Legal framework

In the foregoing, it is explained how the constitutional traditions of the selected States parties to the European Convention on Human Rights have affected the emergence of the text and language of the Convention. For that text to be part of the national legal culture, however, it is necessary that it is part of the applicable law in the State party concerned. Apart from the characteristics of the legal system and judicial traditions in general, the status of international agreements in the legal system may affect the way in which their provisions are taken into account in adjudication. The aim with the examples of legal systems selected for this study is to show how the way of implementation plays

225 Regeringsform SFS 1974:152. This constitutional act is supplemented by constitutional acts on crown succession, freedom of the press and freedom of expression, i.e. by Successionsordning SFS 1810:0926, Tryckfrihetsförordning SFS 1949:105 and Yttrandefrihetsgrundlag SFS 1991:1469.

a role. Furthermore, the legal systems may have different hierarchies of sources of law and legal rules²²⁶. Even in the case of international law, certain rules may enjoy a higher hierarchical status than others. De Schutter suggests that human rights occupy such a position among the rules of international law²²⁷. However, traditionally, there has been no hierarchy of norms between the different sources or rules of international law, at least as regards customary law and treaties²²⁸. Gerards and Fleuren point out that the dualist tradition is considerably younger than the monist tradition, and is closely con-nected with the increasingly strong role given to national parliaments²²⁹. Apart from customary law and treaties, there are various other sources of international law such as general principles of law recognised by the community of nations²³⁰, international case law and different types of soft law (recommendations and declarations). Treaties have differing statuses in the legal systems of the states covered by this study. Traditionally, the legal systems have been divided into monistic and dualistic systems in respect of the status of treaties. However, this may be rather misleading as legal systems often

226 Cassese 2005, p. 198.

227 De Schutter 2009, p. 48. He justifies his argument with reference to the wording of Article 103 of the UN Charter, according to which “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. One of those obligations is to promote and encourage respect for human rights and for fundamental freedoms for all. Further justification for the superior hierarchical position can be derived from the peremptory character of certain norms of international law, such as certain fundamental rights.

228 Article 38(1) of the Statute of the International Court of Justice mentions international con-ventions, international custom, and general principles of law recognised by civilised nations, and as subsidiary means for the determination of rules of law, judicial decisions and the teachings of highly qualified publicists of the various nations. Cassese 2005, p. 198. However, since late 1960s, certain fundamental rules have been upgraded to give the status of peremptory norms of international law (jus cogens), including certain norms of international human rights law (the self-determination of peoples, the prohibition of aggression, genocide, slavery, racial discrimina-tion and, in particular, racial segregadiscrimina-tion or apartheid). (Ibid. p. 199) This higher status means that those norms cannot be derogated from.

229 Gerards and Fleuren 2014, p. 335 and 336. Therefore, whether the constitutional law fits in the monist or dualist tradition depends on constitutional history of the state in question. (Ibid. p.

230 In the view of Cassese, general principles of international law are rather considered a subsidiary 336) source of law, to which recourse may be had if there are no rules produced by a primary source of law (treaties, custom, unilateral acts of states). Such a rule could be, for example, the principle of respect for human rights, but even it has been codified e.g. in the European Convention on Human Rights. (Cassese 2005, p. 188) However, Brownlie pays attention to the Statute of the International Court of Justice and points out that t escapes the classification as a subsidiary means, but is not immediately dependent on the consent of states in the same way as interna-tional conventions and customary law. (Brownlie 1990, p. 15) One may note that such principles of law as have been codified in several conventions, have a stronger status than others, as those conventions also provide evidence of the existence of the general principles of law. Also judicial decisions provide evidence of established principles of law.

contain elements of both monism and dualism²³¹, as also appears from the analysis of the selected States below. Thus, the relevance of the division into monistic and dualistic legal systems could even be questioned, as suggested by Gerards and Fleuren²³². Their position can be shared in that a mere technical implementation does not necessarily mean that the international treaty in question is de facto applied by national courts.

What is more relevant is that the means of implementation offers the national courts the tools that they need for applying it. However, it is undeniable that the provisions of international law have a stronger role where they are clearly made part of applicable law and enforceable by courts of law. Further, for the legal systems of the Member States of the European Union, changes have been imposed by the membership of the Euro-pean Union, as the status of EU law differs from other international law²³³. However, as is pointed out by Frowein, although this discussion on monism and dualism seems to be somewhat outdated, it is clear that the international legal order and the many national legal systems remain separate²³⁴. Therefore, an examination of the monistic and dualistic elements of legal systems is relevant, particularly as effective application by the domestic courts of the provisions of a human rights convention requires that it is applicable and enforceable as law at the national level. This assertion is demonstrated in the light of the examples of the selected five legal systems, particularly by comparing the Swedish and English legal systems with the other cases. Those two legal systems allow technical implementation, but there is the additional possibility to actually insert substantive provisions into national law.

231 See e.g. Aust 2013, p. 162. Aust suggests that the United Kingdom represents the purist form of dualism.

232 Gerards and Fleuren 2014, p. 337. The authors points out that the theoretical notions of monism and dualism say very little about the kind of methods and instruments a certain state will have at its disposal to give effect to international norms in its national legal system, and that those con-cepts should therefore rather be regarded as ”schemes” which can assist in ordering the different constitutional systems and mechanisms states employ to implement international law in their domestic legal orders.

233 EU law, including the case law of the European Court of Justice, enjoy a similar status in each legal system of the European Union irrespective of whether the traditional system of implementation is dualist or monist.

234 Frowein 1996, p. 85. The reason for why the classification of legal systems between monist and dualist ones has to some extent been abandoned by jurists is perhaps that it is traditionally based on theories or schools of thought, where some scholars advocate monism and others dualism.

(For traditional schools of thought, see Brownlie 1990, p. 32-34) However, it appears that mod-ern scholars rather examine the way in which legal systems de facto treat intmod-ernational law and treaties. This appears rather clearly in respect of commentaries on the European Convention on Human Rights. It has proven that its application is the more efficient at national level the more effectively it has been incorporated.

In monistic systems, treaties are considered to be part of the domestic legal system upon signature²³⁵ or acceptance/ ratification as such, without separate incorporation into domestic law²³⁶. Instead, in dualistic systems treaties and national law are regarded as distinct sources of law and courts are in principle only bound by national law. Thus, in order for treaties to become applicable law in a dualistic system, they need to be specifically made part of the domestic legal system. The methods of doing this (and the denominations given to those methods) vary from state to state, but they could all be considered to fall under the concept of incorporation²³⁷ in its most general sense.

The European Convention on Human Rights does not require incorporation, and nor has the European Court of Human Rights considered this necessary, but it has been considered to have certain advantages with regard to the efficiency of protection of the rights guaranteed by the Convention. Furthermore, the practical meaning of the distinction between monist and dualist countries has diminished as nearly all the States parties to the Convention, whose legal system requires separate incorporation, had incorporated it into their domestic legal systems²³⁸. However, in the view of Pellonpää

& al., the fact that a State Party to the Convention has incorporated the Convention into its domestic law does not seem to have a significant effect on the de facto signifi-cance of the Convention in the national application of law. He justifies this argument with reference to cases against Austria, where the Convention has been given a strong constitutional status from the beginning, and to those against the United Kingdom, where the Convention had a rather weak status for a long time.²³⁹

235 One must stress, however, that mere signature does usually not mean that the treaty becomes legally binding particularly as regards multilateral conventions, but is an expression of consent to act in accordance with the object and purpose of the treaty.

236 Cassese draws a distinction between two types of monistic systems, the so-called monistic view advocating the supremacy of municipal law, as well as the monistic theory maintaining the unity of the various legal systems and the primacy of international law. (Cassese 2005, p. 213) The first one actually denied the existence of international law as a distinct and autonomous body of law, reflecting extreme nationalism, whereas according to the other theory, international law exists above national legal orders which must conform to international law and in cases of conflict, international law prevails. (See Cassese 2005, p. 214 and 215)

237 On occasion, the concept used is ”transformation” particularly when the treaty requires some implement-ing legislation (see Aust 2013, p. 167, footnote 23 – Brownlie, Principles of Public International Law, p.

31 and 32). This comes from the idea that to become binding on domestic authorities and individuals, international law must be ‘transformed’ into national law through the various mechanisms for the national implementation of international rules. (Cassese 2005, p. 214) Apart from automatic incorporation, there are various forms of legislative incorporation, including specific implementing legislation and simple one or two provisions stating that the treaty in question must be complied with, possibly together with the text of the treaty as a schedule or other annex. (Cassese 2005, p. 220 and 221)

238 Danelius 2012, p. 36, Pellonpää & al. 2012, p. 47-49.

239 Pellonpää & al. 2012, p. 55 and 56. According to the Court’s statistics on 31 December 2013, the number of judgments against Austria, finding a violation, was 242, and that concerning the United Kingdom was 297.

In brief, of the legal systems subject to this study, the French one is monistic, without requiring separate implementation of the Convention. Its status is below the Constitu-tion, but it prevails over other legislation. The other legal systems, the English, German, Finnish and Swedish ones, are dualistic although all except the English one appear to be de facto mixtures of both. In all these States, the Convention has been given the status of ordinary law, but in England and Sweden, the Convention has been transformed into an act of Parliament with material contents. The status of the Convention in the legal systems covered by this study is already rather established, although England and Sweden enacted their specific implementing legislation long after ratification. The ap-plication of the Convention in all those systems has been subject to research over a long period of time, and even in Finland it has been subject to research as of the accession of Finland to the Convention. The extent to which and the way in which the Convention is applied within the legal system concerned affects the degree to which it is capable of modifying the legal culture. In the following, comparative observations are made in respect of the four selected legal systems, followed by an analysis of its impact on the Finnish legal system. That allows an assessment of the first stage of transition of the Finnish legal culture of protecting fundamental rights and human rights.

2.6.2 Impact of the European Convention on the protection of fundamental