LEGAL - Human RIghts

define human rights

Human rights are entitlements to all humans because they are humans, and are inherent, universal and inalienable.

what are the two main categories of human rights

• individual - possessed by each and every person as their own right

e.g. right to vote, religion, education, joining trade union

• collective - belong to a distinct group of people and are exercised on behalf of that community

e.g. self-determination (true collective right), peace rights, environmental rights

what is self-determination

• collective right of a group to determine their own future, culture, traditions and values → allows a group to plan and enjoy their future as a group

• usually applies to Indigenous groups e.g. Native Title (Mabo & Ors v Queensland)

what are first generation rights

• civil and political individual rights that protect individuals from the power of nation-states

• specified in UDHR and ICCPR

e.g. right to vote, freedom from slavery, right to life, freedom of speech

what are second generation rights

• economic, social and cultural rights focused on establishing equal conditions

• recognised in UDHR and ICESCR

e.g. right to work, shelter, education, social security

what are third generation rights

• rights that extend beyond first and second generation rights, considered neither individual or collective

• not explicitly specified in the formal statements (were developed later)

e.g. peace rights, environmental rights, self-determination

structure to answer q regarding development & recognition of rights

• past (historical events)

• change (UN/ international)

• present (Australia

abolition of slavery → past

• slavery was prominent in ancient civilisations (e.g. Rome and Egypt)

• transatlantic slave trade (16-19th century) → nearly 13 million Africans enslaved and sent to the Americas for the Agricultural Revolution

abolition of slavery → change

• William Wilberforce led Parliamentary campaign for nearly 20 years to abolish slave trade; eventually led to Slave Abolition Act 1833

• global legal response seen in Slavery Convention Act 1926 under League of Nations → aimed to ban slavery and slave trade

• UDHR recognised “no one shall be held in slavery or servitude”

• need to abolish slavery also included in ICCPR and Trafficking Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons (Especially Women and Children)

abolition of slavery → present

• Aus ratified Trafficking Protocol → reformed Cth Criminal Code to prosecute for slavery and trafficking (R v Wei Tang)

• ABC “Chocolate the Bitter Truth” → domestic law reform of Modern Slavery Act (report on supply chains)

• campaigns by Anti-Slavery Australia, Walkfree Foundation, Amnesty International

trade unionism and labour rights → past

• unions began to emerge after the Industrial Revolution (no labour rights) and were initially illegal

• Tolpuddle Matryrs were six agricultural labourers sentenced to convict life in NSW for forming a trade union to protest low wages

trade unionism and labour rights → change

• trade union rights entrenched in UDHR “everyone has a right to join and form a trade union for the protection of his/her rights”

• these rights also recognised by the International Labour Organisation (ILO), ICCPR and ICESCR

trade unionism and labour rights → current

• Australia ratified ICCPR and ICESCR → strong statutory responses including Fair Work Act 2009 (Cth) (sets out minimum wages and conditions), (RADS) Discrimination Acts (Cth), Work Health and Safety Act 2011 (NSW)

• examples of trade unions: Teachers Federation, Australian Industry Group

what is universal suffrage

legal right of all adult citizens to vote in elections

universal suffrage → past

• historically, in the UK and Australia, only wealthy, white males could vote; suffrage was not universal

• Australian Constitution (1901) implied that all citizens have right to vote

• women formed suffragette societies lobbying for voting rights; led to Commonwealth Franchise Act 1902 which enabled these rights

• in 1962, the Commonwealth Electoral Act (1918) was amended, allowing Indigenous to vote in federal elections (though this was voluntary, unlike other Australians)

universal suffrage → change

• in 1948, universal suffrage was recognised globally by UDHR and later, ICCPR

• in 1984, further amendments were made to Commonwealth Electoral Act (1918) → enrolling to vote became compulsory for Indigenous as well, bringing them to same rules as all Australians

universal suffrage → present

• Australia ratified ICCPR in 1980, further recognising right to vote

• domestic legal response seen in Roach v Electoral Commissioner (precedent) → HC interpreted Constitution and ruled that everyone should have the right to vote

  • [HC ruled that prisoners with sentence over 3 years would not have right to vote; undermines Constitution and ICCPR]

what is universal education

right to free, compulsory primary education, and access to secondary education without discrimination

universal education → past

• historically, education was only accessible to the upper class

• following Industrial Revolution, nations began to develop educational institutions, believing educating the masses would aid further growth and development

• Australian colonies passed various Acts in 1870s e.g. NSW Public Instruction Act, making education free and compulsory

universal education → change

• by 1948, UDHR recognised education as a universal right, needed to alleviate poverty

• ICESCR stipulates that nation states are legally obligated to take steps to maximise access to education

• UN introduced Milennium Development Goal → by 2015, all children able to complete primary schooling; saw significant improvements in poorer regions yet goal was not met

universal education → present

• since 2013, Malala Yousafazai has been a key activist for girls education; addressed UNGA calling for worldwide access to education for girls and standing against extremism

• The Education Act 1990 (NSW) is a domestic legal response, requiring parents to enroll children aged 6-17 in school and ensure they attend regularly

  • ABC “Kempsey parents fined $1100 for not sending children to school”

• non-legal responses include International Day of Education, Book Week

what is self-determination

• collective right of a group to determine their own future, culture, traditions and values → allows a group to plan and enjoy their future as a group

• usually applies to Indigenous groups e.g. Native Title (Mabo & Ors v Queensland)

list the formal statements of human rights

• UDHR

• ICCPR

• ICESCR

what are other names for the formal statements of HR

• international bill of rights

• international human rights instruments

what is the difference between soft and hard law

soft law → non-binding on signatory nation-states e.g. UDHR

hard law → legally binding on signatory nation-states; includes conventions, covenants, treaties and protocols e.g. ICCPR & ICESCR

what is UDHR

• non-binding document (soft law) adopted by UN (1948)

• outlines 30 fundamental rights and freedoms

• represents a shared set of goals, values and principles the international community works toward

UDHR contribution to HR development

• established global standards for rights (civil, political, economic, social, etc)

• inspired over 70 human rights treaties and conventions including ICCPR & ICESCR (binding)

• formed framework for UN action and HR advocacy

what is ICCPR

• international treaty adopted by UN (1966)

• legally binding on ratifying states

• protects individual civil and political rights

• rights: life, fair trial, freedom of speech, religion

ICCPR contribution to HR development

• transforms UDHR principles into binding law

• requires states to report on implementation of rights; monitored by UNHR Committee

• optional protocol → allows individuals to bypass the state to settle a matter

• strengthens international accountability for civil/political rights

what is ICESCR

• international treaty adopted by the UN (1966)

• legally binding on ratifying states

• protects economic, social & cultural rights

• rights: education, health, work, adequate standard of living

ICESCR contribution to HR development

• transforms UDHR principles into binding law

• requires states to report on implementation of rights; monitored by UN Committee on ESC rights (CESCR)

• promotes global standards for welfare, education & health rights

define state sovereignty

power of a nation-state to make laws to govern itself and its citizens without external interference

pos/neg political will regarding state sovereignty

• positive political will → nations can ratify international law and enter into agreements/relations with other nations

• negative political will → nations may choose to not ratify or breach international law and refuse to cooperate with other nations

distinguish between signing, ratifying and enacting international law

• signing → state shows intention to comply; non-binding

• ratifying → state gives formal commitment to abide by the law

• enactment → state passes legislation to make the law enforceable

ratification and enactment process (with example)

• UN creates international law

• Aus signs and ratifies the law

• Aus passes the law through Parliament, creating/reforming enforceable domestic law that reflects the international obligation

e.g. CROC → Family Law Act (Cth) → Young Offenders Act (NSW)

monist vs dualist legal system

• monist → international law automatically part of domestic law

• dualist → international law separate from domestic law; treaties must be enacted by legislation to become enforceable e.g. Australia

what does it mean to promote HR

• taking active steps to uphold, protect and advance human rights

• encouraging awareness & understanding of rights

• educating individuals & states

• support/encourage states to improve HR

→ promote = spread, support, encourage

what does it mean to enforce HR

• ensure compliance with HR laws

• monitor & investigate breaches

• impose consequences/pressure and hold nations/individuals accountable after violations

→ enforce = make sure rules are followed

examples of state sovereignty to enforce HR

• ratifying int’l law & enacting domestic legislation → e.g. CROC → Family Law Act (Cth) → Young Offenders Act (NSW)

• courts enforce rights → interpret/apply law e.g. Roach v AEC

• Parliament creates penalties for breaches of law

examples of state sovereignty to promote HR

• ratifying treaties → e.g. ICCPR, ICESCR

• creating institutions → Australian Human Rights Commission

• education & awareness programs

• law reform to align with international standards

role of the UN

• aims to maintain global peace and security by encouraging cooperation between nations to promote, protect and enforce HR

• develops international standards (UDHR) and creates treaties (ICCPR, ICESCR)

• monitors state compliance through treaty bodies (e.g. ICCPR → UN Human Rights Committee) and investigates breaches of int’l law

• can impose pressure on states e.g. SC sanctions

how does the UN promote HR

• develops declarations & treaties → sets global standards

• encourages nations to ratify int’l law

• promotes international cooperation; allows nations and special guests to discuss matters at UNGA forums e.g. Malala, Greta Thunberg

• raises global awareness on HR issues e.g. through website, livestreams

how does the UN enforce HR

• monitors compliance → states must report to committees (e.g. UN Human Rights Committee for ICCPR)

• conducts investigations into possible breaches

• sanctions and interventions via SC

• optional protocols allow individuals to bypass state e.g. Toonen → UNHR Committee

what are the five main organs of the UN

• General Assembly (UNGA)

• Security Council (UNSC)

• Economic and Social Council (ECOSOC)

• Secretariat

• International Court of Justice (ICJ)

what does UNGA do

• main deliberative body of the UN (all 193 member states)

• discussion forum for global issues incl. human rights → debate & cooperation

• nation-states pass resolutions & adopt declarations/treaties; each nation-state has one equal vote

how does UNGA promote HR

• develops HR standards by passing resolutions e.g. UDHR

• encourages states to adopt treaties & promotes international cooperation

• raises global awareness & discussion e.g. guest speakers, livestreaming

• applies pressure on states

• UN Human Rights Council (UNHRC) → monitors progress/compliance of member-nations to treaties

examples of UNGA promoting HR

• guest speakers (e.g. Greta Thunberg, Malala)

• applying pressure on Australian to improve HR relating to Indigenous peoples, children, protesting, treatment of refugees

• forum to discuss and pass resolutions e.g. CROC

what is UNSC

• UN body responsible for maintaining peace & security

• 5 permanent (US, UK, China, France, Russia) & 10 non-permanent (rotating) members; permanent members can use veto power against any resolution

• can make legally binding decisions (under the UN Charter)

• responds to conflict/threats to peace

• power to sanction or authorise force

how does UNSC promote HR

• maintains international peace → protects and promotes importance of HR

• calls parties to settle dispute by peaceful means & recommends methods of adjustment

• peacekeeping missions → encourage ceasefire, protect civilians, etc

• raises global attention to breaches of HR

how does UNSC enforce HR

• imposes sanctions e.g. trade & economic sanctions, travel bans

• authorises military intervention

• peacekeeping missions

• can refer cases to international courts (ICC, ICJ)

• legally binding resolutions on member states

note: limited by veto power

what does ECOSOC do

• coordinates economic, social & cultural work of the UN

• 54 members (elected for 3yr terms)

• promotes HR by implementing development goals

• oversees UN specialised agencies (e.g. WHO, UNESCO)

• provides forum for international cooperation on global issues

what does the secretariat do

• administrative body & carries out day-to-day operations of UN

• headed by Secretary-General

• implements UN decisions & programs

• prepare reports, research & investigations

• supports other UN organs

role of the ICJ

• principal judicial organ of the UN (jurisdictional power under UN Charter)

• settles legal disputes between STATES

• gives advisory opinions (non-binding) on international law

• interprets & applies international law

how does the ICJ promote HR

• clarifies international law principles

• issues advisory opinions & legal writings on HR issues

• encourages peaceful resolution of disputes

• reinforces legal standards for state conduct

how does the ICJ enforce HR

• interpret & applies int’l law; makes binding decisions between states

• holds states legally accountable for breaches

• can order remedies/compensation

note: limitations include reliance on state consent and compliance (state sovereignty), no direct enforcement power, depends on UNSC support

case for ICJ and HR

• advisory opinion on Western Sahara → denounced notion of terra nullius and ruled that Morocco should give the Sahrawi people their right to self-determination; influenced Mabo & Ors v Qld