skip to main content

Our Logo

Human Rights Through The Rule of Law

For complete pdf file, click here

Legal Tools

Using International Law for Gender Equality




B. Legal Background

I. The Role of International Law in Domestic Courts


Two Approaches to International Law:
Countries typically approach international law from two different standpoints.

The "Monist" approach places international agreements and international legal obligations as "above" all domestic law. In countries which subscribe to this view, a lawsuit can be brought in the country based solely on international legal obligations. Lawyers and judges can cite to international law, such as a treaty or customary law, as binding precedent for their decisions. Also, treaties come into force in monist countries as soon as they are ratified.

The "Dualist" approach to international law requires that the country pass domestic legislation implementing treaty obligations in order for those treaty obligations to have legal force (of course, if laws already exist which comport with international obligations, then no new legislation is required). Treaties and customary law can still be cited to in judicial opinions, but they only serve as persuasive authority, rather than binding precedent. Also, in countries that comport with this view of international law, a lawsuit cannot be brought based solely on a treaty, but rather must be based on the domestic legislation implementing the international obligation. Of course, treaties or international law can be referred to and used in the claimant's arguments, but they cannot be the sole basis for the lawsuit.

Comparing the two views: Which is preferable for Gender Advocates?

The Global Justice Center advocates for a view of international law in which countries compliance with international obligations should be automatic and above all domestic obligations. This corresponds highly with a monist view. However, as is described in the case study below, some dualist countries can also use international law as a means to implement constitutional guarantees.

If your country is in transition, yet to take a stand on this issue, advocating for a monist approach will better equip advocates, lawyers, and judges in advancing equality and human rights issues. However, as is demonstrated in the India case study below, progressive judges in any country can find ways to use international law to push for domestic change.

Determining Your Country's Approach.

As a general rule, most common law based countries - those countries based on the English legal system - use a dualist approach. Most civil law countries - those based on the legal systems of the European continent - use a monist based approach to international law.

Looking at your country's constitution may help determine your country's approach to international law. Some constitutions set out rules governing when international law must be considered by the judiciary. However, just looking to your country's constitution is frequently not enough. You should also research how the courts in your country have interpreted these constitutional provisions, such as by reading recent cases or books on the issue. Again, the case study below demonstrates that even dualist countries can place high importance upon international obligations.

If your government has not been following its international legal obligations, activists can advocate for change through a number of different domestic or international means. For example, if your country accepts lower sentences for perpetrators of honor killings, they are in violation of CEDAW [link: http://www.un.org/womenwatch/daw/cedaw/]. If a country has ratified CEDAW, these laws must be struck down as invalid because they are in violation of international law.

Judicial Activism - The Bangalore Principles

In 1998, a collection of chief justices from former commonwealth countries gathered in Bangalore, India to discuss the role of international human rights law in domestic courts. The result of this conference was the issuance of the Bangalore Principles [link: http://www.chr.up.ac.za/hr_docs/african/docs/other/cwn1.doc]. These principles empower judges in dualist countries to employ international human rights obligations, regardless of whether implementing legislation has been passed:

7. It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes - whether or not they have been incorporated into domestic law - for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.

These principles have been followed by a number of judges in commonwealth countries and since 1988 have influenced judges througout the world. The following case demonstrates how this Bangalore Principles have affected gender justice in India.


Case Study: Sexual Harassment in India.
Using CEDAW in a Dualist Country.
Vishaka v. State of Rajasthan (3 BHRC 261)


Facts. Following a brutal gang rape of a publicly-employed social worker in a village in Rajasthan, a group of activists and NGO's filed a class action under Art 32 of the Constitution seeking the court's enforcement of the fundamental rights provisions relating to working women, and India's international obligations under Arts 11 and 24 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Judicial Holding. The court ruled that any international convention not inconsistent with the fundamental rights guaranteed in the Constitution and in harmony with its spirit must be used to construe the meaning and content of the constitutional guarantee and to promote its object, regardless of whether implementing legislation has been passed. This is now an accepted rule of judicial construction in India.

The case follows that Arts 11 and 24 of CEDAW, General Recommendations Nos 22, 23 and 24 of the CEDAW Committee, relating to sexual harassment in the workplace, may be relied upon to construe the nature and ambit of the gender equality guarantee in India's constitution. The court issued a series of guidelines to be observed at all workplaces or other institutions for the preservation and enforcement of the right to gender equality of working women.

Importance for Advocates. This is a perfect example of applying the Bangalore Principles, whereby progressive judges used International Law to influence domestic policy. The court side-stepped dualist problems by arguing that any international human rights treaty that is in harmony with the country's constitution can automatically be used to promote the the values set out by the constitution. Advocates in dualist countries can use this case as an example of how to use international treaties, such as CEDAW, in domestic courts.

The Interplay of Local Custom and International Legal Norms

There are numerous examples of progressive judges applying CEDAW in dualist countries which have not fully implemented the provisions of the treaty into domestic legislation. But for many women's rights activists, a cultural barrier exists between their society's traditions and their cause. There is a great deal of writing on the interplay between of cultural relativism (each culture should comply only with its traditional values) and universalism (all cultures share a single bare-minimum set of values), and indeed this topic has been the subject of numerous scholarly writings. However, there is a compromise between these two sides. Many women's rights advocates have settled on a test whereby cultural values should only be scrutinized if they affect the autonomy of the women. Autonomy is violated if a cultural norm or value affects the capacity of a woman to make decisions about her own life.

This level of scrutiny, which protects a minimum core of rights, has been embraced by a number of progress judges throughout the world. The success of these cases lay in the fact that the lawyers did not challenge all cultural traditions relating to women, but only those which discriminated. Here are a few examples - more detail can be found in our casebank [link: http://www.globaljusticecenter.net/tools/casebank/index.html]:

  • Mudaliar v. Thirukoil (India 1996). The Supreme Court of India ruled that a reservation the Indian government made to CEDAW that protected local cultural practices were negated by other provisions and declarations of CEDAW and by the Indian Constitution itself.
  • Noel v. Toto (Vanuatu 1994). The Supreme Court of Vanuatu considered laws which enforced patrilineal succession. The court weighed Article 5 of the Vanuatu Constitution, preventing discrimination on the grounds of sex, against Article 74, protecting custom as the basis of land ownership. The court concluded that it would be inconsistent with the Constitution and intent of Parliament to rule that some women have fewer rights than men.
  • Gurung v. Department of Central Immigraiton, Ministry of Home Affairs (Nepal 1994). The Supreme Court of Nepal struck down a residency law based on cultural traditions which favoring men's marriages rather than women's as a contravention of Nepal's Constitional equality provision.
  • Romualdez-Marcos v. Commission on Elections and Cirolo Roy Montejo (Philippines 1995). The Supreme Court of Philippines struck down a law based on traditional custom whereby a woman's domicile was defined by the residence of her husband (even after her husband's death). The court relied upon the newly enacted Family Code of the Philippines which was enacted to embody may of the principles set out in CEDAW.