legal human rights

what are human rights

• rights that all humans are entitled to simply because of their humanity

• inherent, inalienable and universal

• protected under international and domestic law

what are the two main categories of human rights

• individual → possessed by each and every person as their own right regardless of age, sex, gender, etc

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

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

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

what are first generation rights

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

• focus on liberty

• specified in ICCPR (& UDHR)

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

what are second generation rights

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

• recognised in ICESCR (& UDHR)

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

what are third generation rights

• generally considered to be collective rights held by groups/peoples

• not explicitly specified in the formal statements (exception of self-determination)

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

how do you answer a development q

• define

• past (historical events)

• change (UN/ international)

• present (Australia)

abolition of slavery → def & past

• ending the practice of keeping humans as slaves

• slavery was centuries old and accepted by all societies

• transatlantic slave trade (16-19th century) → nearly 13 million Africans enslaved and sent to America

abolition of slavery → change

• fight to end slavery based on notion it was morally wrong to buy, sell, own another human being

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

• UDHR & ICCPR → “no one shall be held in slavery or servitude”

• Trafficking Protocol

abolition of slavery → present

• Trafficking Protocol → Cth Criminal Code → R v Wei Tang

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

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

trade unionism & labour rights → def & past

• rights of workers to receive fair wage & safe work conditions

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

e.g. Tolpuddle Matryrs → agricultural labourers sentenced to convict life in NSW for forming trade union

trade unionism and labour rights → change

• UDHR (art. 23)

• ICESCR (art. 22)

• ILO

trade unionism and labour rights → current

• Fair Work Act 2009 (Cth) → minimum wages and conditions

• Work Health and Safety Act 2011 (NSW)

• trade unions → Teachers Federation, Australian Industry Group

universal suffrage → def & past

• legal right of all adult citizens to vote in elections

• historically, voting was limited to privileged males e.g. men who owned property

universal suffrage → change

• Australian Constitution → all citizens have right to vote

• women formed suffragette societies lobbying for voting rights → Commonwealth Franchise Act

• later recognised in UDHR & ICCPR

• Commonwealth Electoral Act → amended to allow Indigenous to vote & later reformed again, making voting compulsory for Indigenous

universal suffrage → present

• despite protected under int’l law, many countries late to give women right to vote (e.g. Saudi Arabia → 2015)

• Aus → voting compulsory for adults; right to vote protected under Constitution & Commonwealth Electoral Act

e.g. Roach v AEC → HC interpreted Constitution and ruled that everyone should have the right to vote

universal education → def & past

• right of everyone to free, compulsory primary education, and access to secondary education

• historically, education only accessible to the upper class

• following Industrial Revolution, nations began educating the masses, believing this would aid growth and development

universal education → change

• UDHR (art. 26) - “everyone has the right to education”

• ICESCR (art. 13)

universal education → present

• Malala Yousafazai → key activist for girls education; addressed UNGA in 2013 calling for worldwide access to education for girls

• Education Act 1990 (NSW) → requires parents to enroll children aged 6-17 in school and ensure they attend regularly

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

what is self-determination

• collective right of a group to determine their own future, values, culture and traditions

• usually applies to Indigenous groups

• recognised in ICCPR, ICESCR & UNDRIP

• may be problematic due to state sovereignty & rule of law (e.g. Kurds, Southern Sudan)

e.g. Native Title (Mabo & Ors v Qld), Nunavut in Canada

what are peace rights

• right of people to live their life in peace

• recognises that individual rights are not protected in conditions of war & conflict

• linked to UN’s aim of maintaining peace and security

• enforcement issue due to no binding treaty

what are environmental rights

• right to a clean, safe and healthy environment

• reflects idea that a degraded environment undermines other rights

• recognised in Kyoto Protocol, Paris Agreement

what are the formal statements of human rights

• UDHR

• ICCPR

• ICESCR

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, cultural)

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

• formed framework for UN action to promote & enforce rights

rights in UDHR

right to:

• equality

• freedom from slavery

• freedom of movement

• privacy

• adequate standard of living

• education

• work

what is ICCPR

• international treaty adopted by UN (1966) that protects individual civil and political rights

• legally binding on ratifying states

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

• promotes global standards for rights regarding freedom

rights in ICCPR

right to:

• vote

• privacy

• freedom of speech

• assembly

• fair trial

case for ICCPR

Toonen v Australia

• individual complaint to UN Human Rights Committee under ICCPR Optional Protocol

• challenged Tasmanian laws criminalising homosexuality

• UNHRC found breach of privacy rights under ICCPR

• law reform in Australia

what is ICESCR

• international treaty adopted by the UN (1966) that protects economic, social & cultural rights

• legally binding on ratifying states

ICESCR contribution to HR development

• transforms UDHR principles into binding law

• requires states to report on implementation of rights; monitored by Committee on Economic, Social and Cultural Rights (CESCR)

• promotes global standards for rights regarding equality

rights in ICESCR

right to:

• work

• food

• shelter

• health

• education

• culture

what is state sovereignty

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

• enshrined in UN Charter

• no nation can interfere in affairs of another without UNSC approval

what are the characteristics of a sovereign state

• defined territory

• permanent population

• government

• sovereignty/ independence

• capacity for foreign relations

pos/neg political will regarding state sovereignty

• positive political will → nations can ratify international law and enter into agreements 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 (binding)

• enactment → state passes legislation to make the law enforceable

ratification and enactment process (with example)

• UN creates international law

• Aus signs & ratifies

• 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

• enhancing awareness & understanding of rights

• educating individuals & states

• support/encourage states to improve HR

→promote = gather support for recognition/protection of rights

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 rights are obligied by

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 and investigates breaches through treaty bodies (e.g. ICCPR → UN Human Rights Committee)

• 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 through UNGA (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)

• SC imposes sanctions for breaches of rights

• optional protocols allow individuals to bypass state e.g. Toonen → UNHR Committee (Toonen v Australia)

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

• 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

• passing of resolutions e.g. CROC

what is UNSC

• UN body responsible for maintaining peace & security

• 5 permanent members (US, UK, China, France, Russia) → veto power against any resolution

• 10 non-permanent (rotating) members

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

• responds to conflict/threats to peace

• power to impose sanctions

how does UNSC promote HR

• calls parties to settle dispute by peaceful means & makes recommendations

• peacekeeping missions → encourage ceasefire, protect civilians, etc

• brings 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

what does ECOSOC do

• oversees economic, social, cultural & health matters

• 54 members (elected for 3yr terms)

• promotes HR by implementing development goals

• coordinates with UN 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) by interpreting and applying int’l law

how does the ICJ promote HR

• clarifies international law principles

• issues advisory opinions & legal writings on HR issues

• encourages peaceful resolution of disputes

how does the ICJ enforce HR

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

• holds states legally accountable for breaches

note: limited due to no enforcement power → relies on SC and compliance/consent of states

case for ICJ → advisory opinion on Western Sahara

• ICJ denounced notion of terra nullius and ruled that Morocco should give the Sahrawi people their right to self-determination

• influenced Mabo & Ors v Qld

what are intergovernmental organisations

• large body of nation-states who have joined together pursuing similar goals/interests

• can be bilateral or multilateral

• established by treaties/formal agreements between nation-states

list some IGOs

• United Nations (largest IGO - 193 members)

• European Union (EU)

• North Atlantic Treaty Organisation (NATO)

• AUKUS

• INTERPOL

• World Health Organisation (WHO)

role of the EU

• economic and political union promoting peace and security for European nations

• establishes HR standards → Charter of Fundamental Rights

• European Court of Human Rights (ECHR)

• can impose sanctions on member states

• binding laws → protects HR across member states

effectiveness of EU in protecting HR

pos

• European Court of Human Rights

• can pass binding laws

• can impose sanctions on member states

• Charter of Fundamental Rights → consistent standards

neg

• reliant on state cooperation & implementation

• HR protection (e.g. ECHR) limited to member states only

• political constraints (reluctance to act against members)

case for EU (IGO) → Nadia Eweida v British Airways

• Nadia was not allowed to wear her cross due to company policy

• she accessed ECHR → ruled she had a right to express her faith (set precedent for religious freedom in Europe)

effectiveness of the UN in protecting HR

pos

• establishes global standard → UDHR, ICCPR, ICESCR

• monitors compliance through treaty bodies & investigations

• peacekeeping & sanctions for serious HR violations

neg

• limited enforcement power

• dependent on state cooperation

• state sovereignty restricts action

• political influence (e.g. SC veto)

what are the international courts

• International Court of Justice (UN)

• International Criminal Court (independent)

effectiveness of the ICJ

pos

• binding decisions between states

• aims for peaceful dispute resolution → reduces conflict

• clarifies int’l law → strengthens HR standards

• provides legal remedies/compensation

neg

• only states can be parties (no individuals)

• jurisdiction depends on consent of states involved in case

• no direct enforcement power; relies on SC and compliance of states

role of ICC

• prosecutes individuals for crimes against the international community: genocide, crimes against humanity, crimes of aggression, war crimes

• acts as last resort when states are unwilling/unable to prosecute

• established under Rome Statute 2002 (125 nations ratified)

• aims to deter future HR violations

list some nations who have NOT ratified Rome Statute

• US

• China

• Russia

• Israel

• Sudan

jurisdiction of ICC

• prosecutes individuals for crimes against int’l community

• only acts if states unwilling/unable to prosecute

• can only issue arrest warrants if:

  • individual belongs to a member state (ratified Rome Statute)

  • alleged crime occurred in territory of a member state

  • member state or SC refers individual to the court

effectiveness of ICC

pos

• holds individuals accountable & provides justice for serious HR violations

• prosecutes when states are unable to do so

• acts as a deterrent

neg

• 125 ratifications → lack of int’l recognition (including from major states)

• relies on state cooperation (arrests, evidence, enforcement)

• state sovereignty

• costly & slow

• disproportionate focus on African nations

cases/media for ICC

• ICC Prosecutor v Katanga → militia leader found guilty of war crimes & crimes against humanity; sentenced 12yrs

• BBC “Ten years, $900 million, and one verdict - does the ICC cost too much?”

• AustLII “African countries have been critical of the ICC”

• outstanding arrest warrants for President of Sudan, Netanyahu, Putin

what are ad hoc tribunals

• temporary, specialised courts created for specific matters

• established by int’l bodies

• prior to ICC (2002), UN would set up ad hoc tribunals to prosecute individuals for crimes against int’l community

role of International Criminal Tribunal for Rwanda (ICTR)

• prosecute individuals who committed crimes against the int’l community during the Rwandan genocide

• first tribunal to convict individuals for genocide and recognise rape as a tool of genocide

• delivered justice for victims → heard hundreds of witness statements regarding killings in the war; prosecuted 93 individuals & sentenced 62

• promoted accountability & deterrence

case for ICTR → ICTR Prosecutor v Akayesu

• military leader prosecuted for genocide and war crimes → shows accountability of high-ranking individuals

• first conviction for genocide by a tribunal & first to define rape as component of genocide → set HR standards

• sentenced to life imprisonment

role of International Criminal Tribunal for the former Yugoslavia (ICTY)

• prosecute individuals for crimes against int’l community during the Yugoslav wars

• aimed to deter future crimes and provide justice to thousands of victims & families

• provided victims opportunity to voice atrocities they witnessed (promoting)

• prosecuted 161 individuals & sentenced 90 (enforcing)

case for ICTY → ICTY Prosecutor v Sloberdan Praljak

• military leader charged with war crimes & crimes against humanity

• demonstrates accountability of high-ranking individuals

what are independent statutory authorities (int’l) & examples

• independent bodies created under international law/treaties

• operate separately from governments

• monitor, promote & protect HR globally

e.g. UN Human Rights Committee, Committee on the Rights of the Child (CROC Committee)

role of UN Human Rights Committee & example

• monitors implementation of ICCPR

• reviews reports on compliance with civial and political rights & issues recommendations (non-binding)

• hears individual complaints (Optional Protocol)

e.g. Toonen v Australia (privacy rights to homosexuality)

role of CROC Committee

• monitors implementation of the Convention on the Rights of the Child

• reviews reports on children’s rights & issues recommendations (non-binding)

role of NGOs in promoting HR

• agents of change that operate independently of governments and promote the wellbeing of society

• promote HR by:

  • pushing to change values & ethics

  • lobbying govt & apply pressure for law reform

  • amplify HR issues through campaigns & protests

  • raise awareness & education

  • provide aid & support to victims

limitations of NGOs

• no legal enforcement power

• reliant on funding/donations

• restricted by state sovereignty → denied access in some countries e.g. NGOs denied access in Gaza

examples of NGOs

• Amnesty International

• Human Rights Watch

• Walk Free Foundation

• Red Cross

role of media in promoting HR

• amplify and raise public awareness about HR issues through various platforms (e.g. news articles, social media)

• exposes violations of HR (investigative journalism) & lobby for law reform

• push to change social values & ethics

• influence public opinion & apply pressure for change

• encourage accountability & transparency

limitations of media

• no enforcement power

• can be biased or selective

• censorship/restriction in some countries

• risk of misinformation

• issues lose coverage quickly

how does Australia incorporate HR into domestic law

• use positive political will to sign & ratify int’l law

• Parliament enacts legislation by creating/reforming law to reflect the treaty (enforceable)

• examples:

  • CROC → Family Law Act (Cth) → Young Offenders Act (NSW)

  • International Convention on the Elimination of all forms of Racial Discrimination (ICERD) → Racial Discrimination Act (Cth)

what is the Constitution

• supreme legal document outlining how Australia will be governed

• established under Constitution Act 1902

role of the Constitution

• separates branches of power (E, L, J) → checks & balances, prevent tyranny & uphold rule of law

• divides powers between federal & state

• protects rights (express & implied)

• outlines external affairs powers (authorise federal govt to enter into international agreements & treaties)

express rights in the Constitution

• acquisition of property on ‘just terms’

• freedom of religion

• trial by jury for indictable Commonwealth offences

• non-discrimination based on state residency

• right to vote

what are implied rights & example

• not explicitly written in Constitution

• inferred by the HC from structure & wording

e.g. freedom of political communication (Lange v ABC)

what is the division of powers

• allocation of law-making powers between federal & state governments under Constitution

• “divide the pie”

  • exclusive → federal

  • concurrent → shared (federal & states)

  • residual → states

list some exclusive powers (federal)

• defence

• immigration

• currency

• external affairs

list some concurrent powers (state & federal)

• taxation

• trade & commerce

• corporations

list some residual powers (states)

• education

• public transport

• healthcare

case for division of powers → Commonwealth v Tasmania (HC)

• Tasmania wanted to build dam on Franklin River

• Commonwealth used external affairs powers to prevent this, since river was world heritage site

• HC ruled that law was valid & dam could not be built

what is separation of powers

• three seperate arms of power under Constitution, creating a system of checks and balances

  • executive → enforces & administers law (government)

  • legislature → makes law (Parliament)

  • judicature → interprets & applies law (courts)

• prevents tyranny, oppression & abuse of power

• upholds rule of law

importance of HC (judicature)

• acts as the custodian & interpreter of the Constitution

• maintains checks & balances on executive and legislature → rule of law, prevents tyranny/abuse of power

• final court of appeal & creates binding precedent

• resolves disputes between federal & state government

case for separation of powers → Plaintiff M70 v Minister for Immigration

• minister for immigration (executive) attempted to deport the asylum seeker

• HC ruled decision unlawful as executive abused powers

• judiciary maintained a check & balance on executive → protected rule of law & HR

how does statute law protect rights

• creates legally enforceable rights

• prohibits unlawful conduct

• enables courts/tribunals to enforce rights

• implements international HR obligations into domestic law

limitations of statute law to protect HR

• only protects rights if legislation exists

• Parliament can amend or repeal law → right not entrenched

• created by government of the day (political influence)

• enforcement depends on access to courts (cost, time)

• rights protection can be piecemeal (no bill of rights)

example for limitations of statute law

• in 2006, Howard govt suspended Racial Discrimination Act (Cth) for Northern Territory

• allowed for military intervention removing Indigenous children from homes