Human Rights- Theory

What are human rights?

Entitlements to all humans simply because they are human (inherent human rights).

Why are human rights described as universal?

Because they transcend culture, ethnicity, religious orientation, nationality and status, and apply to all people.

Why are human rights described as inalienable?

Because these rights cannot be taken away (in theory).

What three other qualities (besides inherent, universal, inalienable) describe human rights?

Interdependent, indivisible, and inter-related.

What are individual human rights? Give examples.

Rights possessed by each and every person as their own, e.g. the right to vote, the right to religion, the right to be free, the right to education, the right to join a trade union.

What are collective human rights?

Rights that belong to a distinct group of people and are exercised on behalf of that community.

What is the only true collective human right?

Self-determination.

What is self-determination?

The right of a group to determine their own future, culture, traditions and values; usually applies to Indigenous groups. It is NOT about voting.

What are First Generation Rights?

Individual civil and political rights (in UDHR and ICCPR) entitled to a citizen of a nation's state that protect the individual from the power of the state.

List the individual rights contained in the ICCPR.

Right to vote, right to life, freedom of speech, right to a fair trial, right to privacy, freedom from torture or slavery, right to religion.

What are Second Generation Rights?

Economic rights (e.g. right to work, shelter), cultural rights (preservation of heritage/traditions/culture/religion), and social rights (e.g. education); recognised in UDHR and ICESCR.

Give examples of rights recognised in the ICESCR.

Fair work, social security, adequate food, housing, health, education, and cultural participation.

What are Third Generation Rights?

Environmental rights and peace rights; they developed decades after the twin covenants and are neither exclusively individual nor collective.

Where was slavery historically prominent?

Ancient civilisations such as Egypt and Rome, and the 17th century Trans-Atlantic Slave Trade, which took more than 12 million Africans from Africa to the UK and USA for the agricultural revolution.

Who was William Wilberforce and what did he achieve?

A British politician and philanthropist (1759 to 1833) who led a non-legal parliamentary campaign and protests to abolish the slave trade, leading to the Slavery Abolition Act 1833 (UK).

What international legal response followed the Slavery Abolition Act 1833?

The Slavery Convention Act 1926, which required nations to become parties to the convention under the League of Nations.

How do the UDHR and ICESCR address slavery?

They recognise that slavery must be abolished, stating 'no one shall be held in slavery or servitude', leading to worldwide recognition.

What UN protocol specifically addresses trafficking?

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol).

How has Australia responded domestically to slavery and trafficking?

Australia ratified the Trafficking Protocol and reformed the Commonwealth Criminal Code to prosecute slavery and trafficking, resulting in the prosecution of Wei Tang for possessing and trafficking slaves.

What non-legal response contributed to the Modern Slavery Act?

BBC/ABC's 'Chocolate: The Bitter Truth' documentary, which resulted in law reform requiring businesses with a turnover of $100 million to report on their supply chains.

Name three NGOs campaigning against slavery.

antislaveryaustralia.org, Amnesty International, and the Walk Free Foundation, which estimates 46.9 million slaves exist worldwide.

What is a trade union?

An organisation of employees where members negotiate better working conditions and pay with employers.

When did trade unions emerge and what was their early legal status?

After the Industrial Revolution, when employees had no rights; trade unions were illegal at first.

What did unions fight for?

Equal pay for equal work, work safety, no workplace discrimination, long service leave, paid public holidays, holiday leave, maternity and paternity leave, annual leave, and worker's compensation.

Who were the Tolpuddle Martyrs?

Six union ringleaders in the UK sentenced to convict life in NSW for starting a union.

How did the UDHR and ICESCR recognise labour rights by 1948?

They recognised that everyone has a right to join and form a trade union for the protection of his or her rights.

What Australian statute sets minimum wages and conditions and resolves disputes?

The Fair Work Act (Cth) 2009, which also established the Fair Work Commission.

What other Australian laws protect labour rights?

The suite of discrimination laws (Racial, Age, Disability and Sex Discrimination Acts) and the Work Health and Safety Act.

What is universal suffrage?

The legal right of all adults to vote in elections.

Who could vote at first in the UK and Australia?

Only wealthy white males.

When did Australian women get the right to vote, and how did this compare internationally?

In 1902, after New Zealand became the first nation to allow it in 1893; the UK granted the right in 1918.

What Act extended voting rights to Indigenous Australians, and when?

The Commonwealth Election Act 1918 was amended in 1962 to allow Indigenous men and women to vote in federal elections.

What is universal education?

Schooling and instruction that should be accessed free and compulsory for all, to guarantee full human development.

Who had access to education historically?

Only the wealthy and powerful; religious institutions led literacy (e.g. teaching people to read the Bible).

What NSW Act made education free and compulsory in the 1870s?

The NSW Public Instruction Act.

How did the UDHR and ICESCR address education?

By 1948 the UDHR recognised education as a universal right to alleviate poverty; the ICESCR legally obliges ratifying states to maximise access to education.

What did the UN Special Rapporteur say about girls' education in 2023?

That 'the world is failing 130 million girls' who are denied education, criticising the lack of access for girls (e.g. in Afghanistan after primary level).

Who is Malala Yousafzai?

An international activist for girls' education who addressed the UN assembly and stood against extremism.

What NSW Act enforces school attendance, and what are the age requirements?

The Education Act 1990 (NSW) requires parents to enrol children and ensure attendance between ages 5 and 17.

Define self-determination as a collective right.

The right of people of a territory or national grouping to determine their own destiny in relation to social, cultural and economic decisions for the betterment of the group.

Why has self-determination historically been difficult to achieve?

Because of state sovereignty and colonisation, where traditional lands were colonised by another power and self-determination was lost.

What does Article 1 of the ICCPR say about self-determination?

States commit to promote and respect the right to self-determination, and recognise peoples' rights to freely own, trade and dispose of their natural wealth and resources.

What does Article 1 of the ICESCR say about self-determination?

All peoples have the right to self-determination, including the right to determine their political status and freely pursue their economic, social and cultural development.

What is UNDRIP?

The UN Declaration on the Rights of Indigenous Peoples, which recognises the right of Indigenous peoples to freely determine their political status and pursue their own economic, social and cultural development.

How did Timor-Leste exercise self-determination?

The Timorese people voted for independence from Indonesia, resulting in the UN recognising Timor-Leste as a nation state in 2002.

Give three international examples of self-determination in practice.

New Zealand has electorates where only Maori people can run; the Saami have their own parliament in Norway; the Inuit have exclusive access to Nunavut for cultural development.

What is the significance of the 1967 referendum for self-determination?

It changed the Constitution to allow ATSI people to be counted in the census, and symbolised a shift away from assimilationist policies towards self-determination and reconciliation.

What is the significance of the failed Voice referendum?

Indigenous Australians still do not have their voice heard in Parliament as a separate group, and constitutional recognition as First Peoples has not occurred.

What non-legal responses promote Indigenous self-determination?

Creative Spirits and the National Indigenous Television (NITV) channel/website.

Define environmental rights.

A mainly collective right to life, health or property free from contaminants and pollution, extending to future generations.

What is intergenerational equity?

The concept that each generation has the responsibility to care for the environment so future generations can access its resources.

Name four international environmental agreements.

The Stockholm Declaration (1972), the Rio Declaration (1992), the Kyoto Protocol (1997), and the Paris Agreement.

What did the Kyoto Protocol (1997) require of nations?

To cut greenhouse gas emissions by agreed amounts within certain time frames.

What Australian Act is the central piece of environmental legislation?

The Environment Protection and Biodiversity Conservation Act 1999 (Cth), which conserves Australia's biodiversity.

What NSW Act and court help enforce environmental rights domestically?

The Clean Air Act 2020 (NSW), and the Land and Environment Court.

Name two non-legal responses promoting environmental rights.

Greenpeace and the WWF.

Define peace rights.

The right of all people to live their lives in peace and without the impacts of conflict and war.

What was the first peace treaty and what did it lead to?

The Treaty of Versailles, which led to the League of Nations to promote peace.

How did the UN Charter address peace after WWII?

It explicitly stated that the maintenance of peace was a primary purpose of the UN (Article 1).

Why was the ICC created in relation to peace rights?

The ICC was created in 2002 under the Rome Statute to try individuals for crimes against the international community and to suppress war.

What did the UN Human Rights Council state in 2018 about nuclear weapons?

That any use of nuclear weapons would violate Article 6 of the ICCPR (the inherent right to life).

Give a domestic legal and non-legal response relating to peace rights.

Legal: the Foreign Fighters Act (Cth). Non-legal: peace protests on Gaza and the Women's International League for Peace and Freedom (WILPF).

What is state sovereignty?

The power of a nation state to make laws to govern itself and its citizens without external interference from other nations or the UN.

What is positive political will?

When nations use their sovereignty in a good way, entering into international law (ratification) and agreements with other nations.

What is negative political will? Give an example.

When nations do not ratify international law or breach it, e.g. the USA has not signed the optional protocol to CROC.

What is the two-step ratification and enactment process?

1) Nation states ratify/sign their intention to abide by a UN law. 2) Some nations must then pass this law through parliament to create or reform domestic law reflecting the international obligation.

Give an example of Australia's ratification and enactment process in action.

Australia ratified CROC, then reformed the Family Law Act (Cth) and created the Young Offenders Act (NSW) to better protect children's rights domestically.

Why is Australia described as a dualist, not monist, legal system?

Because signing/ratifying an international treaty (via the external affairs power) does not automatically make it domestic law; it requires enactment, passing a bill through parliament, to become enforceable.

What four features are required for a state to have recognised statehood?

A permanent population, a defined territory, a government, and the capacity to enter into international relations.

What is the clearest indicator of recognised statehood?

UN membership, which enables a state to ratify treaties such as the ICCPR and ICESCR. There are 193 UN member states.

Which five nations hold permanent UN Security Council seats with veto power?

The USA, Russia, China, France and the UK.

How does state sovereignty both enable and restrict human rights?

It enables protection through law-making power (e.g. ratifying and enacting treaties), but restricts enforcement because states can resist external criticism or intervention even where abuses occur.

What three documents make up the International Bill of Rights?

The Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

What is soft law? Give an example.

Law that is non-binding on signatory nation states, e.g. the UDHR, which is a declaration.

Why is the UDHR significant despite being soft law?

It is aspirational and has led to the creation of more than 18 human rights international laws; it is the cornerstone of human rights, recognising rights such as education, universal suffrage and labour rights when adopted in 1948.

What is hard law? Give examples.

Legally binding international law upon signatory nation-states, including conventions, covenants, treaties and protocols; the ICCPR and ICESCR (the twin covenants) are hard law.

What is the ICCPR optional protocol?

It allows individuals whose country has ratified the protocol but not sufficiently promoted human rights to bypass domestic law and take their case to the UN Human Rights Committee.

How did the ICCPR optional protocol affect Australia, via Toonen?

Toonen v Australia saw Australia criticised by the Human Rights Committee over privacy rights, influencing the High Court's decision in Toonen v Tasmania to change Tasmania's homosexuality laws.

Why is the ICESCR's contribution to human rights considered limited?

Because it has not been popular in sign-up, so its contribution is limited by a lack of ratifications from nation states.

What annual obligation do ICCPR and ICESCR signatory states have?

To send an annual progress report to the UN Human Rights Committee outlining their progress on human rights issues, which the UN assesses and provides suggestions on.

What is the United Nations and what is its role?

The largest intergovernmental organisation with 193 member states; its role is to maintain global peace and security, encourage friendly relations, promote cooperation, and create international law and human rights standards.

How does the UN promote ratification of international law?

Through its Office of the High Commissioner for Human Rights (OHCHR) website, and by allowing nations to discuss issues at General Assembly forums.

What is the UNGA (General Assembly)?

The body that deliberates and makes policy and law as a discussion forum; all UN member nations have one equal vote when adopting declarations and decisions.

What is the UN Human Rights Council (UNHRC)?

A body within UNGA that periodically reviews reports from nations on their human rights progress; it has special procedures and a complaint procedure to examine individual human rights cases.

Give an example of a UNGA/UNHRC resolution.

Resolution 61/295, which established the Declaration on the Rights of Indigenous Peoples (2007).

What is the UN Security Council (UNSC)?

The body with primary responsibility for maintaining peace and security; 15 members (5 permanent with veto power), whose resolutions are legally binding on all members.

How does the UNSC enforce its decisions?

By imposing sanctions (e.g. trade embargoes) or authorising the use of force (military action) to maintain or restore peace and security.

What is the Economic and Social Council (ECOSOC)?

The principal UN body for coordination and policy on economic, social and environmental issues; it has 54 members elected by UNGA and implements goals like universal education.

What is the UN Secretariat?

The UN's administrative body carrying out day-to-day work, including the Office of the High Commissioner for Human Rights; it enforces via the Human Rights Council and Human Rights Committee.

What is the Trusteeship Council?

A UN body that provides international supervision of trust territories (11 trust territories).

What is the International Court of Justice (ICJ)?

The principal judicial organ of the UN; it settles legal disputes submitted by states (only states have locus standi) and enforces law by interpreting treaties nations have ratified.

How does the ICJ promote human rights through advisory opinions?

E.g. in the Western Sahara case, the ICJ denounced terra nullius and suggested Morocco give the Sahrawi people their land and self-determination; this opinion influenced Mabo & Ors v QLD.

What did the ICJ's 2024 Advisory Opinion on Palestine state?

That Palestine being occupied by Israel is unlawful and must end as rapidly as possible.

What is an Intergovernmental Organisation (IGO)?

A powerful body of nation states that have joined together pursuing similar goals; can be bilateral or multilateral, e.g. the UN, EU, NATO, African Union, Interpol.

What is the International Criminal Court (ICC)?

A court independent from the UN, set up in 2002 by the Rome Statute, that prosecutes individuals for crimes against the international community (war crimes, genocide, crimes against humanity, aggression).

What are the three ways the ICC can gain jurisdiction over a case?

1) The accused is a national of a member state that ratified the Rome Statute. 2) The alleged crime occurred in a member state's territory. 3) The situation is referred by a member state or the UN Security Council.

Give two successful ICC prosecutions.

ICC Prosecutor v Katanga (12 years for war crimes and crimes against humanity) and ICC Prosecutor v Lubanga (14 years for conscripting child soldiers under 15 in the Congo).

What criticism has been made of the ICC?

That it has focused on prosecuting African warlords ('African bias'); it has held a warrant for Al-Bashir's arrest for over 10 years with no compliance, and issued warrants for Netanyahu, but relies on states to arrest suspects.

What were ad hoc tribunals and why were they used before the ICC?

Temporary bodies set up by the UN to prosecute individuals for war crimes/genocide for a particular event; they closed once the matter was finalised.

What is the significance of the International Criminal Tribunal for Rwanda?

It was the first international tribunal to deliver verdicts for genocide; it indicted 93 and sentenced 62, including ICTR Prosecutor v Jean-Paul Akayesu, who received a life sentence for ordering mass rape.