Conclusion

It is clear that domestic and supranational judicial opinions are referencing the general comments of the human rights treaty bodies. Whether introduced by zealous human rights defenders, NGO amicus briefs, or the judges themselves, it cannot be denied that the interpretations of human rights conventions by the treaty bodies are gaining traction in domestic courts. What legal value attaches to the comments in light of this phenomenon is less clear. This is particularly true when [1] [2] [3] [4]

the comments are employed to achieve different aims from those the treaty body originally intended or where a court opts not to adopt the treaty body’s approach.

In some instances the use of general comments is norm-filling and aids in refining the universal interpretation of human rights. In others, a court’s failure to follow the reasoning of the treaty body suggests that the right is subject to alternative or selective interpretations. The reluctance of domestic judiciaries to follow the international interpretation may shatter the promise of a unified global human rights interpretation. However, as discussed in this chapter, the UK cases06 concerning the approach to immigration and asylum involving children demonstrate that in those instances where the highest court in a jurisdiction has opted to use general comments to refine the extent of a right it is certain that lower courts will follow suit. Does this indicate broadening of the available interpretative tools or should these examples be treated as mere throwaway observations? The evolution of the international human rights system has occurred in many ways not conceived at its inception in 1948. The impact of general comments must be included in this observation and only time will reveal the true interpretative power of this form of treaty body jurisprudence. [5]

  • [1] Case of A and others v. United Kingdom, App. 3455/05, 19 Feb. 2009, citing HRC GeneralComment 29, para. 2.
  • [2] Case of A and others v. United Kingdom, App. 3455/05, 19 Feb. 2009, citing HRC GeneralComment 29, paras 181, 190.
  • [3] Neulinger v. Switzerland (2010) 28 BHRC 706, para. 131.
  • [4] Neulinger v. Switzerland (2010) 28 BHRC 706, paras 49—56.
  • [5] See the discussion of: ZH (Tanzania) (FC) v. Secretary of State for the Home Department [2011]UKSC 4; DS (Afghanistan) v. Secretary of State for the Home Department [2011] EWCA Civ 305; TheQueen on the application of Mansoor v. Secretary of State for the Home Department [2011] EWHC 832.
 
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