Protecting and Enforcing HR Flashcards
What is a State
a nation or country
What are the five factors required to be internationally recognised state under the Montevideo convention 1993
- Permanent population
- Defined territory
- Government
- Capacity to enter into international relations
- Recognised by a number of other states
What is the disadvantage in not being a state
cannot access Intl Human rights framework
How many UN members are there
193
Define state sovereignty
The ability for countries to make their own laws and be free from external influence
How does Intl law affect state sovereignty
Intl law limits it, as states have certain duties to the intl community
How can state sovereignty affect the protection of HR
some countries may rely on state sovereignty to justify the mistreatment of its citizens. state sovereignty protects them from prosecution
How do nation states create concrete legal obligations between one another
Through signing numerous consensual, intl agreements (treaties)
What are the 5 principle organs of the UN
>UN General Assembly>UN Security Council>Economic and Social Council>UN Secretariat>International Court of Justice
Main function of UN General Assembly
Main forum for Intl discussion, deliberation and recommendations especially relating to HR
What principal organ of the UN oversees UN Human Rights Coun
UN General Assembly
Main function of UN Security Council
Preserve Intl peace and security
Who sit on security council
5 perms and 10 non perms
Main function of Economic and Social Council (ECOSOC)
Meet annually to assist in promoting Intl economic and social cooperation/development
How many member sit on ECOSOC
54 rotating member
Main function of UN Secretariat
Main administrative body of the UN
Which principal body of the UN does the Office of the UN Hig
UN Secretariat
Main Function of ICJ
Primary Judicial organ of UN
What is the ICJs Jurisdiction
Intl disputes between member statesadvisory opinions on Intl law matters
What is the aim of the UN Human Rights Council (UNHRC)
To address human rights violations worldwide and make recommendations
How many member are on UNHRC(ouncil)
47 members rotated on 3 year terms
When was UNHRC(ouncil) established
2006
How does UNHRC(ouncil) monitor Human Rights worldwide
periodic reviews on all 193 member states every 4 years
How does UNHRC deal with Human rights complaints
Complaints procedure
What part of UN did UNHRC(ouncil) replace
UN Human Rights Commission
Example of appeal to UN Human Rights Committee
Toonen v Australia 1994
What law did Australia introduce to repeal Tasmanias law
Human Rights (sexual conduct Act) 1994
What document did Tasmanias laws breach
UDHR and ICCPR
Example how UN promotes HR
Millennium Development Goals and Sustainable Development Goals
What is the Responsibility to Protect
The doctrine gives the UN the power to intervene if there are extreme Human Rights abuses occurring (e.g. genocide)
How does the UN intervene
Peacekeepers or Military Action
Which body of the UN intervenes under R2P
UNSC
What are the Three Pillars of responsibility in R2P
- It is the responsibility of states to protect their populations from these crimes
- The international community is responsible for helping states develop the protective ability before such crises or conflicts break out
- When a state has failed to protect is citizens, and peaceful means are not sufficient, the international community must take action to prevent harm.
Example of R2P being invoked
NATO invading Libya in 2011 to overthrow Gaddafi
Main concern about R2P
Influenced by Security council politics
How was Tasmania forced to repeal its laws
- Croome v Tasmania 1997
- Law was inconsitent with federal law (division of powers s51)
What are the main roles of the UNHRCouncil
- complaints procedure for induvial victims,
- compulsory periodic reviews of all 193 member states,
- advisory committee to make recommendations
What are criticisms of the UNHRCouncil
- Has been criticised for acting in interest of politics instead of human rights. i.e. China and Russia accused of influencing candidates to avoid persecution
How has Australia been criticised by UNHRCouncil
- Australia successfully secured seat on UNHRC in 2018 (despite criticism over asylum seekers) SMH article ‘Australia elected to UN human rights council as criticisms surround Congo election’ Oct 2017
When was R2P decided on
World Summit on UN reform in 2005
What was the main driving force behind R2P
- UN failures over Rwandan genocide 1994 and Bosnian genocide 1992
Which art of UN Charter limits the UN’s powers to intervene in matters within a state’s domestic jurisdiction
Art 2 protects State Soveriegnty
Which chapter of UN Charter empowers UNSC to take military or non-military action to restore Intl peace and security
Chapter 7
What was UNSC main role in Libya
- Sending NATO to go in
- Establsihing a no-fly zone
Article on Libya intervention
- ABC Art Oct 2019 ‘Gaddafi is gone but 8 years on Libya is still at war. What went wrong?’
- Highlights how Libya is still in a state of anarchy
What NGO monitors R2P and poupulations at risk
- Global Centre for R2P
What is an IGO
Intl institution made up of member states created by agreement between states (treaty)
How is IGOs aim and purpose outlined
By a charter
Main IGO’s
- UN
- World Trade Organisation WTO
- NATO
- EU Union
- IMF
- African Union
What is the International Criminal Court (ICC)
Intl court established to prosecute individuals charged with most serious international crimes
What is ICC criminal jurisdiction
- Genocide
- Crimes against humanity
- War crimes
- Crimes of aggression (since 2017)
How was ICC established
Rome Statute (2002)
Example of statutory bodies established by treaties
Human Rights Committee establsihed under ICCPR 1976
What are NGOs
Organisations that are independent of and without representation of any government
Power of NGOs
- Inform global community
- Name and Shame
- Lobby IGO’s and Govts
Examples of Intl NGO’s
- Red Cross
- Amnesty International
- Human Rights Watch
Power of Media
Naming and Shaming of governments/human rights violators
Example of Media NGO
Reporters without border
How does High Court protect HR
- Set binding precedents on all courts
- Overturn legislation inconsistent with constitution
Example of High Court case on HR
- Croome v Tasmania (1997)
- Dietrich v The Queen (1992)
- Lange v Australian Broadcasting Corporation (1997)
Example of Domestic HR NGO
- Asylum seeker centre
- Human Rights law centre
- Minderoo Foundation (World slavery
Role of Media in protecting HR
- Name and Shame
- Inform
- Lobby
Example of Media infleuncing HR
4 Corners ‘Australia’s Shame’ July 2016
What are main sources of human rights in Australian law
- The Australian Constitution
- Common law
- Statute law (commonwealth, state, territory)
What treaty system is Australia
Dualist, which means that treaties are implemented through enacting legislation that echoes the words of the treaties
What is the treaty process
- Signature
- Ratification
- Accession/implementation (enacted into domestic law)
What is ratification
A binding agreement that Australia will implement the treaty in a certain time frame
what is the signature process
Agreement in principal but not legally binding
How does constitution protect human rights
- Lays down system of government i.e. separation of powers and division of powers
- It is source of some specific human rights (express and implied)
What are three arms of government
- Legislature
- Executive
- Judiciary
What does the s51 External Afairs power do
s51 of Constitution outlines the external affairs powers which give the executive arm of government (DFAT) the power to enter into treaties
What is division of powers
Separation of federal and state parliament
Whats an express right
Explicitly stated
What are the express rights in the constitution
- Freedom of religion (s116)
- Right to vote in Commonwealth elections (s41)
- Right to a trial by jury in federal indictable cases (s80)
- Right to ‘just terms’ where the Commonwealth compulsorily acquires property (s51(xxxi))
What are implied rights
Not explicitly stated
What’s an example of an implied right
- Right to freedom of speech
- Lange v Australian Broadcasting Corporation (1997)
- The High Court held that the Constitution contains an implied right to freedom of political communication
Example of fundamental right protected by common law
- Presumption of innocence
- Right to a fair trial (Dietrich v The Queen 1992)
How is common law ineffective in protecting HR
It can be overruled by Statute
Why cant common law be relied upon to develop new rights
It only applies on a case by case basis
What limits statute law in protecting HR
- It can be overruled by new statute
Example of statute law protecting HR
- Racial Discrimination Act 1975 (Cth)
- Sex Discrimination Act 1984 (Cth)
- Age Discrimination Act 2004 (Cth)
- Disability Discrimination Act 1992 (Cth)
- Australian Human Rights Commission Act 1986 (Cth)
What are most important HR Courts/Tribunals
- Australian Human Rights Commission
- High Court
What is ICC geogrpahic jurisdiction
- Prosecute individuals who are citizens of a nation party to Rome Statute
- Prosecute individuals who committ crimes in a country which is party to Rome Statute
- Prosecute cases that have been recommended to it by UNSC
- Prosecute cases recommended by an ICC prosecutor
What are main downsides to ICC
- Very few cases make it before the court and it is a difficult and long process to establish guilt e.g.Thomas Lubanga Case 2012 Warlord Thomas Lubanga first person convicted by ICC. Case began Jan 2009 ended in March2012, sentenced to 14 years in prison for crime of using child soldiers in Congo war. (Resource ineffcient)
- Been criticised for focusing too heavily on HR abuses in African nations
- State soverignty allows nations to withdraw or not comply Guardian art 2017 ‘Burundi becomes first nation to leave ICC ‘Burundi ICC withdrawl major loss to victims’ HRW Oct 2016 Philipenes withdrew March 2019
- Former Sudanese President Omar al-Bashir has yet to face charges for mass atrocity crimes committed in 2003, due to govt lack of compliance
- UNSC recommendation strongly influences which states are prosecuted BBC ‘Russia and China veto UN move to refer Syria to ICC’ May 2014
What is main UNHRC(ommitee) case
- Toonen v Australia 1994
Timeline of Toonen case
- Toonen lodged complaint to UNHRC(ommittee) that Tasmanian laws criminalised consensual sex between two adult males and argued it breached human right to privacy violating Art 17 ICCPR and was discriminatory as homosexual men were unequal before the law violating Art 26 ICCPR.
- Toonen v Australia 1994 (UNHRC). UNHRC found in favour of Toonen and ordered Australia to respond and repeal the law. Views were published i.e. name and shame
- Tas refused so Federal Government forced to enact Human Rights (Sexual Conduct) Act 1994 (Cth) legalised consenting sexual activity for adults within Australia
- Tas refused and in 1997 Rodney Croome took the matter to the High Court Croome v Tasmania (1997)
- High Court ruled law was inconsistent with ICCPR and Federal Law Tas was forced to repeal. S 109 of Constitution rules when state and federal laws conflict federal overrides.
When did Red Cross originate
1863
What conevntions protect Red Cross and outline their role
Geneva Conventions first convention 1864
How are Geneva Conventions prosecuted
ICC
What is role of Amnesty Intl
- Undertakes detailed research and determined campaigning, to help fight abuses of human rights worldwide.
- Name and shames and campaigns for law reform surrounding HR
What is role of ICRC
- Protecting life and dignity of victims of Intl and other armed conflicts.
What is the role of AHRC 1986
- To deal mainly with alleged violations of the Racial Discrimination Act 1975(Cth) and the Sex Discrimination Act 1984(Cth) but also to report and deal with human rights generally
- Investigates alleged complaints of discrimination and breaches of human rights and then try to conciliate the complaint. if not resolved matter will go to Federal Court of Australia which has power to make enforceable orders.
- Promote public awareness and provide legal advice
- Conduct public inquiries e.g. 1997 inquiry into the separation of indigenous children from their families – the Stolen Generation which recommended an apology by the govt to the victims; children in immigration detention; racial violence’ same-sex entitlements
- Make submissions to parliament and government on development of HR law
How as AHRC establsihed
Human Rights Commission Act 1986 (Cth)
What was result of ABC Four Corners ‘Australia’s Shame’ July, 2016
Resulted in ‘The Royal Commission into the Protection and Detention of Children in the Northern Territory’ being established immediately after
What is a charter of rights
A charter of rights is a legal document which sets out the civil and political rights of citizens in a country
Main arguments for a charter
- Extremely high community support
- Remedying the shortcomings of existing HR protections
- Reflecting basic Australian values
- Protecting marginalised and disadvantaged
- Improve the quality and accountability of govt ‘push for charter of rights amid creeping erosion of media freedoms’ SMH
- Brings Australia in line with other democracies improving how Intl community views Australia with regard to HR NZ and US both have intl bill of rights
*
Main arguments against a charter
- Current HR protections in Australia are adequate
- Undermining the tradition of parliamentary sovereignty, including transferring legislative power to unelected judges
- Potentially negative outcome for HR
- Would lead to excessive and costly litigation
- Democratic processes and institutions offer better protections of rights
Previous pushes for a charter
- 1944 – Labor govt tried to introduce constitutional amendments to guarantee freedom of expression and freedom from want and fear
- 2008 – Federal Attorney General Robert McClelland announced an inquiry called the National Human Rights Consultation into whether we should adopt some form of Charter of Rights: result 87.4% in favour AU Govt rejected recommendations
- 2010 – Rudd govt failed to attempt to introduce a charter of HR.
How does Aus Constitution protect human rights
- Lays out system of Govt s51 (seperation of powers and division of powers)
- Establishes express and implied rights
How does seperation of powers protect HR
- Written into Aus constitution
- Divides power between legislature, executive and judciary
- Means no one arm has too much power and allows for checks and balances e.g. no member of parliament can influence a judge’s decision
- Avoids arbitrary use of power and upholds the rule of law
- Both legislature and judiciary can make laws to protect HR LEPRA 2002 NSW and Dietrich v The Queen
- Judiciary can challenge law if they believe it contravenes their HR e.g. Croome v Tasmania 1997
- Ultimately ensures no one is above the law and provides fairness before the law
How does the Division of Powers protect HR
- Outlined in s51 of constitution
- Outlines that federal govt has specific powers to make laws on certain things
- Powers not listed in the Constitution are deemed residual powers for the states
- Acts as a check on federal govt and ensures that power is not too centralised in one place.
