Human rights for regulators: using international standards to assist in domestic regulation

Government agencies and decision-makers can, and should, make more use of international human rights standards in their work. International human rights law is often seen as something only for the government’s ‘Foreign Affairs’ agency (to negotiate/decide whether to commit the State) or the legislature (to enact those parts of international law which they choose, thereby making it ‘domestic law’). There are, however, three ways in which regulators can use international human rights in furthering domestic regulatory aims:
(1) where domestic law specifies a discretionary decision-making power (eg to an agency/ minister in granting a licence/application, or a broad ‘public interest’ criteria in exercising governmental power) – the State’s international human rights obligations should inform the government’s discretionary decisions;
(2) supporting the growing ‘business and human rights’ mechanisms, with regulators ensuring (to the greatest extent legally possible) their actions regarding business operations complement the human rights’ responsibilities that business needs to meet; and
(3) as a ‘defence’ against attacks on regulatory initiatives, in responding to legal challenges (including those raised in the course of investment arbitration) to public health and environmental regulation – international human rights obligations have assisted in responding to some of these claims.
This article examines these three aspects, in explaining why and how domestic regulators can use international human rights standards.