International law, Sixth edition
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International Law MALCOLM N. SHAW
Some basic principles
Domestic jurisdiction 39 The basic rule of international law providing that states have no right to encroach upon the preserve of other states’ internal affairs is a conse- quence of the equality and sovereignty of states and is mirrored in article 2(7) of the UN Charter. It has, however, been subject to a process of rein- terpretation in the human rights field 40 as this and the two succeeding 35 See e.g. J. Gavron, ‘Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court’, 51 ICLQ, 2002, p. 91. See also C. Jenkins, ‘Amnesty for Gross Violations of Human Rights: A Better Way of Dealing with the Past?’ in Comparative Law in a Global Perspective (ed. I. Edge), London, 2000, p. 345, and J. Dugard, ‘Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?’, 16 Leiden JIL, 2000, p. 1. Note the Final Report of the Special Rapporteur on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights, E/CN.4/2000/62, January 2000, and Chumbipuma Aguirre v. Peru, the Barrios Altos case, where the Inter-American Court of Human Rights held that Peruvian amnesty laws were incompatible with the Inter-American Convention and thus void of any legal effect, judgment of 14 March 2001, 41 ILM, 2002, p. 93. Peru accepted this and altered its legislation, ibid. 36 See e.g. Steiner, Alston and Goodman, International Human Rights, pp. 1344 ff.; the Pro- motion of National Unity and Reconciliation Act of South Africa 1995; R. G. Teitel, Tran- sitional Justice, Oxford, 2001, and J. Dugard, ‘Possible Conflicts of Jurisdiction with Truth Commissions’ in The Rome Statute of the International Criminal Court: A Commentary (eds. A. Cassese, P. Gaeta and J. R. W. D. Jones), Oxford, 2002. 37 See e.g. Steiner, Alston and Goodman, International Human Rights, pp. 1319 ff. See also below, chapter 8, p. 407. 38 See e.g. Non-State Actors and Human Rights (ed. Philip Alston), Oxford, 2005, and A. Clapham, Human Rights Obligations of Non-State Actors, Oxford, 2006. 39 See e.g. R. Higgins, The Development of International Law Through the Political Organs of the United Nations, Oxford, 1963; M. Rajan, United Nations and Domestic Jurisdiction, 2nd edn, London, 1961, and A. Canc¸ado Trindade, ‘The Domestic Jurisprudence of States in the Practice of the United Nations and Regional Organisations’, 25 ICLQ, 1976, p. 715. 40 Note that the question of the extent and content of domestic jurisdiction is a matter for international law: see Nationality Decrees in Tunis and Morocco cases, PCIJ, Series B, No. 4, 1923; 2 AD, p. 349. See also below, chapter 12. t h e p r o t e c t i o n o f h u m a n r i g h t s 273 chapters will make apparent, so that states may no longer plead this rule as a bar to international concern and consideration of internal human rights situations. 41 It is, of course, obvious that where a state accepts the right of individual petition under an international procedure, it cannot thereafter claim that the exercise of such a right constitutes interference with its domestic affairs. 42 The exhaustion of domestic or local remedies rule 43 This rule flows from the above principle. It is a method of permitting states to solve their own internal problems in accordance with their own constitutional procedures before accepted international mechanisms can be invoked, and is well established in general international law. 44 However, where such internal remedies are non-existent or unduly and unreason- ably prolonged or unlikely to bring effective relief, the resort to interna- tional measures will not be required. 45 The existence of such a remedy must be certain not only in theory but also in practice. 46 A provision regarding the need to exhaust domestic remedies before the various international mechanisms may be resorted to appears in all the international and re- gional human rights instruments 47 and has been the subject of much con- sideration by the Human Rights Committee under the Optional Protocol 41 See also the resolution of the Institut de Droit International, 1989, H/Inf (90) 1, p. 131. 42 See e.g. Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990, 10 August 1994, Human Rights Committee, para. 63. 43 See e.g. A. Canc¸ado Trindade, The Application of the Rule of Exhaustion of Local Remedies Download 7.77 Mb. Do'stlaringiz bilan baham: |
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