2In this chapter, you will look at the promotion and enforcement of human rights in both the international community and under Australian law. You will consider the different legal sources of human rights protection, the role of intergovernmental organisations, NGOs and the media, and the role of courts and tribunals in enforcing human rights. Finally, you will consider the case for a Charter of Rights in Australian law.
3Promoting and enforcing human rights The effectiveness of human rights depends on the will of the international community to implement them.It also depends on the mechanisms in place to ensure human rights are respected, promoted and enforced.
4Promoting and enforcing human rights Human rights are advanced on two broad levels: internationally and domestically.At each level, there are governing bodies responsible for complying with and promoting them, courts responsible for enforcing them, and various organisations that report on and expose non-compliance.
5State sovereignty – statehood A state (country) is the basic unit of the international system – states are the only entities in international law capable of exercising full political and legal capacity.Legal recognition of a state requires a number of factors.Statehood can have implications for human rights.Today, there are 192 fully recognised state members of the United Nations, but there are also a number of disputed territories not yet fully recognised as states.
6State sovereignty – sovereignty State sovereignty refers to the ultimate law-making power of a state, and a state’s independence and freedom from external interference in its own affairs.Sovereignty is the source of a state’s legal and political power to make laws over its own population and enforce those laws.
7State sovereignty – sovereignty The UN Charter recognises the sovereign equality of all states.However, in the modern international system, state sovereignty is no longer absolute – it is limited under international law by certain duties and obligations owed to the international community.
8State sovereignty and human rights One of the major problems in human rights is that not all governments equally accept the idea that their own people have certain rights.Some countries may rely on state sovereignty to justify mistreatment of their own citizens – in extreme cases, countries may commit human rights abuses with impunity.
9State sovereignty and human rights State sovereignty can be used as a shield by states against outside interference in their own affairs.However, countries today form part of a community where they are interdependent and interrelated – international agreements create concrete legal obligations, including the UN Charter.
10The role of the United Nations The UN was established with the signing of the UN Charter in 1945, following World War II.
11The role of the United Nations Today, it is a vast organisation with substantial power, consisting of 192 member states, including almost every sovereign state in the world.It is the principal international organisation, with responsibility for almost every aspect of international affairs, including human rights.
12The United Nations – organs The UN consists of five principle organs, as well as a large amount of agencies, committees and other organisations. The main organs include:General Assembly (UNGA) – representatives from all member states with equal voting power; the main forum for international discussions and recommendationsSecurity Council (UNSC) – charged with maintenance of inter- national peace and security; can make legally binding resolutions, including authorising military actions or sanctions; five permanent members with power to veto decisions (US, UK, China, Russia and France), and ten non-permanent members with two-year terms.
13The United Nations – organs Economic and Social Council (ECOSOC) – 54 rotating members meeting annually; includes various committees and acts as the central forum for discussion of economic, social, environmental and humanitarian issues.Secretariat – headed by the Secretary-General (Ban Ki-moon), it is the main administrative body of the UN; provides the various information, studies, tasks and facilities needed by the UN and includes the departments and offices of the UN.International Court of Justice (ICJ) – principal judicial organ of the UN; has jurisdiction to settle international disputes submitted by member states.
14The United Nations – other bodies Office of the Human Rights Commissioner (OHRC) – administrative agency under the UN Secretariat; works to promote and protect the human rights contained in the UDHR and international law; headed by the UN Human Rights Commissioner who reports directly to the UN Secretary- General.
15The United Nations – other bodies Human Rights Council – established in 2006 under the UN General Assembly to replace the previous Commission on Human Rights; aims to address human rights violations worldwide and make recommendations; can hear complaints from any member state on human rights abuses.
16UN and Responsibility to Protect (R2P) Traditionally, the UN has had little legal or political ability to intervene in situations of serious human rights abuses, due to the issue of state sovereignty, as well as political difficulties within the UN structure.Between , the world community, the Security Council, the Secretary-General and the General Assembly adopted a new approach to human rights abuses, called the ‘Responsibility to Protect’.
17UN and Responsibility to Protect (R2P) The doctrine aims to make protection of human rights an integral part of the responsibility that goes with being a sovereign state and includes three ‘Pillars’:states have a responsibility to protect their populations from these crimesthe international community is responsible for assisting states to build their own capacity to protect their populations before such crises or conflicts break outwhen a state has manifestly failed to protect its citizens and where peaceful means are inadequate, the international community must take action to prevent harm.
18Intergovernmental organisations (IGOs) IGOs are international institutions created by agreement that are comprised of various member states.Apart from the UN, a number of IGOs include human rights as part of their stated goals and can exert significant influence over their member states.
19Intergovernmental organisations (IGOs) Some major IGOs include:Commonwealth of Nations: 54 members including Australia; has a strong history in promoting human rights and has in the past suspended or expelled members for persistent abusesAfrican Union: 53 members across Africa; includes the African Commission on Human and People’s Rights, African Charter on Human and People’s Rights and African Court on Human and Peoples’ Rights.
20Courts, tribunals and independent statutory authorities International Court of Justice (ICJ):can hear and judge disputes between states, and issue advisory opinions on matters of international lawrequires the consent of state parties to hear matters, limiting its powerunable to hear cases brought by individual people or private organisations, and little power of enforcementhas heard very few cases on human rights abuse.
21International Criminal Court (ICC): not a court for human rights, but prosecutes and hears matters of the most serious international crimes, including genocide, crimes against humanity and war crimeshas jurisdiction to prosecute individual people rather than states, which potentially makes it a powerful institution.
22European Court of Human Rights (ECHR): considers cases brought by individuals, as well as organisations and state, against all countries bound by the European Convention on Human Rights (ECHR)has 47 members, including all members of the European Union, as well as other European states like Russia and Turkeyhas been very successful and its decisions are highly influential.
23Other authoritiesThere are a number of bodies established under human rights treaties that are linked to the UN.One of the most important of these is the Human Rights Committee:assesses member state compliance with the ICCPR and can hear complaints by both states and individual citizens about a member’s performancea quasi-judicial body, where a group of human rights experts will hear a complaint brought against a state and make a rulinga significant case involving a complaint against human rights in Australia was that of Toonen v Australia.
24Non-government organisations (NGOs) NGOs are organisations created by people that are independent and without representation of any government.Their number has increased exponentially over the last century, and many are concerned with monitoring or reporting on human rights abuses.One of the oldest and most important international NGOs is the International Committee of the Red Cross.
25The role of the mediaThe media plays a crucial role in exposing abuse and ‘naming and shaming’ human rights violators to help bring about change.Media freedom is severely restricted in many countries, where it can be dangerous for reporters to undertake their work.One international NGO called Reporters Sans Frontières (RSF) releases an annual report on media freedom around the world.
26Human rights in Australian law There is no one document in Australia where human rights are contained.Instead, human rights are derived from different sources, including:international treatiesthe Constitution of Australiathe common lawstatute law of the Commonwealth, states and territories.
27Incorporation of human rights into domestic law Under Australian law, simply signing a treaty does not make it enforceable within Australia.The rights and obligations of the treaty will need to be incorporated into Australian law in some way.Usually when the Commonwealth ratifies a treaty, Parliament will pass legislation that echoes the words of the treaty or amends existing laws to incorporate the treaty’s obligations.
28The role of the Constitution The Australian Constitution plays two important roles in protecting human rights for Australians:it lays down the system of Australian government through which human rights are recognised, including the separation of powers and division of powersit is the source of some specific human rights, including express rights and implied rights.
29The role of the Constitution Separation of powersDescribes the separation of the three branches of government, including the Legislature (parliament), the Executive (government) and the Judiciary (courts).Under the Australian Constitution, the judiciary is strictly separated from the other two arms.This is essential in upholding the rule of law and avoiding the risk of abuse of power by the other arms of government or by a politicised judiciary.
30The role of the Constitution Division of powersThe Constitution defines how legislative power is divided between the Commonwealth and state parliaments.One area that has been crucial for the development of human rights in Australia has been the Commonwealth’s external affairs power under section 51(xxix).
31The role of the Constitution Division of powersThe growth of human rights treaties in international law has allowed the Commonwealth to ratify these treaties, and then legislate on human rights obligations that bind the states and improve national recognition of human rights.
32The role of the Constitution Rights in the ConstitutionThe Constitution defines some limited express rights, including freedom of religion (s 116), the right to vote in Commonwealth elections (s 41), or the right to trial by jury in federal cases (s 80).The High Court has also judged that certain implied rights can be read into the text and structure of the Constitution, including the implied right to freedom of political communication (Lange).
33The role of common lawSome examples of fundamental rights protected by the common law are the presumption of innocence and the burden of proof, and the right to a fair trial.However, rights in the common law are not absolute and can be removed by legislation.The common law cannot be relied upon to develop new rights, as judgments can only define those rights on an ad hoc, case-by-case basis.
34The role of statute lawIn recent years, the Commonwealth, states and territories have enacted a large body of statute law to protect human rights in Australia.Some of the most important legislation includes:Racial Discrimination Act 1975 (Cth)Sex Discrimination Act 1984 (Cth)Australian Human Rights Commission Act 1986 (Cth)Anti-Discrimination Act 1977 (NSW).
35Courts and tribunals Australian Human Rights Commission An independent national body established to deal mainly with issues relating to Australia’s human rights legislation.Can receive and investigate complaints into discrimination and breaches of human rights.
37Courts and tribunals High Court of Australia Matters involving human rights might can appear before any state or federal courts or tribunals.
38Courts and tribunals High Court of Australia However, the High Court has the power to set binding precedents, and to overturn legislation incompatible with the Australian Constitution.The High Court has recognised international law as ‘a legitimate and important influence on the common law, especially when international law declares the existence of universal human rights’.
39Non-government organisations As with international NGOs, Australian NGOs can play an important role in protecting individuals’ rights, shaping public and political opinion, and exposing violations of human rights.Important NGOs working for human rights in Australia include Civil Liberties Australia, Rights Australia or the Law Council of Australia.
40The role of the mediaThe media plays an indispensable role in ‘naming and shaming’ human rights violators and can have a significant influence on public opinion and government action.Australia is ranked as one of the top countries in the world for media freedom, and reporters, particularly the ABC and SBS play a critical role in reporting on both Australian and international human rights issues.
41A Charter of RightsMany states around the world have opted to protect their citizens’ rights through adoption of a central bill or charter of human rights.In Australia, Victoria and the ACT have adopted state-based charters of rights, but the Commonwealth has no such document.
42A Charter of RightsThe Australian Government recently conducted an inquiry into whether Australia should adopt such a charter.Although the inquiry found overwhelming support for a charter, in 2010 the Australian Government rejected the recommendation, instead opting for a non-binding framework of measures.It remains to be seen if a charter will be adopted by any future Australian Government.Some of the arguments for and against a charter of rights are discussed in the following slides.
43Arguments for a Charter of Rights: high community supportredressing the inadequacy of existing protectionsreflecting basic Australian valuesprotecting the marginalised and disadvantaged.
44Arguments for a Charter of Rights: improving quality and accountability of governmentcontributing to a culture of respect for human rightsimproving Australia’s international standingbringing Australia into line with other democraciesgenerating economic benefits.
45Arguments against a Charter of Rights: current human rights protections are adequatemight undermine parliamentary sovereignty, or risk transferring legislative power to unelected judgesno better human rights protection is necessarily guaranteed.
46Arguments against a Charter of Rights: potentially negative outcomes for human rightsrisk of excessive and costly litigationdemocratic processes and institutions offer better protectioneconomic costunnecessarily legalised human rights.