International Protection of Rights (HSC SSCE Legal Studies): Revision Notes
International Protection of Rights
How international law protects human rights
International law provides a framework for protecting human rights across nations. These protections are created through formal agreements between countries and through statements of shared values and aspirations.
Treaties and their implementation
Treaties are formal legal agreements between two or more nations. When a country signs and ratifies a treaty, it commits to upholding the rights and obligations contained in that agreement.
There are two ways treaties can become binding on citizens:
- Self-executing treaties automatically become law once ratified by the government
- Non-self-executing treaties require the nation to pass domestic legislation to implement the treaty's provisions
Self-executing means a treaty automatically becomes binding on a state party as soon as it has been ratified, without needing additional legislation.
In Australia, all treaties must be implemented through domestic legislation before they become binding on citizens. This means Parliament must pass laws that incorporate the treaty's requirements into Australian law. Simply ratifying a treaty is not enough to make it enforceable in Australian courts.
Declarations: Aspirational standards
Declarations differ from treaties in important ways:
- They express intentions and aspirations rather than creating legal obligations
- They state what the international community hopes to achieve regarding human rights
- They are developed through international organisations like the United Nations (UN)
- They are not legally binding but are morally binding
- They set standards and influence how nations protect rights
While declarations lack legal force, they carry significant moral weight and help establish international norms for human rights protection.
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is the most important international declaration outlining fundamental human rights. Adopted by the UN, it sets out the rights to which all human beings are entitled, regardless of nationality, race, religion, or other status.
Key articles from the UDHR
Article 3 establishes the foundational rights to life, liberty and security of person. These form the basis for all other human rights protections.
Article 4 prohibits slavery and servitude in all forms, ensuring no person can be owned or controlled by another.
Article 5 bans torture and cruel, inhuman or degrading treatment or punishment, protecting human dignity.
Article 9 prevents arbitrary arrest, detention or exile, requiring legal justification for restricting someone's freedom.
Article 10 guarantees everyone the right to a fair and public hearing before an independent and impartial tribunal when determining their rights or any criminal charges against them.
Article 11 establishes two critical principles:
- The presumption of innocence: everyone charged with a criminal offence is presumed innocent until proven guilty in a public trial with full defence guarantees
- No retrospective punishment: no one can be found guilty of an act that was not illegal when committed, and penalties cannot be harsher than those applicable when the offence occurred
Article 15 recognizes the right to nationality and prevents arbitrary deprivation of nationality or denial of the right to change nationality.
These articles reflect fundamental legal principles found in many national legal systems, including Australia's criminal justice system.
Limitations of international law
While international law provides important protections for human rights, it faces significant practical limitations in enforcement and implementation.
Why international law struggles to protect rights
Nation-states, not individuals, are parties to international law. This means international law operates between countries, not between individuals and countries. The effectiveness of international human rights law depends entirely on the willingness of nations to comply.
Cooperation is voluntary. International law requires full participation and cooperation from nation-states to function effectively. Unlike domestic law, there is no international police force or court system with power to enforce compliance.
States can choose to ignore international law. Some countries occasionally or frequently ignore declarations, treaties and UN resolutions. While individual citizens face immediate consequences for breaking domestic laws, nation-states rarely face certain or swift consequences for violating international law.
Consequences are uncertain. When a nation violates international law, responses may include:
- Diplomatic pressure
- Economic sanctions
- International condemnation
- In extreme cases, military intervention
However, these responses are not automatic and depend on political will and strategic interests of other nations.
Case study: Syria
Case Study: UN Intervention in Syria
The UN intervened in Syria in 2012 due to escalating conflict and violence against civilians. The United Nations Supervision Mission in Syria was established to reduce violence and broker peace between warring factions.
Outcome: The mission lasted only 90 days before being suspended due to:
- Increasing levels of violence
- Inability to negotiate a ceasefire
- Danger to UN personnel
What this demonstrates: This case shows how international efforts to protect rights can fail when nation-states and internal factions refuse to cooperate, and when the international community cannot agree on stronger intervention measures.
Self-determination as a collective right
Self-determination is the right of peoples to determine their own political status (how they want to be recognized and governed) and to pursue their own economic, social and cultural development.
This right is enshrined in:
- The UN Charter
- The International Covenant on Civil and Political Rights
- The International Covenant on Economic, Social and Cultural Rights
- Article 15 of the Universal Declaration of Human Rights (expressed as the individual's right to a nationality)
The UN Charter and self-determination
The UN Charter, Chapter 1, Article 1, part 2 identifies self-determination as a core purpose of the United Nations:
"To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace."
Self-determination in international politics
Self-determination remains a constant theme in international relations. Examples include:
- The Basque independence movement in Spain
- The Tamil Tigers' campaign in Sri Lanka
- Various independence movements worldwide
The UN has intervened in some cases but not others. Sometimes individual member states' reluctance to become involved in high-risk conflicts, particularly where their own interests are at stake, prevents UN action. This highlights the political nature of international law enforcement.
Rights of Indigenous peoples
The question of self-determination is particularly relevant for Indigenous peoples who have faced colonization and whose traditional laws and customs have been suppressed or ignored.
UN recognition of Indigenous rights
The United Nations declared a decade for World Indigenous Rights from 1995 to 2004. The aims were to:
- Promote the rights of indigenous peoples worldwide
- Protect indigenous languages and cultures
- Draft a Charter of Indigenous Human Rights
Australian Indigenous peoples and self-determination
Australian Indigenous peoples have faced serious challenges to their political autonomy (self-determination and independence) since European settlement.
The doctrine of reception was used to justify imposing English law on Australia. This doctrine stated that uninhabited land colonized by Britain would automatically be subject to English law. Despite the presence of Indigenous peoples with their own:
- Languages
- Cultures
- Beliefs
- Traditions
- Legal systems
British colonizers deemed the land "uninhabited" and Indigenous laws were not recognized as constituting a legitimate legal system.
Circle sentencing: Indigenous self-determination in practice
Circle sentencing represents one way Indigenous communities exercise self-determination within the Australian criminal justice system.
What is circle sentencing?
Circle sentencing courts have been established in several locations across:
- New South Wales
- Australian Capital Territory
- Western Australia
The approach is based on Canadian experience with Indigenous communities and aims to:
- Prevent crime through culturally appropriate responses
- Support victims within their community context
- Give Indigenous people greater involvement in the criminal justice system
- Make sentences more meaningful by having them imposed by cultural authorities
How circle sentencing works
Example: The Circle Sentencing Process
When an accused person who is a member of an Indigenous community has pleaded guilty or been found guilty:
Step 1: Community-Based Sentencing The magistrate travels to the accused's community for sentencing
Step 2: Circle Formation The magistrate and other participants sit in a circle
Step 3: Discussion Participants discuss the offence and circumstances
Step 4: Collaborative Sentencing The group works together to determine an appropriate sentence
Participants include:
- The offender
- The victim
- Families of both the offender and victim
- Respected members of the local Indigenous community
- The magistrate
Key Differences from Standard Court Sentencing:
- Takes place in the community rather than a formal courtroom
- Includes community members in the decision-making process
- Applies Indigenous customary law alongside Australian law
- Focuses on community healing and accountability
Circle sentencing demonstrates how self-determination can be exercised within the framework of Australian law, allowing Indigenous communities to apply their own cultural values and practices in the criminal justice process.
Exam tips
Exam Strategies for International Protection of Rights
For "outline" questions: Briefly describe the key features without detailed explanation. For example, outline how treaties become binding or outline the purpose of the UDHR.
For "evaluate" questions: You must make judgments about effectiveness. For international law, consider both strengths (moral authority, establishing standards) and limitations (lack of enforcement, reliance on state cooperation). Use specific examples like Syria or Indigenous rights to support your evaluation.
For questions on self-determination: Always define the term clearly, explain its basis in international law (UN Charter, covenants), and use specific examples. For Australian context, circle sentencing is an excellent practical example.
Case study approach: The Syria intervention and circle sentencing are valuable examples that demonstrate both the limitations and practical applications of international human rights law. Use these to strengthen your answers.
Remember!
Key Points to Remember:
- Treaties are legally binding international agreements, while declarations are aspirational statements that set moral standards but are not legally enforceable
- In Australia, treaties must be implemented through domestic legislation to become binding law
- The Universal Declaration of Human Rights (UDHR) establishes fundamental rights including life, liberty, freedom from slavery and torture, fair trial rights, and the presumption of innocence
- International law faces significant limitations because it depends on voluntary cooperation from nation-states, with no guaranteed enforcement mechanism
- Self-determination is the right of peoples to determine their own political status and pursue their own development—it is enshrined in the UN Charter and international covenants
- Australian Indigenous peoples exercise self-determination through mechanisms like circle sentencing, which applies customary law within the Australian justice system and involves community members in sentencing decisions