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