How effective is international law in protecting human rights, and why is enforcement so difficult?
the sources, institutions and effectiveness of international law in protecting human rights, including the role of the United Nations
A focused QCE Unit 4 answer to the effectiveness of international law. Covers the sources of international law, the role of the United Nations and its principal organs, the problem of state sovereignty and enforcement, and the strengths and weaknesses of the international system.
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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.
Exam-style practice questions
Practice questions written in the style of QCAA exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
2022 QCAA4 marksExplain one role of the United Nations (UN). Include one example of how the UN works to achieve this role in your response.Show worked answer →
Four marks: identify a role (1), explain it (1), give an example (1), and use the example to support the explanation (1).
Identify and explain a role [2 marks]. One role of the UN is to maintain international peace and security. The Security Council determines whether a threat to international peace exists and works with the parties to resolve disputes peacefully, authorising collective measures where necessary.
Example used to support [2 marks]. UN peacekeeping is the standard example. Peacekeepers, troops, police and civilians drawn from member states, are deployed to help countries transition from conflict to peace. They protect and support political processes such as elections, assist in disarming former combatants and help restore the rule of law, which directly advances the peace-and-security role.
Markers reward a clearly named role, an accurate explanation, and an example that genuinely illustrates that role rather than a generic mention of the UN.
2023 QCAA6 marksExplain the role of the United Nations High Commissioner for Refugees (UNHCR). In your response, describe two ways the UNHCR achieves this role and two categories of people the UNHCR supports.Show worked answer →
Six marks: the role explained, two ways it is achieved, and two categories of people supported.
- Role [explain]
- The UNHCR is the UN agency mandated to protect and assist refugees and other displaced people and to safeguard their rights, including the right to seek asylum and the principle of non-refoulement (not being returned to danger).
- Two ways it achieves this
- (1) It provides direct humanitarian assistance, emergency shelter, food, water and medical aid in and around camps. (2) It pursues durable solutions: voluntary repatriation, local integration, or resettlement to a third country, and it advocates with governments to uphold the Refugee Convention 1951.
- Two categories of people supported
- Refugees (people who have fled across a border owing to a well-founded fear of persecution) and asylum seekers (people awaiting a decision on their claim). Stateless persons and internally displaced persons are also accepted categories.
Markers reward the role plus two distinct methods and two distinct categories.
2021 QCAA6 marksExplain how Article 2(4) of the United Nations Charter promotes the protection of Members' rights. In your response, explain the principles of territorial integrity and political independence.Show worked answer →
Six marks: an explanation of Article 2(4) (2), of territorial integrity (2) and of political independence (2).
- Article 2(4) [2 marks]
- Article 2(4) protects members' rights by requiring states to refrain from the threat or use of force against another country, including force directed at its territorial integrity or political independence. It is the cornerstone prohibition on aggression in international law.
- Territorial integrity [2 marks]
- This is a country's independence over its physical and demographic resources within its land, air and sea boundaries. Under Article 2(4) one country cannot lawfully impose border changes on another or take its resources without consent.
- Political independence [2 marks]
- This concerns the non-material elements of a country's autonomy, such as freedom of political decision making. Article 2(4) makes it unlawful for one country to impose a system of government on another.
Markers reward all three elements explained, not merely defined.