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How effective are the legal measures both domestically and internationally in addressing human rights issues?
Domestic legal measures are the most effective way to protect human rights, however the way in which they are protected domestically can have a huge impact on their enforceability and effectiveness. In Australia many of the human rights Australians are entitled to, are protected by common law – as statute law can override common law the government of the day can chose to intact legislation which revokes these rights. Therefore the government of the day has the power to erode these rights, however if these common law rights were integrated into legislation they would be much more effective in their application and enforcement.
Australians also have two types of domestic rights, expressed rights and implied rights. Expressed rights are those which are expressly written in the constitution whereas implied rights are those which have risen out of interpretation and scrutiny of the constitution and the expressed rights. The expressed rights are much more effective as the only way in which they can be changed is by referendum, where as implied rights can be overwritten by statutes. The law needs to reform transforming these implied rights into expressed rights to ensure that they are not eroded by the government of the day.
Section 51 of the constitution (Division of powers) gives the Commonwealth “External Affairs Power” therefore, if there is an area which the commonwealth does not have the power to legislate over (as provided by section 51) they can sign a treaty and then can pass a piece of legislation relating to that area of law which they would not normally have power to legislate for.
International law is much less effective in terms of human rights as it lacks enforcement power. The concept of state –sovereignty (that a recognized state has the authority to control its area and people) hinders human rights enforcement as it prevents states from acting within the boundaries of other states. State sovereignty is important as it allows for states to protect and create their own laws, however it does present obstacles in the enforcement of human rights. Despite the existence of treaties protecting human rights, state sovereignty grants each state the power to make its own laws and therefore do not have to enact it into domestic legislation.
International law is not part of domestic law unless it is enacted into a countries’ legislation by its government, once treaties are signed by a state, domestic legislation to the effect of the treaty should be passed however this is often not the case. Though the signatories are bound by Pacta Sunt Servanda there is no way that they can be forced to enact domestic legislation to the effect of the treaties. The international community needs to have the power to inforce human rights and impose sanctions on those breeching the agreements. Sactions need to also be reformed to ensure that they are detterent.
One effective area of International Law in relation to Human Rights is Jus Cogens (pre-emptory norms). - the paramount source of international law. Some human rights are protected by Jus Cogens and therefore override any treaties or domestic law (regardless if the country is regarded as a state or not). The case which defined this issue is Military and Paramilitary Activities against Nicaragua (Nicaragua V United States of America) (Merits) [1986] ICJ Reports 14.Therefore if these rights are breeched, sanctions can be imposed however the power of enforcement is still an issue.
The power of the international community to enforce human rights and impose sanctions is minimal. First of all the judicial arm of the United Nations is the International Court of Justice, however parties cannot be forced to come before the court and the decisions are not binding, therefore its power is limited.
Secondly the executive/ enforcement arm of the United Nations the Security Council has many flaws in its enforcement capabilities. The Security Council makes decisions, whether or not to impose sanctions on countries in breech of human rights. Them problem occurs in the way in which these decisions are made, the 5 permanent members of the security council (Russia, USA,UK, China and France) have veto power. If one of these countries has a treaty, agreement or other reason, they can Veto/prevent the action. These countries even have the power of veto even if they are the state in breech of these laws. The decision must also be a majority without any veto actions.
Finally, the Declaration of Human Rights lacks any enforceability at all, as it is a Declaration, not a treaty parties are not bound by Pacta Sunt Servanda. The only action the UN can take in breech of UDHR is the non-recognition of the breeching country as a state. Article 38 from the Statute of International Court of Justice outlines the main sources of international law, treaties being the first, followed by International Customary law, ICJ decisions and lastly writings - declarations are not recognized.
International law needs to be reformed in many areas, enforcement and sanctions are two such areas which need to be revised. The United Nations needs to implement initiatives to encourage the domestic enforcement of human rights and review its enforcement methods.
