Emergence of the individual as an international juristic entity: enforcement of International Human Rights

In this article it is contended that state practice, as evidenced in the  declarations of the judiciary and the many treaties and conventions  guaranteeing human rights, reveals a consensus of opinion acknowledging the individual to be an international juristic entity. So extensive is this practice that it could be seen as marking the emergence of a new customary international norm; or at least a general principle of international law, yet to crystallise into a custom; acknowledging the individual as the beneficiary of international rights. This is important for individuals and minority groups because if they possess international rights independently of the State, enforcement of their rights will no longer depend on the interests of the State. Where the State is often the offender of human rights, international law will not effectively confer any real rights unless the individual is so recognised as an international juristic entity.

International human rights law: all show, no go

This article examines the following issues: (i) If international human rights  instruments are so worthwhile, why are much of the world’s people still living in conditions of destitution? and (ii) what can be done to make international law the best it can be at improving the living standards of the human species?

Tolling for the luckless, the abandoned and forsaked : therapeutic jurisprudence and international human rights law as applied to prisoners and detainees by forensic psychologists

Objectives. There has been an explosion of interest in therapeutic jurisprudence as both a filter and lens for viewing the extent to which the legal system serves therapeutic or anti-therapeutic consequences. However, little attention has been paid to the impact of therapeutic jurisprudence on questions of international human rights law and the role of forensic psychologists. The paper aims to provide an intersection between human rights, therapeutic jurisprudence, and forensic psychology.

Method. Human rights are based on legal, social, and moral rules. Human rights literature generally considers legal rights but such policy statements do not provide principles to guide forensic psychologists in addressing moral or social rights. Therefore, a framework to guide forensic psychologists is required.

Conclusion. As duty-bearers, forensic psychologists need to address the core values of freedom and well-being in rights holders (in this instance, prisoners and detainees with a mental illness). The paper proposes that human rights principles can add to the normative base of a therapeutic jurisprudence framework, and in-turn, therapeutic jurisprudence can assist forensic psychologists to actively address human rights.

Does Australia's treatment of non-citizens accord with its international human rights obligations? with specific reference to the treatment of on-shore refugees

The son of immigrants, I was motivated to write a paper addressing the issues of alienation and discrimination which confronts non-citizens upon arriving in Australia. Apart from descendants of Australia's indigenous population, the common bond shared by all citizens and permanent residents of Australia is that they are either themselves immigrants or are descended from immigrants. In this paper I will look at whether Australia's law and practice meets its international human rights treaty and convention obligations vis-a-vis non-citizens. To investigate this issue I trace the history of immigration to Australia and look at the political policies which influenced the treatment of non-citizens from 1788 to present times. In 1958 when my parents stepped upon Australian soil as displaced persons, Australia was a very different place from Australia in the 1990s. At that time Australia was still firmly under the influence of the 'White Australia Policy' which openly encouraged discrimination against non-anglo saxons. Since those times Australia has advanced to become one of the most culturally diverse nations in the world where multiculturalism is encouraged and a non-discriminatory immigration program is supported by both Australia's major political parties. However, notwithstanding the great social advances made in Australia in recent decades the traditional legal sources of law, namely, judicial pronouncements, statutes and the Commonwealth Constitution have not kept pace and it is my submission that Australia's body of law inadequately protects the rights of non-citizens when compared to Australia's international human rights convention and treaty obligations. This paper will consider these major sources of law and will investigate how they have been used in the context of the protection of the rights of non-citizens. It will be asserted that the weaknesses exposed in the Australian legal system can be improved by the adoption of a Bill of Rights1 which encompasses Australia's international human rights treaty and convention obligations. It is envisaged that a Bill of Rights would provide a framework applicable at the State, Territory and Federal levels within which issues pertaining to non-citizens could be resolved. The direction of this thesis owes much to the writings, advice and supervision of Dr. Imtiaz Omar who was always available to discuss the progress of this work. Dr. Omar is a passionate advocate of human rights and has been a tremendous inspiration to me throughout my writing. I owe a debt of thanks to the partners of Coulter Burke who with good nature ignored the sprawl of books and papers on the boardroom table, often for days at a time, thus enabling me to return to my writing from time to time as my inspirational juices ebbed and waned. Thanks also go to my typists Julie Pante, Vesna Dudas and Irene Padula who worked after hours and on weekends always without complaint, on the various versions of this thesis. My final acknowledgement goes to my wife Paula who during the years that I was working on this thesis encouraged me during my darker moments and listened to all my frustrations yet never doubted that I would one day complete the task successfully. I wish to thank her wholeheartedly for her motivation and belief in my abilities. The law relied upon in the thesis is as at the 30th June, 1998. Bill or Charter of Rights 'are taken to be enactments which systematically declare certain fundamental rights and freedoms and require that they be respected'. See Evans, G. 'Prospect and Problems for an Australian Bill of Rights' (1970) 3 Australian Year Book of International Law 1 at 16. Some such notable exception is the New Zealand Bill of Rights Act 1990, contained in an ordinary statute.

Can international human rights law accommodate bodily diversity?

This article considers recent efforts by international bodies and advocacy groups to secure the human rights of individuals with intersex variation. Identifying that these efforts are constrained by powerful assumptions about binary sex, it argues that international rights discourse looks set to regulate intersex individuals by the same protective strategies applied to the last four decades of the women's rights movement. A frank reading of legal feminist scholarship indicates several possible risks for the nascent intersex campaign. Efforts to ensure the substantive enjoyment of rights (for all) need to move beyond the constraints of a binary system in which women and sexed/sexual minorities will always be produced as other. Having argued that human rights are not contingent on biological determinants, the right to non-discrimination on the basis of sex traits is considered.

The advantages of a proactive business response to human rights reporting

In a globalizing world, with shifting production, labor and consumer markets and increased competitiveness, human rights are gaining new practical relevance. The UN Global Compact presented by UN Secretary-General Kofi Annan to the World Economic Forum at Davos in 1999, sought to create a voluntary international corporate citizenship network to bring together private-sector and other social actors. Its central aim is to advance responsible corporate citizenship and universal social and environmental principles to meet the challenges of globalization. The business (and ethical) case for corporate engagement in human rights reporting is strengthening, although much still needs to be done. The Danish Human Rights and Business Project launched its 2006 educational project on company codes of conduct aimed at developing models for business in the pharmaceutical, steel, agricultural, logging, lumber, paper and cardboard, and apparel and textile industries, assessing company codes against international human rights standards.

Are we speaking the same language? Corporate perceptions of human rights responsibilities

Over the last several years, notions of corporate social responsibility and corporate responsibility for human rights have developed on several fronts, including under international human rights law, through voluntary initiatives and in the discourse and the reporting of the corporations themselves. But are all protagonists on all these fronts speaking the same language? Are these developments truly improving the realisation of human rights?
As one aspect of its three year Australian Research Council project examining the legal human rights responsibilities of multinational corporations, the Castan Centre for Human Rights Law set out to discover the perceptions that multinational corporations have of their own human rights responsibilities, the types of activities undertaken by corporations to fulfill those responsibilities and the appropriate extent, if any, of the imposition of legally binding human rights obligations on corporations.
While not setting out the formal findings of that empirical study, this paper reports on some interesting discoveries as to how corporations see their place in the human rights debate. It notes a divergence among corporations' views of the nature of human rights responsibility - whether an obligation or a benevolence - as well as its content. In considering whether corporations ought to have legally binding human rights obligations, a surprising number of corporations replied in the affirmative, citing reasons such as certainty in dealing with suppliers and instituting a level playing field against rogue operators.
However,  perhaps the most important finding is the different understandings of human rights as they relate to a corporation's operations. Agreement on potential reforms would be meaningless if they were not employed towards a commonly understood end. After examining the various responses of the corporations and the evidence they cited to support their contentions, the paper concludes that the various protagonists of human rights responsibility for corporations may be using the same words, but they are not yet speaking the same language.

Where the home in valley meets the damp dirty prison : a human rights perspective on therapeutic jurisprudence and the rule of forensic psychologists in correctional settings

The roles of forensic psychologists in coerced environments such as corrections include that of treatment provider (for the offender) and that of organizational consultant (for the community). This dual role raises ethical issues between offender rights and community rights; an imbalance results in the violation of human rights. A timely reminder of a slippery ethical slope that can arise is the failure of the American Psychological Association to manage this balance regarding interrogation and torture of detainees under the Bush administration. To establish a “bright-line position” regarding ethical practice, forensic psychologists need to be cognizant of international human rights law. In this endeavor, international covenants and a universal ethical code ought to guide practice, although seemingly unresolveable conflicts between the law and ethics codes may arise. A solution to this problem is to devise an ethical framework that is based on enforceable universally shared human values regarding dignity and rights. To this end, the legal theory of therapeutic jurisprudence can assist psychologists to understand the law, the legal system, and their role in applying the law therapeutically to support offender dignity, freedom, and well-being. In this way, a moral stance is taken and the forensic role of treatment provider and/or organizational consultant is not expected to trump the prescriptions and the proscriptions of the law.

The treatment of sex offenders : evidence, ethics, and human rights

Public policy is necessarily a political process with the law and order issue high on the political agenda. Consequently, working with sex offenders is fraught with legal and ethical minefields, including the mandate that community protection automatically outweighs offender rights. In addressing community protection, contemporary sex offender treatment is based on management rather than rehabilitation. We argue that treatment-as-management violates offender rights because it is ineffective and unethical. The suggested alternative is to deliver treatment-as-rehabilitation underpinned by international human rights law and universal professional ethics. An effective and ethical community–offender balance is more likely when sex offenders are treated with respect and dignity that, as human beings, they have a right to claim.

In search of coherent jurisprudence for international criminal law : correlating universal human responsibilities with universal human rights

I. The Evolution of International Criminal Law International criminal justice concerns breaches of international rules entailing the personal criminal liability of individuals (as opposed to the State for which the individuals may act as agents or organs), and presently includes acts such as genocide, torture, crimes against humanity, aggression and terrorism. ... A rule stating: any act of armed conflict which directly causes the death of a civilian is a war crime unless it can be shown that the military advantage gained by the attack outweighs the harm. ... Thus, so far as international criminal law is concerned any act during armed conflict which results in the death or injury to a person who does not pose a direct threat to the life of the accused should be a war crime. ... Pursuant to the Rome Statute and as a matter of customary international law torture is a war crime when performed in the context of an armed conflict, and a crime against humanity when it is part of systematic criminal conduct. ... Torture can also constitute an individual international crime, even where it does not satisfy the criteria of a war crime or crime against humanity. ...