General Application of International Standards

The respondent QT[1] is a British national.  She is homosexual and met her partner, SS, who has dual South African and British nationality, in 2004.  In May 2011, QT and SS entered into a same-sex civil partnership in England under the UK’s Civil Partnership Act 2004.

  SS was offered employment in Hong Kong and granted an employment visa to come and work here.  On 23 September 2011, the couple entered Hong Kong, SS on the strength of her employment visa and QT as a visitor.  Since their arrival in Hong Kong, SS’s employment visa has been extended from time to time as has QT’s visitor status.  As a visitor, QT is not permitted to work or study in Hong Kong and, unlike those who enter under a dependant visa, her period of stay may not qualify her for eventual permanent resident status.  The couple live in Hong Kong together and SS supports QT.  There is no dispute that their civil partnership is a genuine relationship and that they live together as a family.

After making unsuccessful applications for a dependant visa and also for an employment visa in her own right, on 29 January 2014 QT submitted the application for a dependant visa.

The Court of Final Appeal of the Hong Kong Special Administrative Region ruled that the Director has not justified the differential treatment against QT:

106.  The “core values” mentioned by Ma CJ are often referred to as the “suspect or prohibited grounds” identified in Art 22 of the Bill of Rights as including “any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.[135] It is clear that discrimination on the ground of sexual orientation is included within this assemblage of suspect grounds, sexual orientation falling within the words “other status”.[136]

107.  Discrimination on any of those grounds is regarded as especially  pernicious because, as Lord Walker pointed out in Carson:[137]

    “They are personal characteristics (including sex, race and sexual orientation) which an individual cannot change (apart from the wholly exceptional case of transsexual gender reassignment) and which, if used as a ground for discrimination, are recognised as particularly demeaning for the victim.”

108.  Accordingly, where a person is subjected to differential treatment on any of the suspect grounds, including sexual orientation, the government’s margin of discretion is much narrowed and the court will subject the impugned measure to “particularly severe scrutiny”.[138] That does not mean that the measure can never pass muster, but it will require the government to provide “very weighty reasons” or “particularly convincing and weighty reasons”[139] to justify the challenged difference in treatment, applying the standard of reasonable necessity.

This is a petition to declare unconstitutional certain provisions of Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, in 2071 (2014) in Nepal.

The Petitioners challenged Sections 22 (1), 24, 25 (3) (4), 26 (5) and 29 (1) of the disputed Act, to ensure the legal guarantee that no process of reconciliation can take place without the informed consent of the victim, and to establish that the consent of the victim as a mandatory legal requirement for amnesty measures, to make provisions for the Commission to be able to directly recommend for prosecution to the Attorney General and to make certain that the accused does not get immunity from criminal responsibility on the basis of any departmental action and to make organizations accountable as well to ensure the return of captured property.

The Supreme Court of Nepal ruled in favor of the Petitioners and declared the questioned provisions of the law unconstitutional.

Excerpts of the ruling:

The jurisdiction provided to the Commission to provide for amnesty in crimes of a serious nature is contrary to the principles of international law. Nepal is a State party to the International Covenant on Civil and Political Rights, Convention Against Torture as well as all the important human rights Conventions. In addition, in international humanitarian law, it is also a State party to the Geneva Conventions. Any individual who is a victim of violations of rights or freedoms has the guarantee of effective legal remedies under international human rights law. This right has been protected in the provisions contained in Article 8 of Universal Declaration of Human Rights, Article 2 of International Covenant on Civil and Political Rights, Article 14 of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 39 of Convention on the Rights of the Child, Article 91 of the Optional Protocol of the Geneva Convention, 1949 and Articles 68 and 75 of the Rome Statute of the International Criminal Court. Article 2(3)(a) of the International Covenant on Civil and Political Rights, 1966 provides for the existence of the right to effective remedy. As Section 26 of the Act provides that the Commission may grant amnesty even in crimes of a serious nature, it is more than certain that a situation may arise resulting in the failure of the victims to get effective remedy. Further interpreting this right, the Human Rights Committee in its General Comment No. 29 regarding the Derogations During States of Emergency, states that the right to remedy is a treaty obligation inherent in the Covenant as a whole and Article 2, paragraph 3, of the Covenant requires a State party to the Covenant to provide effective remedies for any violation of the provisions of the Covenant even for violations during the period of emergency. - (Paragraph 14, Human Rights Committee, General Comment 29, States of Emergency, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (31 August, 2001)]. Similarly, the United Nations Human Rights Commission on 25 April 2002, 25 April 2003, 21 April 2004 and 21 April, 2007 unanimously passed Special Resolutions against providing amnesty in cases of serious violations of international human rights and humanitarian law.

                                      xxx                                          xxx                                        xxx

Any individual guilty of serious violation of human rights cannot escape the responsibility of his actions; what this means is that on one pretext or the other, no one else should also attempt to help such individuals escape. Anyone making any attempt to help the guilty elude such responsibility or becoming an accessory to such an attempt should be ready to face the consequences created by such actions. This Bench believes that the Commissions established by law will not commit such actions.

Note: This is an unofficial translation of the decision, a joint work of the UN and ICJ

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.


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


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


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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(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.)


(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.


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).


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.


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.'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.

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.

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.


The  appellant,  Yong  Vui  Kong  (“the Appellant”),  was  convicted  of  trafficking  in  47.27g  of diamorphine,  a controlled  drug,  and  sentenced  to  death  (see Public Prosecutor  v  Yong  Vui  Kong[2009]  SGHC  4).  He  appealed against  the  conviction and  the  sentence,  but  later  withdrew  that appeal. Four days before the sentence was to be carried out, he filed Criminal Motion No 41 of 2009(“CM 41/2009”) seeking leave to pursue his appeal. This court granted him leave to do so (see YongVui Kong v  Public  Prosecutor [2009] SGCA 64). In the present proceedings, the Appellant’s counsel,Mr  M  Ravi ("Mr Ravi"), has confirmed that the Appellant is appealing against only his sentence, and not his conviction.

The  general  issue  in  this  appeal  is  whether  the mandatory  death  penalty  (“the MDP”)  ispermitted by the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint). The specificissue  is  whether  the  MDP imposed  under  certain  provisions  of  the  Misuse  of  Drugs  Act  (Cap  185,2001 Rev Ed), in particular, is permitted by the Constitution of the Republic of Singapore.

Court ruling:

59  We agree that domestic law, including the Singapore Constitution, should, as far as possible, be interpreted consistently with Singapore’s international legal obligations. There are, however, inherent limits  on  the  extent  to  which  our  courts  may  refer  to  international human  rights  norms  for  this purpose. For instance, reference to international human rights norms would not be appropriate where the  express  wording  of  the Singapore  Constitution  is  not  amenable  to  the  incorporation  of  the international norms  in  question,  or  where  Singapore’s  constitutional  history  is  such  as to  militate against the incorporation of those international norms (in this regard, see further [61]–[72] below). In such circumstances, in order for our courts to give full effect to international human rights norms, it would be necessary for Parliament to first enact new laws (as the drafters of the UDHR hoped States would do) or even amend the Singapore Constitution to expressly provide for rights which have not already been incorporated therein. Both of these measures are, as Lord Bingham observed in Reyes at[28]  (reproduced  in  the  preceding  paragraph),  well within  the  prerogative  of  a  sovereign  State.  In short,  the  point  which  we  seek to  make  is  this:  where  our  courts  have  reached  the  limits  on  the extent to which they may properly have regard to international human rights norms in interpreting the Singapore Constitution, it would not be appropriate for them to legislate new rights into the Singapore Constitution under the guise of interpreting existing constitutional provisions.

60 Where the Singapore Constitution is concerned, we are of the view that it is not possible to incorporate  a  prohibition  against inhuman  punishment  through  the  interpretation  of  existing constitutional provisions (in this case, Art 9(1)) for two reasons.

61  First, unlike the  Constitutions of the Caribbean  States, the  Singapore  Constitution does not contain  any  express prohibition  against  inhuman  punishment.
                                                  xxx                                   xxx                                   xxx
64 The  second  and  more  important  reason  why  it  is not  possible  to  interpret  the  Singapore Constitution as incorporating a prohibition against inhuman punishment is that a proposal to add an express  constitutional  provision  to  this  effect  was  made to  the  Government  in  1966  by  the constitutional  commission  chaired  by  Wee  Chong Jin  CJ  (“the  Wee  Commission”),  but  that  proposa lwas ultimately rejected by the Government.

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition[5] for registration with the COMELEC.

On November 11, 2009, after admitting the petitioner's evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that:

    x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:

        x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity.

... and proceeded to define sexual orientation as that which:

    x x x refers to a person's capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender."

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlad's application for accreditation.

Court ruling

We grant the petition.

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is "government neutrality in religious matters."[24] Clearly, "governmental reliance on religious justification is inconsistent with this policy of neutrality."[25] We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
                                 xxx                                   xxx                           xxxx

Equal Protection

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors.

                                 xxx                                   xxx                           xxxx

Freedom of Expression

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning one's homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well.

                                     xxx                                   xxx                           xxxx


From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors.

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure - religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted public morals" have not been convincingly transplanted into the realm of law.[29]
                                 xxx                                   xxx                           xxxx

Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR...

In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to include "sexual orientation."[48] Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.[49]
                                  xxx                                   xxx                           xxxx

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines' international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioner's invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity),[51] which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.[52] Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society - or a certain segment of society - wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are - at best - de lege ferenda - and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.[53]

Petition seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The “Milk Code,” Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and go beyond the law it is supposed to implement.

Court ruling

The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination Against Women, only provide in general terms that steps must be taken by State Parties to diminish infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being of families, and ensure that women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or marketing of breastmilk substitutes.
                                            xxx                                        xxx                                  xxxx
[t]he ICMBS [International Code of Marketing of Breastmilk Substitutes] which was adopted by the WHA in 1981 had been transformed into domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of law in this jurisdiction and not the ICMBS per se.
                                            xxx                                          xxx                                  xxxx
It is propounded that WHA [World Health Assembly] Resolutions may constitute “soft law” or non-binding norms, principles and practices that influence state behavior.[31]

“Soft law” does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice.[32] It is, however, an expression of non-binding norms, principles, and practices that influence state behavior.[33] Certain declarations and resolutions of the UN General Assembly fall under this category.[34] The most notable is the UN Declaration of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special Administrative Region v. Olalia,[35] Mejoff v. Director of Prisons,[36] Mijares v. Rañada[37] and Shangri-la International Hotel Management, Ltd. v. Developers Group of Companies, Inc..[38]
                                                xxx                                              xxx                              xxxx
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature.

The appellants appeared in the Magistrate's Court in Vava'u on 9 September 2003 charged with various offences of housebreaking and theft.

They all agreed to have their cases dealt with at the lower court. They were unrepresented although Funaki had instructed counsel. A letter had been sent by counsel to the court advising that Funaki wished to plead not guilty to one offence but guilty to the rest and seeking an adjournment until his lawyer could attend.

The offences had occurred over a period of three months and the accused appeared in court about one month later. At the time the appellant Funaki was 13 years old, Tone was 14, 'Ale 15 and Lau'i 16.

The appeal, despite the pleas of guilty, was against conviction and the grounds raised matters relating to the lateness of the service of the summons, the failure of the magistrate to advise the appellants of their rights, the suggestion that the magistrate had prevented them for obtaining legal representation and his failure to consider the request from Funaki for an adjournment.

During the hearing in this court, it appeared that, after the appellants had been arrested, the parents went to the police station but were not allowed to see or speak to their children. Mr Kefu told the court that the police practice in all cases is that they do not allow anyone except a lawyer to see an accused person until they have completed their investigation. Despite their youth, these appellants were treated in the same way.

The result was that, by the time they were before the court and being asked to decide how and where to be tried and then to enter their pleas, they had not seen anyone outside the police.

Court ruling

It appears that, in December 1995, Tonga acceded to the Convention on the Rights of the Child with the exception of some of the optional protocols, which do not affect this case.

Mr Kefu properly concedes that the manner in which these appellants were treated was in breach of the requirements of article 37 [of the Convention].

However, whilst the accession by a State to a convention indicates its willingness to be bound by the terms of the convention, it will only be enforced by the enactment of necessary domestic legislation.

It is a matter of regret that, despite an apparent time limit of 2 years for compliance imposed by the convention, Tonga appears to have taken no steps to enact any of the provisions. It can only be hoped that Government will recognise its obligations and enact legislation to bring Tonga into line with international standards of fair and humane treatment of young persons.

In the absence of any such legislation, the police were acting within the law albeit a law which allows harsh and, I would venture to suggest, unconscionable conduct. The result was that these young people arrived at court to face serious charges without the opportunity to consult even with their parents.

This court has stated before that it will only allow an appeal against conviction following a guilty plea if there is some evidence of equivocation in the guilty pleas entered. Mr Kefu correctly points out that there is nothing in the record to suggest anything other than normal admission of the offences charged.

I accept that is the case but I consider the court also has a discretion to allow such an appeal if there are circumstances which leave the court with a serious doubt that the appellant understood the procedures under which he was to be tried. Such a decision should not be taken lightly and the court will only act where there is clear evidence of the circumstances which give rise to the concern. In this case, my concern arises from the manner in which these appellants were treated from their arrest to their trial and there is no dispute over that.

The need for the Convention on the Rights of the Child arose from the widely accepted realisation that children need to be treated in a different manner to adults in relation to police and court proceedings. Even in the absence of legislation, the court is entitled to use the terms of any convention to which Tonga has acceded or become a signatory as a guide to what is acceptable. Failure to conform with those terms may result in the court excluding evidence or reversing a decision on appeal.

In the present case, had the appellants been able to speak to their parents, they would have been given advice or a lawyer might have been instructed, as was the case with Funaki. I have no doubt that, had they been represented, the lawyer would have raised the circumstances of their detention.

I also have no doubt he would have raised the issue of the service of the summons. It is clear that at least some of the summons were served very late and certainly well short of the 24 hours required by section 14 of the Magistrates' Courts Act.

Kayla Alyce Miller-Gorce, a four-year-old girl, had been living in Australia since birth (1999). In 2002, Kayla was brought by her mother (an Australian citizen) to Fiji and then Tonga where they have resided without the knowledge of the father. The father (Mr Gorce, a French citizen) filed an application for custody of Kayla in 2003 before the court in Tonga, while the mother filed a similar application with the court. The court issued an urgent order to proceed to hear the applications.

As the court states: "The facts are far removed from the usual type of custody application that comes before the courts in the Kingdom. Neither party is Tongan nor do they have any established connection with Tonga. The court has jurisdiction, however, because the respondent is presently residing in Vava'u with Kayla and an older child, Korey, aged 13, and she has indicated to the court that her intention is to continue residing in Tonga indefinitely."

Court ruling:

The court ruled that while the Kingdom of Tonga was not a party to the 1980 Hague Convention (Convention on the Civil Aspects of International Child Abduction), it had to order the return of the child to Australia and to live with her father there as this was in the best interest of the child based on the findings of court-appointed government officials who investigated the situation of Kayla.

Excerpts of the decision:

The relevant legal principles the court is required to have regard to in cases of this nature are, as I apprehend it, those embodied in the common-law prior to 1985 in which year the United Kingdom ratified the 1980 Hague Convention. In this context, the welfare of the child is the paramount consideration.

Had the Kingdom of Tonga been a party to the Hague Convention then this court would have had no discretion in the matter. Provided proceedings to recover the child had been commenced within 12 months of her abduction (which they were), then I would have been obliged to order Kayla's immediate return to Australia. As Balcombe L.J. expressed it in Re A and another (minors) [1992] 1 All ER 929, 936:

"The scheme of the Convention is thus clearly that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they had been wrongfully removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return."

The convention itself was the agreed international response to a problem that had become all too prevalent. It was identified by Cross J. in re H (infants) [1965] 3 All ER 906, 912 where His Honour said:

"The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and, as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing."

In relation to the Petitioners' plea for the court to apply the international human rights standards (the 1948 Universal Declaration of Human Rights and the  Standard Minimum  Rules  for  the  Treatment  of  Prisoners  and  the  Body  of  Principles for  the  Protection  of  all  Persons  under  any  form  of  Detention  or Imprisonment), the court upheld the goverment opposition to this plea:
Encik  Tun  Majid  bin  Tun  Hamzah,  Senior  Deputy  Public  Prosecutor  for the  respondent  started  his  rebuttal  by  stating  that  reference  to  international standards  set  by  the  1948  Declaration  and  several  other  United  Nations documents  on  the  right  of  access  cannot  be  accepted  as  such  documents are  not  legally  binding  on  our  Malaysian  Courts.  For  this  submission  he relied  on  the  case  of  Merdeka  University  Berhad  v.  Government  of  where  the  1948 declaration  was  described  as  a  non  legally  binding  instrument  as  some  of its  provisions  depart  from  existing  and  generally  accepted  rules.  “It  is merely  a  statement  of  principles  devoid  of  any  obligatory  character  and  is not  part  of  our  municipal  law.”

Merdeka  University  Berhad  was  decided  in  1981.  This  begs  the  question as  to  whether  acceptance  of  the  1948  Declaration  as  a  non  legally  bindinginstrument  has  changed  by  virtue  of  s.  4(4)  of  the  Human  Rights Commission  of  Malaysia  Act  1999.  In  my  opinion  the  status  and  the  weight to  be  given  to  the  1948  Declaration  by  our  courts  have  not  changed.  It must  be  borne  in  mind  that  the  1948  Declaration  is  a  resolution  of  the General  Assembly  of  the  United  Nations  and  not  a  convention  subject  to the  usual  ratification  and  accession  requirements  for  treaties.  By  its  very title  it  is  an  instrument  which  declares  or  sets  out  statement  of  principles of  conduct  with  a  view  to  promoting  universal  respect  for  and  observance of  human  rights  and  fundamental  freedoms.  Since  such  principles  are  only declaratory  in  nature,  they  do  not,  I  consider,  have  the  force  of  law  or binding  on  Member  States.  If  the  United  Nations  wanted  those  principles to  be  more  than  declaratory,  they  could  have  embodied  them  in  a convention  or  a  treaty  to  which  Member  States  can  ratify  or  accede  to  and those  principles  will  then  have  the  force  of  law. The  fact  that  regard  shall  be  had  to  the  1948  Declaration  as  provided  for under  s.  4(4)  of  the  Human  Rights  Commission  of  Malaysia  Act  1999 makes  no  difference  to  my  finding.  This  is  so  as  my  understanding  of  the pertinent  words  in  the  sub-section  that  “regard  shall  be  had”  can  only  mean an  invitation  to  look  at  the  1948  Declaration  if  one  is  disposed  to  do  so, consider  the  principles  stated  therein  and  be  persuaded  by  them  if  need be.  Beyond  that  one  is  not  obliged  or  compelled  to  adhere  to  them.  This is  further  emphasised  by  the  qualifying  provisions  of  the  sub-section  which states  that  regard  to  the  1948  Declaration  is  subject  to  the  extent  that  it  is not  inconsistent  with  our  Federal  Constitution.

From opinion written by Siti  Norma  Yaakob  FCJ, page 385-386, Current  Law  Journal, 2002, 4 CLJ

These writ petitions have come up before us as a Bench of three learned Judges of this Court referred the first mentioned writ petition to a Constitution Bench observing thus :

"Whether the judgment of this Court dated March 10, 1997 in Civil Appeal No.1843 of 1997 can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed are, in our opinion, questions which need to be considered by a Constitution Bench of this Court."

Court ruling:

The next step forward by the highest court to do justice was to review its judgment inter partie to correct injustice. So far as this Court is concerned, we have already pointed out above that it has been conferred the power to review its own judgments under Article 137 of the Constitution. The role of judiciary merely to interpret and declare the law was the concept of bygone age. It is no more open to debate as it is fairly settled that the courts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing conditions of the society, the ultimate objective being to dispense justice. In the recent years there is a discernable shift in the approach of the final courts in favour of rendering justice on the facts presented before them, without abrogating but by-passing the principle of finality of the judgment.
                   xxx                  xxx                       xxxx
The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles - ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision making process not disclosing his links with a party to the case, or abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice - a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error.

After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.

In December 1992, the Sri Lankan government called for proposals to establish a Joint Venture for the manufacture of Phosphate fertilizer using the apatite deposit at Eppawela. The proposal of Freeport MacMoran Resource Partners of USA was accepted.

In October 1999, seven Sri Lankans filed a petition to stop the project on the ground of violaton of their fundamental rights under the Constitution.

Court ruling

On the issue of development of natural resources and protection of the environment:

Undoubtedly, the state has the right to exploit its own resources pursuant, however, to its own environmental and development policies. (Cf. Principle 21 of the U.N Stockholm Declaration (1972) and Principle 2 of the U.N. Rio De Janeiro Declaration (1992) Rational Planning Constitutes   an essential tool for recognizing any conflict between the needs of development and the need to protect and improve the environment.  (Principle 14, Stockholm Declaration)  Human beings are at the centre of concerns for sustainable development.  They are entitled  to a healthy and productive life  in harmony with nature. (Principle 1, Rio De Janeiro Declaration).  In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.  (Principle 4, Rio De Janeiro Declaration).  In my vie, the proposed agreement must be considered in the light of the foregoing principles.  Admittedly, the principles set out in the Stockholm and Rio De Janeiro Declarations are not legally buiding in the way in which and Act of our Parliament would be.  It may be regarded merely as ‘soft law’ Nevertheless, as a Member of the United Nations, they could hardly be ignored by Sri Lanka.  Moreover, they would, in my view, be binding if they have been either expressly enacted or become a part of the domestic law by adoption by the superior courts of record and by the supreme Court in particular, in their decisions.
                                                         xxx                                   xxx                            xxx

International standard setting instruments have clearly recognized the principle of inter-generational equity.  It has been stated that humankind bears a solemn responsibility to protect and improve the environment for present and future generations.  (Principle 1,  Stockholm Declaration) .  The natural resources of the earth including the air, water, land flora and fauna must be safeguarded  for the benefit of present and future generations. (Principle 2, Stockholm Declaration). The non-renewable resources of the earth must be employed in such a way as to guard against their future exhaustion and to ensure that benefits from such employment are shared by all humankind  (Principle 5, Stockholm Declaration)  The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.  (Principle 3,  Rio De Janeiro  Declaration).  The inter-generational principle in my view, should be regarded  as axiomatic in the decision making process in relation to matters concerning the natural resources and the environment of Sri Lanka in general, and particularly in the case before us.  It is not something new to us, although memories may need to  be jogged. Judge C.G. Weeramantry, in his separate opinion in the Danube case (Hungary v. Slovakia - [1997]), (supra), referred to the “imperative of balancing the needs of the present generation with those of posterity”.  Judge weramantry referred at length to the irrigation works of ancient Sri Lanka, the Philosophy of not permitting even a drop of water to flow into the sea without benefiting humankind, and  pointed out that sustainable development had been already consciously practiced with much success for several millenia in Sri Lanka.  Judge Weeramantry said; “The notion of not causing harm to others and hence sic utere tuo ut alienum non laedas  was a central notion of Buddhism.  It translated well into environmental attitudes.  “Alienum’ in this context would be extended by Buddhism to future generations as well, and to other component elements of the natural order beyond man himself, for the Buddhist concept of duty had an enormously long reach”.

Admission to Engineering College-Jammu & Kashmir Regional Engineering  College, Srinagar,  registered  as  a society under  the Jammu & Kashmir Registration of Societies Act,  1898 - Whether a    "State" under Article 12  of the Constitution and amenable to writ jurisdiction.

Court ruling:

The Courts should be  anxious to enlarge the scope and width of  the Fundamental  Rights by  bringing within  their sweep every  authority which is an instrumentality or agency of the Government or  through the  corporate personality of which the  Government  is  acting,  so  as  to  subject   the Government in  all its myriad activities,  whether  through natural persons or through corporate entities, to the basic obligation of  the Fundamental Rights. The  constitutional philosophy of  a democratic  socialist republic requires the Government  to under  take  a multitude  of  socioeconomic operations  and the  Government,  having  regard  to the practical advantages of functioning through the legal device of a  corporation, embarks on myriad commercial and economic activities by  resorting to the instrumentality or agency of a corporation, but this  contrivance of  carrying  on such activities  through   a corporation  cannot  exonerate the Government  from   implicit  obedience  to the Fundamental Rights. To use the corporate methodology is not to liberate the Government from its basic  obligation to  respect the Fundamental Rights and not to override them.The mantle  of a  corporation may be adopted in  order to free the Government from the inevitable constraints ofred-tapism and slow motion but by doing so, the Government cannot be  allowed to  play truant with the basic human  rights, otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every  State business such as Post and Telegraph, TV, Radio, Rail,  Road and    Telephones-in short  every  economic activity-and thereby  cheat the people of India out of the Fundamental Rights  guaranteed to  them. That would  be  a mockery of the Constitution  and nothing short of treachery and breach of faith with the people of India, because though apparently  the corporation  will be carrying  out  these functions, it  will in  truth and  reality be the Government which will  be controlling  the corporation and carrying out these functions through the instrumentality or agency of the corporation. Courts  cannot  by  a  process of judicial construction allow  the Fundamental  Rights to  be  rendered futile and  meaningless and there by wipe out Chapter III from  the  Constitution. That    would  be  contrary  to   the constitutional faith  of the  post-Menaka Gandhi  era. It is the  Fundamental  Rights  which  along with  the  Directive Principles constitute the life force of the Constitution and they must  be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a  mere agency  or surrogate of the Government, "in fact owned  by  the Government, in  truth controlled  by the government and in effect an incarnation of the government," the court  must not  allow the enforcement of Fundamental Rights to  be frustrated  by taking  the view that it is not the  government and, therefore, not subject to the constitutional limitations. Therefore, where  a corporation is an  instrumentality or agency of the Government, it is an authority within  the meaning  of  Article  12  and,  hence, subject to the same basic obligation to obey the Fundamental Rights as the government.

12. In this Part, unless the context otherwise requires,"the  State"  includes  the  Government  and  Parliament  of India and the Government and the Legislature of each of the  States  and  all  local  or  other  authorities  within  the territory of India or under the control of the Governmentof India.