the sources, institutions and effectiveness of international law in protecting human rights, including the role of the United Nations

What this dot point is asking

QCAA wants you to know where international law comes from, the institutions that make and apply it (above all the United Nations), and to evaluate how effective it is at protecting human rights. The central tension is between international standards and state sovereignty. Expect this as an EA extended response or IA3 essay.

The answer

The sources of international law

The recognised sources of international law are set out in article 38 of the Statute of the International Court of Justice:

• international treaties and conventions, which bind states that ratify them (for example the ICCPR and ICESCR of 1966);
• customary international law, being consistent state practice followed out of a sense of legal obligation (for example the prohibition on genocide and torture);
• general principles of law recognised by civilised nations;
• judicial decisions and the teachings of jurists as a subsidiary means of determining rules.

Some norms are so fundamental they are jus cogens (peremptory norms) from which no derogation is permitted, including the prohibitions on genocide, slavery and torture.

The United Nations

The United Nations, established by the Charter of the United Nations 1945, is the central institution of the international legal order. Its principal organs include:

• the General Assembly, in which all member states are represented; it debates and passes resolutions (which are generally not binding) and adopts treaties for signature, including the Universal Declaration of Human Rights 1948;
• the Security Council, which has primary responsibility for international peace and security and can make binding decisions under Chapter VII, including sanctions and the authorisation of force. Its five permanent members (China, France, Russia, the United Kingdom and the United States) each hold a veto;
• the International Court of Justice (ICJ), the principal judicial organ, which decides disputes between states and gives advisory opinions;
• the Secretariat, headed by the Secretary-General;
• the Economic and Social Council and the now largely historical Trusteeship Council.

The UN also operates human rights machinery, including the Human Rights Council, the Office of the High Commissioner for Human Rights, and treaty bodies such as the Human Rights Committee (which monitors the ICCPR).

The problem of state sovereignty

International law rests on state sovereignty: states are not subject to a higher authority and generally cannot be bound without their consent. This creates structural weaknesses:

• a state cannot usually be compelled to ratify a treaty, or to accept the compulsory jurisdiction of the ICJ;
• a state may ratify a treaty subject to reservations that limit its obligations;
• there is no global police force to enforce international law directly.

Enforcement mechanisms

International law is enforced through a patchwork of mechanisms, all weaker than domestic enforcement:

• Security Council action (sanctions, peacekeeping, authorisation of force), though subject to the veto;
• ICJ judgements, which bind the parties but rely on the Security Council for enforcement;
• international criminal tribunals, above all the International Criminal Court, which prosecutes individuals but depends on state cooperation to arrest the accused;
• treaty monitoring and reporting, where treaty bodies review state reports and issue concluding observations and individual communications (for example Toonen v Australia (1994), in which the Human Rights Committee found Tasmania's anti-homosexuality laws breached the ICCPR, prompting the Human Rights (Sexual Conduct) Act 1994 (Cth));
• political and economic pressure, including diplomacy and the influence of non-government organisations such as Amnesty International and Human Rights Watch.

Domestic incorporation in Australia

Australia is a dualist state, so international law does not automatically form part of domestic law. The Commonwealth Parliament must legislate to give a treaty domestic effect, for example the Racial Discrimination Act 1975 (Cth) implementing the Convention on the Elimination of All Forms of Racial Discrimination. This means international obligations can be accepted internationally yet have limited domestic force unless and until Parliament acts.

Evaluating effectiveness

Strengths.

• it has produced a comprehensive body of agreed human rights standards;
• it provides forums (the UN, the ICJ, the ICC) for resolving disputes and holding states and individuals to account;
• some norms (jus cogens) bind all states regardless of consent;
• monitoring and reporting create reputational pressure and an evidence base.

Weaknesses.

• state sovereignty means consent is usually required, and reservations dilute obligations;
• the Security Council veto can paralyse enforcement, especially where a permanent member or its ally is involved;
• there is no standing enforcement body comparable to domestic police;
• compliance often depends on political will rather than legal compulsion.

Examples in context

Example 1. Toonen v Australia and domestic change. Nicholas Toonen complained to the UN Human Rights Committee that Tasmania's laws criminalising consensual homosexual conduct breached his privacy rights under the ICCPR. In Toonen v Australia (1994) the Committee found a breach. The Committee's view was not directly binding, but it prompted the Commonwealth to enact the Human Rights (Sexual Conduct) Act 1994 (Cth), illustrating both the influence and the indirect enforcement of international human rights law in a dualist system.

Example 2. The Security Council veto in practice. Where serious human rights violations occur in a state allied to a permanent member of the Security Council, proposed sanctions or referrals can be vetoed. This shows how the structure of the Security Council can prevent enforcement even where a majority of states support action, a key limit on the effectiveness of international law.

Try this

Q1. Identify the sources of international law under article 38 of the Statute of the International Court of Justice. [4 marks]

• Cue. Treaties and conventions; customary international law; general principles of law; judicial decisions and the teachings of jurists (subsidiary).

Q2. Explain how state sovereignty limits the effectiveness of international law. [4 marks]

• Cue. States cannot usually be bound without consent; they can decline to ratify treaties or accept ICJ jurisdiction; reservations dilute obligations; there is no global enforcement body.

Q3. Evaluate the effectiveness of the United Nations in protecting human rights, referring to at least one strength and one weakness. [6 marks]

• Cue. Strength: comprehensive standards, forums for accountability, monitoring and reputational pressure. Weakness: the Security Council veto, reliance on state cooperation and political will, and no standing enforcement body.