NESANUMBER- HSC Legal Studies
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Capital Punishment
HSC Legal Studies
Part II Core: Human Rights
NESA Number: --
Question A: With reference to your chosen contemporary human rights issue, outline the roles of one domestic AND one international organisation in protecting human rights.
(200 words - 4 marks)
Reprieve Australia and Amnesty International are two organisations which strive to protect human rights and support the eradication of capital punishment, along with supporting those awaiting execution. Reprieve Australia is a domestic branch of not-for-profit organisation Reprieve. Reprieve Australia stands for a world without capital punishment, working with their volunteers, interns and board to develop legal solutions to save lives. Reprieve Australia arrange volunteer lawyers and interns to provide legal and humanitarian assistance to activists, lawyers and prisoners currently in the USA and South-East Asia. Domestically, Reprieve Australia campaign and conduct research to raise awareness of issues concerning capital punishment. Amnesty International is a global not-for-profit organisation. Amnesty has been in operation for 56 years, aiming to protect and empower people, speaking out for anyone whose freedom and dignity is under threat, campaigning for important human rights issues. Amnesty opposes the death penalty at all times - regardless of who is accused, the crime, guilt or innocence or method of execution. Amnesty is strong in thought that capital punishment breaches the right to life and the right to live free from torture, both which are rights protected under the UDHR, believing that the death penalty is cruel, inhuman, degrading and most importantly never the answer.
Question B: Discuss the role of state sovereignty in enforcing your chosen contemporary human rights issue. (300 words - 6 marks)
State sovereignty is the authority of an independent state to govern itself. State sovereignty can be argued to be beneficial and detrimental to the enforcement and protection of human rights. It can be seen to provide more protection for human rights as there is no external influence on what is enforced and therefore states have full control over their human rights enforcement and many have enacted legislation outlining the human rights of their citizens. State sovereignty allows nation states to deal with human rights infringements more efficiently through their domestic legislation than having interpretations over international law. State sovereignty in the enforcement of capital punishment protects a state from external control over their decision, reason, cause or methods for enforcing capital punishment on an individual. Without state sovereignty, the ability for a state to carry out what it deems a sufficient punishment for an offender would be restricted, however with the right of a state to govern itself, what is considered adequate punishment from the international community is irrelevant as the states legal system reserves the right to punish an individual as strongly as they deem fit. Adversely, state sovereignty can be seen to be opposing the rights of individuals. It is known that the majority of human rights laws arise from international law, with no country being forced to implement such laws into their domestic legislation. Even if such legislation were to be enforced, a country found in breach of these laws will have little punishment, as the state is sovereign. State sovereignty allows full freedom for a nation within their own land to act freely, in terms of capital punishment, states have the right to impose such a penalty although looked harshly upon. Capital punishment is strongly opposed by the international community within recognised documents such as the UDHR which express an individual’s right to life. Evidently, the international community has little control over the rights of individuals in states, as capital punishment lies at a state's discretion.
Question C: Evaluate the effectiveness of legal and non-legal responses to your chosen contemporary human rights issue. (1200 words - 20 marks)
Legal and non-legal responses have been somewhat effective in achieving abolishment of capital punishment. Capital punishment due to legal and non-legal responses, with changing values of society has met strong opposal from the international community, yet certain nations still uphold their use of capital punishment, international law and lobby groups placing pressure on governments to implement legislation to stop capital punishment. Legal responses, whilst the strongest form of pressure on a government can simply be ignored by states and the issue remains with no enforceability. Non-legal responses can prove ineffective in states which have strong control over their population.
Capital punishment has been met with mixed responses domestically, whilst international law strongly pushing for abolishment of capital punishment. The United Nations (UN) is the world’s intergovernmental organisation (IGO), with 193 member states (Infoplease, 2018). The United Nations has strongly shown its stance on the use of capital punishment as a means of punishment for a crime. The UN, in representation of the international community has shown its stance through the Universal Declaration of Human Rights, Article 3 stating “Everyone has the right to life, liberty and security of person” (UN General Assembly, 1948). Further international responses to the death penalty can be seen through the International Covenant on Civil and Political Rights (ICCPR) which is an international human rights treaty brought before the UN General Assembly, aiming to protect the civil and political rights of individuals (Equality and Human Rights Commission, 2017). Within the ICCPR, it is stated in Article 6 (1) that “Every human being has the inherent right to life. This right shall be protected by the law. No one shall be arbitrarily deprived of his life” (UN General Assembly, 1966). This article also clearly displays, in further detail the avoidance of depriving one's life, and the need of protection by law to avoid such from occurring. 167 states have ratified the ICCPR (Mohan Dhall, 2014), which leaves 26 member states of the UN which haven’t ratified the treaty, most notably China, who are strong in protecting their use of the death penalty. The Second Optional Protocol to the ICCPR has declared that it is a fundamental human right not to be executed by the state. Unlike the previous two international documents mentioned, the Second Optional Protocol clearly opposes the death penalty, not just the right to life, which could be seen as open to interpretation, although introduced more recently, only 75 nations have ratified this protocol, with another 36 signing, not having ratified yet. The most well-known regional IGOs can be seen to push for abolishment of the death penalty, yet within many of these IGO’s the death penalty still exists within certain member states, even though some have acknowledged and ratified the right to life. The Association of Southeast Asian Nations is an IGO, with 10 member states. Within the ASEAN Human Rights Declaration, Article 11 states every person's inherent right to life which shall be protected by law, yet although this legal response has been implemented and signed, yet five of ten member nations still have the death penalty. State sovereignty is the issue which inevitably prevents the full implementation of legal responses from IGOs. The view of the domestic community can be completely disregarded and the priorities of the government in power, with their opinion of what is best for the protection of their citizens takes full priority. The United States, a powerful nation is an extremely poor role model with respect to the use of the death penalty, 31 of 50 states still having the death penalty (Death Penalty Information Centre, 2016) despite having signed various international instruments, such as the ICCPR and despite its enforcement, the right for the life is still infringed upon. The Second Protocol for the ICCPR has strongly been left untouched by a large number of nations, as many nations don’t wish to commit to the total abolishment of capital punishment. Overall the legal responses to capital punishment from IGOs have adequately represented the right to life and the need for abolishment of the capital penalty, yet have not been effective in deterring the use of capital punishment, as states are sovereign and are not required to follow these instruments.
Non-legal responses are responses from those not involved with governments in any way. The primary non-legal responses arise from the work of non-governmental organisations (NGOs) and the media. Amnesty International (AI) is an example of an NGO, operating in various nations globally, standing up for human rights around the world. AI has a strong belief on the complete abolishment of the death penalty. AI aims to influence national governments, holding them accountable to the human rights entitlements which aren’t being protected. The use of these statistics and reports from AI are used to expose nations and seeks to shame governments into adapting their domestic legislation in order to further bring an end to capital punishment. Amnesty’s “The Death penalty in 2016: Facts and figures” report aims to name and shame nations which violate the rights of its citizens, with 90% of 1032 recorded executions in 2016 being carried out by Iran, Saudi Arabia, Iraq and Pakistan (Amnesty International, 2017). These reports are especially powerful non-legal responses as their effectiveness can enable not only Amnesty but other organisations to pursue the abolishment of the death penalty within these states. Whilst certain nations may censor and control what media information reaches its citizens, stopping the free media and lowering education on human rights, the media aims to transfer information to its audience through repeating information or investigating the actions of governments. The media’s role is especially significant as governments found to be in breach of their human rights agreements face strong pressure from governments, IGOs and other groups to uphold their agreements. Limited power from non-legal responses stops the ability for significant changes to capital punishment being achieved. Amnesty International, whilst providing reports, strongly lobbying, educating on capital punishment has no impact as states are sovereign and in nations such as those in the Middle East, the power of the government ensures any soon change will not be achieved. The media, whilst worldwide and powerful on influencing society's values can be very ineffective in nations where capital punishment is upheld due to either the government's strong power over its citizens, or censorship of information that reaches the public. Non-legal responses are a strong effort from NGOs and the media, but their full impact can only be known by the changes made due to their work to abolish capital punishment.
In conclusion, legal and non-legal responses can be seen to have certain impact on the abolishment of capital punishment, yet there is still a large portion of work to be completed until its full abolishment. The work of IGOs to encourage the right to life within nations which have the death penalty available and the world of NGOs to pressure governments into enacting legislation to remove their option of capital punishment, is strong in what can be achieved without impeding on state sovereignty.
Bibliography:
Amnesty International Australia. (n.d.). What we do. [online] Available at: https://www.amnesty.org.au/what-we-do/ [Accessed 4 Mar. 2018].
Amnesty International. (2017). The Death penalty in 2016: Facts and figures. [online] Available at: https://www.amnesty.org/en/latest/news/2017/04/death-penalty-2016-facts-and-figures/ [Accessed 9 Mar. 2018].
Amnesty International. (n.d.). Death Penalty. [online] Available at: https://www.amnesty.org/en/what-we-do/death-penalty/ [Accessed 9 Mar. 2018].
Amnesty International. (n.d.). Who We Are. [online] Available at: https://www.amnesty.org/en/who-we-are/ [Accessed 9 Mar. 2018].
ASEAN Human Rights Declaration.
Death Penalty Information Center. (2016). States With and Without the Death Penalty. [online] Available at: https://deathpenaltyinfo.org/states-and-without-death-penalty [Accessed 9 Mar. 2018].
Dhall, M. (2014). Case Studies in Human Rights. 2nd ed. [ebook] Dundas, NSW, Australia: Mohannah Education P/L. Available at: https://moodle.plc.nsw.edu.au/pluginfile.php/6381/mod_page/content/93/Thinking%20Legal_May14.pdf [Accessed 9 Mar. 2018].
Equality and Human Rights Commission. (2017). International Covenant on Civil and Political Rights. [online] Available at: https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-treaties/international-covenant-civil-and [Accessed 9 Mar. 2018].
InfoPlease. (2018). Members of the United Nations. [online] Available at: https://www.infoplease.com/world/international-relations/members-united-nations [Accessed 9 Mar. 2018].
Reprieve Australia. (n.d.). About. [online] Available at: https://www.reprieve.org.au/about [Accessed 9 Mar. 2018].
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html [accessed 28 February 2018]
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 9 March 2018]
World Coalition Against the Death Penalty. (n.d.). Reprieve Australia. [online] Available at: http://www.worldcoalition.org/Reprieve-Australia.html [Accessed 9 Mar. 2018].
Question 1 (4 marks)
With reference to your chosen contemporary human rights issue, outline the roles of one domestic AND one international organisation in protecting human rights.
Criteria
Mark
· Clearly sketches in general terms the role of one international AND one domestic organisations in protecting human rights
· Effectively integrates the contemporary human rights issue within the answer
4
· Clearly sketches in general terms the role of one international OR one domestic organisations in protecting human rights
· Integrates the contemporary human rights issue within the answer
3
· Makes a distinction between international and domestic organisations in relation to human rights without effectively integrating an example
OR
· Covers the contemporary human rights issue without effectively outlining the domestic and international organisation distinction
1-2
Question 2 (6 marks)
Discuss the role of state sovereignty in enforcing the chosen contemporary human rights issue.
Criteria
Mark
· Clearly demonstrates sophisticated points for and/or against the role of state sovereignty in the enforcement of human rights
· Effectively integrates the contemporary human rights issue
5-6
· Demonstrates general points for and/or against the role of state sovereignty and knowledge of the enforcement of human rights
· May make reference to the chosen contemporary human rights issue
3-4
· Makes general statements about state sovereignty and / or human rights protection/issues
1-2
Question 3 (20 Marks) Evaluate the effectiveness of legal and non-legal responses to your chosen contemporary human rights issue.
Criteria
Mark
· Demonstrates extensive knowledge of ONE contemporary human rights issue and the responses to the issue
· Makes an informed judgement, based on relevant criteria, on the effectiveness of a range of legal and non-legal responses to ONE contemporary human rights issue
· Integrates relevant examples such as legislation, cases, media, international instruments and documents
· Presents a sustained, logical and cohesive answer to the question using relevant legal terminology and concepts
· Shows evidence of research from a wide variety of sources and provides accurate and detailed referencing of all sources used
17-20
· Demonstrates sound knowledge of ONE contemporary human rights issue and the responses to the issue
· Makes a sound judgement, based on relevant criteria, on the effectiveness of a number of legal and non-legal responses to ONE contemporary human rights issue
· Uses relevant examples such as legislation, cases, media, international instruments and documents
· Presents a sustained and cohesive answer to the question using relevant legal terminology and concepts
· Shows evidence of research from a range of sources and provides detailed referencing of all sources used
13- 16
· Demonstrates some knowledge of ONE contemporary human rights issue and the responses to the issue
· Makes some judgement or discusses the effectiveness of a number of legal and non-legal responses to ONE contemporary human rights issue
· Makes some reference to examples such as legislation, cases, media, international instruments and documents
· Presents a structured answer using relevant legal terminology and concepts
· Shows evidence of research from a number of sources and provides some referencing of sources used
9-12
· Demonstrates limited knowledge of ONE contemporary human rights issue and the responses to the issue
· Makes general statements about the effectiveness of legal and/or non-legal responses to ONE contemporary human rights issue
· Makes limited reference to examples such as legislation, cases, media, international instruments and documents
· Uses some relevant legal terminology
· Shows limited evidence of research and may provide some referencing of sources used
5-8
· Writes in general terms about human rights
· May include limited reference to examples such as legislation, cases, media, international instruments and documents
· May refer to general legal terms
1-4
