First Dog on the Moon and 18C

18CAgainAgain-1-800x1387

This cartoon highlights one of the most frustrating aspects of the 18C debate. Namely, the fact that there are many other laws  in Australia which have, if anything, a larger effect on the exercise of free speech in Australia. In particular, the lack of effective whistleblower protections can have a chilling effect upon democracy and the exercise of free speech. It seems incongruous that a government which is so concerned about free speech that it will entertain an ongoing debate about 18C is the same government which made it illegal for professionals to talk about conditions in offshore detention.

The question must be asked: does the government care about all free speech?

Domestic Measures

The intersection between international and domestic law is fascinating. One of the reasons why is that it is such a contested space. Many people believe that international law does not and should not influence domestic law in Australia. On the other hand, there are those that believe that international law can and should be influential in Australia.

These ideas are played out in Al-Kateb in the judgments of Kirby J and McHugh J. The two have very different views on the role that international law should play when interpreting the constitution. While Kirby J believes that the purposive interpretation approach is consistent with interpreting the constitution in a way which complies with international law, McHugh J does not believe that international law should play a role. This is an interesting debate and one which I have read as part of multiple subjects in the JD. My natural instinct is to agree with Kirby J. When reading the judgments for this subject, I wanted to examine the reasons why I instinctively agreed with Kirby J. Was it just because I’ve studied international law and human rights and want to see them have a greater impact on domestic Australian law? Or do I agree with Kirby J’s constitutional arguments as well?

I do think that the use of international law can be justified given that the HCA’s understanding of the Constitution is constantly evolving. So too is international law and the way in which the global community operates.

Furthermore, the judgment in Royal Women’s Hospital contains a concise summary of the ways in which international law has had a tangible impact upon the domestic law of Australia, supporting the idea that

Parliamentary Scrutiny 

I was surprised that this was the first time that the Joint Committee of Human Rights had been mentioned in my studies at Melbourne Law School. The fact that every bill introduced by a member of Parliament needs to be accompanied by a statement of human rights compatibility is a really important mechanism for ensuring that parliament is informed of the human rights consequences of every piece of legislation. However, the process is not perfect, as can be seen in Williams and Reynolds’ research. However, this is a mechanism that has potential to improve and make a more significant impact on the understanding of human rights in Australia. While research has found that the reports currently have a limited impact upon the public’s understanding of human rights, if the reports were more widely distributed and reported upon then they could become an important piece of the dialogue concerning human rights in Australia.

Human Rights Commission

When discussing the Human Rights Commission it is impossible not to think of the scrutiny that Gillian Triggs has faced as President of the AHRC. She has come under sustained attack from several prominent media outlets and parliamentarians. I loved reading this Saturday Paper interview with Gillian Triggs where she discusses the media and the Senate committee hearings. It demonstrates her resilience and commitment to human rights and the rule of law.

It’s important to examine the treatment of Gillian Triggs because, in part, it is a reflection on the respect that that section of society has for human rights themselves. In attacking the credibility of the President of the AHRC, they are attacking the AHRC itself, and often for political reasons. This was highlighted when Tony Abbott suggested earlier this year that the AHRC should be abolished.

 

 

 

Is breaking the law ever justifiable?

Is breaking the law ever justifiable?

Sally McManus, the newly elected secretary of the Australian Council of Trade Unions sparked heated debate when she stated that in some circumstances it was valid to disobey the law. She said that we should do what the law requires only “when the law is fair and the law is right”.

This raises some interesting questions about the relationship between law and justice, between law and morality, and between law and human rights. While nearly every politician condemned McManus’ remarks, if one looks back throughout history, many pivotal human rights advances have only come because individuals have disobeyed unjust laws. The names Rosa Parks, Mahatma Gandhi and Nelson Mandela come to mind.

If the law is entrenching discrimination or preventing individuals from realising their human rights, do we have a moral duty to disobey it?

International Protection

I really enjoyed listening to Philip Alston speak in class this week. He’s such an engaging speaker and it’s always inspiring to hear from someone who has had such a broad and interesting career in the human rights field. I also found it to be a great counterpoint to last week’s reading, which was very pessimistic about the future of human rights.

One of the most important aspects of both Philip Alston’s talk and article was his exploration of the challenges and opportunities involved in adapting the international human rights law framework to meet modern challenges. I think his argument that there needs to be a stronger focus on economic and social rights is a strong one. One of the driving factors of populism is the increasing inequality in many countries. If international human rights law can position itself as a major player in the movement to combat inequality then it will be able to engage with a much broader section of the population that may have thought that IHRL doesn’t have anything to do with them.

Is the UN a human rights failure? 

Connor Gearty’s article offered an interesting perspective on the role of the United Nations in the human rights field. I particularly liked reading about the history of the UN and the Dumbarton Oaks conference. One of Gearty’s major criticisms is that the UN architecture places too much emphasis on sovereignty at the expense of human rights. In some respects, it is true that the notion of sovereignty has led the UN to take a cautious approach throughout history when it comes to protecting human rights. Most notably, this can be seen in the wording of Art 2(7) of the UN Charter. However, I would argue that this norm of non-intervention is gradually changing. One of the most important developments has been the Right to Protect principle, which fundamentally opposes the notion that nation-states sovereignty will always trump human rights abuses.

Edit:In the aftermath of the US strikes in Syria there has been much academic debate about the legality of unilateral humanitarian intervention outside of the R2P structure. one such article contends that there is a need for unilateral humanitarian intervention outside of the UN structure. It argues that the Security Council is flawed and cannot adequately respond to human rights abuses due to the veto power wielded by the P5.

It is a contested and controversial position that does not enjoy widespread support in the international law community. However, it is interesting to read in conjunction with Gearty’s criticisms of the UNSC. Gearty contends that the UNSC has wielded both legislative and executive power in ways which are fundamentally damaging to human rights standards. An example of this can be seen in the UK Supreme Court case of HM Treasury v Ahmed. This case concerned five men whose assets were frozen as they were accused of financing terrorism. While the case centred on the legality of the UK Terrorism Orders which were the domestic regulations used to implement the UNSC Resolutions, the case does explore the interaction between domestic law, international law and human rights standards. The case is an intriguing example of the ways in which the UNSC, charged with maintaining peace and security, can make resolutions which compromise individuals’ basic human rights.

Human Rights Bodies 

When examining the role of the Human Rights Council, Treaty Bodies and Special Rapporteurs, I was struck by the increasing diversity of bodies in this field. In particular, there is now a much greater scope of topics that Special Rapporteurs cover. One example is the Special Rapporteur on LGBTQ people, a position that would have been unimaginable perhaps even a decade ago. This is just one example of the ways in which international human rights law can adapt to meet changing societal expectations.

Given all the news surrounding Australia’s bid for a seat on the Human Rights Council, it was good to gain a clearer understanding of the HRC’s purpose and processes. With regards to Australia’s bid for a HRC seat, I found myself agreeing with a lot of the sentiments in The Age’s Editorial from 1/3/2017.  I definitely agreed with the criticisms of Australia’s own human rights record, most infamously Australia’s refugee policies. These mirror broader criticisms of the HRC in general, that its members often do not have exemplary human rights records themselves.

It will do the government no service in this campaign to argue Australia’s overall record is better than laggards in the human rights field. There are always worse. Australia should aim for better, to achieve an unimpeachable standard in support of human rights. In striving for such a goal, a seat on the council would never be in doubt.

I liked the conclusion of the editorial as, to me, it encapsulated a lot of my thoughts about the human rights field in general. Mainly, that there is always room for progress and that the aim should always be to reach further and try harder in pursuit of perfection. Perfection has not occurred yet, however striving to reach it is a worthy goal that will improves the lives of many.

 

 

The families broken apart because Theresa May thinks they aren’t rich enough for love

This article published on openDemocracy UK explores the effect of the UK’s Minimum Income Requirement (MIR) for British citizens and settled UK residents seeking to sponsor a spouse or partner to come to the UK from outside the European Economic Area. The rule states that the UK citizen must be earning £18,600 a year in order to sponsor a spouse or partner to come to the UK. According to the article, 41% of the UK’s working population would not meet this requirement.

This policy raises some crucial human rights issues. In particular, Article 8 of the European Convention on Human Rights, which provides that everyone has the right to respect for family life, is very relevant. In an increasingly globalised world, more and more people are living, working and travelling overseas. Thus, there is an increasing number of couples who have different nationalities. This is an issue which governments have to grapple with as it has the potential to have a significant effect on immigration. While there may indeed be a need to have rules in this area, a strict target which prevents 41% of the working population and the non-working population from making a life with their partner seems to be overly harsh. The overall message seems to be that poor people do not have the right to make a life with the person that they love.

Thankfully, the article concerns the UK Supreme Court’s ruling in the case of MM & Ors v SSHD, which challenged the MIR on the basis that it was contrary to children’s human rights. While the UKSC did uphold the legality of the MIR, it did find that the rules and official guidance to Home Office decision-makers were unlawful in the way they were applied to children. The judges also found that an arbitrarily restrictive threshold was being applied, where the best interests of children were only decisive in extreme circumstances, such as when there was no one else to care for them in the UK. It is now clear that children’s best interests must always be considered and given adequate weight in every application.

This is definitely a promising judgment as it means that children’s rights must be taken into account in a practical, not just theoretical manner. However, the rights of people without children may still be breached as a result of a threshold that excludes such a high proportion of the UK population.

 

What’s wrong with human rights?

“Freedom is never granted; it is won. Justice is never given; it is exacted.”

A. Philip Randolph, African-American civil rights campaigner

Initially, I found the readings for this week were quite disheartening. The overall theme seemed to be that the human rights movement was doomed and that students of international human rights law would be better off studying almost anything else! However, upon reflection there were several ideas raised by human rights critics that I wanted to explore further and unpack.

Progress v Perfection 

One of the things that struck me the most, particularly about Eric Posner’s article, was the idea that the idea of human rights should be abandoned because it has not reached perfection. Posner categorically states that that ‘human rights have law has failed to accomplish its objectives.’ I find this to be almost a straw-man argument – if we do not have world peace, we have failed. Posner suggests that because there are still governments which breach human rights, human rights law has no useful role to play.

However, the fact that international human rights law exists means that there is a global narrative about what rights human beings are entitled to. It also means that we have a framework in which to analyse actions taken by governments. It means that civil society or an individual can look at a human rights breach and say, not only that this is wrong, but why it is wrong. International human rights law gives a language in which to discuss complex issues and measure our progress. I would argue that rather than being ‘hopelessly vague’, the international human rights treaties do offer guidance as they are important legal standards. In addition, as Landman points out, they can be utilised as a tool by those on the ground to advocate for change.

An example of this can be seen in the linked article: Top Companies Ranked by Respect for Human RightsThis list is a project completed by the  Business & Human Rights Resource Centre. It ranks various companies according to a range of factors, mostly related to how well they abide by international human rights standards. While this is not strictly an international human rights law initiative, IHRL provides the language and the framework for civil society to pursue initiatives that can pressure organisations into complying with the IHRL standards. Although this would not meet Posner’s idea of ‘enforcement’ it is an example of how IHRL can be used in a powerful and effective manner .

 

 

 

What are human rights?

human rights drawing

What are human rights?

Before I began law school, I thought I could answer that question easily. However, I have come to understand that there are many different conceptions of human rights and even more ideas as to how human rights should work in practice. It is an area that is full of controversy and contradictions. One of the main things that I hope to gain from this subject is a thorough exploration of these competing ideas.

The article ‘What are Human Rights? Four Schools of Thought’ by Marie-Bénédicte Dembour outlines some of these approaches to the field of human rights. The four schools of thought that the author outlines include the following:

  • natural scholars, who view rights as given
  • deliberative scholars, who view rights as agreed upon
  • protest scholars, who view rights as fought for
  • discourse scholars, who view rights as talked about

Personally, I identify with aspects of the natural, deliberative and protest schools of thought. I like the idea embodied in the natural school of thought that human rights are universal and inherent as I believe that these characteristics give strength to human rights and their importance. However, according to the article, natural scholars do not believe social recognition is integral even though it is preferable. In practical terms, it may be that social recognition is integral for the implementation of human rights. Simply, if society does not recognise inherent human rights, then how can it ensure that the rights of its citizens are protected?

The deliberative school of thought appeals to me as it seems to be more pragmatic than the natural school of thought. It also provides a mechanism through which the limits of human rights can recognised and addressed. However, I feel that universality is one of the key reasons why human rights should be promoted and protected. The deliberative school of thought does not seem to place enough emphasis on the universality of human rights.

Finally, protest school of thought appeals to me because if its urgency and call to action. One of the reasons I decided to do the Juris Doctor was to equip myself to pursue a career that would enable me to work on eliminating injustice and promoting equality. The protest school of thought also seems to promote universality of human rights in a concrete way – it is suspicious of the way in which human rights law can favour the elite. For me, this means that the focus is on making sure that human rights are able to protect everyone, especially those who need it the most.

This article was an interesting way to begin the course. I liked the way in which it made me look at the field of international human rights law from numerous perspectives. I’m still not entirely sure where I fit within the schools – at the moment my best answer would probably be theoretically natural but practically deliberative.

Human Rights Inspirations

“No matter what people tell you, words and ideas can change the world.”

Robin Williams

I’m taking International Human Rights Law in order to gain a greater understanding of the international institutional framework that governs human rights. I’m passionate about human rights, inequality and social justice. At the beginning of semester, my final semester of the JD, I want to create a list of some of my human rights inspirations to remind myself of why I am taking this subject, indeed why I applied for the JD in the first place.

Bryan Stevenson 

I first read Just Mercy after listening to Bryan speak at MLS several years ago. I was struck by his uplifting speaking style and his stories, many of which I couldn’t quite believe were true. I went out and bought his book the next day and raced through it in a day, unable to put it down. It’s a book that I return to when I’m feeling a little overwhelmed or disconnected from my legal studies as it always reminds me why this degree is so important to me.

The most important lesson I took from Just Mercy was that it is necessary to get proximate. You can’t run away or distance yourself from the problems in your society. You can only truly make a difference if you get close enough to understand the inherent nuances and complexities.

 

Gillian Triggs

The treatment of Gillian Triggs by the Australian government and sections of the media after ‘The Forgotten Children’ report was published highlighted the importance of having strong, independent human rights advocates in Australia. For me, this was the first time that I had clearly seen what speaking to truth to power could like in modern day Australia.

I admired her strength and her ability to focus on the issues and continue to fulfil her role despite weathering intense personal attacks. It also highlighted the fact that there is a need for Australians to be vigilant human rights defenders.

Geoffrey Robertson

Image result for geoffrey robertson dreaming too loud

Crimes Against Humanity was the first book that I read about human rights. It was both depressing and inspiring. Depressing as it was a comprehensive overview of the worst of humanity, inspiring because it explored the ways in which humanity was trying to overcome human rights abuses. This book bridged the gap between my international relations studies and my legal studies and demonstrated how seemingly disparate ideas can come together to explain the human rights movement.