3.0
INTERNATIONAL AND REGIONAL HUMAN RIGHTS INSTRUMENTS
It is important for Member States, when considering the enactment of
national laws on eradicating child marriage to ensure that domestication of
international and regional human rights instruments which may impact on
the rights of the child and women is done as Member States have already
committed to the obligations under these instruments. This is in line with
the Vienna Convention on the Law of Treaties of 1969. This Convention can
best be described as a codification of public international law.
All SADC MSs are parties to many instruments that are governed by public
international law. Article 26 of the Convention states: "Every treaty in force
is binding upon the parties to it and must be performed by them in
good faith." Article 27 states: "A party may not invoke the provisions of
its internal law as justification for its failure to perform a treaty."
The Model Law effectively lists some of these international instruments for
ease of the legislative drafter in the Schedule to the Model Law. The Model
Law is based on these international and regional human rights instruments
and cites some of these in the preamble and some substantive provisions.
The rights of the child cited are a restatement of the rights as provided under
some of these international and regional instruments. For the avoidance of
doubt, a restatement is to say something in a different way so that it is more
clearly or strongly expressed. Therefore, the Model Law gives meaning,
content and breath to the rights enumerated in the international human
rights instruments by amplifying them and providing for implementation
provisions in terms of measures and interventions to be put in place by the
governments of Member States.
It is important for the legislative drafter to domesticate the listed instruments
in accordance with their constitutional requirements and legislative styles
and forms.
4.0
STYLE AND FORM
The Model Law has been drafted using the precedent set by the SADC Law
on HIV/AIDS with minor adjustments for ease of communication in
legislation and to facilitate the drafting of national legislation by the
Page 6 of 78