International Human Rights Law Workbook

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Competencies for Practice 

This image depicts qualities I think it takes to be an effective human rights lawyer.

Perhaps more importantly than these qualities however, is the ability to empower others to claim their own rights, then fade into the background as those you have empowered take centre stage to fight for their rights. If rights are entitlements attaching to individuals because they are human, it shouldn’t require a lawyer to realise them.

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Human Rights and National Security: The Israeli Wall

January 2018, Bethlehem, West Bank

The sky was grey and the air cold and damp, matching the heaviness of my heart as I walked along Palestinian side of the infamous wall separating Israel from the West Bank. I was and remain a Zionist, firmly believing that the Jewish people have a right to a nation in their traditional homeland, and to safely dwell in their nation. Yet my heart broke as I took in story after story of hopelessness, depicted in art on the wall. The most confronting were the ones drawn by children.

The wall, together with Israeli checkpoints restrict freedom of movement for Palestinians between Bethlehem and Jerusalem and other parts of the West Bank. Travel through the checkpoints is regulated via a permit system. As such, access by Palestinians living on the ‘wrong’ side of the wall to education, healthcare, family, business, livelihood and farm lands is restricted. The ICJ advised that both the ICCPR and ICESCR continue to have effect in times of war and conflict (except when Art 4 of the ICCPR is called into effect in times of national emergency). Further, the Court observed that there are instances where a State may exercise jurisdiction extra-territorially, and where it does so they are bound to comply with the Conventions. Thus in areas subject to Israeli authority, Israel is bound to observe human rights, and where competence has passed to the Palestinian Authority, Israel must not ‘raise any obstacle to the exercise of such rights’.

The construction of the wall has had a significant effect on the people of the West Bank and their enjoyment of rights. The city of Qalqilya was enclosed by the wall, with only a single exit/entry point controlled by the military. Movement has been impeded, contrary to art 12 of the ICCPR. The wall has separated Palestinians from significant portions of their fertile farmland and water sources, thus affecting their means of making a living and access to food and water (ICESCR art 11). Access to health services and education institutions has been restricted (ICESCR arts 12 – 13, CROC arts 24, 28). Due to the now impeded route between Jerusalem and towns such as Bethlehem, businesses have been forced to shut down, and access to work made harder (triggering art 6 of ICESCR). People are separated from their family members who live on the other side of the wall (ICESCR art 10, CROC art 16).

It is, as the creator of the artwork observes, a prison.

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The Source of Human Rights: four schools of thought

Natural

Deliberative

Protest

Discourse

I believe that human rights are natural, but that realisation of these rights occurs via deliberative processes, that is through agreement and enactment into law. Because realisation of rights is dependent on those rights being inscribed into law, while they theoretically exist independently of recognition, for all intents and purposes, they are meaningless and practically non-existent absent positive law. Absent law or social agreement, rights remain a theoretical claim rather than any benefit of substance. However this does not mean that rights are sourcedin deliberation. Even in contexts where the values underpinning rights have not been adopted in law, persons, by virtue of their humanness and inherent right to dignity, may on a theoretical level claim as of right the freedoms given by human rights law.

Human beings are unique among creatures, and by virtue of their unique character, can claim certain entitlements as of right. The primary right is the right to dignity, and from this all other civil and political and socio-economic rights flow. Denial of civil and political, and economic, social and cultural rights is problematic for many reasons, but fundamentally because it denies people their dignity – that which makes them human. It attempts to relegate certain persons to second class humanity.

If rights were truly sourced only in social agreement, and not based on natural values, then the entitlements agreed to be rights must be amoral. Thus it could not be said that one conception of rights is morally better than another. To the extent that deliberative scholars eschew the idea of inherent rights, but are committed to enacting the liberal ideals associated with human rights, their position is untenable. It strikes me as illogical that someone can, on the one hand, deny any natural source of rights, and on the other promote certain (liberal) values as the better values. A person who insists on rights being purely consensus based can have no rational basis for arguing that the repression of LGBTIQ+ persons in many countries around the world, for example, is wrong. Providing that what was included and excluded from the set of rights upheld in a society was reached by consensus, that set of rights and non-rights is, according to deliberative though, as valid as a set of rights that includes the right of non-discrimination on the basis of sexuality. I cannot accept this to be the case.

The manner in which rights are typically brought to the forefront of politics, whereby they can be agreed upon and enacted, is via protest – the oppressed classes rising up and demanding recognition of their dignity and equality. However I do not share protest scholars’ suspicion of human rights law or movements simply because they are led by the ruling class rather than the marginalised. Human rights are inherent to all humanity, and allof humanity should strive towards realisation of those rights. This includes the elite. So long as there is discussion and listening to the perspectives and needs of those most effected, expansion of human rights law must be considered a positive.

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The Future of Human Rights

Traditionally, human rights involved the global north helping the global south. This model is problematic, as it ‘reflect[s] a vision of good governance rooted in the common historical experiences of western countries…[and] there is no reason that this vision – the vision of institutionally enforced human rights – is appropriate for poor countries, with different traditions, and facing a range of challenges that belong, in the view of western countries, to the distant past’ (Posner).

However this does not have to mean the end of human rights. To suggest, as Hopgood does, that changes in global power and individual attitudes makes the end of the human rights project inevitable assumes that the human rights movement is unable to adapt and change to enable it to continue advancing rights across the globe.

A reimaging and reinventing of the modus operandi of human rights is required. Rather than rights agencies being centralised in the global north, human rights in the new era would consist of local headquarters, linked (horizontally as well as vertically) via technology to create a global network of grassroots rights movements via which ideas are exchanged, resources shared, and momentum gathered (described by Rodriguez-Garavito as a ‘multiple boomerang model’). Importantly, this multipolar model of human rights advocacy allows for diversity between different societies, and enables rights campaigns to be individualised and adapted to the particular needs, values and circumstances of the region in which they occur.

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Kennedy warns of the risk that where human rights advances are made, other ‘lesser harms’ can remain obscured (’The international human rights regime: still part of the problem’, 24).

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Human Rights Idolatry vs Pragmatism

Discussed by David Kennedy in ‘The international human rights regime: still part of the problem’.

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Poverty and Human Rights

Watching the Four Corners report ‘Growing up poor’ gave me a glimpse into the utter hopelessness faced by kids in one of Australia’s most disadvantaged neighbourhoods. Childhood, which should be carefree, was marked by pervasive fear. Instead of dreaming of a bright future, kids twelve years of age accepted that the fate of their parents – jobless and in abusive relationships, would be their own future. Because of their impoverished circumstances, these kids lack the choices available to others in life. They do not have the structural support to be anything they want to be. The life choices they realistically have available to them are confined to what is known to their community. To suggest otherwise is fantastical and ignores the bonds of hopelessness and poverty in which they live. The lack of options available to these kids is an infringement on their autonomy and dignity.

From its birth, the concept of dignity has been the cornerstone of the human rights movement. The opening words of the Universal Declaration of Human Rights speak of the dignity and equality of all persons. Article 1 asserts that ‘all human beings are born free and equal in dignity and rights’. This cannot merely be referring to bare status equality, as Moyn asserts, because status equality is insufficient to enable persons to enjoy dignity on an equal footing. Dignity can only be realised where economic and social rights, as well as civil and political ones are respected. Poverty blocks the realisation of all these rights, and thus violates the right of individuals to dignity.

To create a society which respects the dignity of all people, we need to start treating economic and social rights as human rights. If conceived as rights, rather than mere interests and goals, there must be a corresponding obligation, namely, an obligation on the State to take measures to enable progressive realisation of those rights. This could conceivably conflict with the current government’s small government, greater individual liberty and autonomy approach. This approach is not appropriate however unless it operates on a level playing field. Where poverty exists, positive government action is required to enable persons affected to access the full range of life choices available to those unaffected by poverty. This is the only way to enable all persons to enjoy liberty and dignity on an equal footing.

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The Western Underpinnings of Human Rights Law

The ICCPR, in pursuit of freedom, liberty and equality, mandates that every citizen shall have the right and opportunity to ‘vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors’ (art 25). This appears to oblige States Parties to set up a western style democracy. Perhaps this model is the best way of ensuring the participation of all in public affairs, but this should not be automatically assumed. Other modes of governance have operated for centuries, arguably successfully, in certain areas of the world. The Middle East and North Africa for example have often been ruled by elite and minority ruling classes. In ‘When Minorities Rule in the Middle East’, Martin Kramer observes that under this traditional model of minority rule, various sects have enjoyed relative autonomy in Middle Eastern society (perhaps due to the natural check on power associated with a minority class ruling the majority), and that democracy has been feared.

I questioned my Jordanian friend and teacher of Jordanian history/social studies, Rania, about whether Jordanians generally desired a more representative form of government. She replied that no, people like having a king, and feel that the current system of government is adequate to maintain a stable society and protect rights. In fact, rather than wanting the King’s power to be reduced, people were lobbying for him to exert greater control over situations. Such a response from an educated Jordanian woman surprised me, causing me to question my belief in the universalism of western-style democracy, and assumption that such a style of governance was the best option in all contexts.

A possible reason for the different perspectives on governance between East and West is that the Middle East tends to be divided along ethnic and religious lines. Unlike the West where national loyalty is common, in the Middle East loyalty tends to be held not towards the state, but towards one’s own people group. There is thus no guarantee that a government elected by majority consent would put the interests of the State and all its inhabitants over the interests of their sect, or that majority-elected leaders would be more tolerant of groups outside their own sects than minority rulers.

While autonomy, equality and self-determination should always be promoted, I wonder whether promotion of democracy with little regard paid to the hundreds of years of established ruling customs and traditions in non-Western States, is both ineffective (trying to fit the square peg of the West into the round hole of elsewhere), and damaging as an act of ideological colonialism. I do not propose, as Boasian philosophers do, that we need necessarily accept non-democratic forms of government as equally legitimate, ignoring power dynamics that may not be equal or just. Although it has historically operated relatively effectively in the Middle East, minority rule is unfair. Perhaps, as Kramer suggests, an alternative solution is required – self-determination via decentralisation of government, whereby sects are given autonomy to control their own lives and protect the rights of their own groups. However whatever we do, it is important that we do not ignore the culture and history of other societies and automatically impose ‘western solutions’ on communities without consideration of their own unique circumstances, values, cultures and ideologies.

*Jordan has a parliament made up of the Chamber of Deputies and Assembly of Senators. The Chamber of Deputies is elected by the people, however all the ministers and the upper house (Assembly of Senators) is appointed by the King. The King also holds power to sign and veto laws (even those passed by a majority in both houses of parliament), to suspend or dissolve parliament, and to appoint or dismiss judges. He therefore yields a large amount of political power.

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The Right to Life

‘Every human being has the inherent right to life’. But what is life?

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National security and human rights: effective control

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The relationship between economic and social rights, and civil and political rights

‘The two sets of rights are ‘universal, indivisible and interdependent and interrelated’; they ‘can neither logically nor practically be separated in watertight compartments’ (Alston and Goodman, ‘Economic and Social Rights’).

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Domestic Human Rights Implementation: Parliamentary Scrutiny Act

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Universalim

Culture is important. Culture forms part of identity. Culture of individual societies and sub-groups within societies must be respected and accounted for in advancing the human rights project. However I hold strongly to the view that cultural practices that entail repression, violence and  discrimination are wrong and must be changed. Respect for culture means that change must not trample the beauty inherent in other cultures, nor impose Western practices on the other to the exclusion of their own ideologies and social practices. Nor does it mean taking a Boasian approach that, out of respect for diversity of culture, condones all ways of life and refuses to interfere with cultural practices, harmful though they may be to individuals and communities by entrenching existing power structures. Rather, respect for culture should mean bringing local conditions to the forefront of discussion as a primary relevant factor in the application of human rights. The values of human rights (liberty and equality) should be promoted in local cultural terms, that challenge oppressive power structures, while promoting local values.

In this way, it is possible to protect culture while advancing human rights. The application of international human rights standards does not have to mean the destruction of culture and homogenisation of diversity. As stated by Sally Engle Merry, culture ‘does not serve as a barrier to human rights mobilization but as a context that defines relationships and meanings and constructs the possibilities of action’.

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Equality: Religious exemptions from non-discrimination law 

Under s 83 of the Victorian Equal Opportunity Act, religious schools are allowed to discriminate on the basis of sex-related attributes. While this protects the right to religious freedom (ICCPR art 18), it potentially infringes the rights of LGBTIQ teachers or students to non-discrimination, in situations where schools, due to their religious beliefs, do not wish to employ/admit persons living a homosexual lifestyle. S 83’s limitation of the right to equality will be justified if it has a legitimate aim, and the exemption of religious schools from anti-discrimination provisions is proportionate (there is a rational connection to the aim, and there are no less restrictive measures available).

Case study 2 in this week’s handout raised a situation where two gay students at a Christian school faced expulsion on the basis of their sexuality. Such a measure cannot be justified. The purpose of Christian schooling is to educate students according to a Christian world-view and in a Christian environment. This is a legitimate aim. But allowing openly LGBTIQ students to attend would not hinder the ability of the school to provide this education in any way (there is no rationale connection). Furthermore, the detriment it would cause to LGBTIQ kids, who are at far greater risks of mental illness and self-harm, makes it highly unlikely such measures could be proportionate.

The situation is likely different in respect of teachers.  On the one hand it is arguable that allowing religious schools to discriminate in employment of maths, science or English teachers, on the basis of sexual orientation has no rational connection to the aim of providing religious education, since their sexuality and ability to teach subjects such as maths have no relationship. However many religious schools emphasise holistic teaching, where all teachers regardless of subject area are responsible for the spiritual guidance and nurturing of students. Because of teachers’ position of influence in relation to students, particularly in this setting, it is plausible that the privately held beliefs and lifestyles of teachers will influence views of students, regardless of whether the teacher teaches religion or another subject. Thus a religious school may reasonably wish all staff to be capable of representing the tenants of the religious beliefs in good faith. Discrimination based on sexual orientations when it comes to employment in religious schools is thus more likely to satisfy proportionality requirements of rights limitations.

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Human Rights vs human rights

This image illustrates the distinction Hopgood makes between upper case ‘Human Rights’ (institutionalised and formalised human rights at the international level), and lower case human rights (grassroots struggle for freedoms and liberties), contrasting this with Landman’s view that the two forms of rights movement are not totally disparate, but can be reconciled.

International human rights instruments and institutions are relevant to persons fighting against oppression at a local level, by providing a language in which to frame their grassroots struggle; an internationally recognised standard to appeal to; a ‘lever and entry point to internationalise their struggle in ways that would not be possible in the absence of Human Rights’; and a language of rights which can ‘galvanise popular mobilisation’ and offer hope to individuals domestically and around the world (Landman). Women’s rights groups in patriarchal countries, for example, have drawn inspiration from the ratification of the Convention on the Elimination of Discrimination Against Women. Childrens’ advocates point to the Convention on the Rights of the Child in advancing their rights domestically (Posner). Further, empirical studies have shown that the ‘interaction between domestic mobilisation and international condemnation of human rights practices’ exert a pressure on governments that one or the other could not do alone. For example, it was the combination of both internal advocacy and external condemnation that led to the disintegration of the Pinochet regime and contributed to the transition to democracy (Hawkins, cited in Landman).

Thus ‘Human Rights’ contributes to the success of local ‘human rights’ struggles (Landman). ‘Human Rights’ is not, as Hopgood contends, ineffective and obsolete.