Abstract
The use of foreign law by national courts when deciding cases that concern fundamental rights has provoked a debate on the legitimacy of the judiciary to resort to this practice. Indeed, many arguments have been made by legal scholars to support the proposition that judges should not take account of unincorporated international human rights instruments or the decisions of foreign courts when they decide cases that concern fundamental rights. This article puts these arguments to scrutiny, and discusses whether this judicial practice should be resorted to.
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Notes
Laws (1995).
Ibid. Lord Justice Laws observes that Sir William Wade (‘The Basis of Legal Sovereignty’, (1955) CLJ 172) has argued that the doctrine of sovereignty of Parliament cannot be changed by Parliament itself, that the courts have a duty to guard the doctrine, and that not even an Act of Parliament can take that power away from the judiciary.
R v Secretary of State for Transport, Ex parte Factortame (1990) 2 AC 85.
See Al-Kateb v Godwin (2004) HCA 37 at 68, where Justice McHugh held that the proposition ‘that a rule of international law is merely a factor that can be taken into account in interpreting the Constitution cannot hide the fact that, if that is done, the meaning of the Constitution is changed whenever that rule changes what would otherwise be the result of the case.’
See Kartinyeri v The Commonwealth (1998) HCA 22, where Justice Kirby held that ‘if the constitutional provision is clear and if a law is clearly within the power, no rule of international law, and no treaty (including one to which Australia is a party) may override the Constitution or any law validly made under it.’
See Chu Kheng & Ors v The Minister for Immigration, Local Government and Ethnic Affairs and Anor (1992) 67 ALJR 125 at 143, where it was held that the provisions of the domestic statute were ‘quite unambiguous.’
R v Secretary of State for the Home Department, Ex parte Bhajan Singh (1975) 3 WLR 225.
See R v Secretary of State for the Home Department, Ex parte Brind (1991) 1 AC 696, where Lord Bridge held that ‘where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of ambiguity.’ He further held that such a course of action would mean ‘a judicial usurpation of the legislative function.’
See R v Ministry of Defence, Ex parte Smith (1996) QB 517, where Justice Curtis in the Divisional Court observed that Ex parte Brind (Ibid.) ‘makes it clear that, since no question of the construction of or any ambiguity in domestic legislation arises, the applicants cannot rely on the Convention.’
Attorney-General of Botswana v Unity Dow (1992) LRC (Const.) 623 extracted from Viljoen (1999).
Bradley and Goldsmith find support for their argument in the observations of Professor Henkin (Louis Henkin, Foreign Affairs and the United States Constitution 508 n.16 (2nd ed. 1996) at 508) that this type of law ‘is not made by the United States and through its governmental institutions alone but by them together with many foreign governments in a process to which the United States contributes only in an uncertain way and to an indeterminate degree.’
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 353.
Ibid at 26. The two judges further held that the ratification of an international human rights instrument by the government of Australia cannot be dismissed as meaningless particularly when it concerns fundamental rights. Instead, ratification is a positive statement by the executive to the country and to the world that it will act in accordance with the instrument.
Longwe v International Hotels (1993) 4 LRC (Const.) 221 (extracted from Viljoen note 10). See the opinion of Justice Musumali at 223 c-d where he held, in relation to international treaties that ‘ratification of such documents by a nation state without reservations is a clear testimony to the willingness by that state to be bound by the provisions of such a document.’ Further, he considers that, given the presence of such willingness, he would take judicial notice of this document if an issue which would not be covered by domestic law arises, and if the international instrument covers that issue.
Note 1.
Newcrest Mining (WA) Ltd v The Commonwealth of Australia (1997) HCA 38, at 1423-1424.
Charlesworth (1994), cited in Kirby, ‘Domestic Implementation of International Human Rights Norms’, Conference, Australian National University, 06 December 1997.
Laws (1994). He further argues that they should be developed by the common law.
Note 1.
Note 18. Lord Justice Laws explains that the court will not ask itself about the intention of the legislator or the meaning of the statute when the common law is uncertain, but will instead ask itself in which direction should the common law go. In this respect, judges have largely made the law of contract, the law of tort, and the principles of judicial review.
Note 1. Lord Justice Laws remarks that, in his own view ‘the survival and flourishing of a democracy in which basic rights (of which freedom of expression may be taken as a paradigm) are not only respected but enshrined requires that those who exercise democratic, political power must have limits set to what they may do: limits which they are not allowed to overstep.’ He concludes that democratic power should not be absolute.
Kirby note 17.
(1992) 177 CLR 292.
Note 18.
(1992) 175 CLR 1.
Dorf, ‘The Use of Foreign Law in American Constitutional Interpretation: A Revealing Colloquy Between Justices Scalia and Breyer’.
Note 18.
(1978) 1 QB 36, extracted from Perry (1997).
Kirby note 17.
Atkins v Virginia 536 US 304 (2002). The Supreme Court considered the views around the world when it held that the prohibition of ‘cruel and unusual punishment’ prevents the execution of people who are mentally retarded.
Lawrence v Texas 539 US 558 (2003). The Supreme Court cited a statute of the English Parliament and a decision of the European Court of Human Rights when it struck down a law which criminalised ‘homosexual sodomy’.
543 US 551 (2005).
Note 26.
Kirby note 17.
There are three operating regional mechanisms for human rights protection: the European Court of Human Rights (for Europe), the Inter-American Court of Human Rights (for the American continent), and the African Court of Human Rights (for Africa).
Kirby (1993).
References
Bradley C. and Goldsmith JL, ‘UN Human Rights Standards and US Law: The Current Illegitimacy of International Human Rights Litigation’ (1997) 66 Fordham Law Review 319.
Charlesworth H., ‘Protecting Human Rights’, (1994) 68 Law Institute Journal (Vic) 463.
Feldman D., ‘Civil Liberties and Human Rights in England and Wales’, Second Edition, Oxford University Press (2002), Chapter 2.
Kirby M., ‘The Australian Use of International Human Rights Norms from Bangalore to Balliol—A View From the Antipodes’, (1993) 16 (2) University of New South Wales Law Journal 363.
Laws J., ‘Is the High Court the Guardian of Fundamental Constitutional Rights?’, (1994) Public Law 59.
Laws J., ‘Law and Democracy’, (1995) Public Law 72.
Perry J., ‘At the Intersection—Australian and International Law’ (1997) Australian Law Journal 841.
Viljoen F., ‘Application of the African Charter on Human and People’s Rights by Domestic Courts in Africa’, (1999) 43 Journal of African Law 1.
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Jheelan, N. Judicial Use of Foreign Law in Human Rights Cases: Illegitimate and Unacceptable Practice?. Hum Rights Rev 12, 15–25 (2011). https://doi.org/10.1007/s12142-010-0169-4
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DOI: https://doi.org/10.1007/s12142-010-0169-4