How Are Human Rights Promoted and Enforced? (HSC SSCE Legal Studies): Revision Notes

How Are Human Rights Promoted and Enforced?

Human rights protection requires both formal recognition and effective mechanisms for enforcement. While international treaties formally declare these rights, their effectiveness depends on the willingness of the international community to implement them and the strength of institutions designed to monitor and enforce compliance.

Human rights promotion operates on two key levels: internationally and domestically. Each level includes governing bodies that promote compliance, courts that enforce rights, and various organisations that monitor violations and expose abuses.

State sovereignty and human rights

Understanding statehood

A state represents the fundamental unit of the international system. In legal terms, a state is an internationally-recognised entity with specific characteristics, distinct from political divisions within federal systems (such as Australian states).

Recognition by a sufficient number of other states is also crucial. UN membership typically serves as the clearest indicator of statehood. As of $2010$, there were $192$ fully recognised UN member states.

The concept of state sovereignty

State sovereignty refers to the ultimate law-making power of a state over its territory and population. This includes complete independence and freedom from external interference in domestic affairs. Sovereignty represents the source of a state's legal and political authority to create and enforce laws governing its population.

The UN Charter recognises this principle in Article 2(1): "the [UN] is based on the principle of the sovereign equality of all its Members." This means all states, regardless of size or power, possess equal authority over their own domestic matters.

State sovereignty as a barrier to human rights enforcement

State sovereignty creates a significant challenge for international human rights enforcement. In its strictest interpretation, sovereignty means no foreign state or international law can interfere in another state's domestic jurisdiction without consent. This principle can become problematic when governments abuse their own citizens, as they may use sovereignty as a shield against external criticism or intervention.

The international community imposes limitations on sovereignty through international law, particularly in relation to crimes against humanity and serious human rights violations.

Impact of statehood on human rights protection

Unrecognised states or peoples may struggle to claim protections under the international human rights framework. For example, Taiwan ratified both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in $2009$. However, as an unrecognised state without UN membership, Taiwan cannot access the international human rights framework, including the UN Human Rights Committee.

The United Nations system

The United Nations, established in $1945$, represents the principal international organisation with $192$ member states. It holds primary responsibility for maintaining international peace and security, including the promotion and protection of human rights.

Five principal organs of the UN

General Assembly (UNGA)

The General Assembly includes representatives from all member states with equal voting power. It serves as the main forum for international discussions, deliberations, declarations and recommendations on human rights issues. The Assembly runs numerous committees, programmes and funds, including the UN Development Program. Most significantly, the UN Human Rights Council reports directly to the General Assembly.

Security Council (UNSC)

The Security Council maintains responsibility for international peace and security. It exercises power through legally binding resolutions and can authorise:

• Military actions against states
• Economic sanctions
• Peacekeeping operations

Economic and Social Council (ECOSOC)

ECOSOC has $54$ rotating members who meet annually to promote international economic and social cooperation and development. The Council includes various committees and serves as the central forum for discussing economic, social, environmental and humanitarian issues. Before $2006$, it housed the Commission on Human Rights, which was transferred to the General Assembly to become the UN Human Rights Council.

Secretariat

The Secretariat represents the UN's main administrative body with over $40{,}000$ staff working worldwide. It provides information, studies, tasks and facilities needed by the UN. The Secretariat includes various departments and offices, most notably the Office of the High Commissioner for Human Rights (OHCHR). The UN Secretary-General (currently Ban Ki-moon) heads the Secretariat and serves as the most visible and influential figure of the UN.

International Court of Justice (ICJ)

The ICJ represents the principal judicial organ of the UN. Under the UN Charter, it has jurisdiction to:

• Settle international disputes submitted by member states
• Produce advisory opinions on matters of international law when requested

The ICJ rarely handles cases directly related to human rights issues.

Office of the High Commissioner for Human Rights (OHCHR)

Established in $1993$ following a World Conference on Human Rights, the OHCHR operates as an administrative agency under the UN Secretariat. The office works to promote and protect human rights contained in the Universal Declaration of Human Rights (UDHR) and international law.

The High Commissioner for Human Rights reports directly to the Secretary-General. In $2008$, Navanethem Pillay, a former judge of both the High Court of South Africa and the International Criminal Court, was appointed to this position.

UN Human Rights Council (UNHRC)

The Human Rights Council replaced the previous Commission on Human Rights in $2006$ following criticism that the Commission had allowed countries with poor human rights records to become members, preventing criticism of those states' actions.

The Council operates as an intergovernmental body under the General Assembly with $47$ member seats rotated on three-year terms. It aims to address human rights violations worldwide and make recommendations, working closely with the OHCHR.

UN intervention and Responsibility to Protect (R2P)

The UN Charter traditionally limits intervention in matters "essentially within the domestic jurisdiction of any state" (Article 2(7)). However, Chapter VII of the UN Charter empowers the Security Council to take military or non-military action to "restore international peace and security," making it the most powerful organ of the UN.

The Security Council has been heavily criticised for reluctance to use its intervention powers to prevent mass atrocities. In response, the World Summit $2005$ embraced a new doctrine called the Responsibility to Protect (R2P).

In $2006$, the Security Council (by Resolution $1647$) reaffirmed the World Summit Outcome Document "regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity."

The effectiveness of R2P remains debatable, with concerns that Security Council politics might influence its use either in favour of or against certain states.

Millennium Development Goals

In $2002$, all UN member states agreed to the Millennium Declaration, outlining eight ambitious Millennium Development Goals to be reached by $2015$. These goals include:

• Eradicating extreme poverty and hunger
• Achieving universal primary education
• Promoting gender equality and empowering women
• Combating HIV/AIDS, malaria and other diseases
• Other development targets

While many countries have shown improvement, others show little progress. Despite criticism of this goal-based approach, the programme has provided significant funding, resources and focus for states, UN agencies and various organisations to address serious global problems.

Intergovernmental organisations (IGOs)

An intergovernmental organisation (IGO) is an international institution comprised of various member states. IGOs are created by international treaties that act as charters outlining their purpose and operation. They typically meet regularly, have international legal personality, and can enter into enforceable agreements under international law.

Examples of IGOs promoting human rights

Commonwealth of Nations

The Commonwealth includes $54$ members, comprising the UK, Australia and almost all former colonies of the British Empire. Its stated aims include promoting democracy, the rule of law, human rights, individual liberty and good governance. Several members have been suspended due to serious violations, including Zimbabwe in $2002$ and Fiji following military coups.

African Union

Including almost all African states, the African Union aims to achieve peace and security in Africa and promote democratic institutions, good governance and human rights. The Union includes:

• The African Commission on Human and People's Rights (monitoring compliance with the African Charter)
• The African Court on Human and Peoples' Rights (currently being merged with the African Court of Justice)

Organization of American States

This organisation includes almost all states of North, Central and South America. Two key bodies oversee regional human rights:

• The Inter-American Commission on Human Rights
• The Inter-American Court of Human Rights

These bodies are responsible for overseeing the American Convention on Human Rights.

International courts, tribunals and authorities

International Court of Justice (ICJ)

The ICJ started operation in $1946$ at the Peace Palace in the Hague, Netherlands. It has two roles:

1. Hearing and judging disputes between states
2. Issuing advisory opinions on matters of international law

Despite these limitations, the court has issued important judgments that carry the weight of international law. For example, in $2004$ the ICJ issued an advisory opinion declaring the Israeli West Bank barrier contrary to international law. However, the Security Council has not enforced this ruling, and Israel disputes the claims.

International Criminal Court (ICC) and ad hoc tribunals

The ICC was established in $2002$ to prosecute international crime. It was preceded by various tribunals established by the UN Security Council for specific historical events (known as "ad hoc" tribunals), such as the International Criminal Tribunal for the Former Yugoslavia (ICTY).

The ICC prosecutes the most serious international crimes:

• Genocide
• Crimes against humanity
• War crimes
• Crimes of aggression (once defined)

European Court of Human Rights (ECHR)

The ECHR was established in $1959$ in Strasbourg, France, to apply and protect human rights of European citizens. It considers cases brought by individuals, organisations and states against all countries bound by the European Convention on Human Rights.

The Court's $47$ members include countries across Europe, including Russia and Turkey, but excluding Belarus.

Human Rights Committee and other treaty bodies

The International Bill of Rights and other key human rights treaties have established particular authorities to assess member state compliance.

Human Rights Committee

The Human Rights Committee assesses member state compliance with the ICCPR and can:

• Hear petitions raised by states about each other's compliance
• Under the First Optional Protocol to the ICCPR, hear personal complaints brought by individuals about human rights violations in their own country

By $2010$, $112$ countries had ratified this optional protocol, including Australia.

Case study: Toonen v Australia

Other treaty bodies

Several other committees similar to the Human Rights Committee have been established by various human rights treaties:

• Committee on Economic, Social and Cultural Rights
• Committee on the Elimination of Racial Discrimination
• Committee on the Elimination of Discrimination Against Women
• Committee against Torture
• Committee on the Rights of the Child

Non-government organisations (NGOs)

Non-government organisations (NGOs) are organisations created by people that operate independently without representation of any government. They include private voluntary organisations, citizen associations and civil society organisations.

Role of NGOs in human rights

NGOs engaged in human rights play an indispensable role by:

• Investigating and researching human rights violations
• Documenting abuses
• Publicising cases of violations to inform the global community, governments and the UN
• Working directly with violators or victims
• Providing evidence to international courts
• Encouraging diplomatic pressure from other states or UN action

International Committee of the Red Cross (ICRC)

One of the oldest and most important international NGOs, the ICRC traces its origins to $1863$. Its missions focus strictly on international humanitarian law – protecting the life and dignity of victims of international and internal armed conflicts. This work often overlaps with human rights abuses.

The ICRC's international importance is recognised through:

• Observer status at the UN General Assembly (granted since $1990$)
• Close collaboration with the International Federation of Red Cross and Red Crescent Societies (IFRC), which includes $186$ National Red Cross and Red Crescent Societies leading relief assistance missions

Other major human rights NGOs

Key international NGOs working for human rights include:

• Amnesty International
• Freedom House
• Human Rights Watch
• Carter Center
• Reprieve

The media

The media plays a crucial role in promoting human rights by exposing instances of abuse and helping bring about change. Through investigation and reporting on human rights issues, the media significantly influences public opinion and government action.

Media freedom as a human right

The role of a free and impartial media and people's right to information is recognised as a human right. Article $19$ of the UDHR states: "every one has the right to...seek, receive and impart information and ideas through any media regardless of frontiers."

Challenges to media freedom

Media freedom is severely restricted in many countries where it is unsafe for reporters to work. Consequences for journalists may include:

• Censorship
• Imprisonment
• Physical beatings
• Death

Measuring media freedom

The international NGO Reporters Sans Frontières (Reporters Without Borders) releases an annual index of media freedom. In $2009$:

• Australia ranked near the top with an index of $3.13$
• China scored $84.50$
• Iran scored $104.14$
• North Korea scored $112.50$ (worst)

Exam guidance

When analysing human rights promotion and enforcement, examiners look for:

For "describe" questions:

• Clear identification of mechanisms (UN organs, courts, NGOs, media)
• Explanation of how each mechanism operates
• Specific examples of their work

For "evaluate/assess" questions:

• Analysis of effectiveness using specific examples
• Discussion of limitations (e.g., state sovereignty, enforcement powers)
• Balance of strengths and weaknesses
• Use of case studies like Toonen v Australia to demonstrate real-world impact

For "discuss" questions:

• Consideration of multiple perspectives on effectiveness
• Discussion of tensions between sovereignty and human rights
• Analysis of political factors affecting enforcement
• Evidence from various sources (UN reports, NGO data, legal cases)

Remember!