States of Emergency - Centre for Policy Alternatives

consequent incompatibility. This understanding Llows
directly from the principle contained in Article 27 of the
Vienna Convention on the Law of Treaties, according to
which a State Party ‘may not invoke the provisions of its
internal law as justiLication for its failure to perform a
treaty.’ Although
 Article
 2,
 paragraph
 2,
 allows
 States
Parties
to
give
effect
to
Covenant
rights
in
accordance
with
domestic
 constitutional
 processes,
 the
 same
 principle
operates
 so
 as
 to
 prevent
 States
 parties
 from
 invoking
provisions
 of
 the
 constitutional
 law
 or
 other
 aspects
 of
domestic
law
to
justify
a
failure
to
perform
or
give
effect
to
obligations
under
the
treaty.”
There can be no clearer statement as to the applicable
international law that demonstrates that the Supreme Court’s
reasoning is inconsistent with Sri Lanka’s treaty obligations.
Thus while in States belonging to the dualist tradition domestic
enactment of the Convention is desirable (for e.g. in the way the
Torture Convention has been incorporated), there is nothing to
preclude the Supreme Court from incorporating rights and human
rights norms established in the ICCPR by way of constitutional
interpretation. It is clear from General Comment No. 31 that the
judicial branch of the State is expected to play a major role in the
promotion and protection of Covenant rights, and even take the
lead in ensuring compliance of the Covenant on the part of the
executive and legislative branches. The Supreme Court’s attitude
in Singarasa
 is rendered all the more incomprehensible because
there is precedent for this in its own case law. 344
344
For e.g., Karunathilake
v.
Dissanayake
No.
2
per
Fernando J: ICCPR;
Velmurugu
per Wanasundera J: ICCPR, Joseph
Perera
per
Sharvanada C:J
UDHR, Sunila
Abeysekera
per
Amerasinghe J: ECHR
229