Bringing-Them-Home-Report-Web

A human rights frameworkPrinciples for responding to the effects of forcible removals must be developed froman understanding of Australian history as having included gross violations of humanrights. International human rights treaties and norms of customary international lawimpose obligations on countries to respect human rights standards and to preventtheir violation, including by private persons (Forde 1985 pages 271-8, Meron 1989pages 156-9 and 162-9, van Boven 1993 para 41). States breach their obligationswhen they fail to prevent human rights violations by others as well as when humanrights are violated by state action. In either event the victims have a right toreparation.… the obligations resulting from State responsibility for breaches of international humanrights law entail corresponding rights on the part of individual persons and groups of personswho are under the jurisdiction of the offending State and who are victims of those breaches.The principal right these victims are entitled to under international law is the right toeffective remedies and just reparations (van Boven 1993 para 45).Many international instruments binding on Australia recognise this right to remediesand reparations. Article 8 of the Universal Declaration of Human Rights (1948) statesthat,Everyone has the right to an effective remedy by the competent national tribunals for actsviolating the fundamental rights granted him by the constitution or by law.Article 2(3) of the International Covenant on Civil and Political Rights (1966), article39 of the Convention on the Rights of the Child, article 19 of the Declaration on theProtection of All Persons from Enforced Disappearances, the Declaration of BasicPrinciples of Justice for Victims of Crime and Abuse of Power and article 6 of theInternational Convention on the Elimination of All Forms of Racial Discrimination allprovide a right to compensation for a violation of human rights. The last namedprovides that states parties are to ensure effective protection and remedies againstany acts of racial discrimination in violation of the Convention as well as the right toseek ‘just and adequate reparation or satisfaction for any damage suffered as aresult of racial discrimination’.The right to reparation does not depend on treaties alone. It is now widelyrecognised that customary international law requires that states make reparation.Customary norms are binding upon the constituent units of the world community regardlessof any formal act of assent to those norms. An integral part of a State’s obligations in regardsto international human rights law is the duty to provide an adequate remedy wheresubstantive norms are violated (Anaya 1994 page 360; see also Lutz 1989 page 201).The Inter-American Court of Human Rights in the Aloeboetoe Case held that theobligation to make reparation is a ‘rule of customary law’ and ‘one of the fundamentalprinciples of current international law’.In summary, there is an international legal obligation ‘to repair the damage caused,awarding the victims means of rehabilitation and, where applicable, compensation or