CHAPTER 8
Promoting and enforcing human
rights
REVIEW 8.1
1 Describe the role of statehood in the international community and assess how
this might impact on human rights.
A state, commonly known as a country, is the basic unit of the international
system and is the only entity in international law that can exercise full political
capacity. Recognition of states by the international community can sometimes be
controversial, and statehood can have implications for human rights. For example,
an unrecognised state or people may be unable to claim protections under the
international human rights regime if they live within the territory of an
unrecognised state, or if they form part of another state with which relations have
broken down.
2 Define the modern concept of state sovereignty.
State sovereignty refers to the ultimate lawmaking power of a state, and its
independence and freedom from external interference in its own affairs without
consent. It is the source of a state’s legal and political power to make laws over its
own population and enforce those laws.
State sovereignty or ‘sovereign equality’ is protected under Article 2(1) of the
UN Charter. However, in the modern international system a state’s sovereignty is
not absolute. It is limited by certain duties owed to the international community,
by the other obligations contained in the UN Charter and the various obligations
contained in the countless international treaties agreed between states.
3 Evaluate the impact of state sovereignty on the promotion and enforcement
of human rights.
Not all governments equally accept that their own people have certain rights.
Some countries may rely on sovereignty as a rationale to justify mistreatment of
their own citizens. State sovereignty may be used as a shield by states against
outside interference in their own affairs.
However, countries today do not exist in a vacuum, but form part of a
community where they are interdependent and interrelated. In particular, states
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have signed numerous international agreements (treaties) between themselves
that create concrete legal obligations, including the UN Charter.
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REVIEW 8.2
1 Identify the five organs of the UN and briefly describe what role they play in
promoting or protecting human rights.
Students could mention any of the following:
 General Assembly — the main forum for international discussions,
deliberations, declarations and recommendations, many relating to issues
of human rights. Numerous committees, programmes and funds are attached
to the General Assembly, such as the UN Development Program.
 Security Council — charged with maintenance of international peace and
security, the Council can be very influential in condemning human rights
abuses, and is argued to have the power to intervene in the most serious of
human rights abuses by states.
 Economic and Social Council — assists in promoting international economic and
social cooperation and development; acts as the central forum for discussion
of economic, social, environmental and humanitarian issues.
 Secretariat — provides the various studies, tasks, information and facilities
needed by the UN. It includes the departments and offices of the UN, including
the Office of the High Commissioner for Human Rights (OHCHR). The
Secretariat is headed by the UN Secretary-General, Ban Ki-moon, the most
visible and influential figure of the UN.
 International Court of Justice — the principal judicial organ of the UN, has
jurisdiction to settle international disputes submitted to it by member states,
and produce advisory opinions when requested on matters of international law.
Its cases only rarely relate to issues of human rights.
2 Describe the role of the UN Human Rights Council and evaluate its
effectiveness in responding to cases of human rights violations.
The Human Rights Council sits under the UN General Assembly, with 47 member
seats rotated on three-year terms. It is a newly established body that aims to
address human rights violations worldwide and make recommendations. It was set
up in 2006 to replace the previous Commission on Human Rights, which had been
criticised for failing to prevent many cases of human rights abuses.
The Human Rights Council has recently adopted a series of specific measures
that aim to increase its power to address human rights abuses, including a
complaints procedure, compulsory periodic reviews of all states, and an Advisory
Committee for expertise and advice. As it is relatively new, its success may be too
early to judge. However, there has been some criticism that it is subject to
political interests at the expense of human rights action, with some states acting
to prevent criticism of themselves.
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3 Define the doctrine of R2P and how it differs from the traditional role of the
UN.
‘Responsibility to Protect’ (R2P) is a doctrine that aims to make the protection of
human rights an integral part of the responsibility that goes with being a sovereign
state. Previously, the UN and the international community had been criticised on
many occasions for failing to prevent and failing to intervene in a number of
situations around the world where serious human rights violations and atrocities
occurred. The R2P doctrine, as supported by the UN Security Council and the
General Assembly, refers to three ‘Pillars’ of responsibility:
 that states have a responsibility to protect their populations from serious
human rights abuses
 that the international community is responsible for assisting states to build
capacity to protect their populations, before such crises or conflicts break out
 when a state has manifestly failed to protect its citizens, and where peaceful
means are inadequate, the international community must take action to
prevent harm.
4 One concern about the R2P is that Security Council politics might influence
its use, either in favour of or in bias against certain states. Critically evaluate
the effectiveness of the doctrine in light of this or any other issues you can
identify.
Students could mention a number of issues, including:
 the first two pillars of R2P impose positive obligations on states to assist in
improving human rights records
 for the third pillar, however, the five permanent members of the Security
Council have the power to veto any Security Council action
 these members might use the veto to block any criticism of their own human
rights records, or as a political tool to protect other states
 the power might be used by the Security Council or some of its members as a
pretence for action against a state for other, ulterior motives, where other
means of addressing the abuse may be sufficient
 the difficulty in gaining consensus in the Security Council may mean that the
power is never used, even where serious human rights abuses can be proved
 this means that, without proper checks, the power risks being underused due
to political obstacles, or abused within the power of the Security Council
 future reform of the Security Council may help to address some of these
issues.
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REVIEW 8.3
1 Explain the difference between IGOs and NGOs and assess how either
organisation can help to promote human rights.
Intergovernmental organisations are international institutions comprised of various
member states, created by agreement (treaties) between those states. They are
usually permanent institutions and meet regularly to promote their goals. Apart
from the UN, a number of IGOs have the promotion of human rights as part of their
stated goals.
IGOs can exert significant influence on the human rights of their member
states, and in some cases non-member states, although the influence of every
organisation will differ. Some examples include the Commonwealth of Nations, of
which Australia is a party, the African Union, or the Organisation of American
States.
NGOs, on the other hand, are non-government organisations. These are nonprofit organisations of people with an interest in a particular issue or issues. They
can help to promote human rights by advocating for certain rights, reporting on or
exposing instances of abuse, educating or advising the public or governments on
rights, or actively working in the field, for example working with victims of abuses.
2 Compare the role of different courts, tribunals and other authorities in
hearing matters of human rights. Identify what types of human rights matters
can be heard by which body.
Students could mention any of the following:
 International Court of Justice (ICJ) — an organ of the UN, it hears disputes
between states and issues advisory opinions on matters of international law. It
has heard few cases on human rights. It also requires the consent of parties to
hear matters, so cannot impose its jurisdiction. It can only hear cases brought
by states, and not by individuals or private organisations.
 International Criminal Court (ICC) — recently established, it has power
prosecute international crimes. It is not a court for human rights violations per
se, but prosecutes individuals for the most serious international crimes,
including genocide, crimes against humanity and war crimes. As it can
prosecute individuals, rather than states, it is a powerful institution for
overcoming the issue of state sovereignty, and for deterring abuses.
 European Court of Human Rights (ECHR) — it considers cases brought by
individuals, as well as organisations and states, against all countries bound by
the European Convention on Human Rights. Includes 47 members on the
continent of Europe and is an extremely influential human rights body.
 Human Rights Committee — assesses member state compliance with the ICCPR
and can hear petitions raised by the states about each other’s compliance. It
can also hear complaints brought by individuals of member states about human
rights violations in their own country.
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Other similar treaty bodies include the Committee on Economic, Social and
Cultural Rights, the Committee on the Elimination of Racial Discrimination, the
Committee on the Elimination of Discrimination Against Women, the
Committee against Torture or the Committee on the Rights of the Child.
3 Identify the dangers faced by journalists in countries where there is little
press freedom.
Media freedom is severely restricted in many countries, where it is often unsafe
for reporters to undertake their work. Some of the dangers include censorship,
imprisonment, beatings or even death. According to one NGO, the Committee to
Protect Journalists, 71 journalists were killed in 2009, including 29 who were killed
in one brutal massacre in an unstable region of the Southern Philippines. Almost
140 were jailed worldwide, with most in either China, Iran or Cuba. Over half of
those imprisoned were arrested in relation to internet reports.
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REVIEW 8.4
1 Explain how international treaties are incorporated into Australian law.
In relation to international law, Australia is a dualist system. This means that two
systems of law exist: the international system and the domestic system. Signing or
ratifying a treaty does not necessary make it enforceable under Australian
domestic law: the rights and obligations of the treaty will need to be incorporated
into Australian law in some way.
The Australian Parliament will usually need to pass legislation that echoes the
words of the treaty or amends existing laws to ensure Australian law fully complies
with the treaty obligations. If Australia does not comply, it may have implications
for the Commonwealth under the rules of international law, but is unlikely to be
directly enforceable under domestic law.
2 Define the doctrine of separation of powers and identify which power in
Australia is kept strictly separate.
The doctrine of separation of powers involves the separation of the branches of
state: the legislature (elected law-makers in parliament), the executive
(government, including ministers and agencies) and the judiciary (the courts that
interpret and apply the law).
In Australia, separation of powers is protected under Chapters I to III of the
Australian Constitution, which describe the functions of each branch respectively.
With a Westminster system of government, Australia does not strictly separate the
legislature and the executive. However, the High Court has constantly ruled that
strict separation of the judiciary from the other two ‘political’ branches is a
fundamental principle in the Constitution.
3 Describe how the external affairs power has transformed Australia’s law.
The external affairs power, contained in section 51(xxix) of the Constitution, gives
the Commonwealth the power to legislate on external affairs, which includes
Australia’s treaty obligations. Since federation, the growth of treaties
internationally has been enormous, and treaties have developed to cover many
areas of the law that would traditionally have been solely within the power of the
Australian states. Human rights treaties have transformed the country by enabling
the Commonwealth Parliament to bind states to those rights and, if necessary,
legislate to protect rights universally across Australian jurisdictions.
4 Explain the difference between an express and implied right.
Express rights are rights that are expressly included in a document. For example,
the Australian Constitution contains certain express rights written into it by its
drafters, such as the right to vote in Commonwealth elections (s 41), or the right
to a trial by jury in federal indictable cases (s 80).
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Implied rights, on the other hand, are rights that can be implied through the
text, structure or purpose of a document. For example, the High Court has judged
that certain rights can be implied in the text and structure of the Constitution,
even though they are not expressly stated, including an implied right to freedom
of political communication.
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REVIEW 8.5
1 Explain why common law rights might be less secure than statute law.
Although common law has evolved over centuries independently of government,
and carries the power to protect many human rights, it does not offer absolute
protection. Common law rights are not fixed, and, no matter how crucial they may
be seen to be, they can be removed by an act of parliament. Rights will also be
defined only on a case-by-case basis, if and when a relevant matter is brought
before a court, and so the common law cannot be relied upon as a sure source for
the development of new rights.
2 Identify three important human rights statutes and describe some of the
rights they protect.
Students could mention any of the following human rights statutes in Australia and
NSW:
 Racial Discrimination Act 1975 (Cth)
 Sex Discrimination Act 1984 (Cth)
 Australian Human Rights Commission Act 1986 (Cth)
 Disability Discrimination Act 1992 (Cth)
 Age Discrimination Act 2004 (Cth)
 Anti-Discrimination Act 1977 (NSW).
3 Explain some of the functions of the Australian Human Rights Commission.
The Australian Human Rights Commission (AHRC) is an independent national body
with functions to review and advise on human rights in Australia. It has a number
of varied roles, including responsibilities to:
 receive and investigate complaints into discrimination and breaches of human
rights
 promote public awareness about human rights and provide legal advice
 conduct public inquiries into human rights issues and issue recommendations
 give advice and make submissions to parliament and governments on
development of laws, policies and programs consistent with human rights.
4 Critically evaluate the role of the High Court in protecting human rights in
Australia.
Some of the issues that students could discuss in critically evaluating the High
Court’s role include:
 the High Court has the power to set binding precedents on other state and
federal courts
 it can overturn all or part of state or Commonwealth legislation that is
inconsistent with the Australian Constitution
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
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its independence under the separation of powers doctrine is crucial in ensuring
that parliament does not abuse its powers beyond its constitutional authority,
and that the courts remain free from political influence
it has recognised both express and implied rights under the Australian
Constitution
it has heard numerous cases relating to human rights, for example Indigenous
land rights (Mabo), a Constitutional right to freedom of political
communication (Lange v Australian Broadcasting Corporation), a possible
common law right to privacy (ABC v Lenah Game Meats), or the right to vote
(Roach v Electoral Commissioner).
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Chapter summary tasks
1 Assess how state sovereignty can be used to shield human rights violations.
Not all governments equally accept that their own people have certain rights.
Some countries may rely on sovereignty as a rationale to justify mistreatment of
their own citizens. State sovereignty may be used as a shield by some states
against outside interference in their own affairs.
However, countries today do not exist in a vacuum, but form part of a
community where they are interdependent and interrelated. In particular, states
have signed numerous international agreements (treaties) between themselves
that create concrete legal obligations, including the UN Charter.
2 Describe the role of the UN in protecting human rights.
Students could mention any of the roles of any of the following in protecting
human rights:
 UN General Assembly
 UN Security Council
 UN Economic and Social Council
 UN Secretariat
 International Court of Justice
 the Human Rights Council
 the Responsibility to Protect (R2P) doctrine.
3 Describe the role of the various international courts in enforcing human
rights.
Students could mention any of the following:
 International Court of Justice (ICJ)
 International Criminal Court (ICC)
 European Court of Human Rights (ECHR)
 Human Rights Committee
 other similar treaty bodies, including the Committee on Economic, Social and
Cultural Rights, the Committee on the Elimination of Racial Discrimination, the
Committee on the Elimination of Discrimination Against Women, the
Committee against Torture or the Committee on the Rights of the Child.
4 Assess the power of the High Court to protect and advance human rights.
Some of the issues that students could discuss in critically evaluating the High
Court’s role include:
 the High Court has the power to set binding precedents on other state and
federal courts
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



it can overturn all or part of state or Commonwealth legislation that is
inconsistent with the Australian Constitution
its independence under the separation of powers doctrine is crucial in ensuring
that parliament does not abuse it powers beyond its constitutional authority,
and that the courts remain free from political influence
it has recognised both express and implied rights under the Australian
Constitution
it has heard numerous cases relating to human rights, for example Indigenous
land rights (Mabo), a Constitutional right to freedom of political
communication (Lange v Australian Broadcasting Corporation), a possible
common law right to privacy (ABC v Lenah Game Meats), or the right to vote
(Roach v Electoral Commissioner).
5 Critically evaluate the view that only a Charter of Rights can fully protect
citizens’ human rights.
Students could refer to any of the arguments summarised in the table below. After
exploring and analysing the arguments, students should come to a clear and
justified conclusion on the need for and benefits of a Charter of Rights.
Arguments for
Arguments against
extremely high community support for a
Charter of Rights
redressing the inadequacy of existing human
rights protections
reflecting basic Australian values
the adequacy of current human rights
protections in Australia
undermining a tradition of parliamentary
sovereignty, including transferring legislative
power to unelected judges
no better human rights protection is guaranteed
protecting the marginalised and disadvantaged
potentially negative outcomes for human rights
improving the quality and accountability of
government
contributing to a culture of respect for human
rights
improving Australia’s international standing in
relation to human rights
bringing Australia into line with other
democracies
generating economic benefits
excessive and costly litigation
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democratic processes and institutions offer
better protection of rights
a major economic cost
unnecessarily legalised human rights
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