Student Law Review Issue 1 | Page 30

The role of the Domestic Court in invoking International Human Rights Treaty: A Comparative analysis between Australia, Barbados, Jamaica and Trinidad and Tobago By Gillianna Guy Introduction This paper attempts to analyse the role of domestic courts in the application of instruments of international law. In evaluating this role, it is imperative that the theoretical framework of the application of international law and the characteristics of each theory be evaluated. A comparative analysis of decision made by domestic courts of Commonwealth countries (Australia, Sri-Lanka, Barbados and Trinidad) will be undertaken to determine whether the judicial decisions of these courts are in keeping with the theoretical framework they subscribe to, or if an alternative approach has been taken. By doing such, this paper aims to show that according to the gravity of the issue as well as the other factors such as public policies, courts may be flexible in applying the dualist doctrine. Theoretical framework in relations to relationship of domestic law and international law The subscription of states to international law can be seen through two distinct theories, monism and dualism. These theories differ in regards to their approach in incorporating international law into municipal jurisdiction.30 States that carry monist legal system holds the view that international law and domestic system as one legal system. In support of this Talbot J, in Buvot v Barbuit31 stated that the law of nations are adopted to its full extent by the common law and is held to be a part of the law of the land. International treaties as a result, are automatically incorporated into national law once the executive ratifies it. In contrast, the dualist views that international law and municipal law are two separate and independent legal systems, one at a national level and the other at the international.32 The 'Fitzmaurice compromise' asserted that since the two systems, international and national law, do                                                               30 nd  J.C Goldsmith and E.A Posner, The Limits of International Law (2  edn., Oxford University Press 2005) 15   (1737), Cas.t. Talb. 281 at 283, 25 E.R.777 (Ch.).  32  S. K. Verma, An Introduction To Public International Law (PHI Learning Pvt. Ltd., 2004)125  31 26