between international law and domestic law. The purpose is to learn how to apply international law domestically. The training will emphasize the ability of judges to directly apply treaties that have been ratified by their parliaments; likewise, stressing the ability of prosecutors and public defenders to invoke such treaties. The participants will look at the texts of such international law sources as the American Convention on Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the decisions of the Inter-American Court and Commission. There will be role-playing that will allow the participants to apply international law to cases they may deal with in their courts on a regular basis. The participants will also have an opportunity to express their opinions and share their experiences.
Tuesday: The session will focus on access to justice and judicial remedy. The same texts will be examined and the participants will look specifically at rights relating to access to justice and judicial remedy. The program will seek to impress upon the participants that these rights are an international obligation. The participants will also try to formulate solutions to the most common stumbling blocks to judicial access and judicial remedy, namely a lack of resources and inefficiency.
Wednesday: The trainees will be involved in examining due process rights such as the right to a lawyer, the right to present a defense, the right to cross-examination, the right to appeal, the right to liberty, and prisoners' rights. They will examine international legal texts and will engage in more role-playing exercises.
Thursday: This session will focus on economic, social, and cultural rights. For instance, the participants will explore issues concerning women's rights and environmental rights. Human rights experts from the Americas will present the importance of these topics to the training members. An IDB panel will also discuss the role of financial institutions in judicial reform. Also on Thursday, a panel of federal judges from North America and supreme court judges from Latin America will discuss the independence of the judiciary.
Friday: This session will focus almost exclusively on freedom of the press and freedom of information (which includes freedom of expression, assembly, religion, and the right to conscientious objection). Many Central and Latin American countries have been gradually adopting a standard of "real malicia" or "reckless disregard" to be proven in civil or criminal cases brought by public officials against journalists. Such a standard protects journalists because it requires more than a mere showing of negligence on the part of the journalist when publishing articles about public officials. The Inter-American Court and Commission have relied on this standard in their decisions and writings. The importance of "real malicia" will be impressed upon the participants, particularly on those from new democracies. The press has an important role to play because it sometimes acts in the place of the judiciary in exposing corruption. Freedom of press and information, moreover, have the highest stature of all international human rights provisions in the American Convention.
One exciting aspect of the project is the creation of a network that will provide judges with access to materials on international and fundamental human rights. The network, through the use of e-mail and the Internet, will enable judges to exchange judicial decisions. Most importantly, if the project is ultimately a success, it can easily be replicated in other parts of the world.
The proper citation for an article in the Human Rights Brief Volume 5, Issue 1, beginning at page 51 would be: 5 No. 1 Hum. Rts. Brief 51 (1997).
