In a drunken incident, after being provoked, the defendant hit another person repeatedly with an iron bar, killing him. The jury found him guilty. The Supreme Court of Tonga had to consider whether to sentence the defendant to death or life imprisonment. It chose life imprisonment. In so doing, it made reference to Article 6(1) of the ICCPR, to which Tonga was not a party. Nevertheless, the Court allowed the ICCPR to influence its decision in this first verdict in a murder case in Tongatapu in over twenty years. This was a major departure from prior decisions by Tongan courts, which held the ICCPR to be non-enforcable. Thus, the ICCPR and international human rights standards were gaining influence in Tonga.

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The defendant was convicted on a charge of conspiracy to manufacture methamphetamine. He appealed to the Supreme Court of New Zealand, claiming there was undue delay in the interim between his arrest and trial (almost five years). The Court called the delay “plainly excessive” and cited the European Convention for the Protection of Fundamental Rights and Freedoms. It also cited multiple U.S. Supreme Court cases and held that the delay here could not be justified, and upheld the reduction of his sentence by eighteen months, or twenty-five percent. It hesitated to do, however, out of a concern for letting loose dangerous criminals. It called the reduction “generous” and hinted that only in situations in which the delay in trial reaches “peculiarly outrageous proportions” would the Court reduce prisoners’ sentences.

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(though international documents like the Rio Declaration are not binding, the Court observed, ''the fact remains that they have a persuasive value and command respect. The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensus declaration had been sorted out. Environment is an international problem having no frontiers creating transboundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations while dealing with environmental problems. Coming back to the present subject, it would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence.'')

(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)

(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, p 261)

(the Court in this case referred to the 1992 Rio Declaration on Environment and Development and other nonbinding agreements as having been transformed into ''Custoary International Law though [their] salient feature[s] have yet to be finalised by the International law Jurists.''

The Supreme Court of India declined to get involved in a petition against damming the Narmada River. In so doing, the Court noted that a lengthy decision-making process had been behind the damming, and that the Court should not try to second-guess something which had been given such great consideration already. Thus, the Court essentially gave the go-ahead for the displacement of indigenous and tribal populations which were in the path of the damming. In its decision, the Court took into consideration the Indigenous and Tribal Peoples Convention of 1957, the ILO Convention No. 107, and principles of international environmental law.

The defendant had made moves to install industry near a lake. The Indian Supreme Court ruled against the defendant. It referred to various courts around the world, and to a decision of the Inter-American Commission on Human Rights, when it said that ''the concept of a healthy environment as a part of the fundamental right to life, developed by our Supreme Court, is finding acceptance in various countries side by side with the right to development.''

(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, p 260)

The Indian Supreme Court allowed the laying of pipes as it found that the plan to do so was thought out and would not unduly damage the enrivonment. The Court referred to the Declaration of the 1972 Stockholm Conference on the Human Environment as the ''Magna-Carta of our environment''. The laying of such pipes would be in line with the Declaration, and thus the Court allowed it. In other cases, the Court imported into domestic law the principles or concepts of sustainable development, the ''polluter pays'' principle, and the precautionary principle.

A mother wrote a letter to the Supreme Court of India, requesting monetary compensation for the death of her 22-year-old son, who died in police custody. She claimed that her son was beaten to death. The Supreme Court took up her case.

“Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 lays down that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.. This Covenant has been ratified by India,56 which means that the State has undertaken to abide by its terms . . . The State has a .duty of care. to ensure that the guarantee of Article 21 is not denied to anyone. This .duty of care. is strict and admits no exceptions the Court said. The State must take responsibility by paying compensation to the near and dear ones of a person, who has been deprived of her/ his life by the wrongful acts of its agents. However, the Court affirmed that the State has a right to recover the compensation amount from the wrongdoers.”

A Bangladeshi woman was gang raped by railroad employees. She was then raped again by her rescuer. The Supreme Court rejected the argument that the woman, as a foreigner, was not afforded certain constitutional protections. Some provisions of the Indian Constitution refer to ''citizens'' while others refer to ''persons''. Regardless, the Court held that ''life'' as used in Article 21 must be interpreted consistently with the Universal Declaration of Human Rights. Thus, Article 21 protections protect both citizens and non-citizens. Since rape is a violation of Article 21's fundamental right to life, the victim was entitled to compensation.

The UDHR was cited in an attempt to convince the Supreme Court of Nauru that a right to marry a non-Nauruan woman should be incorporated into the Nauru Constitutional Bill of Rights. The Supreme Court rejected this attempt, however.

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The appellant went to a police officer’s home on a weekday morning while the police officer was sleeping after coming off of a night shift. The appellant knocked on the police officer’s door and the police officer answered. The appellant then stood in the street playing a guitar and protesting the police officer’s role in an earlier search warrant incident. After he refused to cease, he was arrested after the arrival of other officers. The appellant challenged this, and thus the issue was whether the appellant’s fundamental right to freedom of expression afforded him greater legal weight in court than the police officer’s right to privacy.

In determining whether privacy is a “right” or a “value”, the Supreme Court of New Zealand noted that New Zealand was committed to the ICCPR. The ICCPR allows for restrictions on the freedom of expression if they are reasonable, and if the Court were to follow the ICCPR here, the appellant’s appeal could have been denied. However, the Court ruled in favor of the appellant by favoring the NZ Bill of Rights, which does not allow for such restrictions on the right to freedom of expression. Thus, the Court went above and beyond the ICCPR in providing for freedom of expression, though by doing so the right to privacy was somewhat infringed. The Court also cited the UDHR, the ECHR, the CRC, the Charter of Fundamental Rights of the European Union, the American Convention on Human Rights, the Cairo Declaration on Human Rights in Islam. The Court also affirmed that there is a right to privacy in New Zealand.

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The Supreme Court of Vanuatu cited CEDAW and used it as a guide in formulating a principle for distribution of matrimonial assets. The Court held that there is a presumption of joint or equal ownership of all matrimonial assets.

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A law in Nepal gave preference to males regarding ancestral property inheritance. The Forum for Women, Law and Development asked the Supreme Court of Nepal to overturn this law, citing CEDAW, which had the status of national law in Nepal. Instead of striking down this law directly, the Court ordered the government to pass legislation within one year to rectify the situation. However, the government did not do so. Thus, while the Court considered international human rights norms in making its decision, its decision was ultimately ineffective.

The Supreme Court of New Zealand allowed for an appeal of a case regarding whether the Convention Relating to the Status of Refugees (a UN document) was properly applied.

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An election was held. After the election, it was contended that there had been irregularities in the voting process at various polling places, including ballot stuffing, early closure of polling stations, and intimidation. The Supreme Court of Sri Lanka held that the irregularities would have affected the result of the election and that there therefore should have been a re-poll at those polling stations. It said, “The right to a free, equal and secret ballot is an integral part of the citizen's freedom of expression, when he exercises that freedom through his right to vote . . . That right is an essential part of the freedom of expression recognized by Article 14(1)(a) of the Constitution, especially in view of Sri Lanka's obligations under Article 25 of the International Covenant on Civil and Political Rights and Article 27(15) of the Constitution . . . The citizen's right to vote includes the right to freely choose his representatives, through a genuine election which guarantees the free expression of the will of the electors: not just his own. Therefore not only is a citizen entitled himself to vote at a free, equal and secret poll, but he also has a right to a genuine election guaranteeing the free expression of the will of the entire electorate to which he belongs." The Court then held that because the respondent had not ensured a fair election process, and subsequently had not annulled the polling at stations with irregularities, the right of the petitioners under the Sri Lankan constitution had been infringed. However, as nearly two years had passed in the interim, the Court held that it would not be feasible to declare the results of the respective polling stations invalid nor to order a re-poll. It did, however, award the petitioners their costs, even though they had not asked for compensation.

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The person elected by resident voters to the Provincial Council subsequently resigned, creating a vacant seat on the Council. The government then selected a person who was not on the ballot at election time to fill the seat. This was challenged in the Sri Lankan Supreme Court, which ruled that such action was invalid. It also held that only people who had been on the ballot at election time could be selected to fill a vacant seat on the Provincial Council. The Court said, “What is involved is the right of the electorate to be represented by persons who have faced the voters and obtained their support . . . That is wholly consistent with Article 25 of the International Covenant on Economic, Social and Cultural Rights, which recognizes that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representative.” (emphasis in original).

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(Papua New Guinea ratified the ICCPR on July 21, 2008. (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en) Since then, it has been cited at least once by the Supreme Court, in July 2010. Though the Papua New Guinea Supreme Court citation of international human rights norms as a whole is limited compared to countries in the region such as New Zealand and Fiji, it will be interesting to see if the recent ratification of the ICCPR leads to more ICCPR and human rights norms citations, as the July 2010 case would suggest.)

The Supreme Court of Papua New Guinea decided on an issue concerning the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC), a law which put restrictions on elected officials switching parties, ostensibly to avoid a “musical chairs” of political party membership. Under OLIPPAC, a candidate could not be endorsed by more than one political party, and after the election, the elected official had to remain a member of his or her chosen political party for a given amount of time. He or she would then be subject to investigation if he or she did switch. Thus, there was concern that this would force elected officials to go along with the party and become yes men or women, lacking freedom to vote their conscience rather than with their party, and also the freedom to switch parties when they felt that their own views had become convergent with those of the party.

The Supreme Court of Papua New Guinea called this a “draconian” law. “A person’s right to hold political beliefs and to enjoy that right individually or in association with likeminded persons, ought not be restricted or prohibited in any democracy. This right, amongst other human rights, is recognised as an inherent and unalienable right under the International Bill of Human Rights (1978) and the United Nations International Covenant on Civil and Political Rights (1966), both of which PNG has ratified.” The Court then struck down the relevant provisions of OLIPPAC. The Court seemed to do so mostly on grounds that OLIPPAC was unconstitutional, but nevertheless, the ICCPR was cited for support.

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A woman born into a “forward class” married a man belonging to a “backward class”. Under Indian law, states could make provisions for members of “backward classes” so as to diminish the equality gap, despite the Indian constitution’s protections against discrimination. The woman thus applied for a job based on her belonging to a “backward class” via marriage, even though she had grown up with all of the privileges that belonging to a “forward class” entails and none of those entailed by belonging to a “backward class”. She got the job. Another candidate challenged this. The Supreme Court, citing CEDAW and saying that “its principles are enforceable by operation of the Protection of Human Rights Act 1993”, ruled in favor of the challenger. It held that women from a “forward class” could not reap the benefits of such affirmative action programs by becoming members of a “backward class” by marriage.

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The High Court of Tuvalu cited the CRC in interpreting the Constitution, which failed to protect the legal rights of children in situations in which children defendants had not yet been interviewed by the police. Through the CRC, the Court held that children in police custody had the right to be informed by the police that they had a right to have a parent, guardian or legal adviser present. The Court also held that the police must take reasonable measures to ensure that such assistance was in place before the police could interview the child.

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A male was convicted of murder. The incident occurred when the male was sixteen years old. Following his conviction, he did not appeal, and had served over four years of his sentence when he petitioned the High Court of Tuvalu for a review of his case, given that he was a minor when the crime occurred. In deciding on the case, the Court cited the CRC and said that Tuvalu, as a signatory, was “required to review [its] laws in relation to children.” The Court then suggested that legislation be passed mandating greater review by the government of life imprisonment or sentences of many years, especially for children. However, the Court refused to alter the applicant’s sentence of life imprisonment, as he had not appealed and was essentially asking the Court to review one of its earlier decisions.

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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, 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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The right to travel, along with the right to freedom of movement, are constitutionally guaranteed rights. The petitioners had been barred by the government from leaving the country. This was done through a Hold-Order. The petitioners argued that this was violative of their right to travel. The Court held that the Hold-Orders impaired the petitioners' constitutional right to travel. The Hold-Orders had already expired and the grounds for their issuance had become moot. The Court said, "The right to travel and to freedom of movement is a fundamental right guaranteed by the 1987 Constitution and the Universal Declaration of Human Rights to which the Philippines is a signatory. That right extends to all residents regardless of nationality. And everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law. While such right is not absolute but must yield to the State's inherent police power upon which the Hold-Orders were premised, no 'good reasons' have been advanced which could justify the continued enforcement of the Hold-Orders." Thus, the Court held that the government had abused its discretion in maintaining the Hold-Orders for an indefinite length of time, as to do so arbitrarily violated the petitioners' fundamental right to freedom of movement. It cited the UDHR in so doing.

(found in Philippine Law & Jurisprudence on Human Rights by Alberto T. Muyot, pp. 158-159)

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A person had pleaded guilty to manslaughter of a child and was sentenced to a three and a half years imprisonment. The state appealed, arguing that the sentence was an insufficient punishment for a crime of such magnitude. The Court of Appeal of Samoa cited the CRC regarding the right not to be subjected to cruel treatment or punishment. It held that “[a]ll Samoan Courts should have regard to this Convention in cases within its scope.” The Court then quashed the original sentence and replaced it with a five-year sentence.

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As in the Maumasi case the previous year, the Court of Appeal of Samoa quashed a sentence (this time the sentence of a person who was convicted of engaging in sexual intercourse with a minor) and replaced it with a longer sentence (the nine months sentence was replaced with a three-year sentence). In so doing, the Court cited the CRC again, and quoted the Court’s previous holding in Maumasi, that “[a]ll Samoan Courts should have regard to this Convention in cases within its scope.”

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Citizens of New Zealand who had been born there challenged the deportation order of their parents by the Department of Immigration. The parents had been born outside of New Zealand and were undocumented. The Supreme Court of New Zealand cited Article 3 of the Convention on the Rights of the Child. The Court held that the best interests of the child, as per Article 3, in this case should be granted “due weight”. In this particular context, however, they should not be granted “paramount weight”. The Court stated that giving “paramount weight” to such interests would disproportionately overlook other relevant considerations.

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The appellant, a citizen of Nauru, wished to adopt a child also a citizen of Nauru. The appellant’s spouse, however, was not a citizen of Nauru. Under the Constitution, both parents had to be citizens of Nauru in order for the couple to adopt. The appellant challenged this in court and cited the CRC. The Supreme Court of Nauru sided with the appellant and said that such a law was in violation of the spirit of the CRC. The Court considered the CRC even though it had not been incorporated into domestic law in Nauru.

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The High Court of Fiji had to decide whether to grant bail to a father of a four-year-old boy. Without the mother, the son had no caregiver and his clothes were locked up at the mother’s house. The Court cited the CRC and noted that it had to consider the best interests of the child. Using these guidelines, the Court granted the mother bail. See also Yuen v The State, [2004] FJHC 247, a case in which the High Court of Fiji considered a similar fact pattern. The Court granted bail to the mother, but noted that although under the CRC the best interests of the child are to be given primary importance, they are not to be given paramount importance. Other factors could overrule the best interests of the child.

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A couple, neither of whom were 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 unratified 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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A newspaper had published stories that called attention to police and Army brutality. The government ordered the newspaper shut down, and the Supreme Court of Sri Lanka upheld the closure. In so doing, the Court rejected international freedom of expression norms. ''The Court will respect the [Universal] Declaration [of Human Rights] and the Covenants but their legal relevance here is only in the field of interpretation.'' See also Chelliah v. Parange, 2 Sri Lanka Law Reports 132 (1982) (constitutional guarantee of right to personal liberty ''is based upon Article 9 of the Universal Declaration of Human Rights''); Perera v. Attorney-General, S.C. Nos. 107-109/86, slip op. (1986) (unreported) (Sri Lanka) (referring to the UDHR's permissible limitations on rights in interpreting the constitutionally guaranteed freedom of speech); Velmurugu v. Attorney-General, 1 Sri Lanka Law Reports 406 (1981), Thadchanamoorthi v. Attorney-General, F.R.D. (1) 129 (Sri Lanka) (discussing the interpretation by the European Commission and Court of Human Rights regarding the scope of governmental libaility for ill-treatment and torture).

(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 300)

A man was arrested. While in police custody, he was subject to mistreatment by the police, for which he went to the hospital. Before the Supreme Court, he sought compensation for his medical bills beyond any compensation for the mistreatment he endured. The Supreme Court of Sri Lanka allowed this medical bill compensation, citing Article 12 of the ICCPR. The Court said, “Citizens have the right to choose between State and private medical care, and in the circumstances the Petitioner's wife's choice of the latter was not unreasonable -and was probably motivated by nothing other than the desire to save his life. Article 12 of the International Covenant on Economic Social and Cultural Rights recognizes the right of everyone "to the enjoyment of the highest attainable standard of physical and mental health" ".

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The petitioner had participated in a radio program on a government-controlled radio station. The petitioner, on air, had asked controversial questions. The petitioner claimed that, following these questions, the program was altered so that no controversial material would be broadcast, an arbitrary violation of his right to freedom of speech under the Sri Lankan constitution. The Supreme Court of Sri Lankan sided with the petitioner and called the government’s actions “sudden and arbitrary”. The Court cited the European Court of Human Rights but called certain of its decisions “not helpful” because its free expression provisions differed from their correlates in the Sri Lankan Constitution. Nevertheless, the Court ruled against the government interference.

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A man was arrested for allegedly stealing bananas. He was detained in a Sri Lankan prison. While in custody, he died. The petitioners claimed that he was subjected to assault by prison authorities and died of the injuries incurred. Such treatment, it was argued, was violative of the man’s constitutional rights. The Supreme Court of Sri Lanka agreed, citing a previous UNHRC case in which a prisoner’s rights under the ICCPR were found to have been violated. The Court also cited standards of prisoners’ rights under the UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, as well as the Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Relying in part on these authorities, the Court ruled that the prisoner’s rights under the Sri Lankan constitution had been violated. The Court then said that the respondent prison officials were under a duty to “take all reasonable steps to ensure that the persons kept in the Prison [we]re treated with kindness and humanity.” The Court then awarded the petitioners 1,000,000 rupees (about $8,900USD).

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The Supreme Court of Vanuatu cited CEDAW and used it as a guide in formulating a principle for distribution of matrimonial assets. The Court held that there is a presumption of joint or equal ownership of all matrimonial assets.

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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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There existed in Pakistan the custom of swawa, in which young women or minor girls would be given away by their families as property (i.e. forced to marry another man not of their choosing) as recompense for a crime committed by a member of the woman’s family. The petitioners challenged this custom in the Supreme Court of Pakistan. They argued that such a custom violated, among other things, the constitution, the UDHR, CEDAW, the ICESCR, and the CRC. The Supreme Court then struck down the custom of swara, declaring marriages entered into under such a custom to have no legal status. Thus, all women who had been bound to a forced marriage under the swara custom were freed. However, though the Court freed these women, it did not explicitly say in its reasoning that it was swayed by such international human rights norms, even though the petitioners cited them as grounds for such a decision. On the other hand, the Court did not outright reject these arguments. And, in the end, the Court’s decision explicitly affirmed that women had fundamental rights which could not legally be violated.

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A law in Nepal gave preference to males regarding ancestral property inheritance. The Forum for Women, Law and Development asked the Supreme Court of Nepal to overturn this law, citing CEDAW, which had the status of national law in Nepal. Instead of striking down this law directly, the Court ordered the government to pass legislation within one year to rectify the situation. However, the government did not do so. Thus, while the Court considered international human rights norms in making its decision, its decision was ultimately ineffective.

(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 former Director of Public Prosecutions tried to use CEDAW, which was unratified in Kiribati, to challenge discriminatory domestic law (the gender discriminatory corroboration warning in rape cases). Kiribati had not ratified CEDAW at the time of this judgment (but it has since been ratified). However, the Supreme Court of Kiribati was not persuaded, and the argument failed. Nevertheless, the Court at least considered CEDAW, and it was probably an influence, direct or indirect, on the outcome of the case.

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In at least some of the above cases, the Court drew support from international covenants, including CEDAW. The Court relies on CEDAW to be able to interpret personal laws in a way that bolsters women's equality.

(''The preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes more difficult for the full development of potentialities of women in the service of their countries and of humanity. Poverty of women is a handicap. Establishment of a new international economic order based on equality and justice will contribute significantly towards [sic] the promotion of equality between men and women etc.'')

Municipal Corp. of Delhi v. Female Workers, A.I.R. 2000 S.C. 1274. The Court interpreted the Maternity Benefit Act to authorize maternity benefits to women who were essentially day laborers. Id.

(found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, p 591-592)

Ara v. Uttar Pradesh, A.I.R. 2002 S.C. 3551; Singh v. Ramendri Smt., A.I.R. 2000 S.C. 952; Satpathy v. Dixit, A.I.R. 1999 S.C. 3348; Sesharathamma v. Manikyamma, (1991) 3 S.C.R. 717; Kaushal v. Kaushal, A.I.R. 1978 S.C. 1807. The Court did this when interpreting the Code of Criminal Procedure: ''The brood presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it [is] to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause - the cause of the derelicts.'' Singth v. Ramendra Smt., A.I.R. 2000 S.C. 952 (quoting Kaushal v. Kausha, A.I.R. 1978 S.C. 1807)

(holding that sexual harassment in the workplace amounts to a violation of the fundamental rights to gender equality, life, and liberty).

A supervisor allegedly sexually harassed an employee. The Supreme Court restored the supervisor's removal. In doing so, it relied on international instruments to find that sexual harassment in the workplace amounts to a violation of the fundamental rights to gender equality, life, and liberty.

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 Indian Succession Act 1925 discriminated against Christians in the bequeathing of property. Since it was enacted before the Indian Constitution came into effect, the Supreme Court of India could have dismissed this challenge as being a challenge against something that was not a “law in force”. The challengers claimed that it violated the UN Declaration on the Right to Development and the ICCPR. While the Court did not extensively discuss this aspect of the challengers’ claims, it nevertheless ruled in favor of the challengers and struck down the law.

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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.

[link 1]

[link 2]

[link 3]

(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.)

[link]

(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.

[link]

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).

[link]

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.

[link]

The Equal Opportunities Commission filed suit against the government. The plaintiff claimed that the state secondary school system had discriminated against a young female student. The female student had the same test scores as a male student, but the plaintiff claimed that the boy stood an unfair, greater chance of acceptance by his preferred secondary school than the girl.

The Court of First Instance of the High Court (this case was not appealed) held that the government’s admission policy was biased toward males over females. Furthermore, the government had not justified the discrimination by any of the reasons the government considered allowable. In so holding, the CFI referred to Article 22 of the Hong Kong Bill of Rights, which was domestic law and a copy of Article 26 of the ICCPR. The CFI also cited CEDAW, which was extended into domestic Hong Kong law in 1996. The CFI held that the provisions of the Hong Kong domestic Sex Discrimination Ordinance were “to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligations contained in CEDAW rather than being inconsistent with them.” The right of the individual, the CFI said, to be free from gender discrimination could not be easily subordinated to “group fairness”, that is, the notion that the school admission policy should be biased toward boys with lower test scores. <

After this decision, the Education Department changed its admission policy.

International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 19-21)

[link]

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

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

Under Hong Kong law, non-residents were afforded all of the rights as residents except for the right of abode. A citizen of Nepal in 1995 moved to Hong Kong as a dependant to his wife, a permanent resident of Hong Kong. He developed two businesses. In 1997, after traveling abroad, he was denied entry into Hong Kong in concordance with a change in Hong Kong law that had occurred. The Court of Final Appeal held that the Nepalese citizen, even though not a permanent resident, was allowed to re-enter the country. Under the Basic Law (which had incorporated the ICCPR), non-permanent residents of Hong Kong had the right to travel. To restrict his ability to travel would be to act against the spirit of the protections afforded by the Basic Law.

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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 law in Nepal gave preference to males regarding ancestral property inheritance. The Forum for Women, Law and Development asked the Supreme Court of Nepal to overturn this law, citing CEDAW, which had the status of national law in Nepal. Instead of striking down this law directly, the Court ordered the government to pass legislation within one year to rectify the situation. However, the government did not do so. Thus, while the Court considered international human rights norms in making its decision, its decision was ultimately ineffective.

A man sucked a 16-year-old woman’s breasts. The High Court of Fiji rejected the notion that the defendant’s sentence should be reduced for his good behavior after the incident and because there was no penetration. The Court cited the CRC in so doing.

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The Supreme Court of Bangladesh ruled in favor of sex workers and ordered the government to clean up its police force, which had problems with corruption. The police had violently evicted sex workers from their homes in the middle of the night, raising issues of unreasonable search and seizure. The Court encouraged the government to adopt a Code of Conduct for the police immediately, modeled on the Code of Conduct for Law Enforcement Agencies, which had been adopted by the General Assembly of the United Nations.

[link]

The appellant, a citizen of Nauru, wished to adopt a child also a citizen of Nauru. The appellant’s spouse, however, was not a citizen of Nauru. Under the Constitution, both parents had to be citizens of Nauru in order for the couple to adopt. The appellant challenged this in court and cited the CRC. The Supreme Court of Nauru sided with the appellant and said that such a law was in violation of the spirit of the CRC. The Court considered the CRC even though it had not been incorporated into domestic law in Nauru.

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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 former Director of Public Prosecutions tried to use CEDAW, which was unratified in Kiribati, to challenge discriminatory domestic law (the gender discriminatory corroboration warning in rape cases). Kiribati had not ratified CEDAW at the time of this judgment (but it has since been ratified). However, the Supreme Court of Kiribati was not persuaded, and the argument failed. Nevertheless, the Court at least considered CEDAW, and it was probably an influence, direct or indirect, on the outcome of the case.

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A 12-year-old was arrested by the police after being falsely accused of theft. He was in police custody for 20 hours before being released. In police custody, he was beaten. The officer pled guilty. In awarding the minor monetary compensation, the Supreme Court of Tonga had to consider whether the CRC came into play when minors were possibly being tortured. The Court hinted that courts in Tonga should be willing to be bound by its terms. The Court also cautioned that, considering the average Tongan’s income, future money damages should be kept in proportion to reality. This was the first application of the CRC in Tongan courts (but not the first application of a human rights convention, as seen in 2005 in R v Vola). Both cases show a departure from traditional Tongan courts’ reluctance to apply international human rights standards.

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A man was allegedly tortured by the police while in their custody. The man died in custody. The man's widow petitioned the Supreme Court of Sri Lanka on behalf of her deceased husband. The Supreme Court cited the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment and held that the widow not only had the right to file suit on behalf of her deceased husband, but also that there existed in Sri Lanka a constitutionally protected right not to deprive of life, as well as a right to life. The Court said, "The interpretation that the right to compensation accrues to or devolves on the deceased's lawful heirs and/or dependants brings our law into conformity with international obligations and standards, and must be preferred." The Court then ordered a total compensation of 800,000 rupees to the wife and child of the deceased.

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A man was arrested. While in police custody, he was subject to mistreatment by the police, for which he went to the hospital. Before the Supreme Court, he sought compensation for his medical bills beyond any compensation for the mistreatment he endured. The Supreme Court of Sri Lanka allowed this medical bill compensation, citing Article 12 of the ICCPR. The Court said, "Citizens have the right to choose between State and private medical care, and in the circumstances the Petitioner's wife's choice of the latter was not unreasonable -and was probably motivated by nothing other than the desire to save his life. Article 12 of the International Covenant on Economic Social and Cultural Rights recognizes the right of everyone "to the enjoyment of the highest attainable standard of physical and mental health"".

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A woman born into a “forward class” married a man belonging to a “backward class”. Under Indian law, states could make provisions for members of “backward classes” so as to diminish the equality gap, despite the Indian constitution’s protections against discrimination. The woman thus applied for a job based on her belonging to a “backward class” via marriage, even though she had grown up with all of the privileges that belonging to a “forward class” entails and none of those entailed by belonging to a “backward class”. She got the job. Another candidate challenged this. The Supreme Court, citing CEDAW and saying that “its principles are enforceable by operation of the Protection of Human Rights Act 1993”, ruled in favor of the challenger. It held that women from a “forward class” could not reap the benefits of such affirmative action programs by becoming members of a “backward class” by marriage.

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This was a public interest litigation. A woman had been raped by five men in front of the woman's husband. Though she sought justice, she encountered obstacles: the police inadequately responded to her complaint and government doctors refused to properly conduct a medical examination. A public interest lawyer took up the woman's case.

The Court used international law (CEDAW) in enacting guidelines for combating sexual harassment in the workplace. ''Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof.'' Using CEDAW as a guideline, the Court ensured that women would be better protected in the workplace, as to violate the Court's standards protecting women would be a breach of the law.

(found in ''Gender Justice through Public Interest Litigation: Case Studies from India'' by Avani Mehta Sooc, Vanderbilt Journal of Transnational Law, Volume 41, Number 3, May 2008, pp. 836-837, 863, 866-867)

A man was arrested for allegedly stealing bananas. He was detained in a Sri Lankan prison. While in custody, he died. The petitioners claimed that he was subjected to assault by prison authorities and died of the injuries incurred. Such treatment, it was argued, was violative of the man’s constitutional rights. The Supreme Court of Sri Lanka agreed, citing a previous UNHRC case in which a prisoner’s rights under the ICCPR were found to have been violated. The Court also cited standards of prisoners’ rights under the UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, as well as the Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Relying in part on these authorities, the Court ruled that the prisoner’s rights under the Sri Lankan constitution had been violated. The Court then said that the respondent prison officials were under a duty to “take all reasonable steps to ensure that the persons kept in the Prison [we]re treated with kindness and humanity.” The Court then awarded the petitioners 1,000,000 rupees (about $8,900USD).

[link]

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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This was a class action by social activists and NGOs responding to the gang rape of a social worker. The Court looked to international law and designed rules to combat sexual harassment: ''Any International Convention not inconsistent with the fundamental right and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.'' Thus, in India, in the absence of domestic law, gender equality should be interpreted in light of international conventions and norms. The Court looked to CEDAW when it said that ''[g]ender equality includes protection from sexual harassment and the right to work with dignity.'' The Court then drafted a detailed sexual harassment code and imposed a duty on employers (ostensibly both public and private) to prevent sexual harassment in the workplace and to provide a grievance option for employees.

For these above cases, the Supreme Court of India relied on international law and saw the issue of gender violence as an equality issue. It found that freedom from gender violence was a constitutionally protected right.

(found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, pp. 560, 609-613)

A supervisor allegedly sexually harassed an employee. The Supreme Court restored the supervisor's removal. In doing so, it relied on international instruments to find that sexual harassment in the workplace amounts to a violation of the fundamental rights to gender equality, life, and liberty.

The defendant had been convicted in a lower court of serious offenses involving the trafficking of narcotics. He could not afford counsel and legal aid societies refused him assistance. Australia, by this time, was an adherent to the International Covenant on Civil and Political Rights, which included in its provisions the right to legal counsel for defendants, provided for by the state. In a joint statement, Chief Justice Mason and Justice McHugh of the Australian High Court said,

“Assuming, without deciding, that Australian courts should adopt a similar, common-sense approach, this nevertheless does not assist the applicant in this case where we are being asked not to resolve uncertainty or ambiguity in domestic law but to declare that a right which has hitherto never been recognised should now be taken to exist. Moreover, this branch of the applicant’s argument assumes that art. 14(3)(3) of the ICCPR supports the absolute right for which he contends. An analysis of the views of the Human Rights Committee on communications submitted to it relating to art. 14(3)(d) reveals little more than that the Committee considers that legal assistance must always be made available in capital cases . . . However, the European Court of Human Rights has approached the almost identical provision in the ECHR by emphasising the importance of the particular facts of the case to any interpretation of the phrase ‘when the interests of justice so require’ . . . As will become clear, that approach is similar to the approach which, in our opinion, the Australian common law must now take.” (para. 20)

They also said,

“Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions . . . No such legislation has been passed. This position is not altered by Australia’s accession to the First Optional Protocol to the ICCPR, effective as of 25 December 1991, by which Australia recognises the competence of the Human Rights Committee of the United Naations to receive and consider communications from individuals subject to Australia’s jurisdiction who claim to be victims of a violation by Australia of their covenanted rights. On one view, it may seem curious that the Executive Government has seen fit to expose Australia to the potential censure of the Human Rights Committee without endeavouring to ensure that the rights enshrined in the ICCPR are incorporated into domestic law, but such an approach is clearly permissible.”

The High Court then proceeded to declare a right to free legal assistance in serious criminal cases as an aspect of the common law right to a fair trial. Thus, in serious cases where a defendant could not afford counsel, the courts would have to issue a stay of proceedings until legal counsel could be provided, by whatever means. In so holding, the Court did not declare whether the ICCPR right to legal counsel provision had become customary or general international law. However, the Court was clearly influenced by it. Thus, when the common law was unclear and domestic law did not contradict international law, the Australian High Court could show a willingness to at least be influenced by such international law.

(found in Toward Implementing Universal Human Rights: Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee, ed. Nisuke Ando, pp. 254-255, 257)

(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)

The Fiji Supreme Court referred to various international human rights instruments when it ruled on domestic family law issues.

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A non-Japanese mother gave birth in Japan to a child. The father was a Japanese national. He acknowledged as such only after the child was born, and the child was born out of wedlock. According to the Nationality Act, such a child was not afforded Japanese nationality. The Supreme Court of Japan declared this unconstitutional. In so doing, the Court cited the ICCPR and CRC. The Court also referenced the worldwide movement to dispel discrimination against illegitimate children. Since the trend worldwide was to rule in favor of nationality for such children, the Court said, the Court could take that into account.

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The government had passed a law giving it powers to perform telephone taps. The petitioner challenged the constitutional validity of this law, as there was a risk that the government would use these powers to perform arbitrary invasions of privacy. The Supreme Court of India agreed, and held that until the government came up with procedural safeguards to protect against arbitrary and capricious searches, the safeguards laid down by the Supreme Court would be followed. In so holding, the Court cited the ICCPR.

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The plaintiff challenged a provision of the Japanese legal code. The provision stated that the intestate share guaranteed by Japanese law to an illegitimate child shall be one-half of the share guaranteed to a legitimate child. The Supreme Court of Japan ruled that this was constitutional. Although the Court cited the ICCPR, it nevertheless seemed to decide in opposition to it, in particular Article 24. The decision was made with ten justices in the majority and five in the dissent. The five dissenting justices asserted the importance of Article 26 of the ICCPR. They opined that the Court was divided over how heavy the legal weight of international human rights treaties should be in the Japanese legal system.

(found in ''Incomplete Revolutions and Not So Alien Transplants: the Japanese Constitution and Human Rights'' by Sylvia Brown Hamano, 1 U. PA. J. CONST. L. 415, 477)

A Sri Lankan man went to Hong Kong. The Hong Kong government ordered him deported. The Sri Lankan man successfully challenged this deportation order on grounds of procedural unfairness. On appeal, the Court of Final Appeal looked to the Hong Kong office of the United Nations High Commissioner for Refugees (UNHCR) regarding whether the man should be considered a refugee. The CFA looked at General Comment No. 1 issued by the Committee Against Torture under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Thus, after the CFA’s decisions, the government established a screening process for those claiming the likelihood of torture upon repatriation.

(found in “International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 38-39 )

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Two people who had lived in the villages of the New Territories of Hong Kong all their lives could not prove that their ancestors had been in Hong Kong since before 1898. Such proof was necessary for them to be considered members of the indigenous community. Since this could not be proved, the two either could not vote and/or could not stand as candidates in certain elections, even though the relevant law had been amended in 1988 to rectify this shortcoming. There were also sex discrimination issues present, as the relevant law especially disfavored women. The Court of Final Appeal cited the ICCPR and held that these civic restrictions were not reasonable, and therefore inconsistent with the Bill of Rights.

The High Court of Fiji cited the ICESCR to guide its interpretation of the right to fair practices under the Constitution. The High Court then held that trade disputes between unions and employers could be adjudicated by courts in Fiji.

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Two people who had lived in the villages of the New Territories of Hong Kong all their lives could not prove that their ancestors had been in Hong Kong since before 1898. Such proof was necessary for them to be considered members of the indigenous community. Since this could not be proved, the two either could not vote and/or could not stand as candidates in certain elections, even though the relevant law had been amended in 1988 to rectify this shortcoming. There were also sex discrimination issues present, as the relevant law especially disfavored women. The Court of Final Appeal cited the ICCPR and held that these civic restrictions were not reasonable, and therefore inconsistent with the Bill of Rights.

There existed in Pakistan the custom of swara, in which young women or minor girls would be given away by their families as property (i.e. forced to marry another man not of their choosing) as recompense for a crime committed by a member of the woman’s family. The petitioners challenged this custom in the Supreme Court of Pakistan. They argued that such a custom violated, among other things, the constitution, the UDHR, CEDAW, the ICESCR, and the CRC. The Supreme Court then struck down the custom of swara, declaring marriages entered into under such a custom to have no legal status. Thus, all women who had been bound to a forced marriage under the swara custom were freed. However, though the Court freed these women, it did not explicitly say in its reasoning that it was swayed by such international human rights norms, even though the petitioners cited them as grounds for such a decision. On the other hand, the Court did not outright reject these arguments. And, in the end, the Court’s decision explicitly affirmed that women had fundamental rights which could not legally be violated.

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A case was decided on June 2, 2010, by the Cambodian Supreme Court regarding the legality of the applicant’s criminal conviction by lower courts. The Court upheld the conviction of the defendant by the lower court. The defendant was convicted of defamation of Prime Minister Hun Sen. There is not yet a readily available interpretation or documentation of the case in English. If such material arises (as it probably will sometime, as it is a much-discussed case in Cambodia), it will be good to watch if the Court cites international human rights norms, such as UDHR, vis-à-vis the burden of proof, etc.

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Under Hong Kong law, non-residents were afforded all of the rights as residents except for the right of abode. A citizen of Nepal in 1995 moved to Hong Kong as a dependant to his wife, a permanent resident of Hong Kong. He developed two businesses. In 1997, after traveling abroad, he was denied entry into Hong Kong in concordance with a change in Hong Kong law that had occurred. The Court of Final Appeal held that the Nepalese citizen, even though not a permanent resident, was allowed to re-enter the country. Under the Basic Law (which had incorporated the ICCPR), non-permanent residents of Hong Kong had the right to travel. To restrict his ability to travel would be to act against the spirit of the protections afforded by the Basic Law.

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The Supreme Court of Bangladesh ruled in favor of sex workers and ordered the government to clean up its police force, which had problems with corruption. The police had violently evicted sex workers from their homes in the middle of the night, raising issues of unreasonable search and seizure. The Court encouraged the government to adopt a Code of Conduct for the police immediately, modeled on the Code of Conduct for Law Enforcement Agencies, which had been adopted by the General Assembly of the United Nations.

[ link ] 

A man was arrested for allegedly stealing bananas. He was detained in a Sri Lankan prison. While in custody, he died. The petitioners claimed that he was subjected to assault by prison authorities and died of the injuries incurred. Such treatment, it was argued, was violative of the man’s constitutional rights. The Supreme Court of Sri Lanka agreed, citing a previous UNHRC case in which a prisoner’s rights under the ICCPR were found to have been violated. The Court also cited standards of prisoners’ rights under the UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, as well as the Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Relying in part on these authorities, the Court ruled that the prisoner’s rights under the Sri Lankan constitution had been violated. The Court then said that the respondent prison officials were under a duty to “take all reasonable steps to ensure that the persons kept in the Prison [we]re treated with kindness and humanity.” The Court then awarded the petitioners 1,000,000 rupees (about $8,900USD).

[ link ] 

The High Court of Samoa imposed punitive damages as a deterrent against future violations of the rights of the child under the CRC. In so doing, the Court ruled against the powerful Village Fono (council and local traditional law body). The Village Fono had banished children and their families from their village homes. Such banishment is a customary punishment in Samoa.

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A Bangladeshi woman was gang raped by railroad employees. She was then raped again by her rescuer. The Supreme Court rejected the argument that the woman, as a foreigner, was not afforded certain constitutional protections. Some provisions of the Indian Constitution refer to ''citizens'' while others refer to ''persons''. Regardless, the Court held that ''life'' as used in Article 21 must be interpreted consistently with the Universal Declaration of Human Rights. Thus, Article 21 protections protect both citizens and non-citizens. Since rape is a violation of Article 21's fundamental right to life, the victim was entitled to compensation.

The Court of Final Appeal of Hong Kong allowed for greater flexibility in when public protests could be held by limiting the power of the police to reject applications for such protests. In so holding, the Court relied on the ICCPR.

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The defendants had participated, in Hong Kong, in a pro-democracy in China demonstration. They carried a defaced PRC flag, as well as a defaced Hong Kong SAR flag. The demonstrators were subsequently charged with violating section 7 of the National Flag and National Emblem Ordinance and section 7 of the Regional Flag and Regional Emblem Ordinance. Found guilty, the defendants appealed to the Court of Appeal and won. The government then appealed to the Court of Final Appeals, the highest court in Hong Kong. The Court of Final Appeal ruled in favor of the government. In so doing, the Court applied and interpreted the human rights norms in the ICCPR governing freedom of expression. Protection of national (PRC) and regional (HKSAR) flags was found to be provided for by the ICCPR under its “public order” provisions, found in Article 19. Thus, the two ordinances by which the defendants had been convicted were constitutional. The CFA held that national and regional flags are important symbols of the PRC and the HKSAR, respectively, and as such societal and community interests were involved that had to be taken into consideration. Although the Court considered such limits on flag desecration as limits on the constitutionally-protected right of free speech, these limits were narrow, and the defendants could have expressed themselves in other ways. Thus, the “necessity” and “proportionality” tests of international human rights norms had been satisfied.

Although the CFA upheld the flag desecration laws, they did so in consideration of international human rights norms, here, the ICCPR, which had been incorporated into the Bill of Rights. Thus, any violation of the ICCPR, an international human rights norm, violated the Bill of Rights, which was domestic law in Hong Kong. In so doing, the CFA showed that the courts in Hong Kong were bound by such international norms. Thus, the courts had the power to review legislation and determine whether it was constitutional on the basis of certain human rights standards. This holds true for executive actions as well.

(found in “International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 9-12)

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