Abstract

SHALE, Itumeleng. Historical perspective on the place of international human rights treaties in the legal system of Lesotho: Moving beyond the monist-dualist dichotomy. Afr. hum. rights law j. [online]. 2019, vol.19, n.1, pp.193-218. ISSN 1996-2096.  http://dx.doi.org/10.17159/1996-2096/2019/v19n1a10.

This article reviews the relationship between international law and domestic law in the legal system of Lesotho. It explores the theories of monism and dualism and their usefulness in the protection of human rights in the legal system of Lesotho. It is argued that while Lesotho traditionally has been categorised as dualist, its conduct from before independence to date is not fully supportive of the tenets of this theory. This status is illustrated through a discussion of Lesotho's approach to international law during its territorial disputes with South Africa, and its attitude towards international instruments ratified both by the United Kingdom on behalf of Lesotho during the time it was a British Protectorate and after independence. The article also analyses the application and rejection of customary international law and international treaties by the courts of Lesotho. On the basis of this analysis it is concluded that the monist-dualist dichotomy no longer is useful in the protection of human rights as reflected in the courts' emphasis that Lesotho has to comply with its international human rights obligations. It is therefore recommended that the dichotomisation be discarded in favour of human rights protection regardless of whether the human rights norms are contained in international or in domestic law.

Keywords : monism; dualism; human rights; domestication; Lesotho.

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