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The Application of Human Rights Treaties in the Development of Domestic and International Law: A Personal Perspective

Published online by Cambridge University Press:  28 October 2009

Abstract

This article considers the application of international human rights treaties or conventions to domestic law in common law countries and the historical differences in approach between some jurisdictions. It promotes the view that the judiciary of a country which has signed an international human rights treaty or convention may refer to such a treaty when interpreting domestic law, notwithstanding the fact that the treaty or convention has not been incorporated into domestic legislation. The article also suggests that international human rights treaties and conventions have a role in developing international criminal law and international humanitarian law. It cites the example of the decision that forced marriage is an inhumane act, a crime against humanity, by the Special Court of Sierra Leone, and gives the factual and jurisprudential background to that decision.

Type
HAGUE INTERNATIONAL TRIBUNALS: Special Court for Sierra Leone
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2009

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References

1 This view is based on the writer's personal experiences in Sierra Leone, Northern Ireland, and Papua New Guinea.

2 A. Byrnes, ‘Using Gender-Specific Human Rights Instruments in Domestic Litigation: The Convention on the Elimination of Discrimination against Women’, in K. Adams and A. Byrnes (eds.), Gender Equality and the Judiciary: Using International Human Rights Standards to Promote the Human Rights of Women and the Girl-Child at the National Level (1999). See, e.g., Attorney-General of Botswana v. Unity Dow, [1991] LRC (Const.) 574 (High Court of Botswana); [1992] RC (Cons) 623 (Court of Appeal of Botswana); State v. Ncube, 1990 (4) SA 151 (Supreme Court of Zimbabwe); In re Corporal Punishment, 1991 (3) SA 76 (Namibian Supreme Court); Rattigan v. Chief Immigration Officer of Zimbabwe, (1994) 1031 LR 224, [1994] 1 LRC 343, 1995 (2) SA 182 (Supreme Court of Zimbabwe). See also State v. Kule, [1991] PNGLR 404.

3 F. Butegwa, ‘Protecting and Promoting the Rights of the Girl-Child in Commonwealth Jurisdictions with emphasis on Commercial Sexual Exploitation’, in Adams and Byrnes, supra note 2, 223 at 233.

4 R v. Secretary of State for the Home Department, ex p. Brind and Others, (1990) 2 WLR 787 (CA).

5 The Convention has since been incorporated into domestic law and is now cited in litigation.

6 See Harare Declaration of Human Rights, (1989) 15 Commonwealth Law Bulletin 999.

7 Mabo v. Queensland (No. 2), 1995 175 CLR 1, at 42.

8 Statute of the Special Court, Art. 1.

9 Prosecutor v. Taylor, SCSL-03-01-I, Decision on Immunity from Jurisdiction, 31 May 2004.

10 Prosecutor v. Kallon and Kamara, SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004; Prosecutor v. Kondewa, SCSL-04-14-AR 72(E), Decision on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by Lomé Accord, 25 May 2004.

11 Prosecutor v. Norman, SCSL-04-14-AR 72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Soldiers), 31 May 2004.

12 Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-T, Judgement, 20 June 2007 (AFRC Trial Judgement).

13 Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-T, Trial Exhibit P-32, Expert Report on the Phenomenon of Forced Marriage in the Context of the Conflict in Sierra Leone.

14 AFRC Trial Judgement, supra note 12, para. 713.

15 Ibid., para. 714.

16 Ibid., para. 711.

17 Ibid., Partly Dissenting Opinion of Justice Doherty on Count 7 (Sexual Slavery) and Count 8 (Forced Marriage), para 51.

18 G. Werle, Principles of International Criminal Law (2005), 123.

19 Partly Dissenting Opinion of Justice Doherty, supra note 17, para. 51.

20 Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-A, Judgement, 22 February 2008.

21 Ibid., paras 199–202.

22 Ibid., para. 183.

23 Kirby, M., ‘The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms’, (1988) 62 Australian Law Journal 514Google Scholar.

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