15 Chapter II: The components of the exclusionary rule: international standards and local realities The prohibition on reliance on ‘torture evidence’ has a crucial position in international human rights law and in the overall prohibition on torture. In this Chapter we dissect the prohibition – outlining its key components as enunciated in international and regional treaties, their interpretative texts and in the judgments of human rights courts and decisions of treaty monitoring bodies. We also draw on our II.1 comparative study of 17 countries to examine how different countries have sought to protect these components of the prohibition (if at all) with the aim of identifying some of the challenges which arise in the course of applying the rule and consequential gaps in the protections against reliance on ‘torture evidence’. The form of the prohibition on ‘torture evidence’ II.1.1 Monist and dualist systems The force of treaty obligations at the domestic level differs between the 17 countries we examined. i) ii) In some countries, such as France, international law does not need to be translated into domestic law to have legal effect; it has legal effect automatically as a result of ratifying the treaty.34 The French Administrative Supreme Court (Conseil d’Etat) has specifically recognised that Article 15 of the UN Convention Against Torture has direct effect at the national level, allowing defendants to rely on this provision directly to exclude evidence.35 Similarly, in Kenya, the Constitution provides that ‘general rules of international law form part of the law of Kenya’.36 The Kenyan High Court has specifically confirmed that this includes customary international law and the prohibition on ‘torture evidence’.37 In other countries, the prohibition on reliance on ‘torture evidence’ under treaty provisions such as Article 15 of the UN Convention Against Torture does not have automatic legal effect at a domestic level. Sometimes, all that is required is a simple notification process to give domestic legal effect to a treaty provision. In Spain, for example, the publication of the UN Convention Against Torture in the Official Gazette had the effect of incorporating it into national law.38 In other countries, provisions of international treaties only become binding under domestic law if they are introduced in domestic legislation.39 The South African Constitution, for example, provides that an international agreement becomes ‘law in the republic when it is enacted into law by national legislation’.40 This is also the case in Thailand41 and the United Kingdom.42 Even if, as a matter of legal principle, Article 15 of the UN Convention Against Torture (or equivalent provisions of other treaties) has automatic legal effect domestically, including the provision in specific national legislation can bolster that protection. For example, this has the advantage of drawing the attention of lawmakers to areas in which treaty obligations may conflict with existing domestic laws, and incorporates these standards into more readily accessible domestic law. For this reason, we focus on the domestic legal regimes when examining how the countries studied have protected against reliance on ‘torture evidence’. II.1.2 Express or implied regimes Of the 17 countries examined, 16 do have some form of exclusionary regime for evidence obtained by torture. These domestic legal regimes governing the exclusion of ‘torture evidence’ fall into two broad categories: