González Carreño v. Spain: What can be Expected from the Spanish Supreme Court’s Ruling?
In what has been earmarked as a ‘revolutionary’ judgment in the field of international human rights law, the Spanish Supreme Court has ruled that views expressed by UN Human Rights Treaty Bodies (‘the Views’) are, in fact, legally binding on Spain. The judgment is extraordinary as it is a well-accepted position in international human rights law that decisions of treaty bodies, although exhibiting some essential characteristics of a judicial decision, are non-binding on states. The judgment is also significant in the wake of recent reservations of State Parties with regards to the complaints mechanism of the treaty body system. This post discusses the judgment and its potential implication on international human rights governance.
González Carreño v. Spain concerned the domestic implementation of a decision delivered by the United Nations Committee on the Elimination of Discrimination against Women (the CEDAW Committee). Interestingly, the Court neither relied on Article 7(4) of the Optional Protocol (which obliges states to “give due consideration” to the views of the Committee) nor Article 24 of the CEDAW Convention (which obliges states “to adopt all necessary measures at the national level”) to rule on the binding nature of the views. Instead, the Court reasoned that ‘the Views’ had originated from a body which, by the virtue of ratification by Spain and Article 96 of the Spanish Constitution, formed part of Spain’s internal legal order. The Court held that the rights enshrined in the Convention formed the minimum and basic standard of the fundamental rights of every person in the Spanish legal system. The Court interpreted Article 96 of the Constitution along with Article 10(2) of the Constitution,which provides that fundamental rights should be interpreted in accordance with international treaties. The Court reached the conclusion that obeying the decision of treaty bodies was a matter of rule of law. Following this conclusion, the Court opined that by failing to bring in specific enforcement mechanisms, Spain had not only failed to effectively protect the rights enshrined under the Convention but that it had also breached its constitutional mandate.
Some commentators argue that ensuring compliance with the decisions of the treaty bodies is a task for the executive branch, and therefore, the role of the courts in this process amounts to judicial overreach. However, where most states have failed to bring enabling legislation to give effect to the decisions of the treaty bodies, courts frequently act as the last resort for seeking enforcement of these decisions. For this reason, their attitude towards decisions of treaty bodies is important. With that being said, the interaction of municipal courts with decisions of the treaty bodies has been beguiling. While the treaty bodies are accredited for their contribution in developing the jurisprudence of international human rights law, municipal courts have been largely reluctant to enforce decisions of the treaty bodies. Hence, the real question is whether this judgment could have a far-reaching impact on improving state compliance with decisions of treaty bodies.
Firstly, the conclusion that the judgment alters the international legal status of the treaty bodies seems far-fetched. As the supreme interpreter of laws of a state, constitutional courts are confined to ruling on the status of these decisions in their respective municipal laws and not on their legal status in international law. As discussed above, this judgment is no exception to this rule. Secondly, it seems problematic to expect courts to over-rule the binding decisions of the domestic court on the basis of non-binding decisions of an international treaty body. In fact, municipal courts have frequently employed a dualist approach in order to disregard decisions of treaty bodies. The monist nature of Spanish Constitution forms the bedrock on which the present judgment stands. Where a state’s constitution does not integrate international treaties within domestic law, human rights treaties cannot be interpreted to oblige a state to comply with their decisions. Since, the majority of states are dualist in nature, at least with respect to treaties, it is less likely that we would see similar rulings in other parts of the world. In fact, the Spanish Constitutional Court itself has previously discredited the decisions of treaty bodies. Nevertheless, it could be hoped that the ruling may induce courts of other monist states (for example Portugal or Romania) to follow a similar interpretation of their respective constitutions.
As the discourse on the influence of the treaty bodies on domestic laws grows, the key challenge for constitutional courts is how to discharge their role as the ultimate custodian of fundamental rights while preserving the legitimacy that they derive from their constitutions.