A/HRC/16/51
1.
Proposals for new legislation or amendments to existing laws shall include a
written statement bringing to the attention of the Legislature any provision in the proposal
that appears to be inconsistent with the purposes and provisions of norms of international
human rights and refugee law that are binding upon the State.
2.
The Legislature shall, through a specialized body or otherwise, review and
ensure that any law approved by it conforms to the norms of international human rights and
refugee law that are binding upon the State.
3.
The judiciary shall be entrusted with ensuring that laws do not breach norms
of international human rights and refugee law that are binding upon the State. In
discharging this duty, the courts shall apply the techniques available to them under the
Constitution, such as:
(a)
Adopting an interpretation of the law that is consistent with the
purposes and provisions of norms of international human rights and refugee law that
are binding upon the State;
(b)
Declaring that part of the law is without legal effect;
(c)
Declaring that the inconsistent law is to be of no force or effect, either
with immediate effect or after a period of time that allows the Government to take
remedial steps.
4.
If the State is involved, as a party, in an ongoing armed conflict, the above
provisions shall apply also to securing compliance with principles and provisions of
international humanitarian law, without prejudice to the obligation to comply with
international human rights and refugee law.
B.
Consistency of counter-terrorism practice with human rights,
humanitarian law and refugee law
15.
Besides ensuring that counter-terrorism law is consistent with human rights, the
conduct of agencies involved in the countering of terrorism must be in compliance with
human rights and refugee law, and applicable principles and provisions of international
humanitarian law. Where the law relating to terrorism confers discretionary powers upon
public agencies, adequate safeguards, including judicial review, must exist for the purpose
of ensuring that discretionary powers are not exercised arbitrarily or unreasonably.18
Checks might also be implemented through internal and external supervision of agencies
and public servants, as well as through the adoption and comprehensive implementation of
codes of conduct.19 The counter-terrorism laws of some States expressly recognize the
application of the principle of legality, the rule of law and human rights to the countering of
terrorism, which should be seen as an essential check on the implementation in practice of
the obligation to comply with human rights while countering terrorism.20 While the
18
19
20
8
See E/CN.4/2002/18, annex, paras. 3 (b) and 3 (j); Council of Europe, Guidelines on Human Rights
and the Fight against Terrorism, 2002, guideline II; E/CN.4/1985/4, annex, paras. 16, 18; Handbook
on Human Rights Compliance, op.cit., condition 3.3; and questionnaire responses submitted by by
Australia, Bolivia (Plurinational State of), Canada, Finland, Greece, Monaco, Norway and
Switzerland.
Questionnaire responses submitted by Australia, Bolivia (Plurinational State of), Bulgaria, Canada,
Colombia, Cuba, Finland, Greece, Monaco, Norway, Spain and the former Yugoslav Republic of
Macedonia.
Azerbaijan, Law on the Struggle against Terrorism 1999 (as amended in 2005), art. 4. Other countries
do not expressly mention these principles in the context of countering terrorism, but provide for more
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