In
Australia,
we have
followed
the
"incorporation"
doctrine 47
thus
observed also
observed in China and
the of
the United Kingdom,
and
part as
law
of
Hong
Kong.
Nevertheless, in an increasing number of decisions, both of Federal48
and State 49
international human rights norms
courts, reference
as
has
been made to
a source of law. It has
been done generally for the purpose of resolving ambiguities
in legislation. That resolution of the ambiguity will be
preferred
which avoids
between a conflict
50
law.
However,
domestic and
it is not only in the
international
to
construction of legislation that international human rights
norms can be utilised. Common law principles are themselves
often unclear. In clarifying them, an increasing number of
judges are willing to refer (among other sources)
international human rights law.
This is particularly so
where the international rule is contained in a treaty which
has been adopted by the country, although not yet
in "incorporated"
the sense of being followed by the
enactment of domestic law. It is also true where the country
has not yet ratified the international convention stating the
norm, still less incorporated it in domestic legislation.
such a case, the international statement of a human rights
obligation may, by virtual universality of respect and the
passage of time have become part of international customary
law, in much the same way as the common law develops in
municipal jurisdictions. In such a case, an appeal may
international customary
properly be made to the norms of
In
law. They are not part of domestic law. They may not be
observed if they are in conflict with clear domestic law.
But they can be used to help fill the gaps which repeatedly
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