Download Human Rights #6

Legal Studies YR 12 Syllabus Notes - Zahia
Part II of the core:
Human Rights
1. The nature and development of human rights
The definition of human rights:
- Basic freedoms that are protected by law and are universally accepted E.g. Freedom
of speech. Human rights are:
1. Universal – To be enjoyed by everyone regardless of gender, nationality etc
2. Indivisible – All human rights are equally important
3. Inherent – They are the birth right of all humans, to be enjoyed by everyone
4. Inalienable – People cannot agree to give them up or have them taken away
Developing recognition of human rights:
The abolition of slavery:
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Slavery is a type of forced labour where a person is considered to be the legal
property of another
Types of slavery:
debt slavery, punishment for a crime or slavery of prisoner of war
Some slaves were highly valued, where as others were brutalized with no legal
rights
Slavery took place particularly in Europe and the Americas
Abolitionism began in the 18th century and is a worldwide political movement
that sought to abolish slavery
Christians in England pressured the government to end slavery, which resulted in
the Emancipation Act 1833, which was passed by the British Empire, which
William Wilberforce was the leading campaigner of.
Following the 1776 U.S Declaration of Independence, North America abolished
slavery, but continued in the South
The Abolitionist Movement was one of the main causes of the Civil War
Slavery was abolished at the end of the war in 1865 by the addition of the 13th
amendment.
Abraham Lincoln worked to abolish slavery in the United States
In 1890, European countries met in Brussels, Belgium to sign the General Act of
Brussels which abolished slavery in Europe
Legal Studies YR 12 Syllabus Notes - Zahia
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The League of Nations Slavery was passed in 1926, which abolished slavery
worldwide.
This was followed by the Universal Declaration of Human Rights in 1948
Slavery continues to exist in forms such as child labour, human trafficking, sexual
slavery, forced labour and sweatshops
Trade unionism and labour rights:
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A trade union is a collective organisation of worked formed to protect the rights
of individuals from the power exerted by employers
Trade unions first emerged during the Industrial Revolution in response to:
Unsafe working conditions
Low Wages
Long Hours
Lack of Safety
Laws were created to criminalise workers’ involvement in trade unions
In 1871, the British parliament passed the Trade Union Act which secured their
legal status
In Australia, a strong union movement developed from the 19th Century. In the
1980’s, the unions joined together to form their own political party – ALP
Their Achievements are:
Minimum Wages
OH&S Lawss
Paid Public Holidays
Equal pay
Long service leave
At the end of WWI, the International LabourOrganisation (ILO) was formed,
aiming to improve conditions for workers around the world
The ILO’s campaigned rights are now enshrined in the International Covenant on
Economic, Social and Cultural Rights (ICESCR)
Some countries still don’t allow trade unionism
Universal suffrage:
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This involves everyone having the right to vote for the government of their
choice
In the 19th century, only wealthy males were privileged to vote
The campaign for women’s right to vote commenced in the 19th century.
NZ and Australia were first to grant this right in 1902
Legal Studies YR 12 Syllabus Notes - Zahia
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South Australia was the first place globally to grant voting rights for women in
1894
Women granted right to vote in Britain in 1918 and US in 1919
A suffragette was a woman who campaigned for the right to vote
The right to vote is recognized by the world community in the UDHR
Many women and men still cannot vote, due to not all nation-states having a
democracy
Universal education:
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Refers to the idea that all human beings have the right to an education
Until the last 150 years, only rich/elite children received an education
In the 19th century churches began teaching students vital curriculum at Sunday
school
By the mid 1800s the increasing demands of industrialization required an
educated population
Education is a means of securing the future of children
The right to education is protected under article 26 of the UDHR
The UN recognize that education is essential to:
Alleviate poverty
Family planning
Improving status of women
The NSW Education Act of 1880 made education free and compulsory in
Australia at a primary level
Today it is compulsory from the ages of 6-17
In 2001 all member states of the UN agreed to a series of Millennium
Development Goals, e.g. all children will have a minimum education of to the end
of primary school by 2015
Self-determination:
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Refers to the right of people, especially Indigenous people, to have at least
partial control over their land
This allows minorities some control of their land whilst being apart of the broader
nation
This became important after world colonization by European powers
Conflicts arose in Africa, Americas, Asia, the middle east and Oceania against
imperial powers (the British)
The right to self-determination began with:
1776 US Declaration of independence
Legal Studies YR 12 Syllabus Notes - Zahia
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1789-1799 French Revolution
Various wars in Latin America, WWI and WWII
It was officially recognized by:
UN Charter 1945
UDHR
ICESCR
In 2007, the UN adopted the non-binding Declaration of Rights of Indigenous
people, aimed at protecting the world indigenous
The Howard gov. rejected this declaration, but in April 2009 Kevin Rudd
accepted it
In 1970 federal Government allowed the Aboriginal Torres Strait Islander
Commission (ATSIC) to be established to decide on education, community
projects etc.
In 2004-2005 the rights of ATSIC were taken away due to fraud and rape claims
put against one of the leaders
Environmental rights:
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Involves protecting the rights of future generations to enjoy the same level of
environmental quality as the present generation – This is referred to as
Intergenerational equity (not using all resources so there is enough for future
generations
Environmental problems include:
Atmosphere pollution
Depletion of Ozone layer
Global Warming
hazardous Chemicals
Marine Pollution
Nuclear Pollution
There has been no universal recognition on environmental rights, some attempts
have been made though:
African Charter on Human and Peoples’ Rights
American Convention on Human Rights
Stockholm Declaration
Kyoto Protocol
Rio Declaration
The main problem is the failure of states to commit to measures for the benefit
of the global community when it may seem to the short-term disadvantage of
their national interest
Legal Studies YR 12 Syllabus Notes - Zahia
Peace rights:
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In ancient times, there was no recognition of the right to peace
Countries acted in their own interests – this lead to many wars
The development of new and deadly weapons created a motivation for peaceful
solutions
The League of nations was established after WWI with the aim of promoting
international co-operation and to achieve peace and security
The United Nations was formed with the primary aim of world peace
In 1984 the UN adopted the Declaration on the right of people, to peace which is
a non-binding declaration asserting the peoples’ right to peace
Formal statements of human rights:
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Universal Declaration of Human rights:
The UDHR was developed in 1984 as a response to the atrocities committed
during WWII
It promotes universal respect and observance of human rights and the dignity
and worth of a person
It includes 30 articles
The Declaration is not legally binding, there are no signatories to the declaration
The Declaration was ratified through a proclamation by the General Assembly on
December 10, 1948 with a count of 48 votes to none with only 8 abstentions
The declaration is ‘soft law’ – meaning it does not necessarily create legal
obligations upon nation-states but does create pressure to act in accordance with
them
The Twin Covenants (ICCPR & ICESCR) are a treaty that got split up into two
documents, which was decided to be produced by the UN that was based on the
UDHR/oblige nation-states to guarantee human rights in their domestic legislation
International Covenant on Civil and Political Rights:
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The ICCPR was adopted in 1966, came into force in 1976
Key rights include:
The right to life
Freedom from torture and slavery
Freedom of thought and religion
Freedom of assembly and association
In 2010, 165 countries were signatories to the Covenant
It is monitored by the Human Rights Committee
Legal Studies YR 12 Syllabus Notes - Zahia
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Burma, Malaysia, Saudi Arabia and Singapore have neither signed/ratified
International Covenant on Economic, Social and Cultural Rights:
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Adopted in 1966, came into force in 1976
Key rights include:
Equal rights for women and men
The right to work in jobs that are freely chosen and accepted
The right to join a trade union
The right to adequate food and clothing, education, housing and healthcare
In 2010, 160 countries were signatories of the Covenant
It is monitored by the UN Committee on Economic, Social and Cultural Rights.
Burma, Malaysia, Saudi Arabia have neither signed/ratified
Together, the UDHR and Twin Covenants are collectively known as the International Bill
of Rights.
2. Promoting and enforcing human rights
In the international Community:
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State Sovereignty: The ability of a defined nation-state to govern within its
borders
The roles of:
The United Nations:
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Organisation with substantial power
Consists of 192 member states (almost every state in the world)
Major role is to promote/protect human rights
Has 5 principle organs under the UN Charter:
1. General assembly – Consisting of representatives from all member states with
equal voting power.
Main forum for international
discussions/deliberations/declarations/recommendations relating to human rights
The UN Human Rights Council (UNHRC) reports directly to the general assembly,
which aims to address human right violations
2. Security Council – responsible for maintenance of international peace/security
Exercises its power through legally binding resolutions
Legal Studies YR 12 Syllabus Notes - Zahia
Can authorize military actions/sanctions
Consists of 5 permanent members with veto decision (US, UK, China, Russia and
France), 10 non-permanent members with 2 year terms
3. Economic and Social Council (ECOSOC) – has 54 rotating members whom
meet annually to promote international economic and social cooperation and
development
4. Secretariat – The main admin body of the UN with over 40,000 staff
worldwide
Provides the various info, studies and tasks needed by UN
The Office of the High Commissioner for Human Rights (OHCHR) is an
administrative agency under the UN Secretariat that promotes/protects
international law, advancing ratification/implementation of treaties
5. International Court of Justice (ICJ) – Settles international disputes, provides
advisory opinions on matters of international law.
Intergovernmental organizations:
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An international institution comprised of various member states
IGOs are created by an agreement between states E.g.
Commonwealth of Nations – Made of up 54 nations (Including UK and Australia)
Aims are promoting Human Rights
Several members have been suspended due to violations (Zimbabwe & Fiji)
African Union – Includes most African states
Aims at promoting human rights
Courts, tribunals and independent statutory authorities:
1. The International Criminal Court (ICC) – An independent, permanent court that tries
persons accused of the most serious crimes of international concern, namely genocide,
crimes against humanity and war crimes
Based on a treaty, joined by 114 countries
It will only act if a case is investigated/proceedings are in-genuine
2. International Criminal Tribunals – Established to deal with serious breaches of
international criminal law
Limited to time and location
Legal Studies YR 12 Syllabus Notes - Zahia
3. International Court of Justice (ICJ) – The principal judicial organ of the United
Nations
Established in June 1945 by the Charter of the United Nations
Began work in April 1946
Non-governmental organisations:
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Aim to promote and protect human rights E.g.
International Committee of the Red Cross
Medecins San Frontieres
Amnesty International
They are not funded by the government; their work is independent of particular
nations and political regimes
Amnesty International:
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Protects human rights
Has a vision of a world where everybody enjoys the rights stated in UDHR
Exposes what’s happening when human rights are violated, sends experts on
missions to countries where human rights abuses takes place
Medecins San Frontieres:
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Provides relief for natural disasters e.g. Floods/earthquakes
Tackles neglected diseases such as malaria, HIV/AIDS etc and organizes mass
vaccinations to prevent epidemics
International Committee of the Red Cross:
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Established in 1863
An independent organisation whose exclusively humanitarian mission is to
protect lives and dignity of victims of armed conflict, and other violent
circumstances.
The media:
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Plays a crucial role by ‘naming and shaming’ of governments
Exposes human rights violators by exposing instances of human rights abuse
Helps to bring about change
Has a significant influence on public opinion/media action
The freedom of media is severely restricted in some countries, due to
influence/freedom of media
Legal Studies YR 12 Syllabus Notes - Zahia
In Australia:
Human rights are incorporated into Australian law from different sources:
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International Treaties: Australia has a dualist system meaning, signing a treaty
does not make it enforceable – it must be incorporated into domestic law in
some way
e.g. When Australia ratified the Rome statute of ICC, parliament passed the ICC
Act.
Constitution:
Lays down system of government, such as separation of powers and division of
powers
Separation of powers:
Separated into 3 branches of the state:
The exclusive – law makers in parliament
The executive – the government
The judiciary – courts that interpret/apply the law
The division of powers – how powers are divided between federal and state govs
The Constitution is the source of rights including:
Express rights – rights that are expressly included in the constitution e.g. freedom of
religion
Implied rights – rights that are implied through text, structure or purpose e.g. right
to freedom of political communication
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Statute law:
A large body of statute law has been adopted in response to ratification of
treaties e.g. Anti-discrimination act
Common law:
- Common law has evolved independently of the gov
- fundamental rights protected include:
Presumption of innocence
Burden of proof
Right to a fair trial
- Common law can be at any time reversed by legislation
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Courts and tribunals
Legal Studies YR 12 Syllabus Notes - Zahia
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Non-government organisations:
- Protect individuals rights
- shape public and political opinion
- expose violations of human rights by govs and people
E.g. Rights Australia
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The media:
- plays an important role in naming and shaming of human rights violators
- freedom of political communication is protected by the constitution
- Australia is ranked one of the top countries for media freedom
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A Charter of Rights (arguments for and against)
A bill of rights is a document which outlines rights that citizens of a particular
country are entitled to.
Reasons for a bill of rights:
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Bring Australia in line with the rest of the world
Meet Australia’s international obligations
Serve as an important educative function because rights would be found in the
one document
Reasons Against
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The High Court already protects rights through its interpretation of constitution
and common law
Very expensive given the amount of litigation it would generate
It may actually restrict rights, to define a right is to limit it.