Using International Law as an Aid to Construction in order to Protect the Rights of the People: A Sri Lankan Perspective

Abstract

A legal system is based on basic norms and values which guarantee smooth functioning of the society it serves. These norms and values reflect communal morals rooted in the natural law tradition and they direct the “Black Letter” legal rules towards social justice. Justice is the ultimate goal of law and in achieving the same, judiciary plays a vital role. The courts fulfill a fundamental role in the process of interpretation. Under the laws of Sri Lanka, only the courts are entitled to give a final and authoritative interpretation of statute law. In the process of interpretation, International Law (IL) is sometimes used to interpret domestic legislation, and judges tend to use IL as a tool of inspiration. In Human Rights and Fundamental Rights (FR) jurisprudence1, it can be observed that IL is often used to support the reasoning of cases. But it should be noted that there is a qualitative difference between “using IL as an aid to construction” and “incorporating IL in to Municipal Law through judicial actions.” In a dualist system, it is generally accepted that if IL is not incorporated into the domestic legal system it cannot be used as an aid to construction. Despite such conceptions, some jurists argue that even though an IL convention is unincorporated, if a country has ratified that convention, the judiciary can use it in their interpretation process. Bangalore Principles-19882 are also in support of such arguments. Further it is not realistic to expect the Legislature to provide for all contingencies and eventualities. In this context this paper attempts to analyze the approach of judiciary of Sri Lanka toward using IL as an aid to construction and it evaluates the hypothesis given below.