Pub Date : 2024-05-23DOI: 10.1163/22131035-13010001
Rosana Garciandía, Jean-Pierre Gauci
{"title":"Editorial Note","authors":"Rosana Garciandía, Jean-Pierre Gauci","doi":"10.1163/22131035-13010001","DOIUrl":"https://doi.org/10.1163/22131035-13010001","url":null,"abstract":"","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"6 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141106982","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-05-21DOI: 10.1163/22131035-13010004
Jorge Contesse
Under the inter-American human rights system, inter-State disputes seem largely irrelevant. Such irrelevance contrasts with the European human rights system, where the amount of inter-State disputes is significant (and growing), and is similar to the African human rights regime, where there is a very low number of inter-State disputes. In more than four decades since the entry into force of the American Convention on Human Rights, there are only two inter-State disputes brought before the Inter-American Commission on Human Rights—one of the two bodies that, along with the Inter-American Court, make up the regional human rights system. The virtual inexistence of inter-State complaints, however, does not mean an absence of human rights disputes among members of the Organization of American States (oas). In fact, States resort to other mechanisms to process their disputes. Therefore, to explore how inter-States disputes actually operate under inter-American human rights law, it is necessary to broaden the view and look beyond the specific mechanism of inter-State communications established in the American Convention. This article discusses the two inter-State communications that the Inter-American Commission on Human Rights has so far examined, and analyses other mechanisms—typically, advisory opinions by the Inter-American Court—that serve as a substitute for inter-State communications. The article shows how oas States use advisory opinions as a covert inter-State dispute mechanism and argues that the Inter-American Court should articulate a clear set of admissibility standards to address this practice.
{"title":"Inter-States Disputes Under the Inter-American Human Rights System","authors":"Jorge Contesse","doi":"10.1163/22131035-13010004","DOIUrl":"https://doi.org/10.1163/22131035-13010004","url":null,"abstract":"\u0000Under the inter-American human rights system, inter-State disputes seem largely irrelevant. Such irrelevance contrasts with the European human rights system, where the amount of inter-State disputes is significant (and growing), and is similar to the African human rights regime, where there is a very low number of inter-State disputes. In more than four decades since the entry into force of the American Convention on Human Rights, there are only two inter-State disputes brought before the Inter-American Commission on Human Rights—one of the two bodies that, along with the Inter-American Court, make up the regional human rights system. The virtual inexistence of inter-State complaints, however, does not mean an absence of human rights disputes among members of the Organization of American States (oas). In fact, States resort to other mechanisms to process their disputes. Therefore, to explore how inter-States disputes actually operate under inter-American human rights law, it is necessary to broaden the view and look beyond the specific mechanism of inter-State communications established in the American Convention. This article discusses the two inter-State communications that the Inter-American Commission on Human Rights has so far examined, and analyses other mechanisms—typically, advisory opinions by the Inter-American Court—that serve as a substitute for inter-State communications. The article shows how oas States use advisory opinions as a covert inter-State dispute mechanism and argues that the Inter-American Court should articulate a clear set of admissibility standards to address this practice.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"118 42","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141115681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-05-20DOI: 10.1163/22131035-13010007
David Keane
The most recent applications before the International Court of Justice (icj) under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (icerd), Armenia v. Azerbaijan and Azerbaijan v. Armenia, both claim that the destruction of cultural heritage during the Nagorno-Karabakh conflict constitutes a violation of the Convention. The applications have met with enthusiasm that icerd offers a potential new avenue for the protection of cultural heritage, as well as scepticism as to whether these claims fall within the scope of the treaty. Armenia and Azerbaijan bypassed the inter-State communications mechanism under Articles 11–13 before the Committee on the Elimination of Racial Discrimination (cerd), as they are legally entitled to do. But the cerd perspective remains important. First, the Articles 11–13 mechanism is available in relation to 182 States Parties, whereas due to reservations, the Article 22 mechanism is available only in relation to 157 States Parties. Second, cerd practice in relation to cultural heritage ought to inform the determination of the Court. This article investigates the cerd approach to the protection of cultural heritage. It draws in related questions such as whether religious cultural heritage comes under a treaty on racial discrimination; the applicability of these protections in situations of armed conflict; and icerd’s relationship with other specialised instruments. It offers conclusions as to what extent an avenue for the protection of cultural heritage under icerd exists before the Committee and the Court.
{"title":"Inter-State Cases under icerd as an Avenue to Protect Cultural Heritage","authors":"David Keane","doi":"10.1163/22131035-13010007","DOIUrl":"https://doi.org/10.1163/22131035-13010007","url":null,"abstract":"\u0000The most recent applications before the International Court of Justice (icj) under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (icerd), Armenia v. Azerbaijan and Azerbaijan v. Armenia, both claim that the destruction of cultural heritage during the Nagorno-Karabakh conflict constitutes a violation of the Convention. The applications have met with enthusiasm that icerd offers a potential new avenue for the protection of cultural heritage, as well as scepticism as to whether these claims fall within the scope of the treaty. Armenia and Azerbaijan bypassed the inter-State communications mechanism under Articles 11–13 before the Committee on the Elimination of Racial Discrimination (cerd), as they are legally entitled to do. But the cerd perspective remains important. First, the Articles 11–13 mechanism is available in relation to 182 States Parties, whereas due to reservations, the Article 22 mechanism is available only in relation to 157 States Parties. Second, cerd practice in relation to cultural heritage ought to inform the determination of the Court. This article investigates the cerd approach to the protection of cultural heritage. It draws in related questions such as whether religious cultural heritage comes under a treaty on racial discrimination; the applicability of these protections in situations of armed conflict; and icerd’s relationship with other specialised instruments. It offers conclusions as to what extent an avenue for the protection of cultural heritage under icerd exists before the Committee and the Court.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"10 21","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141119945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-05-15DOI: 10.1163/22131035-13010006
Eran Sthoeger
Though provided for in several treaties, including three universal human rights treaties, resort to interstate conciliation has been sparse. In 2018, however, the first three human rights interstate conciliations were initiated under the International Convention on the Elimination of All Forms of Racial Discrimination (cerd). While two of these have been suspended by mutual agreement, the third, Palestine v. Israel, is ongoing after the cerd Committee has concluded that it has jurisdiction to establish a conciliation commission. This article examines how suited conciliation is to advance the goals of interstate communications in human rights treaties, as well as conciliation more broadly. It also tries to identify critical factors that may determine the success or failure of such conciliations, particularly by drawing on lessons learned from the recent conciliation between Timor Leste and Australia under the UN Convention for the Law of the Sea, which successfully concluded with a delimitation treaty.
{"title":"The Path Less Taken? Interstate Conciliation and Human Rights","authors":"Eran Sthoeger","doi":"10.1163/22131035-13010006","DOIUrl":"https://doi.org/10.1163/22131035-13010006","url":null,"abstract":"\u0000Though provided for in several treaties, including three universal human rights treaties, resort to interstate conciliation has been sparse. In 2018, however, the first three human rights interstate conciliations were initiated under the International Convention on the Elimination of All Forms of Racial Discrimination (cerd). While two of these have been suspended by mutual agreement, the third, Palestine v. Israel, is ongoing after the cerd Committee has concluded that it has jurisdiction to establish a conciliation commission. This article examines how suited conciliation is to advance the goals of interstate communications in human rights treaties, as well as conciliation more broadly. It also tries to identify critical factors that may determine the success or failure of such conciliations, particularly by drawing on lessons learned from the recent conciliation between Timor Leste and Australia under the UN Convention for the Law of the Sea, which successfully concluded with a delimitation treaty.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"128 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140977467","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-07DOI: 10.1163/22131035-12020006
A clean, healthy and sustainable environment is both a human right itself and necessary for the full enjoyment of a broad range of children’s rights. Conversely, environmental degradation, including the consequences of the climate crisis, adversely affects the enjoyment of these rights, in particular for children in disadvantaged situations or children living in regions that are highly exposed to climate change. The exercise by children of their rights to freedom of expression, peaceful assembly and association, to information and education, to participate and be heard and to effective remedies can result in more rights-compliant, and therefore more ambitious and effective, environmental policies. In this way, children’s rights and environmental protection form a virtuous circle. The present general comment is focused on children’s rights and the environment, with a particular emphasis on climate change. Its aims are to: (a) emphasize the urgent need to address the adverse effects of environmental degradation, with a special focus on climate change, on the enjoyment of children’s rights; (b) promote a holistic understanding of children’s rights as they apply to environmental protection; and (c) clarify the obligations of States party to the UN Convention on the Rights of the Child (the Convention) and provide authoritative guidance on legislative, administrative and other appropriate measures to address environmental harm, with a special focus on climate change.
{"title":"General comment No. 26 (2023) on Children’s Rights and the Environment, with a Special Focus on Climate Change","authors":"","doi":"10.1163/22131035-12020006","DOIUrl":"https://doi.org/10.1163/22131035-12020006","url":null,"abstract":"\u0000A clean, healthy and sustainable environment is both a human right itself and necessary for the full enjoyment of a broad range of children’s rights. Conversely, environmental degradation, including the consequences of the climate crisis, adversely affects the enjoyment of these rights, in particular for children in disadvantaged situations or children living in regions that are highly exposed to climate change. The exercise by children of their rights to freedom of expression, peaceful assembly and association, to information and education, to participate and be heard and to effective remedies can result in more rights-compliant, and therefore more ambitious and effective, environmental policies. In this way, children’s rights and environmental protection form a virtuous circle. The present general comment is focused on children’s rights and the environment, with a particular emphasis on climate change. Its aims are to: (a) emphasize the urgent need to address the adverse effects of environmental degradation, with a special focus on climate change, on the enjoyment of children’s rights; (b) promote a holistic understanding of children’s rights as they apply to environmental protection; and (c) clarify the obligations of States party to the UN Convention on the Rights of the Child (the Convention) and provide authoritative guidance on legislative, administrative and other appropriate measures to address environmental harm, with a special focus on climate change.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"70 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138983494","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-07DOI: 10.1163/22131035-12020004
Roxani Fragkou, Alexandros Tsadiras
Homelessness is without a doubt a global phenomenon, constantly increasing at an alarming rate. Although discourse about homelessness is predominantly linked to discourse about inadequate housing, homelessness does not only amount to a breach of the right to housing, but furthermore constitutes a violation of a broad range of human rights, including non-discrimination. This article discusses how homelessness and discrimination mutually exacerbate and magnify one another, creating a vicious circle. The article places homelessness in a human rights framework, arguing that enhancing the anti-discrimination legislation is an essential component of breaking this vicious circle. In particular, the article suggests acknowledging homelessness as a protected ground under anti-discrimination law, illustrating how expanding the list of protected grounds in anti-discrimination law in Europe is expected to reinforce the effectiveness and coherence of the anti-discrimination legal framework and encourage its implementation, by remedying some of its shortcomings vis-à-vis people experiencing homelessness.
{"title":"Breaking the Vicious Circle between Discrimination and Homelessness","authors":"Roxani Fragkou, Alexandros Tsadiras","doi":"10.1163/22131035-12020004","DOIUrl":"https://doi.org/10.1163/22131035-12020004","url":null,"abstract":"\u0000Homelessness is without a doubt a global phenomenon, constantly increasing at an alarming rate. Although discourse about homelessness is predominantly linked to discourse about inadequate housing, homelessness does not only amount to a breach of the right to housing, but furthermore constitutes a violation of a broad range of human rights, including non-discrimination. This article discusses how homelessness and discrimination mutually exacerbate and magnify one another, creating a vicious circle. The article places homelessness in a human rights framework, arguing that enhancing the anti-discrimination legislation is an essential component of breaking this vicious circle. In particular, the article suggests acknowledging homelessness as a protected ground under anti-discrimination law, illustrating how expanding the list of protected grounds in anti-discrimination law in Europe is expected to reinforce the effectiveness and coherence of the anti-discrimination legal framework and encourage its implementation, by remedying some of its shortcomings vis-à-vis people experiencing homelessness.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"176 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138983960","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-03DOI: 10.1163/22131035-12020002
Jamil Ddamulira Mujuzi
Abstract Seychelles acceded to the International Covenant on Civil and Political Rights ( iccpr ) in 1992. Article 9(3) of the iccpr provides for circumstances in which an accused may be released on bail. Article 18(7) of the Constitution of Seychelles (2008) provides for the grounds on which a court may decline to release an arrested or accused person on bail. Article 48 of the Constitution requires Seychellois courts to, inter alia, refer to international treaties and the practice/jurisprudence of international human rights bodies when interpreting constitutional rights. This article illustrates the drafting history of Article 9(3) of the iccpr and how it has been interpreted by the Human Rights Committee. It also highlights the right to bail under the African human rights system. Based on over 250 cases of the magistrate’s court, Supreme Court, Constitutional Court and Court of Appeal decided between 1998 and 2023, the article discusses the extent to which the courts’ jurisprudence complies with the practice and/or jurisprudence of the Human Rights Committee on the following issues: the right to bail, courts with jurisdiction to grant bail, factors courts consider in making bail decisions, burden of proof in bail matters, bail pending appeal and court’s power to revoke bail. It is argued, inter alia, that although the jurisprudence on bail substantially complies with the standards set by the Human Rights Committee, there are instances in which some of the courts’ decisions are contrary to these standards. The article recommends that courts should ensure that the jurisprudence on bail complies with the principles developed by the Human Rights Committee.
{"title":"The Right to Bail in Seychelles: Implementing Article 9(3) of the International Covenant on Civil and Political Rights","authors":"Jamil Ddamulira Mujuzi","doi":"10.1163/22131035-12020002","DOIUrl":"https://doi.org/10.1163/22131035-12020002","url":null,"abstract":"Abstract Seychelles acceded to the International Covenant on Civil and Political Rights ( iccpr ) in 1992. Article 9(3) of the iccpr provides for circumstances in which an accused may be released on bail. Article 18(7) of the Constitution of Seychelles (2008) provides for the grounds on which a court may decline to release an arrested or accused person on bail. Article 48 of the Constitution requires Seychellois courts to, inter alia, refer to international treaties and the practice/jurisprudence of international human rights bodies when interpreting constitutional rights. This article illustrates the drafting history of Article 9(3) of the iccpr and how it has been interpreted by the Human Rights Committee. It also highlights the right to bail under the African human rights system. Based on over 250 cases of the magistrate’s court, Supreme Court, Constitutional Court and Court of Appeal decided between 1998 and 2023, the article discusses the extent to which the courts’ jurisprudence complies with the practice and/or jurisprudence of the Human Rights Committee on the following issues: the right to bail, courts with jurisdiction to grant bail, factors courts consider in making bail decisions, burden of proof in bail matters, bail pending appeal and court’s power to revoke bail. It is argued, inter alia, that although the jurisprudence on bail substantially complies with the standards set by the Human Rights Committee, there are instances in which some of the courts’ decisions are contrary to these standards. The article recommends that courts should ensure that the jurisprudence on bail complies with the principles developed by the Human Rights Committee.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135744481","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-02DOI: 10.1163/22131035-12020001
E. Carpanelli
This article focuses on the transfer of surveillance technology that is used to commit human rights violations and questions the international responsibility of the technology-exporting State, that is the State where the seller is based and that authorises the transfer. After having clarified that the technology-exporting State cannot be considered the principal wrongdoer for the human rights abuses committed in the receiving State, it investigates whether its international responsibility for end-use human rights abuses could be determined out of complicity or if due diligence may serve the same purpose.
{"title":"Transfer of Surveillance Technology and End-Use Human Rights Abuses","authors":"E. Carpanelli","doi":"10.1163/22131035-12020001","DOIUrl":"https://doi.org/10.1163/22131035-12020001","url":null,"abstract":"\u0000This article focuses on the transfer of surveillance technology that is used to commit human rights violations and questions the international responsibility of the technology-exporting State, that is the State where the seller is based and that authorises the transfer. After having clarified that the technology-exporting State cannot be considered the principal wrongdoer for the human rights abuses committed in the receiving State, it investigates whether its international responsibility for end-use human rights abuses could be determined out of complicity or if due diligence may serve the same purpose.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45090535","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-11DOI: 10.1163/22131035-12010002
_ _
Secure and equitable access to, use of and control over land can have direct and indirect implications for the enjoyment of a range of rights enshrined in the International Covenant on Economic, Social and Cultural Rights (the Covenant or icescr). The present general comment is aimed at clarifying States’ obligations relating to the impact of access to, use of and control over land on the enjoyment of the rights enshrined in the Covenant, especially for the most disadvantaged and marginalized individuals and groups. Thus, it is aimed at clarifying the specific obligations contained in the Covenant that relate to land, particularly in the context of the rights enshrined in articles 1–3, 11, 12 and 15.
{"title":"General comment No. 26 (2022) on Land and Economic, Social and Cultural Rights","authors":"_ _","doi":"10.1163/22131035-12010002","DOIUrl":"https://doi.org/10.1163/22131035-12010002","url":null,"abstract":"Secure and equitable access to, use of and control over land can have direct and indirect implications for the enjoyment of a range of rights enshrined in the International Covenant on Economic, Social and Cultural Rights (the Covenant or icescr). The present general comment is aimed at clarifying States’ obligations relating to the impact of access to, use of and control over land on the enjoyment of the rights enshrined in the Covenant, especially for the most disadvantaged and marginalized individuals and groups. Thus, it is aimed at clarifying the specific obligations contained in the Covenant that relate to land, particularly in the context of the rights enshrined in articles 1–3, 11, 12 and 15.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48386613","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-11DOI: 10.1163/22131035-12010003
Jamil Ddamulira Mujuzi
Unlike the Constitutions of some African States such as Kenya, South Africa, Zimbabwe and Comoros, the Constitution of Seychelles is silent on the status of international law (both treaty law and customary international law) in the Seychelles legal system. However, Article 48 of the Constitution requires courts to, inter alia, ensure that the Charter of Rights and Freedoms (the Charter) is ‘interpreted in such a way so as not to be inconsistent with any international obligations of Seychelles relating to human rights and freedoms.’ Article 64(4) of the Constitution provides that for Seychelles to be bound by a treaty, such a treaty has to be ratified by Parliament. In this article, the author illustrates how Seychelles courts (the Supreme Court, the Constitutional Court and the Court of Appeal) have applied or interpreted Articles 48 and 64 of the Constitution. The author submits, inter alia, that there is room for the argument that Seychelles courts may also refer to treaties which have not been ratified by Seychelles when interpreting the Charter of Rights. It is also argued that for courts to refer to a treaty when interpreting the Charter, there is no requirement for such a treaty to have been domesticated in Seychelles. It is argued further that in the absence of a constitutional provision to the contrary, customary international law is part of Seychelles law.
{"title":"Domestic Courts’ Reliance on International Law to Interpret the Charter of Rights and Freedoms and/or other Domestic Law in the Seychelles","authors":"Jamil Ddamulira Mujuzi","doi":"10.1163/22131035-12010003","DOIUrl":"https://doi.org/10.1163/22131035-12010003","url":null,"abstract":"\u0000Unlike the Constitutions of some African States such as Kenya, South Africa, Zimbabwe and Comoros, the Constitution of Seychelles is silent on the status of international law (both treaty law and customary international law) in the Seychelles legal system. However, Article 48 of the Constitution requires courts to, inter alia, ensure that the Charter of Rights and Freedoms (the Charter) is ‘interpreted in such a way so as not to be inconsistent with any international obligations of Seychelles relating to human rights and freedoms.’ Article 64(4) of the Constitution provides that for Seychelles to be bound by a treaty, such a treaty has to be ratified by Parliament. In this article, the author illustrates how Seychelles courts (the Supreme Court, the Constitutional Court and the Court of Appeal) have applied or interpreted Articles 48 and 64 of the Constitution. The author submits, inter alia, that there is room for the argument that Seychelles courts may also refer to treaties which have not been ratified by Seychelles when interpreting the Charter of Rights. It is also argued that for courts to refer to a treaty when interpreting the Charter, there is no requirement for such a treaty to have been domesticated in Seychelles. It is argued further that in the absence of a constitutional provision to the contrary, customary international law is part of Seychelles law.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44224352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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