The Judicial Colloquium on the Domestic Application of International Human Rights Norms, meeting in Bangkok, Thailand, from 23 to 25 March 2009, and attended by Justices and Judges from Cambodia, Malaysia, the Philippines, Sri Lanka and Thailand, as well as by observers of the Lao PDR and the Philippines;
Recalling the universality, indivisibility and interdependence of all human rights, whether economic, social or cultural or civil and political, which was reaffirmed in the Vienna Declaration and Programme of Action of 23 June 1993, as well as the importance of implementation by all States of human rights obligations;
Building on the Bangalore Principles on the Domestic Application of International Human Rights Norms (26 February 1988), the subsequent series of Commonwealth Judicial Colloquia on the Domestic Application of International Human Rights Norms and the outcomes of other judicial conferences on the subject;
Recalling the importance of the exercise of the judicial power, in accordance with international human rights standards, in safeguarding the democratic constitutional order and promoting human rights and fundamental freedoms and principles of good governance;
Recalling that the States of the region have adopted laws and regulations that tend to comply with the standards and guarantees laid down in international human rights instruments, but that the practice of implementation of these laws and regulations may not always conform to those international standards;
Conscious of the potential assistance that judiciaries may derive from the jurisprudence of the United Nations (UN) human rights treaty bodies and regional human rights mechanisms, as well as pertinent national jurisprudence of other countries, in interpreting their domestic Constitutions and Bills of Rights;
Mindful of the need to enhance cooperation between international and regional human rights mechanisms and national judiciaries;
Mindful also of the importance of education, awareness-raising and training activities in the field of human rights, both at the international and national level; and
Conscious of the particular cultural and societal context of countries of the region, and the specific needs of their judiciaries;
Have therefore agreed on the recommendations set out hereunder in as much as they enhance the work of the judiciary in the discharge of its mandate:
1. To the judiciaries of the participating States
a) Bearing in mind that some of the participating States are parties to only a limited number of the core international human rights instruments, the judiciaries should consider referring, where pertinent, to the jurisprudence of the UN human rights treaty bodies and of the regional human rights mechanisms, in interpreting the international human rights treaties binding their States and their domestic Constitutions and Bills of Rights protecting these rights;
b) Where lacunae in the domestic law are identified, the judiciary should, as far as possible, resort to interpretations consistent with principles of international law and customary international law, as well as the meaning of international instruments, as interpreted and applied by the UN human rights treaty bodies;
c) Where domestic laws or principles prevail over international law and thereby prevent the judiciary from applying international standards – where for instance such norms are expressed as non-justiciable in the domestic legal order or where domestic law which is inconsistent binds the judiciary – such inconsistency should be highlighted in the judgments; and
d) Members of the judiciary should meet with each other on a regular basis to exchange best practices and developments in these areas, with a view to achieving approaches consistent with international human rights standards.
2. To the participating States
The participants acknowledge that actions related to recommendations in this section are the prerogative of the Governments and Executives of the participating States, and that the role of the judiciary in this regard may only be supportive.
a) While acknowledging ongoing discussions in regard to the possible ratification of international human rights instruments, participating States should continue to give due consideration to ratifying or acceding to those core international human rights instruments to which they are not parties, in particular where the domestic legal order already enshrines fundamental human rights principles. States that are parties to these core instruments should consider accepting the existing optional treaty-based complaints mechanisms;
b) The core international human rights treaties to which the States of the region are parties should be domesticated as appropriate in national legal systems, in order to enable judiciaries to rely on these instruments in their decision-making;
c) States should consider including, in their Constitutions and/or Bills of Rights, provisions explicitly enabling the judiciary to rely on international law, particularly international human rights law. This would assist the judiciary in handing down decisions fully consistent with States parties’ international legal obligations;
d) Where judiciaries have identified inconsistencies between domestic law and the State’s international obligations, legislatures and/or executives should take such measures as may be appropriate to remedy the inconsistency;
e) States should consider an increase in the allocation of resources to their judiciaries to enable them fully to discharge their functions; and provide for capacity building for their judiciaries in the field of human rights. States are also encouraged to step up general human rights education and awareness-raising campaigns; and
f) Legal aid programs should be sufficiently resourced, in particular in cases involving alleged violations of human rights.
3. To national bar associations, academic institutions, lawyers and national human rights institutions (NHRI’ s) in the participating States
a) Members of the legal profession should be enabled to draw on the pertinent international human rights standards as well as the outputs of the UN human rights treaty bodies and regional human rights mechanisms in their arguments before domestic courts;
b) National bar associations and NHRI’ s should analyze the relevant jurisprudence of UN human rights treaty bodies and regional human rights mechanisms, so that they may use the reasoning of such decisions where appropriate, with a view to improving the consistency of interpretation of substantively similar national and international human rights standards;
c) National bar associations and academic institutions are encouraged to include international human rights standards and the jurisprudence of regional and international human rights mechanisms in their training programmes and curricula, respectively;
d) An effective system to disseminate and make widely available and accessible international, regional and domestic human rights cases in the countries of the region should be established; and
e) National bar associations are encouraged to create pro bono programmes to facilitate litigation in matters involving alleged violations of human rights, in accordance with international human rights law.
4. To the United Nations human rights treaty bodies
a) The UN human rights treaty bodies should take necessary steps to ensure thorough, specific and comprehensive reasoning in their decisions. This would facilitate the ability of national judiciaries to use, or rely on, such decisions in pertinent cases at the domestic level;
b) Recommendations adopted by the UN human rights treaty bodies should be practical, targeted, concrete and implementable, and take into consideration the legal particularities and constraints of the legal system of the State concerned;
c) The UN human rights treaty bodies should consistently apply their procedures for following up on their decisions and improve dissemination of information about the results of their respective follow-up procedures;
d) Where domestic courts have examined the scope of international norms, the UN human rights treaty bodies should pay due regard to the reasoning and approaches of national courts and where appropriate, rely on pertinent jurisprudence. This approach will strengthen the consistency of interpretation of domestic and international human rights standards and encourage a mutually-reinforcing dialogue between national judiciaries and international bodies on the content of international norms.
5. To the UN Office of the High Commissioner for Human Rights and other entities of the UN system:
a) Existing human rights education and awareness-raising campaigns and activities should be sustained and enhanced;
b) The Office of the UN High Commissioner for Human Rights (OHCHR), including through its Regional Offices and, as appropriate, other parts of the UN system, should better disseminate, in particular to members of the judiciary and domestic court libraries and registries, the recommendations and decisions of international tribunals and mechanisms, including the UN human rights treaty bodies. This could be done, for instance, through inclusion of such decisions and jurisprudence in electronic databases. Translation into national and/or local languages should also be facilitated, where appropriate;
b) OHCHR and other relevant UN entities should:
- make available appropriate training tools, including compendia of relevant and/or comparative jurisprudence;
- convene, as appropriate, national and/or regional training seminars for national judicial and prosecutorial authorities and for members of the legal profession. Judicial colloquia such as the present one should benefit from sustained follow-up, including, as far as possible, follow-up meetings; and
c) OHCHR’s country engagement strategy and resulting activities should also contribute to strengthening judicial capacities, including the ability of judiciaries in countries of the region to utilize international and, where appropriate, regional and national human rights jurisprudence.
Adopted at Bangkok, Thailand, 25 March 2009
Source: Office of the United Nations High Commissioner for Human Rights (OHCHR) - www2.ohchr.org/english/bodies/docs/Bangkok_declaration_23-25march09.doc