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).