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General Comments in Domestic Courts

There is a strong argument to rely heavily on the opinions of the treaty bodies as interpretative tools in light of the special nature of both the treaty bodies and the nature of the rights their constitutive treaties are designed to protect. It must be acknowledged, however, that as far as the codified rules of treaty interpretation are concerned, the 1969 Vienna Convention on the Law of Treaties does not mention the treaty-specific monitoring mechanisms. Treaty bodies had not begun to operate at the time the Vienna Convention was adopted, thus it would have had no cause to address such mechanisms.[1] This underscores the point that international law and human rights law, particularly, are dynamic and evolving and thus updates must be considered in order to maintain a coherent system.

This section examines the increasing recognition of general comments as interpretative tools by a selection of domestic courts. The caveat, which must be set forth from the outset, is that the following is an extremely preliminary overview of the case law derived from three distinct jurisdictions. It is by no means comparative between them, nor exhaustive in any way. Particularly, the following gives a perfunctory overview of general comments as introduced into the UK, South African, and European systems.

  • [1] Though the treaty bodies were functioning prior to the entry into force of the Vienna Conventionin 1980. In its Guide to Practice on Reservations to Treaties the International Law Commission specifically recognizes the role of treaty bodies in monitoring and determining issues related to human rightstreaty interpretation, see Report of the International Law Commission on its 63rd session, Guide toPractice on Reservations with commentary, UN Doc. A/66/10/Add.1 (2011), 3.2 and 3.2.1. For anexamination of this competence: K. L. McCall-Smith, ‘Reservations and the Determinative Functionof the Human Rights Treaty Bodies’, German Yearbook of International Law vol. 54 (2011): 521—64.
 
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