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The Influence of International Human Rights Law on the Israeli Legal System: Present and Future*

Published online by Cambridge University Press:  04 July 2014

Eyal Benvenisti
Eyal Benvenisti
Affiliation:
Senior Lecturer, Faculty of Law, The Hebrew University of Jerusalem. LL.B., The Hebrew University of Jerusalem; LL.M., J.S.D., Yale Law School.
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Extract

Since Israel's independence, the Supreme Court has been very active in establishing and securing an impressive edifice of human rights. Lacking a written constitution, the Court has based its constitutional jurisprudence on the democratic character of the state. It has developed an “Israeli made” bill of rights, relying on comparative studies, yet with little reference to the standards set in international human rights instruments.

Two legal events of the last three years may change the judicial attitude towards international human rights. The first major event was the Israeli government's ratification of important human rights conventions during 1991, first and foremost among them the 1966 Covenant on Civil and Political Rights, which has been named the “International Bill of Rights” (hereinafter: the 1966 Covenant).

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Articles
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Israel Law Review , Volume 28 , Issue 1 , Winter 1994 , pp. 136 - 153
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1994

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References

1 See Henkin, L., ed., The International Bill of Rights (1981).Google Scholar By 1 January 1994 this Covenant has been ratified or acceded to by 122 states. Since 1990, 33 states have ratified or acceded to this Covenant. No less than 73 states have acceded to the Optional Protocol to this Covenant (25 of them since 1990).

2 During the summer of 1991, the Israeli Government ratified the 1966 Covenant on Civil and Political Rights, the 1966 Covenant on Economic and Social Rights, the 1979 Convention on the Elimination of Discrimination against Women, the 1984 Convention Against Torture, and the Convention on the Rights of the Child. For the dates of ratifications, and the text of the declaration and reservations regarding the 1966 Covenant (concerning Articles 9 and 23) see Cohen, B., “The Practice of Israel in Matters Related to International Law,” (1992) 26 Is.L.R. 672–673.Google Scholar

3 Basic Law: Freedom of Occupation (S.H. 1992, p. 114); Basic Law: Human Dignity and Freedom (S.H. 1992, p. 160). For the English text of these Basic Laws see (1992) 26 Is.L.R. 247–248, see also D. Kretzmer, “The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?” Ibid., at 238.

4 Barak, A., “The Constitutional Revolution: Entrenched Basic Rights”, (1992) 1 Mishpat Umimshal 9.Google Scholar In March 1994, the Knesset adopted a new version of Basic Law: Freedom of Occupation, and amended Basic Law: Human Dignity and Freedom. Both instruments now refer (in common Article 1) to the Israeli Declaration of Independence ((1948) 1 L.S.L 3–5) as a source of enlightenment in the implementation of the rights contained therein. This change enhances further the link to international human rights norms since the Declaration provides, inter alia, that the State of Israel “will be faithful to the principles of the Charter of the United Nations”.

5 Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention (IV) Respecting the Laws and Customs of War on Land, 1907.

6 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 1949.

7 On the applicability of human rights instruments in occupied territories see Benvenisti, E., “The Applicability of Human Rights Conventions to Israel and to the Occupied Territories”, (1992) 26 Is.L.R. 24.CrossRefGoogle Scholar

8 It is probable that future claimants would invoke in petitions relating to the territories the recently ratified human rights conventions, as well as the two Basic Laws. In my view, both the conventions and the Basic Laws should instruct the Court in reviewing Israeli actions in the territories (also during the Interim Period envisioned in the Israeli-Palestinian Declaration of Principles of 13 September 1993). Of course, both types of instruments provide enough room to consider claims of national emergency and public security as possible limiting factors: see Benvenisti, Ibid., at 29–30; Benvenisti, E., “Deportations Without Prior Hearing”, (1993) 1 Mishpat Umimshal 441, at 459–460.Google Scholar

9 For a general discussion on this issue see Lapidoth, R., “International Law Within the Israeli Legal System”, (1990) 24 Is.L.A. 451.Google Scholar

10 For the Supreme Court's definition of customary law see infra, text accompanying n. 26.

11 Unless a statute so authorizes, subsidiary legislation may not derogate from international custom: The American-European Beth-El Mission v. Minister of Public Welfare et al. (1967) 21 (ii) P.D. 325, 47 I.L.R. 205; Lapidoth, supra n. 9, at 456.

12 If an unincorporated treaty contains both provisions that reflect existing customary law and new prescriptions, only the former provisions would have internal effect.

13 Hilu et al. v. State of Israel et al., (1973) 27 (ii) P.D. 169, at 177; Lapidoth, supra n. 9, at 455.

14 See, e.g., Custodian of Absentee Property v. Samra et al.,(1956) 10 P.D. 1825, at 1831; 22 L.L.R. 5 (applying this canon of interpretation explicitly to treaty law); Poraz v. The Mayor of the Municipality of Tel-Aviv-Jaffa et al., (1988) 42 (ii) P.D. 309, at 329 (referring to this presumption without distinguishing between customary and treaty-based law). See also Barak, A., Interpretation In Law, Vol. II: Statutory Interpretation (Jerusalem, 1993, in Hebrew) 576–677.Google ScholarId., Interpretation in Law, Vol. III: Constitutional Interpretation (Jerusalem, 1994, in Hebrew) 354. In England, there are two approaches to this presumption. The more conservative would resort to treaties only if the statutory text is ambiguous (see, e.g., R. v. Home Secretary, Ex p. Brind [1991] 1 A.C. 696, at 760 (H.L.)), whereas the more liberal approach would seek to accommodate domestic and international norms: see, e.g., Derbyshire County Council v. Times Newspapers Ltd. [1992] 3 W.L.R. 28, at 44 (CA.): “even when the common law is certain the courts will still, when appropriate, consider whether the United Kingdom is in breach of Article 10 [of the ECHR] (Balcombe. L.J.); Attorney-General v. Guardian Newspapers (No. 2) [1990] 1 A.C. 109, at 283 (H.L.): “I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the ECHR] treaty” (Lord Goff); R. v. Chief Immigration Officer, Ex p. Salamat Bibi [1976] 1 W.L.R. 979, at 984; (1981) 61 I.L.R. 267, at 271: “[I]f there is any ambiguity in our statutes, or uncertainty in our law, then these courts can look to the [ECHR] as an aid to clear up the ambiguity and uncertainty, seeking always to bring them into harmony with it. Furthermore, when Parliament is enacting a statute, or the Secretary of State is framing rules, the courts will assume that they had regard to the provisions of the Convention, and intended to make the enactment accord with the [ECHR] and will interpret them accordingly” (Lord Denning M.A.). In the United States this presumption proved crucial to end the “sad case of the PLO mission”: U.S. v. The Palestine Liberation Org. et al. 695 F. Supp. 1456 (1988); Reisman, M., “An International Farce: The Sad Case of the PLO Mission”, (1989) 14 Yale J. Int. L. 412, at 429–432.Google Scholar The presumption is accepted in many other jurisdictions. Regarding Canada see: Hayward, M., “International Law and the Interpretation of the Canadian Charter of Rights and Freedoms: Uses and Justifications”, (1985) 23 U. West. Ontario L. R. 9, at 13–16Google Scholar; Denmark: Gulmann, C., “Denmark”, in Jacobs, F. and Roberts, S., The Effect of Treaties in Domestic Law (1987) 29, at 36Google Scholar; Germany: J. Frowein, “Federal Government of Germany”, in The Effect of Treaties, ibid., 63, at 68–69; India: Kubik Darusz v. Union of India et al., (1993) 92 I.L.A. 540 (S.C.); Italy: G. Gaja, “Italy”, in The Effect of Treaties, ibid., 87, at 100–101; Namibia: Minister of Defence, Namibia v. Mwandinghi, (1993) 91 I.L.R. 341 (H.C.); Zimbabwe: State v. Ncube et al. (1993) 91 I.L.R. 580 (S.C.).

15 Jamai'at Iscan v. The IDF Commander in Judea and Samaria et al. (1983) 37 (iv) P.D. 786, at 793–794 (per Barak J.), Affu et al. v. The IDF Commander in the West Bank et al. (1988) 42(h) P.D. 4, (1990) I.L.M. 139 (per Bach J.), Barak, A., Interpretation In Law, Vol. II: Statutory Interpretation, supra n. 14, at 580.Google Scholar

16 For an Australian decision affirming this duty of the administration to abide by international obligations see re Minister of Foreign Affairs 37 F.C Jt. 298, 112 A.L.A. 529 (1992). For a New Zealand case see Birds Galore Ltd. v. Attorney-General et al., 90 I.L.R. 567 (1992). In England, in the case of R. v. Home Secretary, Ex p. Brind, supra n. 14, this claim, despite its “considerable persuasive force”, (at 748) was rejected due to its novelty: “When Parliament has been content for so long to leave those who complain that their Convention Rights have been infringed to seek their remedy in Strasburg, it would be surprising suddenly to find that the judiciary had, without Parliament's aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislative function”, (Lord Bridge, at 748). Lord Ackner resisted this claim as being a vehicle for incorporating the Convention into English law “by the back door”, (at 761–762).

17 See the Affu case, supra n. 15.

18 See Lapidoth, supra n. 9, at 479–484; Rubin, B., “The Adoption of International Treaties into Israeli Law by the Courts”, (1983) 13 Mishpatim 210.Google Scholar

19 See supra text accompanying nn. 13–14.

20 The Court approved a “constitutional practice” that it found had developed, in which the legislature acquiesced in delegating this power to the government: Kamiar v. The State of Israel (1968) 22 (ii) P.D. 85.

21 Kurtz and Latushinski v. Kirschen, (1967) 21 (ii) P.D. 20; 47 I.L.R. 212.

22 The American European Beth-El Mission, supra n. 11.

23 In the first case, concerning the law governing a testament of a stateless Jew who resided in Germany, (Kurtz and Latushinski, supra n. 21, at (P.D.) 26–27; (I.L.R.) 214–215) Justice Cohn applied the Convention Relating to the Status of Stateless Persons of 28 September, 1954, which was ratified by Israel but not transformed into law. Justice Cohn stated that: “The Israeli legislator has found no occasion or necessity to pass legislation of its own in order to confer upon Article 12 of the said Convention — which is a typical provision of general law — the force of binding law. And with good reason: this provision of the Convention has gained general acceptance by the nations of the world; and it is immaterial for our purposes whether or not states have acceded to it formally, since this Convention has been formulated and approved by legal exports from all over the world, both scholars in the field of international law and representatives of all the legal systems of the world, and there was no objection to or questioning of it… I find unavoidable the conclusion that the provision of this Convention, as a faithful reflection of an accepted principle of international law, was designed and intended to fill the lacuna …”

In the second case, concerning the freedom of religion, (The Beth-El Mission case, supra n. 11, at (P.D.) 333; (I.L.R.) 208) Justice Cohn said: “The principles of freedom of religion, like the other human rights enshrined in the Universal Declaration of Human Rights, 1948, and the Covenant of Civil and Political Rights, 1966, are today the heritage of all enlightened nations, whether or not they are members of the United Nations Organization, and whether they have ratified the 1966 Covenant or have not done so; for these instruments have been drafted by legal experts from all corners of the world, and have been approved by the General Assembly of the United Nations in which the vast majority of the world takes part”.

24 Compare Franck, T., “The Emerging Right to Democratic Governance”, (1992) 86 Am. J. Int'l. L. 46, at 61CrossRefGoogle Scholar: “As a mere resolution, the Universal Declaration does not have the force of a treaty; yet it was passed with such an overwhelming support, and such prestige has accrued to it in succeeding years, that it may be said to have become a customary rule of state obligation”. See also Dickson C.J.C.'s reference to the Universal Declaration in the course of applying sec. 11(d) of the Canadian Charter, as evidence of “the widespread acceptance of the principle of the presumption of innocence”. R. v. Oakes, 26 D.L.R. (4th) 200, at 213.

25 Restatement (Third) on the Foreign Relations Law of the United States, Sec. 701, Reporters' notes 2 and 6; Henkin, L., International Law: Politics, Values and Functions, General Course on Public International Law, (1989–IV) 216 Recueil des Cours 223–24Google Scholar; Meron, T., Human Rights and Humanitarian Norms as Customary Law (1989) 91–94.Google Scholar

26 Abu Aita et al. v. Commander of the Judea and Samaria Region et al. (1983) 37 (ii) P.D. 197, at 238–239; 7 S. J. 1, at 36, (Shamgar P.) (emphasis in original): “Prom the nature of the matter, [customary international law] refers to accepted behavior which has merited the status of binding law […]: general practice, which means a fixed mode of action, general and persisting […] which has been accepted by the vast majority of those who function in the said area of law. […] The burden of proving its existence and status […] is borne by the party propounding its existence. […] [T]he views of an ordinary majority of states are not sufficient; the custom must have been accepted by an overwhelming majority at least”.

27 See, e.g., Restatement (Third) on the Foreign Relouons Law of the United States, Sec. 702: “A state violates international law if, as a matter of state policy, it practices, encourages and condones (a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights”. See also L. Henkln, supra n. 1, at 234 (n. 26); T. Meren, supra n. 25, at 94–101.

28 On the claim regarding the right to democracy as an emerging customary norm see Franck, supra n. 24.

29 The Israeli Supreme Court in the two cases cited earlier (nn. 21, 22) was inclined to do so. The German Federal Constitutional Court also took a broad view at international custom when it referred to Article 16 of the Universal Declaration in support of its conclusion that there was “a consensus under international law that freedom of marriage is one of the fundamental human rights”. 72 I.L.R. 295, at 298 (decision of 4 May, 1971).

30 See West Rand Gold Mining Co. v. R. [1905] 2 K.B. 395, at 406.

31 Indeed, one could argue that international human rights form the core from which the entire body of international law draws its legitimacy. Such an argument follows a similar argument for the subjection of the concept of “sovereignty” to human rights: Reisman, M., “Sovereignty and Human Rights in Contemporary International Law”, (1990) 84 Am. J. Int'l. L. 866.CrossRefGoogle Scholar

32 On the connection between the atrocities of World War II and the birth of international human rights see, e.g., Henkin, “Introduction”, in The International Bill of Rights, supra n. 1, at 1, 5.

33 See sec. 11 of the Basic Law: Human Dignity and Freedom: “All governmental authorities are obliged to respect the rights under this Basic Law”. See also a similar duty in sec. 3 of Basic Law: Freedom of Occupation.

34 A strong argument can be made for the recognition of such a judicial power of review even without those Basic Laws: The La'or Movement et al. v. The Chairman of the Knesset et al. (1989) 44 (iii) P.D. 629. Indeed, the supremacy of certain basic human rights over legislation is a necessary lesson from the Holocaust and the Post World War II rejection of positivism. For a similar suggestion by Lord Denning, relating specifically to international human rights, see Ram Chand Birdi v. Secretary of State for Home Affairs (11 February 1976, unreported) rep. in (1981) 61 I.L.R. 260, at 258: “… I would so construe an Act of Parliament so as to see it conforms to [the European Convention on Human Rights]. If it did not conform I might be inclined to hold it invalid”. Yet soon Lord Denning abandoned his suggestion: R. V. Secretary of State for the Home Department Ex p. Bhajan Singh (2 May 1976) [1976] 1 Q.B. 198, at 207; 61 I.L.R. 260, at 265. Referring to his earlier suggestion, Lord Denning said: “That was a very tentative statement, but it went too far”.

35 See, e.g., Levi v. The Commander of the Southern District (1984) 38 (ii) P.D. 393 (the right to demonstrate). The same attitude is taken with respect to the interpretation of Basic Law: Human Dignity and Freedom: HCJ 5304/92 Perach 1992 v. The Minister of Justice (rendered 31 Aug. 1993; not yet reported). In both cases the Court reviewed the law in a number of democratic states, but did not refer to international law.

36 It is interesting to contrast the Israeli Supreme Court's decisions regarding demonstrations in front of foreign embassies and consulates (see Eindor v. Teddy Kollek et al. (1991)46 (iv) P.D. 483; Servetman v. Commander of Israeli Police Tel-Aviv District (1985) 40 (iv) P.D. 550) with a recent decision of Australia's Supreme Court (Re Minister of Foreign Affairs 37 F.C.R. 298, 112 A.L.R. 529 (1992). The Israeli decisions mention only Israeli norms, whereas the Australian court's judgment turns on the proper relationship between the international right of diplomatic immunity of embassies under the 1961 Vienna Convention, and the freedom of speech recognized under the 1966 Covenant.

37 See supra, n. 14 and accompanying text.

38 Re'em Engineers and Contractors Ltd. v. The Municipality of Nazareth-Illit (rendered 21.9.93; not yet reported) (sec. 19 of Justice Barak's opinion). Compare Mabo v. Queensland (1992) 107 A.L.R. 1, at 29; 176 C.L.R. 1, at 42 (High Court of Australia): “The expectations of the international community accord in this respect with the contemporary values of the Australian people”.

39 The Re'em Engineers and Contractors Ltd. case, Ibid., at sec. 18.

40 Committee of Flight Attendants et al. v. Hazzin et al., (1973) 4 P.D.A. 366: The Labor Court referred to the Supreme Court's decision in Beth-El Mission (supra n. 11), stating that certain principles and basic rights, enshrined in international conventions and declarations, may influence the delineation of Israel's ordre public (at 377). For the influence of basic human rights on private law see Chevra Kadisha v. Kestenbaum (1992) 46 (ii) P.D. 464; Barak, A., “Protected Human Rights and Private Law”, in Zamir, I. (ed.), Klinghoffer Book on Public Law (1993, in Hebrew) 163.Google Scholar

41 When the Supreme Court dealt recently with the same issue of gender equality in labor contracts, it did not refer to international standards, despite the fact that the ILO has adopted a number of treaties on thie subject: Nevo v. The National Labor Court (1990) 44 (iv) P.D. 749. For a summary of this case see Rothman, , “A Digest of Selected Judgments of the Supreme Court of Israel”, (1992) 26 Is.L.R. 377, at 396.Google Scholar

42 See the Preamble to the 1966 Covenant: “Realizing that the Individual, having duties to other individuals and the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant”.

43 See Sieghart, P., The International Law of Human Rights (1983) 43–44Google Scholar; Paust, J., “The Other Side of Right: Private Duties under Human Rights Law”, (1992) 5 Harv. Hum. Rt. J. 51Google Scholar; Clapham, A., Human Rights in the Private Sphere (1993).Google Scholar

44 On the effects of European human rights law on individuals see Sieghart, supra, at 44; Jacobs, F., The European Convention on Human Rights (1976) 11–12.Google Scholar

45 See the report by A. Bayefsky, “International Human Rights Law in Canadian Courts” a paper presented in the Siena colloquium on the Role of Domestic Courts in the Enforcement of International Human Rights Law, Siena, June 22–23, 1993 (due to be published).

46 TV3 Network Ltd. V. Eveready New Zealand Ltd. (1993) 8 NZLR 436 (C.A.); R. v. Goodwin (1993) 2 NZLR 153 (CA.); Noort v. Ministry of Transport, (1992) 1 NZLR 743 (C.A.); Parkhill v. Ministry of Transport, (1992) 1 NZLR 555 (C.A.).

47 See Casparius v. Casparius, (1954) 8 P.D. 1289 (refusing to give effect to Nazi laws that revoked the German nationality of German Jews, in the course of determining the status of a testament made by an immigrant from Germany); Beck v. The Israeli Bar Association, (1966) 20 (ii) P.D. 617 (refusing to recognize the effects of a Polish law that discriminated against Jews).

48 Beyond this, international standards may also influence the interpretation of other statutes impinging on human rights. As Justice Elon recently stated, although Basic Law: Human Dignity and Freedom does not apply to prior legislation (sec. 10), it is appropriate, whenever it is possible, to interpret prior legislation in accordance with this Basic Law (HCJ 5304/92 Perach 1992, supra n. 35, at sec. 37).

49 For a similar daim in the Canadian context, see Cohen, M. and Bayefeky, A., “The Canadian Charter of Rights and Freedoms and Public International Law”, (1983) 61 Can.B. R. 265, at 302.Google Scholar Indeed, the concern for promoting human rights was shared by the Knesset, which enacted the Basic Laws, and the government: as the Deputy Attorney General Y. Karp remarks, concerning the process of the enactment of the Basic Laws, the Ministry of Justice has been actively involved in their conception. See Karp, Y., “Basic Law: Human Dignity and Liberty — A Biography of Power Struggles”, (1993) 1 Mishpat Umimshal 323, at 331.Google Scholar

50 On human dignity under the Canadian Charter see Kindler v. Canada, 84 D.L.R. (4th) 438, 470–471 (S.C.C, 1991) (discussing “The fundamental importance of human dignity in Canadian society”, and referring to a number of cases on this point). Compare R. v. Keegstra [1991] 2 W.W.R. L 46 (SCC), C.J.C. Dickson: “Generally speaking, the international human rights obligations taken on by Canada reflect the values and principles of a free and democratic society, and thus those values and principles that underlie the Charter itself”.

51 The preamble of the United Nations Charter, “reaffirm[s the] faith in fundamental human rights, in the dignity and worth of the human person,‥”.; The preamble of the 1966 Covenant recites that “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. McDougal, M., Lasewell, H., Chen, L., in their book, Human Rights and World Public Order (1980) 375–378Google Scholar, emphasize human dignity as the fundamental postulate of the international human rights law.

52 Re'em, supra n. 38 at sec. 25 (the freedom of expression is derived from the principle of human dignity and freedom); Barak, A., “Protected Human Rights: Scope and Limitations”, (1993) 1 Mishpat Umimshal 253, at 259–261.Google Scholar

53 Compare the accepted relevancy and persuasiveness of international human rights law to the interpretation of the Canadian Charter: Re Public Service Employee Relations Act 38 D.L.R. (4th) 161, 186 (Dickson, C.J.C.): “I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified”. See also Slaight Communications Inc. v. Davidson [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416, at 427–28.

The Indian Supreme Court held that Article 21 of the Indian Constitution implicitly incorporated the right to protection against torture or cruel, inhuman or degrading treatment, enunciated in the Universal Declaration and the 1966 Covenant: Mullin v. Administrator, Union Territory of Delhi et al. (1981) 1 SCC 608, at 619 (cited in Meron, supra n. 26, at 117–118).

54 On the possibility of judicial review of statutes under the two Basic Laws see Barak, supra n. 4, at 15–22.

55 Although Basic Law: Human Dignity and Freedom does not apply retroactively, it could influence the interpretation of other laws: HCJ 5304/92 Perach 1992 v. The Minister of Justice, supra n. 48.

56 The European Convention influenced the drafters of the 1966 Covenant: see Pechota, V., “The Development of the Covenant on Civil and Political Rights”, in Henkln, L., ed., The International Bill of Rights, supra n. 1, at 32, 40.Google Scholar

57 Article 4(1) of the 1966 Covenant. For a similar definition see Article 16(1) of the European Convention. The jurisprudence developed on the particular area of permitted derogations in emergency situations could be relevant to the interpretation of sec. 12 of the Basic Law: Human Dignity and Freedom, and sec. 60(d) of the recent Basic Law: The Government (adopted in 1992, to become applicable after the elections to the 14th Knesset), which limits the power of the government to deny or restrict certain human rights during a state of emergency.

58 Thus, for example, the detailed definition of freedom of expression included in Article 19 of the 1966 Covenant, was adopted by the Ontario Court of Appeal in R. v. Videoflicks Ltd. 14 D.L.R. (4th) 10, at 46 (1984).

59 See e.g., R. v. Keegstra, supra n. 50, at 48 [S.C.C]. In interpreting the limitation that Sec. 319(2) of Canada's Criminal Code imposed on the freedom of speech (in the context of hate-promoting expressions), C.J.C. Dickson said:

“[I[International human rights law and Canada's commitments in that area are of particular significance in assessing the importance of Parliament's objective under sec. 1. […] Canada, along with other members of the international community, has indicated a commitment to prohibiting hate propaganda, and in my opinion this court must have regard to that commitment in investigating the nature of the government objective behind sec. 319(2) of the Criminal Code. That the international community has collectively acted to condemn hate propaganda, and to oblige State Parties to [the 1966 Convention on the Elimination of All Forms of Racial Discrimination] and [the 1966 Covenant] to prohibit such expression, thus emphasizes the importance of the objective behind sec. 319(2) and the principles of equality and the inherent dignity of all persons that infuse both international human rights and the Charter”.

See also Slaight Communications, supra n. 53, at S.C.R. 1056–57: “Canada's international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial sec. 1 objectives which may justify restrictions upon those rights”.

60 In Derbyshire County Council, supra n. 14, the court considered the question presented to it by reference to Article 10 of the ECHR alone (and not in reliance on the common law), “since [this Article] states the right to freedom of expression and the qualifications to that right in precise terms’ (at 43).

61 A. Bayefsky, supra n. 45, at 22. Professor Bayefsky notes however, that Canadian courts treat other international norms differently: “Human rights cases in Canadian courts might turn out to be sui generis, with different rules applicable where the relevant international law is on a different subject” (at 25).

62 For this Act see Blaustein, A. and Flanz, G., eds., XIII Constitutions of the Countries of the World, New Zealand, Booklet two, (Oceana, New York) 289–296.Google Scholar This Act, whose preamble declares that its purpose is to affirm, protect and promote human rights, and to affirm New Zealand's commitments to the 1966 covenant, contains a limitation clause which subjects the rights and freedoms contained in the Bill of Rights “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (sec. 5). Yet the courts may not refuse application of enactments (even later in time) due to inconsistency with the Bill of Rights (sec. 4); it is the Attorney-General who must report to Parliament where a proposed Bill appears to be inconsistent with the Bill of Rights (sec. 7).

63 Since the enactment of the Bill of Rights, the New Zealand Court of Appeal referred to the 1966 Covenant and to Canadian jurisprudence interpreting it in a number of cases (see supra n. 46).

64 Despite the Human Rights and Equal Opportunity Commission Act 1986: see 18 (2) UMLR 428 (1992).

65 See Mabo v. Queensland, supra n. 38: “The opening up of international remedies to individuals pursuant to Australia's accession to the [Optional Protocol] brings to bear on the common law the powerful influence of the [1966 Covenant] and the standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights’. See also Re Minister of Foreign Affairs, supra n. 36.

66 In India: Kubic Darusz v. Union of India et al., supra n. 14; in Namibia: Minister of Defence, Namibia v. Mwandinghi, supra n. 14; in Zimbabwe: State v. Ncube et al., supra n. 14.

67 Article 35(a) of the South African Constitution states: “In interpreting the provision of this Chapter [on Fundamental Rights] a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law”.

68 On these constitutions and their significance see Stein, E., “International Law in Internal Law: Toward Internationalization of Central-Eastern European Constitutions?’ (1994) 88 Am. J. Int'l L. 427, esp. 444–446Google Scholar; Danilenko, G., “The New Russian Constitution and International Law” (1994) 88 Am. J. Int'l L. 451.Google Scholar

69 In England, the Parliament gave a strong positive signal with respect to the EC treaties (the European Communities Act 1972), and this led to the famous Factortame litigation: R. v. Secretary of State for Transport, Ex parte Factortame, [1990] 2 A.C. 86, (H.L.); R. v. Secretary of State for Transport, Ex parte Factortame (No. 2) [1990] 3 WLR 856 (HL). Yet the Court did not acknowledge a comparable signal in the context of international (including European) human rights.