From Convention to Classroom: The Long Road to Human Rights Education Paula Gerber Submitted in total fulfilment of the requirements of the degree of Doctor of Philosophy Law School The University of Melbourne January 2008 Abstract A core function of the United Nations over the past six decades has been the promotion and protection of human rights. In pursuit of this goal, the UN General Assembly has adopted numerous human rights treaties covering a vast array of rights. Because it has the highest number of ratifications, the Convention on the Rights of the Child (CROC), is often lauded as the most successful of all the human rights treaties. Although the breadth and depth of human rights treaties is impressive, the amount of research into their effectiveness is not. Very little scholarship has been undertaken to evaluate the extent to which human rights treaties are being complied with by countries that have ratified them and whether ratification of a human rights treaty has a positive impact on the human rights situation within a State Party’s jurisdiction. The research that has been undertaken has been largely quantitative and limited to studies of compliance with civil and political rights. This thesis builds on this limited scholarship by qualitatively analysing the ‘compliance’ levels of two States, Australia and the United States, with the norm in Article 29(1) of CROC relating to human rights education (HRE). Although the United States has not ratified CROC, it was selected as one of the case studies for this research in order to enable comparison to be made between HRE in a State that has ratified CROC, and a State that has not, thereby shedding light on whether ratification of a human rights treaty makes a difference. Various theories have been developed to explain States’ compliance, or lack of compliance, with international law. These range from rational actor theories that focus on States’ power and self-interest to normative theories that highlight the persuasive power of binding legal obligations. When applying these theories to the empirical data relating to Australia and the United States’ conduct surrounding Article 29(1) of CROC, this thesis found that none of the theories adequately explained the this conduct. Aspects of rational actor theories were useful in understanding Australia’s decision to ratify, and the United States’ decision not to ratify, CROC, while the normative theories that were more helpful in explaining domestic behaviours relating to HRE. However, no single theory entirely explained these two States’ practices. In particular, existing theories overemphasise the significance of international influences at the expense of domestic factors which were found to significantly impact on whether a State is likely to comply with an international norm. This thesis found that constitutional structures (federalism), and the presence or absence of a domestic bill of rights, were particularly significant when it came to giving effect to the norm in Article 29(1) of CROC. i Declaration This is to certify that: (i) this thesis comprises only my original work towards the PhD except where indicated in the Preface; (ii) due acknowledgement has been made in the text to all other material used; and (iii) the thesis is less than 100,000 words in length, exclusive of tables, bibliographies and appendices. Paula Gerber ii Preface The idea for this thesis came to me in a bombed out building in war-torn Kosovo. In July 2001 I was teaching human rights to a class of Muslim law students at the University of Prishtina as part of an international program to rebuild the university which had, for the past decade, only been open to Serbian students. When preparing my lectures, I had assumed that my students would have a basic understanding of human rights, the human rights treaty system and the United Nations (UN) in general. I was wrong, and had to quickly adapt my teaching to a more elementary level. This led me to question why I had presumed that these students would have knowledge of fundamental human rights. I had not learnt about human rights during my secondary school education in Australia, so why did I assume that Kosovar students would have? Living in a city so recently traumatised by war and now overtaken by thousands of peacekeepers, I contemplated how international human rights law responds to human rights violations, but appears to be powerless to prevent them. It seemed to me that the human rights system of the last half century was very much based on a reactive rather than proactive imperative. These thoughts regarding the deficiencies of international human rights law stayed with me when, on my way back to Australia from Kosovo, I became stranded in the United States following the September 11 attacks in New York and Washington DC, and as I finally returned home to be greeted by the Tampa crisis (the Australian Government refused to allow the Norwegian cargo ship MV Tampa to enter Australian waters because it had onboard 433 asylum seekers that is had rescued from a sinking ship), the children overboard saga (the Australian Government falsely accused asylum seekers on a boat of throwing their children overboard in a ploy to secure rescue by the Australian naval vessel seeking to prevent them entering Australian waters), and the controversial Pacific Solution whereby asylum seekers arriving by boat are subjected to mandatory incarceration in off-shore detention centres on Christmas Island, Manus Island in Papua New Guinea, and Nauru. The apparent widespread support for the manner in which the Australian Liberal-National Government dealt with refugees (it was re-elected in November 2001) astounded many, particularly those working and studying in the field of human rights. Those who called on the government to abide by international human rights norms and treaties, were labelled ‘elites’, ‘members of the chattering class’ or ‘bleeding hearts’ by conservative politicians. How had this happened, and more importantly how it could be reversed? Listening to talk back radio, and reading the letters to the editors in the newspapers, it soon became clear that many of the opinions being expressed about human rights were ill-informed and based on fundamental misunderstandings about human rights law and the role of the UN. Once again I was surprised by the degree of people’s ignorance, and again I remonstrated with myself for presuming that the general population knew and understood the fundamental concepts of human rights. Once more I was reminded that most people’s limited knowledge of human rights came from iii the mainstream media rather than through formal education. While there are some human rights classes taught at universities, these are, of course, not accessible to the majority of the population. My experiences in 2001 started me on a train of enquiry regarding the general efficacy of international human rights law and, more specifically, how to ensure that the education children receive in schools includes education about human rights. I was amazed to discover that there was a plethora of international law regarding human rights education including the Universal Declaration of Human Rights (Article 26), the International Covenant on Economic Social and Cultural Rights (Article 13), the UNESCO Convention Against Discrimination in Education (Article 5), the Convention on the Elimination of Racial Discrimination (Article 7) and the Convention on the Rights of the Child (Article 29). In addition, I was stunned to learn that we were over half way through the UN Decade for Human Rights Education (1995-2004). Was this the UN’s best kept secret? What had gone so wrong that all the UN’s efforts to promote human rights education had apparently not been successful, at least in Australia? It was these events and questions that prompted me to undertake the research that culminated in this thesis. iv Acknowledgements This thesis is the result of seven and half years of stimulating and rewarding work which could not have been achieved without the support and encouragement of many people. In particular, this project would have been impossible without the input of numerous dedicated teachers and other education professionals who so generously gave their time in completing surveys and being interviewed. I am deeply grateful for all the support they gave to this study. I have been privileged to have great scholars oversee my work. My sincere thanks go to my supervisors: initially Professor Gillian Triggs and subsequently Associate Professor Di Otto. Their knowledge, wisdom and guidance were invaluable, and their dedication to my research and insightful comments stimulated my thinking and growth during the PhD process. I am grateful for their influence, and for all that they have taught me. Completion of this thesis would not have been possible without the encouragement and support of my partner, Lauren Costello who was my source of strength throughout. She has loved, encouraged and stood by me along this journey, and no amount of thanks can ever truly express the gratitude I feel towards her for her patience and unwavering faith in me. Thanks also to my father, who passed on to me his love of the law and who has been a tremendous role model and inspiration throughout my life. In addition, I am grateful for his consummate editing of the final draft. I am also extremely indebted to Margaret Costello who is the mother I never had, and who provided me with tremendous practical and emotional support that sustained me during