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Intention and Effect:
The Legal Status of the Final Views
of the Human Rights Committee
J S Davidson* |
States party to the Optional Protocol of the International Covenant on Civil and Political Rights recognise the competence of the United Nations Human Rights Committee to receive communications from individuals who claim that their rights have been violated. Although the final views of the Committee are often invoked in support of litigation under bills of rights in various countries, the legal status of these views has received little attention. It was initially accepted that the Committee's final views were not legally binding. However, the Committee has asserted a greater legal status for its views, and has explicitly declared them to be legally binding. Scott Davidson expresses reservations about this development, suggesting that it is unlikely to command the support of all states parties to the ICCPR given the Committee's current composition, procedures, and resource base. Regardless of the legal status of the Committee's views, however, it will be politically difficult to argue that they are not technically binding. The easiest means of avoiding difficulties concerning legal status of the decisions of the Committee is to promote vigorous debate about human rights within New Zealand, and for all of the branches of government to take their human rights responsibilities seriously.
This article is based on a paper delivered at the Legal Research Foundation's conference "Liberty, Equality, Community: Constitutional Rights in Conflict?" (Auckland, 1999). It will also be published in a book of essays entitled: Litigating Rights: Perspectives from Domestic and International Law (Huscroft and Rishworth (eds), Oxford: Hart Publishing, forthcoming).
*School of Law, the University of Hull.
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Questioning the Dogmas of Realism
Jim Evans*
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New Zealand courts have, like common law courts in other parts of the world, rejected traditional positivist accounts of law, and tended to embrace realist skepticism about the nature of traditional legal doctrine. Jim Evans argues that this approach is mistaken, and challenges the dogmas on which legal realism is based. He criticizes recent decisions of the Court of Appeal including Sellers v Maritime Safety Inspector, Flickinger v Crown Colony of Hong Kong, and R v Pora.
This article is based on a paper delivered at the Legal Research Foundation conference "The New Zealand Legal Method" (Auckland, March 2001). It will be published, along with other papers from the conference, by Butterworths in Bigwood (ed), Legal Method in New Zealand (forthcoming).
*Faculty of Law, The University of Auckland.
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2001 PART II
