Constitution Drafting
The GJC and WLB added a provision to the draft constitution on the use of international law in constitutional interpretation:
In building a new constitution, governments ought to look to the international laws, conventions and treaties to which they are bound and incorporate their tenets into domestic law.
Application of International Law to Constitutional Interpretation
- When interpreting the Constitution, a court, tribunal or forum:
- must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
- must consider international law; and
- may consider foreign law.
Application of international law—When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative.
CEDAW provides the model definition of equality, CEDAW Article 1:
For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
- Article 2—tates Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
- To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
The Convention on the Elimination of All Forms of Discrimination Against Women requires countries provide women with not only equality of opportunity, but also equality of result. Signatories to CEDAW are obligated to ensure that there is gender parity in all decision-making bodies. The legal and cultural exclusion of women from governance throughout history means that affirmative steps are necessary to ensure this representation is achieved. It is not until women have an equal say in all of the decisions that affect their lives that global justice will be a reality. This means equality in all aspects of government and power, including:
- the legislature
- the judiciary
- the executive
- the military