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Introduction to International Human Rights Law
1.Executive Summary 3
2.Sources and Content of Human Rights Law 4
3.1Process of Treaty-Making 4
3.2Key Multilateral Human Rights Treaties 6
3.3Universal Declaration of Human Rights 7
3.4International Covenant on Civil and Political Rights 9
3.5International Covenant on Economic, Social and Cultural Rights 12
3.6International Convention on the Elimination of All Forms of Racial Discrimination 14
3.7Convention on the Elimination of all Forms of Discrimination against Women 15
3.8Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment 17
3.9Convention on the Rights of the Child 18
3.10Convention relating to the Status of Refugees 20
3.11International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 22
3.12Reading the Treaties as a Whole 23
3.13International Criminal Law — The Rome Statute and the International Criminal Court 24
3.14Workers’ Human Rights and the International Labour Organisation 26
4.Customary International Law 28
4.1Elements of Customary International Law 28
4.2The Persistent Objector 31
4.3Jus Cogens 31
4.4Treaties and Custom 32
4.5Customary International Law in Australia 33
4.6Further Resources 33
5.1Judicial Decisions and the Teachings of the Most Highly Qualified Publicists 34
5.2Judicial Decisions 34
5.4Treaty Bodies 36
5.5Further Resources 37
6.Principles of International Human Rights Law Interpretation 37
6.2Article 31 — General Rule of Interpretation 38
6.3Article 32 — Supplementary Means of Interpretation 38
6.4Principle of Interpretation in Good Faith 39
6.5Principle of Ordinary Meaning 39
6.6Principle of Interpretation in Context 39
6.7Effectiveness Principle 41
6.8‘Dynamic Interpretations’ Principle 41
6.9Other Interpretation Issues 42
6.10Further Resources 42
7.Further Online Human Rights Law Resources 42
It is well accepted that the sources of international law are enumerated in art 38(1) of the Statute of the International Court of Justice (‘ICJ Statute’).1 They include:
Treaties, or international conventions, are the most commonly referred to source of international law and are the first enumerated source in art 38 of the ICJ Statute. A treaty is an instrument which imposes binding obligations on the states that become a party to it.2 Treaties are similar to contracts in that they bind only those that are parties to them. Parties therefore bind themselves to act in a particular way and, via this process, create legal relationships with other parties. It is a basic principle of international law that treaties do not bind non-parties.3
Treaties are made via several steps, which usually take several years to complete. The following description of this process is based on the Southern Africa Litigation Centre’s practical guide to International Treaty Obligations in Human Rights Cases:
a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.
Where a reservation is made to a substantive provision in a bilateral treaty the effect will be that of a ‘counter offer’, requiring the renegotiation of the treaty. Lawyers should be aware of any reservations claimed by their government with respect to any of the human rights guarantees. Some provisions are considered to be so central to the object and purpose of the treaty in question that no reservations are permitted.
There are nine key multilateral treaties relevant to human rights law:5
These (and other) international treaties are interpreted and applied according to rules codified in the VCLT. Sometimes called ‘the treaty on treaties’, the VCLT is an authoritative source of law containing ‘default’ rules and principles of interpretation. It applies when a treaty is silent on an issue, but it is subordinate to the express provisions of other treaties.
This section outlines the important features of each of these treaties, as well as several other relevant international instruments. Subsequent chapters provide further detail as to how the rights contained in the various international instruments may influence and become part of the law in Australia15 and as to the mechanisms by which these rights are monitored and may be enforced.16
From the outset, it is important to note that while the international human rights instruments are each independent, it is the stated intention of the United Nations that they be considered together when determining a state’s human rights responsibilities.17
The Universal Declaration of Human Rights (‘UDHR’)18 is not technically a treaty. It is a resolution of the General Assembly and so, unlike a treaty, is not formally legally binding (except by operation of customary international law19), but it enshrines a broad normative platform of human rights which are widely agreed upon. It has considerable moral and rhetorical force as the first internationally agreed definition of human rights. Its force is enhanced by the fact that it was drafted in the aftermath of World War II, when so many of the rights the UDHR contains were so grossly violated.
The process of converting the UDHR into a legally binding form commenced immediately upon its adoption in 1948. The initial idea was to enshrine the UDHR’s rights in a single covenant as a means of preserving the interdependence of human rights, although this was subsequently abandoned in favour of multiple covenants. The rights enumerated in the UDHR were later given fuller form in the ICCPR,20 the ICESCR21 and other instruments. The UDHR, ICCPR and ICESCR together form what is often known as the ‘International Bill of Rights’.
The first article of the UDHR provides that ‘all human beings are born free and equal in dignity and rights’. Article 2 goes on to set out a non-exhaustive list of prohibited grounds for discrimination. These include, among others, religion, race or colour, and political or other opinion. Significantly, both the ICCPR and ICESCR also include the same list of prohibited grounds of discrimination. Australia has enacted legislation to implement some of these prohibited grounds of discrimination, including those in respect of race,22 disability,23 age24 and sex.25
Article 3 declares a person’s right to life, liberty and security of person. Articles 4 to 21 set out other civil and political rights such as the right to seek and enjoy asylum and the right to freedom of movement and residence.
Articles 22 to 27 detail a number of economic, social and cultural rights. Article 22 introduces this section of the UDHR and provides that a person is entitled to these rights ‘as a member of society’. However, the article also recognises that the achievement of these aims is dependent upon the resources of individual states. This notion of ‘progressive realisation’ of economic, social and cultural rights is discussed further in Chapter 3. Examples of the rights enshrined in this part of the UDHR include the right to education and the right to equal pay for equal work.
Although the rights enumerated in the UDHR have been divided into two treaty instruments, the ICCPR and the ICESCR, the preambles and Parts I of the two Covenants are substantially the same in stating, among other things, that the different categories of human rights (that is, economic, social, cultural, civil and political) are interdependent,26 and that all people have a right to self-determination.
For further information on the UDHR, see the following resources:
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