From symbiosis to synergy? A comparative analysis of the impact of international human rights norms on the legal systems of Canada and Australia.
Date
1996
Authors
Tahmindjis, Phillip Victor.
Journal Title
Journal ISSN
Volume Title
Publisher
Dalhousie University
Abstract
Description
Is it possible to transform a perception of human dignity into a workable reality by means of the law? Such a perception is itself not immutable, and its expression in a legal system further skews it due to the systemic problems within that system. When the position is one with respect to human rights which are developed in international law, and are then transferred into domestic legal systems, the potential pitfalls are magnified further again. The nature of freedom and equality thus becomes contingent upon these factors.
The development of human rights in the international legal system has resulted in compromised rights, but they are in an explicit, implied and functional symbiosis with domestic legal systems. This relationship gives them meaning in an operational contest. The Common Law has a reputation for supporting and protecting people's rights which is largely exaggerated. The use of international human rights norms can help to improve this situation.
The concept of symbiosis more accurately explains the relationship between international human rights law and domestic law than do theories of monism, dualism, transformation or incorporation, particularly because of the asymmetry between the international and domestic legal systems. It is also of more use in considering the impact of human rights norms on a domestic system than only considering the use of reservations to human rights treaties or the existence or absence of a constitutionally entrenched Bill of Rights.
If law is a conjoint expression of power and ideology, the issue becomes: whose power and whose (or what) ideology? A comparison between Canada and Australia helps to expose the factors affecting the receptivity of or resistance to the use of human rights norms in domestic systems, and ultimately indicates the extent to which Canada and Australia are implementing, or are able to implement, their international human rights obligations. At the moment, that use is minimal, as well as being inconsistent, sometimes dubious and occasionally wrong. A synergy between the two systems can and sometimes does occur, but this is infrequent.
Thesis (J.S.D.)--Dalhousie University (Canada), 1996.
The development of human rights in the international legal system has resulted in compromised rights, but they are in an explicit, implied and functional symbiosis with domestic legal systems. This relationship gives them meaning in an operational contest. The Common Law has a reputation for supporting and protecting people's rights which is largely exaggerated. The use of international human rights norms can help to improve this situation.
The concept of symbiosis more accurately explains the relationship between international human rights law and domestic law than do theories of monism, dualism, transformation or incorporation, particularly because of the asymmetry between the international and domestic legal systems. It is also of more use in considering the impact of human rights norms on a domestic system than only considering the use of reservations to human rights treaties or the existence or absence of a constitutionally entrenched Bill of Rights.
If law is a conjoint expression of power and ideology, the issue becomes: whose power and whose (or what) ideology? A comparison between Canada and Australia helps to expose the factors affecting the receptivity of or resistance to the use of human rights norms in domestic systems, and ultimately indicates the extent to which Canada and Australia are implementing, or are able to implement, their international human rights obligations. At the moment, that use is minimal, as well as being inconsistent, sometimes dubious and occasionally wrong. A synergy between the two systems can and sometimes does occur, but this is infrequent.
Thesis (J.S.D.)--Dalhousie University (Canada), 1996.
Keywords
Law., Political Science, General., Political Science, International Law and Relations.