General Application of International Standards

When considering a governing domestic statute, the High Court of Australia has expressed a willingness to consider if this statute should conform, so far as the statute text permits, to international law.

“Australian law, including its constitutional law, may sometimes fall short of giving effect to fundamental rights. The duty of the court is to interpret what the Constitution says and not what individual judges think it should have said. If the Constitution is clear, the court must (as in the interpretation of any legislation) give effect to its terms. Nor should the court adopt an interpretative principle as a means of introducing, by the back door, provisions of international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law. However, as has been recognised by this court and by other courts of high authority, the inter-relationship of national and international law, including in relation to fundamental rights, is ‘undergoing evolution’. To adapt what Brennan J said in Mabo v. Queensland (No. 2), the common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia’s Constitution, as the fundamental law of government in this country, accommodates itself to international law, including insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community.”

Thus, the High Court of Australia was influenced by international law. However, it stopped short of embracing the automatic incorporation doctrine (when customary international law automatically becomes domestic law). Instead, the Australian judiciary follows the transformation approach, where the national legislature must effect legislation incorporating international law into domestic law. However, international law remains influential in Australia, and numerous judges have opined on the limitations of the transformation approach, as compared to the automatic incorporation approach. Nevertheless, the ICCPR and other treaties and conventions concerning international law do not have the force of law in Australia.

(found in Toward Implementing Universal Human Rights: Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee, ed. Nisuke Ando, pp. 256-257)

The Supreme Court of Sri Lanka held that while the accession of Sri Lanka to the ICCPR was legal and valid and bound Sri Lanka to international law, it created no additional justiciable rights for Sri Lankans without the relevant domestic enabling legislation. The Court also declared that Sri Lanka’s accession to the First Optional Protocol of the ICCPR was unconstitutional. However, in a 2008 advisory opinion, the Court said that the legal code and common law of Sri Lanka nevertheless afforded the same protections as those of the ICCPR.

In considering minimum penalties, the Supreme Court of Papua New Guinea discussed the U.S. cases of Weems v. United States, 217 US 349 (1910) 54 L. Ed. 793, Robinson v. California, 370 US 660 (1962) 8 L Ed 2d 758, and Furman v. Georgia, 408 US 238 (1972) 33 L Ed 2d 346, among others. The Court then rejected the approach taken by these U.S. courts, noting that U.S. decisions were not binding on the Papua New Guinea Supreme Court. Nevertheless, they were admitted to “have thrown much light” on its approach. The Court also cited the European Convention on Human Rights and Tanzanian and Australian law, among the law of other countries, and said that “torture, cruel or inhuman treatment or punishment are inconsistent with respect for the inherent dignity of the human person.” Nevertheless, the Court upheld the legality of minimum fines and penalties.

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The Supreme Court of New Zealand rejected the argument that ratified conventions could not be applied unless they were enabled by domestic legislation.

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The Supreme Court of New Zealand referred to the Hague Rules, which governed the international carriage of goods, when deciding an international maritime dispute.

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The Supreme Court of Nepal held that the Geneva Conventions, which Nepal was a party to, did not apply to the on-going conflict in Nepal between government and Maoist forces. This was possibly due to a misunderstanding that the Geneva Conventions apply only in international armed conflicts (here, the government and Maoists were both domestic forces). Nevertheless, the Court ordered the government to enact legislation implementing the obligations of the Geneva Conventions, though as of 2007, the government had not done so.

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The Federal Court held that the UDHR did not have the force of law in Malaysia as it was a resolution of the General Assembly of the UN and therefore not a convention subject to the usual ratification requirements by Member States. Section 4(4) of the SUHAKAM Act, which set up Malaysia’s Human Rights Council, was merely “an invitation to look at the Declaration if one is disposed to do so . . . Beyond that one is not obliged or compelled to adhere to them.”

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(NOTE: this is a High Court case. The High Court is not the highest court in Kiribati (the highest court in Kiribati is the Court of Appeal). Nevertheless, this case can be helpful in deciding where Kiribati courts might go in the future, given the deficit of Court of Appeal cases from Kiribati citing international human rights standards.)

The High Court of Kiribai convicted the defendant of indecent assault. The High Court noted that the CRC must be enacted into domestic legislation for it to have the force of law, and that had not happened. (Presumably, then, the High Court did not feel that it had an obligation to apply the CRC.)

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(holding that a constitutional amendment may not alter the basic structure of the Constitution, including the guarantee of fundamental rights)

''The [Universal] Declaration [of Human Rights] may not be a legally binding instrument but it shows how India understood the nature of Human Rights'' when India adopted its constitution.

(found in ''The Status of the Universal Declaration of Human Rights in National and International Law'' by Hurst Hannum, Georgia Journal of International and Comparative Law, Vol. 25, Nos. 1&2, Fall 1995/Winter 1996, p 299)

The Universal Declaration of Human Rights ''cannot create a binding set of rules'' and international treaties ''may at best inform judicial institutions and inspire legislative action''. Thus, while the UDHR is arguably not binding on Indian law (though might be binding as customary international law), it influences it.

(found in ''The Status of the Universal Declaration of Human Rights in National and International Law'' by Hurst Hannum, Georgia Journal of International and Comparative Law, Vol. 25, Nos. 1&2, Fall 1995/Winter 1996, p 299)

The Indian Supreme Court grounded its decision on the basis of standards set in unincorporated international agreements, as these conventions ''elucidate and go to effectuate the fundamental rights guaranteed by our Constitution [and therefore] can be relied upon by Courts as facets of those fundamental rights and hence enforceable as such.''

The Court of Final Appeal in Hong Kong, in considering municipal legislation in judicial review proceedings, considered also international documents, such as those of the International Court of Justice.

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A couple, neither of whom were not citizens of Fiji, wished to adopt a child. The Constitution of Fiji contained a residency requirement for those wishing to adopt, and the couple had not satisfied it. Nevertheless, the couple cited the CRC, CPCC, and South Australian Adoption Act 1988 in court in an attempt to adopt regardless. They argued that, regardless of what the Constitution said, the best interests of the child were at stake, and would best be served by an adoption. If the courts allowed this argument, it would mean a direct overruling of the Constitution by an international human rights norm.

The High Court of Fiji rejected the argument. The Court said that although it should consider the best interests of the child, its job was to apply the law and not to amend it. Moreover, the Court said, there was no factual determination of what would be in the best interests of the child at issue (there was no home study report on the prospective parents).

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There was a custody dispute between the mother of a child and the respondents, who were relatives of the child and who had helped raise the child. The High Court of Fuji, in deciding that the mother should have custody of the child, referred to the Hague Convention for the first time, even though it was an ungratified convention in Fiji. The Court also interpreted section 43(2) of the Constitution as meaning that courts in Fiji had an obligation to apply human rights conventions, even if not cited by any parties.

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The Special Panel for Serious Crimes (in East Timor) had convicted a person named Dos Santos of three counts of murder. The prosecution argued that Dos Santos should have been convicted as a Crime against Humanity rather than of murder under the Indonesian Criminal Code.

The East Timor Court of Appeal, which is acting as the country’s highest court until it can set up a permanent supreme court, decided that the applicable subsidiary law in East Timor is that of Portugal, rather than that of Indonesia. It also held that parts of the United Nations Transitional Administration in East Timor (UNTEAT) Regulation 2000/15, which established the Special Panel for Serious Crimes, was invalid. As of 2003, the Court of Appeal had continued to apply Portuguese law while the district courts had applied Indonesian law, leading to uncertainty as to which law would be applied in any given case.

The Court also found that the application of Indonesian law from 1975 to 1999, during the Indonesian occupation of East Timor, was unlawful under international law. Therefore, Indonesian law had never been validly applied in East Timor. The Court made this decision based partly out of consideration of principles of international law.

The dissent considered United Nations Regulations 1/1999 and argued that Indonesian law should be the proper subsidiary law in East Timor.

http://www.jsmp.minihub.org/Reports/jsmpreports/Armando%20dos%20Santos's%20case%20reports%202003/Armando%20Dos%20Santos%20report(e).pdf

Cook Islands: R v Smith

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The High Court of the Cook Islands refused to allow the ICCPR to be applied. New Zealand had ratified the ICCPR for the Cook Islands in 1978, but the Court held that it could not apply it because it had “not been enacted as part of the law of the Cook Islands and so has no legislative effect.

http://www.rrrt.org/assets/HR%20Law%20Digest.pdf

Cambodia: Decision of September 10, 1992

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Emerging from many years of war, the Supreme Court of Cambodia adopted UNTAC, a United Nations set of legal provisions. Under UNTAC, certain areas of the law, such as human rights, would be directly controlled or supervised by UNTAC. In its decision, the Supreme Court cited the ICCPR and the UDHR.

http://www.cdpcambodia.org/untac.asp

The High Court of Australia held that treaties and conventions ratified by Australia effected legitimate expectations that the executive would have to consider them when reaching their decisions. If the decision maker disregards a treaty or convention, the person being affected must then be given an opportunity to argue against the decision. However, the provisions of the treaty or convention do not become part of Australian law. 

(found in Toward Implementing Universal Human Rights: Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee, ed. Nisuke Ando, p 258)

A Tuvalu court rejected the argument that CEDAW and CRC could be relied on in deciding suits involving children. Although the Tuvalu government had ratified CEDAW and CRC, the court held that the Tuvalu legislature must enable the conventions locally through legislation. If the conventions are not enabled through domestic legislation, the court said, they will only apply when ambiguities or inconsistencies in domestic law arise. The court held this, despite the Constitution allowing for the use of human rights conventions in the appropriate situation.

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The Supreme Court of Tonga held that it could not apply the Hague Convention because Tonga it had not been ratified in Tonga.

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The Supreme Court of Tonga held that, although the United Nations Convention on the Rights of the Child (UNCRC) had not been enabled by legislation in Tonga, there was a strong need for it regardless. Therefore, the Court said, courts in Tonga could legitimately refer to the CRC as a guide regarding acceptable forms of treatment for children. It then ruled that child offenders were entitled to have present their parents during questioning.

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(indicating that the international declarations are ''[i]nternational standard setting instruments'')

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

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