Chapter 1 • International Human Rights Law and the Role of the Legal Professions: A General Introduction
v When there is a legal vacuum: In some countries there may be an absence of
national legislation with regard, inter alia, to human rights; but, depending on the
circumstances, judges and lawyers may be able to rely on international human rights
law as well as relevant international case-law – or domestic case-law from other
countries – in order to apply some basic legal principles for the protection of the
human person.
Numerous efforts have been made in recent years – both through the
technical assistance programmes of the United Nations, and through various training
programmes provided by regional organizations such as the Organization of American
States, the Council of Europe and the Organization for Security and Cooperation in
Europe – to help States adjust their laws to their international legal obligations, and also
to train the legal professions so as to enable them to make human rights a living reality
within their specific jurisdictions. Numerous independent human rights institutes and
non-governmental organizations (NGOs) also have extensive training programmes for
the various legal professions.
States may not invoke their internal law to justify violations of
international law, but are free to choose the modalities for implementing
that law.
4.2 The application of international human rights law
in domestic courts: some practical examples
A growing number of domestic courts in both common-law and civil-law
countries now regularly interpret and apply international human rights standards. The
following cases show how such standards can influence decisions taken by domestic
courts.
Germany: In a case involving an American pianist belonging to the Church of
Scientology and the Government of Baden-Württemberg, the Administrative Court of
Appeal of Baden-Württemberg considered the grounds of appeal of the plaintiff in the
light not only of the German Basic Law but also of article 9 of the European
Convention on Human Rights and articles 18 and 26 of the International Covenant on
Civil and Political Rights.
The complaint originated in negotiations between an agent acting on behalf of
the Government and the pianist, regarding the latter’s participation in a concert to be
held in connection with the presentation to the public of the framework programme for
the World Athletics Championship. The negotiations were broken off when it became
known that the pianist concerned was a member of the Church of Scientology. In a
written reply to a question put by the Parliament of Baden-Württemberg, the Ministry
of Culture and Sport, acting in concertation with the Ministry of the Family, Women,
Education and Art, explained that the promotion by the State of cultural events must be
questioned when the persons performing are active and self-avowed members of the
Church of Scientology or other similar groups; for this reason they had declined to
engage the pianist as originally envisaged. The pianist argued that his right to freedom
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Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers