T2 Legal studies

Definition of human rights

Fundamental, inalienable and inherent rights and freedoms that belong to every person in the world who is born

Development of HR are considering

• Abolition of slavery

• Campaign of universal suffrage

• Trade union movement and labour rights 

Developing recognition of HR

• Campaign for Universal Edu

• Rights of group self determination 

• Emerging environmental rights

• Establish right to peace 

Abolition of slavery : Forced Labour began in 12th century - 18th

• Legal property of another

• Common practise in different societies historically 

• Mistreatment brutalised, no legal rights, means of escape

Early attempts to abolish slavery

Attempts to abolish it began in the 12th century. Movement of abolition grant from 18th century onwards. Slavery illegal in Britain 1772 

Somerset case (1772) Landmark case established that slavery was illegal according to English common law

• Development of UN and UDHR outlawed slavery world wide although slavery is not fully eliminated current day.

Trade Unionism / Labour rights:

• Trade employment law development. Safe work, min wage, paid leave was not recognised in legal system

• Wages on manufacturing, agriculture transported reflected society and acted as catalyst for change to labour force

First action on trade unionism

The earliest trade unionists faced the different committee law created to criminalise involvement in trade, and heavy penalties were applied

• Eventually Aus emerging labour rights movement led to the formation of the Australian labour party 1891 (ALP)

Trade union plays integral role in securing rights for workers

• Min wage, working conditions, equal pay, long service leav, paid public holiday, maternity, annual leave, safety law, worker compensation

UDHR Article (23/24)

 recognise labour rights as basic human rights 

• Right to work, free choice of employment, just/favourable condition and protection against unemployment. Equal pay-equal work

Rights to just/favourable remuneration

• form /join trade union

• Rest and leisure, including reasonable condition of working hours and provide with pay 

Universal suffrage:

Mistrust of general population, assumption that they cannot comprehend government affairs (Basically right to vote)

• Demands for suffrage for all male began in 19th century 

Universal suffrage development

• E.g Uk extending 60% of male population by 1884, eventually to all M adults by 1918

• Women suffrage development separate any democratic countries through campaigns known as the suffragettes

• 1948 UDHR recognise universal rights to suffrage in Article 21

• However, universal suffrage for all parts of community is still not achieved

• Universal suffrage=ge not restricted by race, gender, sexual orientation, wealth or societal status,

• However restricted by age, citizenship and criminal convictions, mental capacity

Universal Education

• 89 countries (around 45% of the world’s population) are recognised as freely democratic, supporting universal education rights.

• Education is recognised as a universal human right (UDHR Article 26).

• Historically, education was linked to wealth, power, religion, and specific trades, limiting access for most people.

Universal education development

• With industrialisation, global competition, and the expansion of voting rights, governments increasingly recognised the need to provide public education.

• NSW Public Instruction Act 1880 (NSW): established government‑run, non‑sectarian, free, and compulsory schooling.

• In Australia, schooling is compulsory from ages 6–17, contributing to a 99% literacy rate.

• Globally, most countries provide free primary education, but many children still lack access due to poverty, conflict, or inequality.

• A key goal of the UN Millennium Development Goals was universal primary education for all children by 2015.

Self-determination

The right to self-determination refers to the collective right of people of a territory/national grouping to determine their own political status

• Closely related to democratic right in that involves the consent of the people as the basis for a sovereign state

Self determination development

• Right has been linked to US declaration of independence from Britain in 1776, as well as the French revolution and the Latin American wars of independence

• World 1 n 2, collapse of colonial powers, led to recognition of self determination as a critical right

• Right was enshrined in article 1(2) of the 1945 Un charter and later in the International covenant on social economic and cultural rights 

Environmental rights

• Unlike ordinary rights, but can relate to many existing agreed rights, such as rights to life, health or property.

Environmental Rights issues

• However, supporters argue for a separate right to a healthy, safe and adequate environment.

• One of the major issues for achieving international consensus on environmental rights is the failure of many states to commit to measures that they judge against the short term national interest, even if the measures are for the benefit of the global community. 

Peace rights

• UN formed in the aftermath of WW2, as allied forces and wolrd leaders came to terms with atrocities of war

• The UN charter signed on 26 June 1945 and in article 1(1), explicitly made the maintenance of peace its primary purpose.

Peace Rights development

• In international law, the right to peace is balanced against the right of self-defence, which has been relied on by countries in the past to justify wars.

• War crimes can be prosecuted under international law, and individuals have been recently been pursued by ICC

Crimes of aggression

• The planning, preparation, initiation or execution, by person in a position to exercise control over or to direct the political/military action of a state, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the charter of the UN.

Crimes of agression in depth

• Act of aggression means “use of armed force by a state against sovereignty, territorial integrity ior political independence of another state, or in any other manner inconsistent with the charter of the U.N., 

• These acts can include, among others, invasion, military occupation and annexation by the use of force, blockade by the ports or coasts.

Formal statements of human rights

• Article 2(2) of the UN charter created an obligation for promotion of ‘universal respect for an observance of, HR and fundamental freedoms for all.

• Un charter did not define what those rights were, and work began on creating a formal statement

UDHR background

• A UN commission on HR, chaired by US first lady and UN delegate Eleanor Roosevelt, with broad global representation, referred to historical documents containing rights as well as worldwide political, philosophical and religious movements in determining its contents. 

• The UDHR adopted on 10 December 1948

• Contains 30 different articles covering rights, such as the right to life, liberty, security, thought, religion, education and labour

Universal Declaration of Human Rights: Adopted as a declaration, not a fully binding treaty,

Soft law approach means it is highly influential but does not contain hard law obligations
- Allows for maximum countries to sign up

Influence of UDHR

• UDHR enables  NGOs, governments, and individuals to highlight violations and bring global attention to them.

• Part of international customary law

• It forms the foundation for many later human rights treaties, many of which impose legally binding obligations on states.

International Covenant on Civil and Political Rights (ICCPR):

• monitored by the Human Rights Committee, which reports on compliance by member states and investigates violations.

• It has been widely ratified

Key features of ICCPR:

 Obligation to respect civil and political rights of individuals, including: equality, right to life and freedom of movement, right to a fair trial; innocent until proven guilty

Extra:

• freedom of thought, conscience, speech, religion and assembly

• freedom from torture and slavery

• right to vote; equal protection under law.

International Covenant on Economic, Social and Cultural Rights (ICESCR):

• It obliges state parties to work towards granting economic, social and cultural rights to individuals.

• The ICESCR is monitored by the UN Committee on Economic, Social and Cultural Rights.

The ICESCR Key features 

• labour rights, such as the right to just conditions and fair wages

• rights to an adequate standard of living, including

• the right to adequate food, clothing, housing and health care

• rights to education, stating that primary Education should be compulsory and free.

The effectiveness of human rights depends on the will of the international community to implement them.

• It also depends on the mechanisms in place to ensure human rights are respected, promoted and Enforced.

Human rights are advanced on two broad levels:internationally and domestically

• At each level, there are governing bodies responsible for complying with and promoting them, courts responsible for enforcing them, and various organisations that report on and expose non-compliance.

Statehood

• A state (country) is the basic unit of the international system states are the only entities in international law capable of exercising full political and legal capacity. This can have implications for human rights.

Sovereignty

State sovereignty refers to the ultimate law-making power of a state, and a state’s independence and freedom from external interference in its own affairs.

The Charter of the United Nations (1945) recognises the sovereign equality of all states.

State sovereignty limitations

Modern day state sovereignty is no longer absolute – limited under international law by certain duties and obligations owed to the international community.

State sovereignty and human rights

The major problem is not all governments equally accept the idea that their own people have certain rights.

• Some countries may rely on state sovereignty to justify mistreatment of their own citizens – in extreme countries may commit human rights abuses with impunity. 

• Used as a shield by states against outside interference in their own affairs. However, countries today form part of a community where they are interdependent and interrelated,  international agreements create concrete legal obligations, including the UN Charter.

Not all gov equally accept idea of own people having certain rights

• May exploit sovereignty to justify citizen mistreatment

• States used sovereignty as a shield against external interference, but in an interdependent international community, treaties and the UN Charter now impose concrete legal obligations that limit that autonomy.

The role of the United Nations: The UN was established with the signing of the UN Charter in 1945, following World War II.

Organisation with substantial power 192 member states

• It is the principal international organisation, with responsibility for almost every aspect of international affairs, including human rights.

Organs of the UN

General assembly, Security council, Economic and social council, secreritat, international court of justice

General Assembly (UNGA)

• Representatives from all member states with equal voting power; Main forum for international discussions and recommendations

Security Council (UNSC)

• maintenance of international peace and security; can make legally binding resolutions, e.g authorising military actions or sanctions

Economic and Social Council (ECOSOC)

• Includes various committees, central discussion of economic, social, environmental and humanitarian issues. 

Secretariat

• headed by Secretary-General, main administrative body of UN; provides info, studies, tasks and facilities needed by the UN, includes the departments and offices of the UN

International Court of Justice (ICJ)

• principal judicial organ of the UN; has jurisdiction to settle international disputes submitted by member states.

Office of the Human Rights Commissioner (OHRC)

administrative agency under the UN Secretariat

•  promote and protect the human rights contained in the Universal Declaration of Human Rights (UDHR) and international law

Human Rights Council

UN General Assembly to replace the previous Commission on Human Rights

• address human rights violations worldwide and make recommendations; hear complaints from any member state on human rights abuses. 

  
  

UN intervention and the Responsibility to Protect (R2P)

• UN has had little legal/ political ability to intervene in serious human rights abuses, due to the issue of state sovereignty + political difficulties within the UN structure.

Responsibility to Protect aim

The R2P doctrine aims to make protection of human rights an integral part of the responsibility that goes with being a sovereign state

R2P 3 Pillars

1. States have a responsibility to protect their populations from these crimes

2. the international community is responsible for assisting states to build their own capacity to protect their populations before conflict arise

3. When a state failed to protect its citizens and actions are inadequate, the international community must take action to prevent harm.

IGOs

International institution created by agreement. IGOs include HR as their state goals and exert influence over member states

ICJ

• hear and judge disputes between states, and issue advisory opinions on matters of International law

• requires the consent of state parties to hear matters, limiting its power to hear cases

ICC

• prosecutes and hears matters of the most serious international crimes, including genocide, crimes against humanity and war crimes

•  jurisdiction to prosecute individual people rather than states, which potentially makes it a powerful institution.

European Court of Human Rights

Consider cases brought by individuals, as well as organisations and states, against all countries bound by the European Convention on Human Rights (ECHR)

Human Rights Committee:

• assesses member state compliance with the ICCPR, can hear complaints by both states and individual citizens about a member’s performance

Non-government organisations (NGOs)

•  organisations created by independent people without representation of any government. concerned with monitoring or reporting on human rights abuses. E.G International Committee of the Red Cross

The media

• exposing abuse and ‘naming and shaming’ human rights violators to help bring about change.

• Media freedom is severely restricted in many countries, potential danger

Human rights in Australian law

• There is no one document in Australia in which human rights are contained.

• Derived from international treaties, the Constitution of Australia, the common law statute law of the Commonwealth, states and territories.

• Signing a treaty does not make it enforceable within Australia. Process to integrate into Aus law

The role of the Constitution

Roles in protecting Aus HR

• system of Australian government through which human rights are recognised, including the separation n division of powers.

• Specific human rights, including express rights and implied rights.

Separation of powers

Three branches of government: the legislature (parliament), the executive (government) and the judiciary (courts).

• Under the Australian Constitution, the judiciary is strictly separated from the other two arms.

Division of power

• Commonwealth’s external affairs power under section 51(xxix). - Development of HR

• Growth of treaties in international allow Commonwealth to ratify treaties, human rights obligations that legally bind the states and improves national recognition.

Constitution created express rights

• Freedom of religion (s 116),

• Right to vote in Commonwealth elections (s41)

• Right to trial by jury in federal cases (s80).

The role of common law

• Fundamental rights protected by common law are the presumption of innocence and the burden of proof, and the right to a fair trial.

Limitations of common law

Overulled by legislation, cannot develop new law as judge can only go off case by case basis.

The role of statute law

The role of statute law

Laws to protect rights in aus

• Racial Discrimination Act 1975 (Cth)

• Sex Discrimination Act 1984 (Cth)

• Australian Human Rights Commission Act 1986 (Cth)

• Anti-Discrimination Act 1977 (NSW)

Australian Human Rights Commission

• independent national body to deal issues relating to Australia’s human-rights legislation

• receive and investigate complaints into discrimination and breaches

• conduct public inquiries into human rights issues and issue recommendations

High Court of Australia

• Human rights matters can be heard in state or federal courts/tribunals.

• High Court can set binding precedents and overturn unconstitutional legislation.

• High Court acknowledges international law as influential on common law, especially regarding universal human rights.

Aus NGO plays an  important role in protecting individuals’ rights, shaping public and political opinion, and exposing violations of human rights.

• Important NGOs working for human rights in Australia include Civil Liberties Australia, Rights Australia and the Law Council of Australia.

The media

• ‘naming and shaming’ human rights violators, significantly influencing public opinion and government action.

• Australia is ranked top country in media freedom, and reporters, ABC and SBS Reports on Australian and international human rights issues.

A charter of rights for Australia

• Many countries protect rights through a central bill or charter of rights.

• In Australia, only Victoria and the ACT have their own state-based charters.

• The Commonwealth has no national charter of rights.

• A federal inquiry found strong public support for adopting one.

• In 2010, the Australian Government rejected the idea and chose a non‑binding framework instead.

• It is uncertain whether a future government will introduce a national charter.

Argumens for a charter of rights

• high community support

• Redressing the inadequacy of existing protections

• Reflecting basic Australian values

• Protecting the marginalised and disadvantaged

• improving quality and accountability of government

• contributing to a culture of respect for human rights

• improving Australia’s international standing

• bringing Australia into line with other democracies 

• generating economic benefits.

Arguments against charter of rights

• current human rights protections are adequate

• might undermine parliamentary sovereignty, risk transferring legislative power to unelected judges

• no better human rights protection is necessarily guaranteed

• potentially negative outcomes for human rights

• risk of excessive and costly litigation

• democratic processes and institutions offer better protection

• economic cost unnecessarily legalised human rights.