WEEK 10 – Tute 9 - Remedies Tute 9 Tutor: Rod Smith PDF

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Remedies Tute 9
Tutor: Rod Smith...

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LAWS5000 REMEDIES WEEK 10 – Tute 9 Tutorial International Law Tutorial Question Week 10 (Tutorial 9) David Dungay Jr, a 26-year-old Dunghutti man from Kempsey died in Sydney’s Long Bay jail on 29 December 2015 after five prison guards held him face down and had him injected with a sedative during a cell transfer. The cell transfer was undertaken after Dungay, who was also a diabetic, refused to stop eating a packet of biscuits. Footage of the incident revealed that before losing consciousness, David could be heard repeating multiple times that he couldn’t breathe. However, these calls went unanswered by the prison staff who restrained him. You are part of Social Justice Initiative (SJI) a civil society organisation committed to advocating for the rights of indigenous people in Australia. SJI has taken an interest in this matter. With reference to above facts, answer the following questions: (a) What legal instruments under international law can SJI utilise in framing its advocacy? - International convention on the elimination of all forms of racial discrimination - Convention against torture and other cruel, inhuman or degrading treatment or punishment - Approach the question from an international rather than a domestic basis  think of soft law and hard law Soft law instruments ii. Universal Declaration of Human Rights - (arts 8) iii. Declaration on the Protection of All Persons from Enforced Disappearance – (art 19) iv. Resolution 60/147 (adopted 16 December 2005) (Basic Principles and Guidelines on the Right to Remedy and Reparations for Victims of Gross Violations of Human Rights Laws and Serious Violations of International Humanitarian Law – (arts 11;15) Hard law instruments v. International Covenant on Civil and Political Rights – (arts 2(3)(a)-(c); 9(5); 14(6)) vi. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment – (art 14(1)) vii. International Convention on the Elimination of All Forms of Racial Discrimination – (art 6) When answering an international law question, first determine whether the law is a soft law or hard law instrument. Soft law instruments are non-enforceable whereas hard law instruments are proscriptive and authoritative. Think, soft law or hard law and if soft law, what can you do with it? - International law norms are in the spectrum of bindingness, soft law at one end and hard law at the other, there is instruments between this which vary from how binding and enforceable they are. You can utilise soft law for domestic advocation and change - Be aware of the ratification of Australia and the particular treaties (b) What international institutions can SJI approach to seek justice for David Dungay Jr? i. The Human Rights Council

ii. Human Rights Treaty Bodies (e.g., Human Rights Committee; Committee against Torture; and Committee on the Elimination of Racial Discrimination) - The human rights committee - The committee on economic, social and cultural rights - The committee on the elimination of all forms of racial discrimination - The committee on the rights of persons with disabilities (diabetic) - The subcommittee on the prevention of torture iii. Regional human rights courts (e.g., The European Court of Human Rights; The InterAmerican Court of Human Rights; and the African Court of Human and Peoples Rights etc) Think about the institution and what you hope to achieve from it (the mechanism) and determine how this will be implements on an Australian scale. Then discuss the advantages and disadvantages of pursuing this pathway. (c) What mechanisms can such international institutions deploy against Australia to hold it accountable? The key mechanisms to be considered include: 1) Universal Periodic Review: review of UN member states to ensure accountability and review  4.5-year review period  highly visible platform for a mechanism, it is highly invasive 2) HRC Complaint Procedure: complaints procedure of the HRC  complaint to the treaty body to investigate the complaint 3) Special Procedures: With the support of the Office of the United Nations High Commissioner for Human Rights (OHCHR), special procedures:  undertake country visits  act on individual cases of reported violations and concerns of a broader nature by sending communications to States and others  conduct annual thematic studies, seek information from calls for input and convene expert consultations  contribute to the development of international human rights standards, and  engage in advocacy, raise public awareness, and provide advice for technical cooperation. 4) Treaty Bodies Reports: form a part of the institutional reports that fall within the universal periodic reviews 5) Communications Procedure: against racial discrimination (d) Can Australia refuse to honour its commitments under the relevant international legal instruments because it lacks a bill of rights in its federal constitution? Soft law is a convenient option for negotiations that might otherwise stall if legally binding commitments were sought at a time when it is not convenient for negotiating parties to make major commitments at a certain point in time for political and/or economic reasons but still wish to negotiate something in good faith in the meantime. Soft law instruments can morph into “hard law” in two different ways:  One is when declarations, recommendations, etc. are the first step towards a treatymaking process, in which reference will be made to the principles already stated in the soft law instruments. (declaration of human rights – first soft law instrument moving towards a hard law approach)

Hard law refers to actual binding legal instruments and laws. In contrast with soft law, hard law gives States and international actors actual binding responsibilities as well as rights. The term is common in international law where there are no sovereign governing bodies. No Aus cannot refuse to honour its commitments as under the application of treaties law. A state cannot raise a state of domestic law to defeat its international law obligations. Look to the lecture sections on state responsibility. - ICPPR: hard law, ratified but not domesticated - UCPR: Soft law...