Comprehensive Human Rights Research Articles

Constructing the Problem of Religious Freedom: An Analysis of Australian Government Inquiries into Religious Freedom

Australia is the only western democracy without a comprehensive human rights instrument and has only limited protection for religious freedom in its constitution. It was Australia’s growing religious diversity—the result of robust political support for multiculturalism and pro-immigration policies in the post-war period—that led to the first public inquiry into religious freedom by an Australian statutory body in 1984. Responding to evidence of discrimination against Indigenous Australians and minority religious groups, the report detailed the need for stronger legal protections. By 2019, Australia’s religious freedom ‘problem’ was focused almost solely on the extent to which religious organizations should be allowed to discriminate against LGBTIQ people. Using the What’s the Problem Represented To Be? approach to policy analysis, this paper explores the changing representation of the ‘problem’ of religious freedom by examining all public, parliamentary and statutory body reports of inquiries into religious freedom from 1984 to 2019. In their framing of the problem of religious freedom, these reports have contributed to a discourse of religious freedom which marginalizes the needs of both those who suffer discrimination because of their religion and those who suffer discrimination as a result of the religious beliefs of others.

Australia’s Modern Slavery Act: Towards Meaningful Compliance

Australia’s recently enacted federal Modern Slavery Act 2018 (Cth) (the Australian Modern Slavery Act or the Act) forms part of a growing global trend towards mandated corporate disclosures in respect of modern slavery risks. This article argues that meaningful compliance with the Act can only be achieved when businesses commit to implementing a comprehensive human rights due diligence program. The authors aim to provide practical guidance on what this means in the Australian context by outlining the Guiding Principles concept of human rights due diligence, explaining how its key elements correspond with the Act’s reporting requirements, and applying internationally recognised good practice to these requirements.

Revisiting citizenship in the South African postcolony: empire, white romance and the (continued) abjection of the black woman

ABSTRACTIn this article, I interrogate the historical and symbolic construction of citizenship in the colony in an attempt to shed further light on the enduring political marginalisation of black women in postcolonial, post-apartheid South Africa, despite the comprehensive human rights regime in place. I make the argument that part of the reason for these continued exclusions can be found in the very nature of the institution of citizenship. I argue that citizenship in the postcolony is structured through the convergence of mutually constitutive racial and gendered hierarchies that work to centre white masculinity in a way that is symbolically dependent on the abjection of the black and/or feminine Other. In order to forge a form of political belonging that transcends this complicated grid of whitenormative heteropatriarchal exclusions, a radically intersectional approach is required. However, with reference to the work of American feminist scholar Amy Brandzel, I argue that such a project is rendered impossible by the very nature of citizenship as a system of assigning rights, resources and value to bodies through a discourse of progressive, partial group-based inclusions.

A Comparative Study on the Framework Plan for the Promotion of Human Rights in Local Governments

This study seeks to enhance the practical ability of the basic human rights promotion plan in the future by comparing the policy directions and detailed projects of the basic human rights promotion plan in local governments as the interest in human rights expands. The Basic Human Rights Promotion Plan is a comprehensive human rights plan that improves laws, systems, policies and practices by reflecting the Charter or Declaration of Human Rights in a policy manner, usually on a three- to five-year basis. It also proposes a basic direction and action plan for human rights policies to gradually implement human rights norms at the local government level. The establishment of a basic plan for the promotion of human rights by local governments, despite its importance, often gives meaning to the planning itself or is set up as a plan for the planning without being linked to the execution. In addition, many of the human rights plans overlap with the universal projects of welfare programs, with the basic human rights promotion plan not clearly divided between human rights and welfare. This is something to consider and need to be improved in the development of a basic human rights plan.

“Documenting Atrocity Crimes Committed Against the Rohingya, Accountability and Next Steps”—An Overview of the Conference Held by the Public International Law and Policy Group (PILPG)

The PILPG conference was held on 21 February 2019 at the Vrije Universiteit Amsterdam. The objective of the conference was to present the factual findings and legal analysis of PILPG’s documentation of the atrocity crimes committed against the Rohingya in Myanmar’s Rakhine State. PILPG is a global pro bono law firm with the headquarters in Washington D.C. PILPG recently conducted an unprecedented and comprehensive human rights investigation mission in the refugee camps and settlement areas in Eastern Bangladesh.

Protecting freedom/protecting privilege: church responses to anti-discrimination law reform in Australia

ABSTRACTLacking a national comprehensive human rights charter or bill, Australia’s legal balancing act between competing human rights protections is captured in discrete pieces of anti-discrimination law. In 2012, the Australian Government released a draft bill consolidating these laws. Most churches roundly condemned this bill. With very few exceptions, the churches have a strong record of opposing progressive reform of Australia’s anti-discrimination protections. This paper examines the submissions made by churches to the parliamentary inquiry into the bill. The analysis demonstrates that most churches regarded the bill as a serious threat to both religious freedom and freedom of speech. In privileging religious freedom in a hierarchy of rights to be protected, the argument for religious freedom became the means by which churches sought to both protect their institutional position and entrench their particular moral code in Australian law.

Oranga Tamariki Legislative Reform: An Affirmation of New Zealand’s Commitment to The United Nations Convention on the Rights of the Child?

The United Nations Convention on the Rights of the Child guarantees basic and fundamental rights for children and young people universally. Since ratification in 1993, New Zealand continues to take steps to bring domestic legislation into line with this comprehensive human rights treaty. This article examines to what extent the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 gives effect to the rights set out in the Convention with a particular focus on the youth justice sector. A close analysis of the effect of s 5(1)(b)(i) which purports to mandate that the child’s or young person’s rights as set out in the Convention must be respected and upheld in the exercise of powers under the Act is undertaken. Despite s 5(1)(b)(i) explicitly referring to the Convention, the conclusion reached is this section merely legislates the current practice of the Courts and other decision-making bodies, that is, the rights set out in the Convention should be used as guiding principles when making decisions concerning children and young people. This article highlights the inconsistencies in the current legislation, and the legislation Act, which must be resolved before comprehensive incorporation of the Convention rights can be considered.

RATIFIKASI KONVENSI TENTANG HAK-HAK ANAK DALAM SISTEM PERATURAN PERUNDANG-UNDANGAN DI INDONESIA

The Convention on the Rights of the Child (CRC) is the most comprehensive human rights treaty and legal instrument for the promotion and protection of children’s rights. Unfortunately, while the other international human rights instruments ratified by Indonesia through an Act; CRC is the only international human rights instrument which ratified by Indonesia through a Presidential Decree. The CRC ratified by Indonesia through Presidential Decree Number 36 Year 1990. The use of a Presidential Decree as the instrument to ratify the CRC has delivered some critiques. This research examines the powers of the president on the formulation of the presidential decree on the ratification of the international legal instrument. In the second case, it analyses the position of the Presidential Decree Number 36 Year 1990 in the systems of laws and regulations in Indonesia. The findings of this study indicate that Indonesia has to consider the possibility of strengthening the instrument of ratification of the CRC from a Presidential Decree to an Act since in terms of its legal position, a Presidential Decree is not an appropriate instrument as the instrument of ratification of a treaty which subject matter involves human rights.

Transitional justice in settled democracies: Northern Ireland and the Basque Country in comparative perspective

ABSTRACTThis article explores the concept of transitional justice in democratic states dealing with political violence. Although transitional justice was designed for paradigmatic transitions (from war to peace and from dictatorship to democracy), conflicted democracies such as Northern Ireland and the Basque Country could also benefit from this framework which brings a comprehensive human rights approach to the past and promotes the principles of truth, justice, reparation and guarantees of non-repetition. The article compares the transition from conflict in Northern Ireland and the Basque Country. It explores some of the specific features which characterise processes of transitional justice within settled democracies, such as the blurred break with the past, the fragmentation of initiatives aimed at dealing with violence and the mixture of ordinary and transitional justice. As well as contributing to the conceptualisation of the field of transitional justice, the study proposes that the conflict vs. terrorism divide and the clash of narratives associated with it are the key to understanding these types of transitions.

The new Global Strategy for the EU's Foreign and Security Policy at a time of human rights crises

This article explores whether the Global Strategy for the EU’s Foreign and Security Policy adds new significance to the human rights commitment spelled out in EU Treaties and elaborated in other sectoral, strategic documents. In particular, it investigates whether the Strategy’s take on human rights continues or complements the Union’s earlier approach in the field or prioritises them in the Union’s activities. The article commences with an identification of the modalities through which the new Strategy voices human rights both as values and objectives in EU external policies. This is done against the background of coherence and resilience as organising concepts of the Union’s external action and the Global Strategy itself. It goes on to draw from our research findings of three case studies as focused on the EU human rights and rule of law failure at home (Poland and Hungary), at its borders (in relation to migration), and in its closest vicinity (Ukraine). These serve as the background for the analysis of how the pursuit of human rights objectives is continued, complemented or prioritised against the background of and with the use of the two foundational concepts. It is contended that coherence and resilience advance (if at times modestly) the existing EU human rights agenda, continuing earlier approaches (for example, ensuring a comprehensive human rights approach to conflict and crisis) or complementing them (for example, using and investing in all instruments aimed at conflict prevention, management, resolution and stabilisation; connecting the internal and external spheres and policies). The migration policy remains a problematic one, as the implementation of the rhetorical commitment to the prioritisation of human rights does not stand trial with the general atmosphere in European and world politics.

<i>Celebrity Big Brother</i>, Human Rights and Popular Culture

The British reality show Celebrity Big Brother caused great controversy in January 2007 when remarks made by a few contestants, most notably the reality TV star Jade Goody, and targeted at a fellow Indian contestant, were widely read as racist. In this paper, I analyse the race incident against the backdrop of a progressively expansive legal framework offering recognition for human dignity, equality and cultural diversity, most importantly through the Human Rights Act 1998. The Act aims to promote a comprehensive human rights ‘culture’ in public life, but it would be hard to ignore the extremely negative coverage of the legislation in large sections of the British press. However, the strong public reaction to the Celebrity Big Brother race incident seems to suggest that while public opinion on existing human rights legislation is divided, the core principles on which the law is founded may enjoy much greater support. Thus, politicians and media commentators were quick to read the Celebrity Big Brother furore as an encouraging sign of how inclusive British society had become. I am inclined to take a more sceptical stance, especially in light of the way in which Jade Goody’s class background was relentlessly targeted in press criticism of her appearance on Celebrity Big Brother, while sympathy for her victim, the glamorous Bollywood star Shilpa Shetty, appeared to have been motivated largely by the fact that she fitted the media template of the deserving victim.

The Freedom to Exclude: The Case of Israeli Society

The phenomenon of social exclusion in Israel is a vivid demonstration of the Basic Laws' failure to fulfil their integrative role. Despite the ‘constitutional revolution’ and the Supreme Court's ongoing endeavour over the last two decades to instil a bill of rights through its jurisprudence, Israeli society has failed to fully internalise values of equality. In terms of legal jargon, individuals continue to claim and exercise ‘sole and despotic dominion’ over their private property in order to avoid contact with individuals belonging to certain minority groups. In many cases, such behaviour in the private sphere results in exclusion from the public sphere.This phenomenon is especially astonishing considering the fact that many laws in Israel apply the right of equality to the private sphere. Furthermore, the Israeli Supreme Court has developed comprehensive human rights jurisprudence applicable to the private sphere. The gap between the law in the books and the law in action illustrates that effective implementation of human rights in the private sphere cannot be achieved solely by specific legislation or by jurisprudence that is sensitive to human rights. This argument is backed by several recent bills which preserve and enforce the exclusion of minorities, particularly of Arabs, from the public sphere. These bills illustrate that exclusion is indeed a growing phenomenon in Israeli society that cannot be overlooked. Moreover, they underscore the urgent need to entrench a direct obligation to apply human rights to the private sphere at the constitutional level. This will be achieved only when Israel adopts a full constitution.

Essay: Considering a Treaty on Corporations and Human Rights: Mostly Failures But with a Glimmer of Success

In June 2014, three years after it endorsed the U. N. Guiding Principles on Business and Human Rights, the UN Human Rights Council moved to establish an open-ended intergovernmental working group to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. These actions brought into the open long festering tensions among stakeholders involved in developing governance frameworks to manage the human rights behaviors of enterprises. The substantive positions of most stakeholders are now quite clear. They appear perhaps irreconcilable. This chapter will consider what the process of negotiating the contemplated treaty may reveal about the state of structuring governance frameworks for business and human rights either within the anticipated treaty framework or under the UNGPs. What analysis may reveal is that while the move toward the negotiation of a treaty may reveal substantial normative and conceptual failures, it also suggests some not inconsiderable successes. After setting the context of the current debate, Part II considers the normative and structural difficulties of the move toward a comprehensive business and human rights treaty. Part III then considers its benefits, both for the process of developing structures of governance for business and human rights, and its substance. Taken together what may become clear is that even were the move toward a treaty to end in failure, the movement toward more robust governance of the human rights effects of economic activity will emerge stronger.

HIV-specific legislation in sub-Saharan Africa: A comprehensive human rights analysis

As at 31 July 2014, 27 sub-Saharan African countries had adopted HIV-specific legislation to address the legal issues raised by the HIV and AIDS epidemics. The article provides the first comprehensive analysis of key provisions in these HIV-specific laws. It shows that HIV-specific laws include both protective and punitive provisions. Protective provisions often covered in these laws relate to non-discrimination in general or in specific areas, such as employment, health, housing and insurance. However, these non-discrimination provisions are often not strong enough to fully protect the human rights of people living with HIV and those affected by the epidemic. Punitive or restrictive provisions appear to be a defining feature of HIV-specific laws, both in terms of the number of countries that have adopted them and with regard to the diversity of restrictive provisions provided in these laws. Restrictive provisions often covered in HIV-specific laws include compulsory HIV testing, particularly for alleged sexual offenders, involuntary partner notification and criminalisation of HIV non-disclosure, exposure and transmission. In the great majority of cases, these provisions are overly broad, they disregard best available recommendations for legislating on HIV, fail to pass the human rights test of necessity, proportionality and reasonableness, consecrate myths and prejudice about people living with HIV, and risk undermining effective responses to the HIV epidemic. While noting these gaps and concerns in HIV-specific laws, the article calls for ensuring the effective implementation and enforcement of their protective provisions, while devising strategies to address their restrictive stipulations.

THE MILITARIZATION OF KOREAN HUMAN RIGHTS

All too often narrowly focused on the issue of perceived North Korean abuses, human rights on the Korean peninsula should rather be understood against the militarized legacies of national division, a history in which the United States has played no small role. Rather than isolate one or the other of the two Koreas for censure, this article identifies the hostile mutual interdependence of North Korea and South Korea as a starting-point for understanding human rights in both north and south. Arguing for a comprehensive human rights approach, this analysis demonstrates that the military expenses and militarized tensions on either side of the DMZ as well as the conscription of South Korea to the neo–cold war agenda of the United States within the Asia-Pacific region infringes on the Korean peoples’ right to peace. Positing “Korean human rights” as an alternative framework that aims at once to abolish militarism and to improve human rights through peaceful, cooperative, and constructive means, this article contends that any genuine solution to human rights issues on the peninsula entails more than a unidirectional critique. Durable solutions require critical self-reflection and collaboration on the part of both Koreas.

Embracing Diversity

Embracing Diversity

The Medium Foreseeing the Future: The Role of NHRIs in Creating RHRIs in the Asia-Pacific Region

Still today, the Asia Pacific region faces very particular challenges in terms of human rights, as well as in terms of the existing structures available to address human rights violations. Moreover, structures of support, either at the national or regional level are often absent in the Asia -Pacfc region. The region has no comprehensive human rights instrument and no human rights mechanism jet. Governments in the region are often reluctant to cooperate with the international human rights system. Therefore we strongly support national human rights institutions to play an effective role in developing and consolidating credible human rights stems in the region. Once firmly in place, national human rights institutions should as much as possible seek to develop regional and sub-regional ties with sister institutions. NHRIs can and are seen as both state and non-state actors. This has profound implications for how they particate in the UN Charter and treaty body mechanisms. Yet, NHRIs have so far not made fill use of opportunities available to them. It is in the hands of NHRIs to determine their own future.

Getting Darfur Wrong

The Darfur genocide has the perverse distinction of being the longest and most fully chronicled genocide of the last century. Our contemporaneous knowledge of what happened and what is happening comes from dozens of comprehensive human rights reports dating from 2003 and earlier, accounts from international humanitarian organizations, and detailed research by policy and advocacy groups such at the International Crisis Group and Refugees International. And there is extraordinary congruence in the accounts. Although some, such as Human Rights Watch, have found it difficult to come to consensus on the question of "genocidal intent," there is broad agreement about the ethnically targeted nature of the crimes and the role of the Khartoum regime in orchestrating the deaths of hundreds of thousands and the displacement of some three million Darfuris, overwhelmingly from the non Arab, African tribal populations of the region.

Human rights and access to justice1

This paper explores a linked set of contradictions – some of which verge on paradox – about legal aid (defined for this purpose as ‘legal assistance funded by the state for indigent suspects and defendants’). These are: • The right to legal aid is a ‘hybrid’ right in the sense that it imposes a positive obligation of funding on the state, akin to an economic right, although it is an integral part of the civil and political right to a fair trial. • Legal aid, now enshrined in the major comprehensive human rights treaties, actually originated as the result of a variety of causes, by no means all of which reflected any notion of human rights. • For one particular group of countries (those post-socialist states which have achieved independence in the aftermath of the break up of the Soviet Union), human rights have been a conscious driver of change. However, for almost all of these countries, the immediate driver for reform was the prospect of future accession to joining the European Union rather than the mechanisms of the Council of Europe that oversee the structure of the European Convention on Human Rights (ECHR). • The European Union provides an example for an organisation into which a major attempt has been made to integrate human rights into its constitution and this has both made it a powerful enforcer of rights in relation to countries on its eastern border but is now attracting the resistance a group of countries led by Ireland and the United Kingdom on its western border – both of which have actually have relatively well established legal aid schemes.

Le contrôle de la discrimination raciale au Canada

This article is divided into four parts: the first is a brief survey of race relations in Canada before the enactment of anti-discrimination legislation; the next two parts are devoted to an outline of the scope of this legislation and of the administration and enforcement of it ; finally, the last part suggests some current and possible future developments to make it more effective. Prior to the nineteenth century both the French and the British settlers in the colonies that have become a part of Canada had slaves. Slavery was not, however, very extensive due to lack of large agricultural holdings. At the end of the eighteenth century the legislature in Upper Canada and some judges in Lower Canada limited its expansion and helped to end its practice. The British Imperial Emancipation Act of 1833 brought it to an end. In the next few decades, up to the American Civil War, some Canadians helped run-away slaves from the slave-holding states in the United States, while others actively discouraged them from coming. By the end of the nineteenth century a new source of racial tension arose on the West Coast between the newer immigrants from Asia and the older immigrants from Europe. The result was the enactment of numerous discriminatory laws by the legislature of British Columbia and subsequently, on a lesser scale, by the other western provinces. Most of these remained on the statute books until after World War II. None of these laws were held invalid by the courts on the basis of their discriminatory nature. In addition, both the common law and the Civil Code were interpreted as not prohibiting private discrimination, except by hotel-keepers and common carriers. The change from this situation started in the I930's with a few specific legislative prohibitions of discrimination in specific instances. In the 1940's Ontario, with respect to signs and advertisements and Saskatchewan, with respect to a whole range of activities, enacted legislation prohibiting discrimination, enforcing their prohibitions with penal sanctions. The 1950's saw the introduction of fair employment and fair accommodation practices acts. By the I960's these were being consolidated into comprehensive human rights codes administered by human rights commissions. This trend has continued up to this year, with the result that all eleven jurisdictions have commissions charged with enforcing antidiscrimination codes or acts. The usual, but not invariable, procedure is the laying of a complaint, the investigation of it by the commission staff, an attempt to bring about a settlement and finally, failing that, a hearing before an adjudicative tribunal to determine whether an act of discrimination did occur and, if so, what redress is appropriate. In concluding, three suggestions are made regarding measures that could be taken to strengthen the effectiveness of anti-discrimination legislation: (I) contract compliance; (2) greater independence for the commissions from the government; and (3) giving the legislation paramountcy over other statutes.