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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: - - 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 - 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: - - - 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: - 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 - 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: - - 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: - 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 - - - 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: - - - - 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: - 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: - 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: - - 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 - Burma, Malaysia, Saudi Arabia and Singapore have neither signed/ratified International Covenant on Economic, Social and Cultural Rights: - - 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: - State Sovereignty: The ability of a defined nation-state to govern within its borders The roles of: The United Nations: - 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: - - 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: - 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: - 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: - 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: - 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: - 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: - - 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 - 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 - Courts and tribunals Legal Studies YR 12 Syllabus Notes - Zahia - Non-government organisations: - Protect individuals rights - shape public and political opinion - expose violations of human rights by govs and people E.g. Rights Australia - 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 - 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: - 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 - 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.