Legal Studies HSC- HUMAN RIGHTS

Define human rights

Human rights refer to the basic freedoms and entitlements applicable to everybody, regardless of race, status, gender or creed.

What are features of human rights

1. Inherent: birthright and not to be earned

2. Inalienable: cannot be stripped off or taken away

3. Universal: applicable to all people everywhere regardless of status etc.

4. Equal: no right is superior and they all matter equally

5. Indivisible + Interrelated: enjoyment of one depends on the fulfilment of others

What is the UDHR (1948)?

A formal modern statement of human rights that sets out, for the first time, a common standard of achievement that all peoples and nations shall aspire towards.

What do articles 3-21 of the UDHR outline?

outline civil and political rights, further detailed in the ICCPR

What do articles 21-27 of the UDHR outline?

economic, social and cultural rights further expressed in the ICESCR

What are features of the UDHR?

The UDHR is SOFT LAW and therefore not legally binding, but has been a vital source of inspiration for international treaties, declarations and further instruments which reflect humanitarian principles.

What tensions established the covenants under the UDHR?

Cold War tensions in the 1960s led to conflicts, as America and The West only wanted civil and political rights to be legally recognised, whereas communist counties only wanted ESCR

What are the UDHR and Covenants formally known as?

The international Bill of Rights- once the covenants have been signed and ratified by respective nations, they become BINDING!

What is the ICCPR? (1966)

The International Covenant on Civil and Political Rights establishes first generation or 'Civil' rights that protect individuals from the arbitrary power of governments.

What key rights are protected in the ICCPR?

Ban of torture or inhumane treatment (Article 7), Freedom from slavery and forced labour (Article 8) Right to security of person and ban from arbitrary arrest or detention (Article 9) Freedom of thought, consciousness or religion (Article 18)

How is compliance with the ICCPR monitored?

Through the United Nations Human Rights Committee which requires parties to submit a report every 5 years on how laws have been reflected in domestic legislation.

How has there been compliance with the ICCPR in Australia

Australia has enshrined article 8 of the ICCPR within Divisions 270 and 271 of the Commonwealth Criminal Code Act 1995, prohibiting slavery and false labour as a criminal offence.

Instances of non-compliance in Australia?

Australia's denial of refuge for asylum seekers breaches their right to freedom of security as per Article 9 of the ICCPR

Describe the role of state sovereignty in promoting and enforcing HR

Moderately effective. Provide definition. SS is a prominent principle of international law and is globally recognised in Article 2.1 of the UN Charter (1945). It has been effective in allowing sovereign states to engage with and demonstrate compliance with international human rights instruments, through enacting domestic legislation which promotes these rights. Eg Australia's application of Article's 7,6 and 8 of the ICESCR which outlines the right of one to access remuneration, join a trade union and work under fair conditions is demonstrated through the provision of the Fair Work Act (2009), demonstrating the success of SS in P+E human rights.

Describe how SS impedes the promoting and enforcing of human rights

SS allows sovereign states to refuse compliance and not sign, ratify or enact international treaties- a state cannot be forced to follow international law, and occasionally states will sign a treaty but not agree to uphold certain aspects- ie Aus treatment of asylum seekers

What is the UNITED NATIONS and describe their role breifly?

The United Nations are an intergovernmental organisation established in 1945 following WW2, and are responsible for protecting human rights largely through its charter, democratic activities of advocacy, non-binding declarations and legally binding treaties. It has 193 member states.

What are the two main purposes of the UN?

1. To keep peace throughout the world and develop friendly relations amongst nations.

2. To encourage nations to work together and improve the lives of marginalised groups in poverty, experiencing starvation etc.

How does the UN protect human rights? 3 tier system

1. Establishes international standards through its Charter, containing non-binding declarations and legally binding treaties.

2. Mandates Special Rapporteurs and further treaty bodies to monitor human rights treaty compliance and work in various manners for the promotion and protection of HR

3. Offers technical assistance through the Voluntary Fund for Advisory Services in the field of Human rights.

What is the UNGA?

One of the UN's principal bodies, is a LEGISLATIVE ORGAN that promotes and enforces human rights- the United Nations General Assembly

Pros

- Main forum for international discussions and creation of treaties, consists of democratic features such as equal voting powers for all member states and impartial resolutions

- Formal decision's are referred to as 'Resolutions' - ie Resolution 293 (2010) which resulted in the Global Plan of Action against the Trafficking of Persons

- Developed the R2P in 2005

Cons

- Resolutions depend on the compliance and cooperations of the international community, there are no ramifications for states who vote but do not abide, compromising enforceability.

What is the UNHRC?

Principal body of compliance- set up in 2006 and provide reports to the UNGA about states who fail to submit periodic treaty compliance

Pros

- coordinates human rights reviews in each UN member state and has a complaints system allowing individual victims of human rights to bring issues to the Council's attention

- Made 16 recommendations relating to Australia's treatment of asylum seekers

What is the UNSC?

The EXECUTIVE ORGAN- Responsible for maintaining international peace and security by facilitating peacekeeping missions and executing UNGA resolutions. Powers under Chap VI AND VII of UN Charter. There are 15 members and 5 are permanent, with the exclusive VETO POWER

- China, Russia, US, UK, France

Cons

- can pass resolutions which condemn human rights to favour national interests (North Korea Resolution 1718)

- doesn't accurately reflect the balance of power in todays world as the VETO power and p5 often prevent the UNSC from taking action

What is the ICJ?

JUDICIAL ORGAN!- possesses the jurisdiction to hear and judge international disputes between NATION STATES, that have submitted matters and agree to be bound by court rulings.

- have the jurisdiction to issue advisory opinions that are not legally binding, on questions of international law submitted to it by the international organs or UNGA.

- Effective if nation states are comply with ruling ie Republic of Benin v Republic of Niger (2005), conversely ineffective due to non-compliance ie Nicaragua vs the USA (1986)

What is an IGO?

An intergovernmental organisation consists of two or more states who have an agreement to pursue mutual interests in certain areas. They address regional and global issues

Examples of IGOs?

NATO, ASEAN, European/ African Union/ INTERPOL

What is the role of NATO?

Established in 1949 as a post WW2 alliance, NATO is governed by the NATO Charter and has 28 members which discuss and address common security concerns.

- Imposed a No-fly-zone over Libya in 2011

What is the role of INTERPOL?

Worlds largest international police organisation, with 190 member countries and a mission of preventing and fighting crime through enhanced cooperation and innovation on police security matters.

What is the ICESCR?

International Covenant on Economic, Social and Cultural Rights establishes "second generation" socio-economic rights which aim to guarantee equal conditions and treatment in social, economic and cultural spheres. Has 164 parties

What are key rights covered in the ICESCR?

Right to self-determination (Article 1), Right to work in jobs freely chosen (Article 6), Right to remuneration and joining a trade union (Article 8 and 9)

How is compliance monitored with the ICESCR?

Member states must submit a report to the UN Committe on Economic, Social and Cultural Rights (UNCESCR) every 6 years (similar to ICCPR)

What are some values and limitations of the ICESCR?

Values

- compliance report is accessible by the international community

Limitations

- has fewer signatories than the ICCPR as these second-generation rights can seem ambiguous and economic, social and cultural views are divergent amongst nation-states.

- Article 2(1) entails that states may take measures to protect these rights to extent of the resources they have available- this is subjective and not equilateral.

What are some values and limitations of the ICCPR?

Values

- has received widespread global recognition by over 170 signatories

- compliance reports are accessible for the international community, and states with poor records can be pressured to improve

- Article 41 enables a state party to report if another state party is abusing civil and political rights.

Limitations

- Difficult to enforce and ensure compliance ie Aus treatment of Asylum seekers.

Outline the development of the abolition of slavery.

Slavery refers to acts of forced labour or sexual favours performed against the free will of an individual. The right to be free of this is INDIVIDUAL.

The abolitionist movement pioneered after the horrors of the Transatlantic Slave Trade in the 19th century, to uphold moral and ethical standards regarding the dignified treatment of individuals.

Right to be free from slavery is expressed in Article 8 of the ICCPR.

Law reform:

- Emancipation Act 1833 (freedom of all slaves from the British Empire)

- 13th Amendment to the US constitution (1865)

- 1966: article 8 ICCPR

- Divisions 270 and 271 of the Commonwealth Criminal Code Act 1995

- Modern Slavery Act 2018

Yet over 25mill people remain enslaved globally

Outline the development of labour rights?

Labour rights are a COLLECTIVE right and refer to the organised association of workers uniting for collective action, to bargain for working rights, and involves the right to join a trade union. Need for these rights came from Industrial Revolution.

Reflected in

- Creation of International Labour Organisation (1919) which establishes standards + principles

- Article 6,7, 8 of the ICESCR: right to remuneration, choose work and join unions

- Fair Work Act 2009

- Middle East and Qatar- 2014 death of 400 sodium workers, inability to join unions (diverging moral standards)

Outline universal suffrage?

Defined as the right for people to vote in a democratic election regardless of status, gender, creed or nationality. It is an INDIVIDUAL RIGHT.

History- Suffragette movement in the 20th century and Waves of Feminism

- women in Australia gained the right to vote in Australia in 1902 following the passing of the Commonwealth Franchise Act

- COMMONWEALTH ELECTORAL ACT (2018) SAFEGUARDS

- 1928 UK

- Article 25 of the ICCPR

- Bound through the principle of democracy, and it difficult to enforce due to disparate moral and ethical standards ie women in Saudi Arabia still can't vote

Outline universal education?

This is a COLLECTIVE RIGHT, and refers to the entitlement that children should be provided to a free and compulsory education

History- Shifts in social values which deemed education as only a right for wealthy people, Mid 1800s demands for industrialisation and suffrage needed educated children

- Article 13 of the ICESCR

- Education Act 1990 (NSW) permits free compulsory education for children aged 6-17

Outline self determination?

A COLLECTIVE RIGHT for citizens of a nation to choose as to how they will be governed

History: 1776 US Declaration of Independence from British Colonial rule

- Article 1 of the ICCPR

- 1992 Mabo Case- Native Title act

Outline environmental rights?

A COLLECTIVE RIGHT to live free of pollutants in a healthy and safe environment.

History- emerged in the 20th century which saw a greater focus on environmental protection and the Gulf of Mexico (2010-11), promotes intergenerational equity

- Protected by the Biodiversity and Conservation Act 1999 (AUS)

- and the establishment of the Land and Environment Court

- 177 members of the UN recognise environmental rights in domestic law

Outline peace rights?

A COLLECTIVE RIGHT to live free from conflict, harm or oppression.

History: Arose from 20th century war atrocities

- Establishment of the ICC

- Article 9 of the ICCPR

- UN adopted Declaration on the right of People to Peace (1984)

What is the role of courts and tribunals in the international community?

Judicial bodies that prevent, regulate and reprimand human rights violations

What is the ICC?

The International Criminal Court was established in 2002 under the Rome Statute and can investigate and prosecute individuals who have committed war crimes, and crimes against humanity such as genocide.

- Court can only investigate crimes committed by individuals from states who have signed and ratified the Rome Statute, unless authorised by the UNSC (causing concerns of compliance and thus the enforcement of human rights)

What are some pros of the ICC?

It is a permanent court that can prosecute individuals and thereby is a powerful institution to end impunity -

- (court can only intervene when states are unable or unwilling to prosecute domestically) so it doesn't compromise SS

- ICC Prosecutor of Parties can also make referrals to the ICC, therefore it is less vulnerable to UNSC political will

What are some cons of the ICC?

- Court relies on the compliance of state governments to extradite summoned individuals, but even then it can be difficult ie the case of Joseph Kony who has been charged with 21 counts of war crimes

- criticised as being inefficient, excessively expensive and ineffective having only have secured 5 convictions in 15 years of operation

What is an AD HOC Tribunal?

Temporary solution for a specific purpose, judicial body designed to end impunity and involves serious war crimes- genocide, crimes against humanity

- responsive towards a particular human rights violation or regional/global situation of conflict

What are some examples of AD HOC tribunals?

- Nuremberg Trials (1945-49)

- International Criminal Tribunal Rwanda (ICTR, 1994-14) Established to prosecute the genocide between the inter-tribal conflict of Hutu's and Tutsi's, indicted 93 individuals and handed down 61 sentences, including that of former PM Jean Kambada

- International Criminal Tribunal Yugoslavia (ICTY, 1993-2017) indicted 161 individuals and 89 sentenced during the breakup of former Yugoslavia

How can we evaluate tribunals?

- Responsive towards increasing human rights violations and major international crimes, showing that international criminal justice resolution is possible

- Reactive response to a conflict in a particular country or region, therefore not a powerful deterrent

What is the role of independent statutory bodies?

These bodies are set up by law to administer specific laws and investigate along with conciliate complaints of alleged breaches of these laws.

Key human rights treaties have established such bodies to monitor compliance by member states

What are some examples of independent statutory bodies?

UN Human Rights Committee (UNHRC), the Australian Human Rights Commission and the Anti-Discrimination board

What are NGOS?

NGOS are impartial, non-governmental bodies that advocate for human rights without the risk of their work being influenced by political biases or ideologies. Today there are approximately 40,000 NGOs operating internationally.

How do NGOS promote human rights?

They:

- investigate human rights abuses

- write reports or make submissions to state government and law reform bodies, exposing issues and demanding change

- naming and shaming can shape public and political opinion

- educate + raise awareness

What is the role of the international committee of the Red Cross

ICRC was established in 1863

- give humanitarian aid to victims of war and natural disasters, champions of international humanitarian law

- a body of international law developed from the Geneva and Hague conventions, that deal with the conduct of states and individuals during armed conflict

What is the role of the media?

As recognised in Article 19 of the ICCPR, a free, unbiased media is an essential feature of the Rule of Law and allows individuals to share their opinions, along with raise awareness about human rights violations, enabling enforcement bodies to investigate human rights violations.

- media helped raise awareness of the ethnic cleansing occuring within Myanmar of the Rohingya people

- their role as a reactive and responsive body puts pressure on legal authorities, prompting changes in policy and government

- however media restrictions and censorship prevent this tool from effectively promoting or enforcing human rights. IE Australia has no general right of free speech enshrined in the law

How does Australia protect human rights?

Through ratifying international treaties, statute law, common law, and the Constitution

What is the result of Australia having a dualist system?

Treaties need to be signed, ratified and then reflected through legislation that is enacted- eg Australia ratified the Rome Statute of the ICC in 2002, by passing the ICC ACT 2002

Why is Australia's human rights enforcement problematic?

It is inconsistent and doesn't ensure adequate compliance. The UN has found Australia to have breached the ICCPR and other human rights treaties 40 times since 1994. This reveals shortcomings in the incorporation of human rights into domestic law- particularly in areas of protecting vulnerable people such as Indigenous communities, those in poverty and asylum seekers.

How does the constitution protect human rights?

Outlines the division of powers + specifies and outlines express rights

What is separation of powers?

Established under Chapters I and II of the Constitution, this principle involves the separation of the legislature (lawmakers in parliament), the executive (government including ministers and government departments that implement the law) and judiciary (the courts that interpret and apply the law)

What does the separation of powers ensure?

It ensures that the rule of law is upheld, promotes the equality and the provision of procedural fairness so that governments are equally subject to the same law

What does the separation of powers provide the judiciary?

It enables the judiciary to reject any legislation that exceeds the governments powers in the constitution or reject a Federal government policy that conflicts with current legislation

What is the division of powers?

The division of powers refers to the balance of power between commonwealth and state parliamentary bodies. Powers that are SHARED are known to be concurrent powers!

Where are commonwealth powers outlined?

Section 51 of the Constitution- exclusive rights to deal with currency, marriage, copyrights and external affairs. This creates consistency in the protection of human rights, as powers not listed here are residual and belong to the state

What are the benefits of the Division of powers?

It ensures that power is not too centralised, and that federal bodies can overrule unconstitutional state laws (ie NT and euthanasia). However, states can also refer things to the Commonwealth government which they feel as though could be better dealt with- such as terrorism, workplace relations etc, resulting in the significant growth of the commonwealths power

What are express rights in the aus constitution?

Rights that have been written and directly included, including

- the right to vote (s24)

- right to a trial by jury for an indictment of any offence against commonwealth law (s80)

- Freedom of religion (s116)

- the right to acquisition of property by the commonwealth on just terms (s51)

- the prohibition of any discrimination on any account of state residence (s117)

What is common law?

Judge made law based on precedent- through interpreting and applying the law, common law has derived human rights (eg native title mabo and dietrich right to trial by jury)

What are limitations of common law?

Rights are not fixed and can be removed by statute law, common law can not establish new rights, but only derive them from the basis of precedent and a case by case basis, preventing it from accounting for shifts in societal ethical values, reactive form of protecting human rights.

What is statute law?

Acts of law made by parliament, however federal statutes can overrule state law

What are some benefits of statute law?

It can be responsive and contemporary since it has the power to be changed, amended or removed in reflection of community standards, can deliver proactive responses to human rights violations rather than deriving from past cases.

What are some limitations of statute law?

Some legislation can undermine human rights. For instance, under the Migration Act 1958 (cth) asylum seekers who arrive in Australia without a valid visa are held in mandatory detention until they are granted a visa or removed from Australia. This has resulted in breaches of Article 9 of the ICCPR. Time limitations are not codified for immigration detentions which raises further human rights concerns

How do courts and tribunals aid in promoting and enforcing human rights in Australia?

The role of courts and tribunals is to interpret and apply the law, aiding the in the promotion, protection and enforcement of human rights.

In doing this, the courts have achieved some prominent rights

- Mabo V Dietrich

Secured notable convictions of breaches

- R v Treividi

Ensured government acts within its powers

- Malaysia solution

What are prominent courts in tribunals in Australia that deal will human rights violations?

The Australian High Court and the Australian Human Rights Commission

What is the role of the High Court in human rights?

The high court sets precedents that are binding on all lower courts, can overturn legislation that conflicts with the Constitution or rule against government policies that conflict with existing legislation

- hacve secured prominent human rights convictions such as Mabo, Dietrich and the Decriminalisation of Homosexuality

What is the role of the ARHC?

Independent statutory authority established under the Australian Human Rights Commission Act (1986)

Responsible for investigating and resolving complaints of discrimination, harassment or bullying based on an individuals social status

- promoting public awareness about human rights law

- conducting public inquiries into human rights issues and making submissions to parliament on the development of laws, policies and programs relating to human rights

How does the ARHC resolve disuptes?

Through the process of conciliation. Compliant outcomes can include an apology, reinstatement to a job, compensation for lost wages and changes to a policy

What is another independent statutory authority?

The Anti Discrimination Board, established under the NSW Anti-Discrimination Act 1977 administer this law and handle complaints under this act, they also hold conciliation conferences and if the dispute can not be resolved, then a person can take a complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal

WHAT IS THE DIFFERENCE BETWEEN A BILL AND CHARTER OF RIGHTS?

A bill of rights is enshrined within the constitution and can therefore only be changed through a referendum. A charter of rights is an act of parliament and can therefore be changed. Therefore Bill of Rights is more resource efficient and doesn't need to be changed or updated.

ARGUMENTS FOR A CHARTER OF RIGHTS

- would make our legal systems' laws more cohesive a d accessible rather than being scattered across throughout past judgements and statutes

- it would enable Australia to meet its international obligations, as Australia is currently the only Western Democracy without a COR

- it would enable judges to better interpret and apply law in relation to human rights freedoms

- in 2020, 250 people took a deliberate poll in which 59% suggested that Australia adopt a charter of rights

ARGUMENTS AGAINST A CHARTER OF RIGHTS

- would need to be updated frequently to match evolving community values

- limits and restricts judicial discretion in the interpretation of case-by-case common law verdicts as an act of parliament triumphs

- a COR may restrict human rights as when a right is defined, it is limited under the words of its expression