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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 51
January 12 , 2008

This week's issue:
Law Opinion
Law Book Review
Human Rights Analysis
Law Analysis
Rights Investigation
Human Rights Advocacy
Law Week

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Law book review

International human rights law for domestic courts

Dr. Abdullah Al Faruque

M. Shah Alam, Enforcement of International Human Rights Law by Domestic Courts, New Warsi Book Corporation, Dhaka, 2007, pp. xxiv+2003

Implementation of international law, especially international human rights law, in the domestic jurisdiction remains one of the most delicate and complicated problems of international law. Such implementation is not merely theoretical abstraction, but intensely practical issue. The book under review is an excellent exposition of this delicate issue and explores the potentials of the domestic courts of different jurisdictions to apply international human rights law in the state territories. The author of the book- Professor M. Shah Alam, is one of the most distinguished scholars in Bangladesh on international law. According to the author, domestic courts have remained largely unused for implementing norms of international human rights law within domestic jurisdiction. The author has made special attempt to examine how the problem of domestic implementation of international norms is addressed in Bangladesh. The author has drawn the conclusion that all the organs of the state i.e., judiciary, executive and legislature, have parts to play to facilitate and promote better implementation of international human rights law in Bangladesh. The book is divided into five chapters.

The first chapter of the book deals with theoretical problems of implementation of international law, specially human rights law, in the domestic level. However, it is appropriately contended by the author that rigid adherence to theoretical approaches is rather oversimplification of the state practices on the enforcement of international law. Individual state practices are more complex and vary widely to situate the issue in rigid compartmentalization. It has been observed that one of the reasons for weaker regime of implementation is soft law character of international law. Soft law character of international law also leads to divergence of state practice and perception on relationship between international law and municipal law. Such a diverse practice can also be largely attributed to the judicial tradition, education, training and motivation of judges that profoundly influence their attitude and approach towards domestic implementation of international human rights law. The traditional notion of state sovereignty remains of the major impediments of enforcement of international human rights norms in domestic level. While critically examining state sovereignty vis-a-vis direct application of international law in state territories, the author emphasises that state sovereignty in the age of globalisation should not be understood in absolute terms to obstruct direct application of international law.

Given the uniqueness of the US practice on the issue, the chapter two of the book is devoted to the analysis of invoking international human rights law in the US courts. It has been argued that the US practice on the issue is a bundle of contradictions, which comprehensively reflects the peculiarities of the problems associated with domestic implementation of the norms of international law. One the one hand, the relevant provisions of the U.S. Constitution and judicial decisions provide the most ideal situation of domestic enforcement of international human rights law in the U.S.A. On the other, government policies in the USA is manifestly conservative towards implementation of international human rights instruments.

Having examined the peculiarities of the US practice, chapter three explores the practices of the selected countries such as the UK, India, continental Europe and Japan to represent different trends on the issue of domestic implementation of international human rights norms. While the UK follows dualist model, the British courts now consider unincorporated treaty to generate judicially enforceable 'legitimate expectation' of claimants. Similarly, India, being follower of dualistic model, its judiciary by virtue of judicial activism have progressively applied international human rights norms and standards in the absence of enabling acts of the parliament.

Chapter four highlights Bangladesh position in relation to domestic application of international law, which is characterised by paucity of case laws, ambiguity of constitutional and statutory provisions, and reluctance of the judges as well as lawyers to refer to international instruments. The author has drawn the attention of the legal community as well as the policy makers to the fact that Bangladesh needs to clearly define, work out and follow a framework of norms, standards and policies for fulfilling its obligations under international law specially human rights norms. Considering the fact that art. 25 of the constitution of Bangladesh incorporates many fundamental principles of international law, judiciary has immense opportunity to read these international standards, principles and norms into constitutional and statutory provisions which are justiciable. According to the author, an enlightened and activist judiciary can always resort to international norms to illuminate our domestic laws o provide remedies to victims of violation of human rights.

The book also contains a bibliography and annexes, which is very useful source materials on the topic.

Despite the growing interest and importance of the subject matter of the book, there is dearth of scholarship on this issue in Bangladesh. Therefore, the book is long over-due and expected to fill the gap. The book is readable, well researched and well-structured. The language of the book is lucid and arguments have been presented in a convincing and persuasive style. No doubt, it will be of great interest to the students of international law, academics and human rights experts and will attract wider readership.

Dr. Abdullah Al Faruque, Associate Professor & Chairman, Dept. of Law, University of Chittagong.

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