Interpreting International Human Rights Standards – Treaty Body General Comments in Domestic Courts

Scottish Centre for International Law Working Paper Series Working Paper No. 4

Edinburgh School of Law Research Paper No. 2015/03

26 Pages Posted: 19 Jan 2015 Last revised: 24 Jul 2015

Date Written: January 18, 2015

Abstract

This paper explores the introduction of treaty body jurisprudence into domestic legal systems. Specifically it will consider the use of general comments by human rights treaty bodies. The contribution will begin with a brief introduction of the treaty bodies, as it is the nature of these bodies that warrants consideration of their jurisprudence as a legitimate interpretive tool. It will then present an overview of references to treaty body general comments in the case law across a selection of jurisdictions, including the UK and South Africa, as well as the EU as a supranational jurisdiction. Finally, it will analyse the impact that these domestic engagements with treaty body jurisprudence has on the interpretation of international human rights standards. It will consider whether the outcome of a court case that has relied upon general comments contributes to or detracts from the strength of the treaty body outputs. It is posited that in instances where rights are progressively recognised for protection, general comments serve as a chisel to aid in refining rights. In instances where the judiciary disregards or distorts treaty body guidance, it is suggested that the general comments act more as a hammer that weakens a particular right. Thus it is extremely important that treaty bodies take special care when drafting their opinions, comments and reports therefore some attention will be given to the issue of treaty body drafting.

Keywords: International Human Rights Law, Treaty Interpretation

Suggested Citation

McCall-Smith, Kasey L., Interpreting International Human Rights Standards – Treaty Body General Comments in Domestic Courts (January 18, 2015). Scottish Centre for International Law Working Paper Series Working Paper No. 4, Edinburgh School of Law Research Paper No. 2015/03, Available at SSRN: https://ssrn.com/abstract=2551534 or http://dx.doi.org/10.2139/ssrn.2551534

Kasey L. McCall-Smith (Contact Author)

University of Edinburgh School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

HOME PAGE: http://www.law.ed.ac.uk/people/kaseymccallsmith

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