legal human rights

human rights

what are human rights

Human rights are the fundamental rights and freedoms to which all individuals are entitled, regardless of nationality, sex, ethnicity, religion, or any other status.

what does it mean for human rights to be universal

enjoyed by all individuals regardless of nationality, gender, race or status 

what does it mean for human rights to be inherent

birthright of all humans; to be enjoyed by all people simply by reason of their humanity

what does it mean for human rights to be indivisible

all human rights are equally important

what does it mean for human rights to be inalienable

people cannot agree to give them up or have them taken away 

what are the developing recognition of human rights

abolition of slavery, trade unionism , universal suffrage, universal education, self determination, environmental rights and peace rights

what is the abolition of slavery

abolition of forced labour in which a person is considered to be the legal property of another

why did the abolition of slavery receive law reform

As slavery became more recognised, religious groups started advocating against it and the political movement Abolitionism began in the 18th century.

how was did the abolition of slavery receive international recoginition

● In the late 1700s, British politician led an anti-slavery campaign, exerting pressure on the government to end the slave trade.

This led to the passing of the Slave Trade Act 1807 (UK), that officially abolished the British slave trade.

● The first major collaboration to abolish slavery occurred in 1890 where European countries signed the General Act of the Brussel’s Conference, which contained various anti-slavery measures. 

● Currently, member states of the UN have made a clear statement that slavery is prohibited under Article 4 of UDHR 

how was did the abolition of slavery receive Australian recognition

 Australia was held to the Slave Trade Act 1807 which abolished slavery in the entire British empire 

Implemented Modern Slavery Act 2018 which requires larger companies to report on how they address and regulate modern slavery risks in their operations and supply chains

what are trade unions

Organisation of workers created to preserve and further their rights and interests 

● E.g minimum wages, working hours/conditions, equal pay, paid leave

explain why the trade union law reform occurred

Trade unions and campaigns first emerged during the Industrial Revolution in response to the appalling conditions, lack of safety, low wages and long working hour

how was did trade unionism receive international recognition

Employees in various industries (particularly manufacturing) began to demand better working conditions and wages 

● British Parliament to pass the Trade Union Act 1871 (UK) 

○ Legalised trade unions 

● Similar organisations in different countries started to link up to protect workers’ rights internationally in 19th century 

● Right to form and join trade unions in article 8 of ICESCR

how was did trade unionism receive Australian recognition

● In Australia, the union movement developed from the 19th century 

● Due to harsh tactics employed by governments and employers to break large-scale strikes in 1890s, the unions in Australia joined together to form their own political party (Australian Labour Party) 

● Australia is a party to the ICESCR

what is universal sufferage

right of all citizens to vote in political elections regardless of status, gender, race or status

how was universal suffrage receive international recognition

● WW 2 elevated people’s sensitivity to human rights violations and what constitutes them, forcing global organisations to acknowledge fights for suffrage occurring since the late 1700s 

● Right to vote included in Article 21 of UNDHR 

● In 2019, a record number of over 2 billion people partook in elections within 50 countries

how was did the abolition of slavery receive Australian recognition

● Australian Commonwealth established women’s suffrage in 1902 

● 1976 Referendum finally gave Indigenous Australians the right to be counted in the Australian Census

what is universal education

Free and compulsory education for all children

why did universal education receive law reform

Since end of the WW2, achieving free and quality education for every human has become a widely accepted right

what is the contemporary recognition of universal education

● Concept has only achieved wide acceptance in relatively recent history 

● UN made education a major priority in its economic and social development programs 

● Included under Article 26 of UDHR 

● Legislation in every state and territory of Australia makes school compulsory from age 6 to 15 or 16

what is Self-Determination 

Collective right to determine how they will be governed, or their political status based on territory or national grouping

explain why law reform for self determination occurred

Nationalism as a force in global affairs grew after the French Revolution and it was one of the causes of World War I. This is why self-determination was recognised in the Treaty of Versailles (1919)

what is are contemporary recognition for self determination

● Recognised in the Atlantic Charter (1941) and UN Charter (1945) 

● Further strengthened by Article 15 of UNDHR (1948) 

● ICESCR (1966) includes self-determination as its primary right

what are environmental rights

Environment rights are defined by the UN as any proclamation of a human right to environmental conditions of a specified quality

explain why law reform occurred for environmental rights

Climate change poses a threat to several internationally recognised human rights, including the rights to life, food security, water and health etc

what are the contemporary recognition of environmental rights

Numerous treaties attempt to deal with specific environmental threats such as global warming, spread of epidemics, marine pollution etc 

● Stockholm Declaration (1972) 

● Rio Declaration (1992) 

UN Climate Change Conference (Dec 2015) 

● Produced the Paris Agreement 

● Plan to stabilise global warming below 2 degrees above pre-industrial levels

what are the limitations of environmental rights

Main problems in achieving progress in this area is the failure of all states to commit to measures that benefit the global community, causing dramatic deterioration in rights and living standards of millions of people globally.

what are peace rights

The right of citizens to expect their government to do all in its power to maintain peace and work towards the elimination of war

when was the first time these rights were recognised

● UNGA adopted Resolution 39/11, titled Declaration on the Right of Peoples to Peace (1984)

why did law reform occur for peace rights

declared that promoting and implementing the right to peace is a fundamental obligation of states 

● government policies should be directed towards elimination of the threat of war and settlement of international disputes by peaceful means

what are 2-3 key developments

● UN Human Rights Council issued a new general comment on ICCPR ○ stated that any use or threat of use nuclear weapons would be in violation of Article 6 of the 1966 covenant 

■ “Every human being has the inherent right to life” 

○ Statement is in line with Treaty on the Prohibition of Nuclear Weapons 2017

what are contemporary recognition of peace rights

● Civil society groups have taken up this cause 

● Theme of the ‘International Day of Peace’ in 2014 was a commitment to reaffirming the Declaration on the Right of Peoples to Peace (1984)

what are the types of human rights

●civil and political

●economic , social and cultural rights

●environmental , peace and self determination rights

what are feature of civil and political rights

● Called first generation rights because they were the first to be recognised historically 

● Civil rights - entitlements belonging to all humans and are to do with being a free citizen of a nation 

○ E.g right to freedom from slavery, right to self-determination 

● Political rights - entitlements belonging to all humans and are to do with full participation in government 

  ○ E.g right to equality before the law, right to an effective judicial remedy

● Both rights protect the individual from the arbitrary exercise of power by the state 

●  Set out the UDHR & ICCPR

what are feature of Economic, Social and Cultural Rights

● Second generation 

● Economic rights - rights concerned with the production, development and management of material for the necessities of life 

           ○ e.g right to an adequate standard of living 

● Cultural rights - rights which assist in preserving and enjoying one’s cultural heritage        

  ○Right to practice own religion and speak own language 

● Social rights - rights that give people security as they live and learn together 

            ○ E.g Right to education, right to social security

what are feature of Environmental, peace and self-determination rights

● Called third generation rights because they emerged in recent years and don’t necessarily belong to the individual but rather to people as a whole 

● Self-determination - collective right of peoples to govern themselves

what is the UDHR (1948)

● Sets out the fundamental human rights to be universally protected 

● Based on the principle that all human beings are born free and equal in dignity and rights

features of the UDHR

● Soft law - not legally binding/enforceable 

● Adopted by UN General Assembly 

● Drafted by representatives with different legal and cultural backgrounds from around the world 

● Represents the first universal acceptance of the idea of human rights and is the reference point of all subsequent human rights treaties 

● Has a positive role in setting international standards and helping activists in their campaigns 

● Development has been heavily guided by mostly Western nations to the detriment of inclusiveness - results in general bias in favour of civil political liberties over socio–political rights

what is the international covenant of civil and political rights- ICCPR(1966)

● Hard law - legally binding 

● Multi-lateral treaty 

● Widely ratified by 173 state parties 

● Overseen by the Human Rights Committee which reports compliance by member states and investigates violations 

● E.g right to self-determination, right to life, right to free movement

what is the international covenant on economic, social and cultural -ICESCR (1966)

● Hard law - legally binding 

● Multi-lateral treaty 

● Widely ratified by 172 state parties 

● Overseen by the UN Committee on Economic, Social and Cultural Rights 

● E.g right to form and join a trade union, right to education 

what. does the International bill of rights include

UDHR+ ICCPR+ICESCR

what is state sovereignty

authority a state possesses to govern its own territory, population, and internal/external affairs without external interference. 

who are the united nations (UN)

• The UN was established with the signing of the UN Charter in 1945, following World War II.

• Vast organisation with substantial power, consisting of 193 member states, including almost every sovereign state in the world.

  • Excluded states include : Palestine, Kosovo and Taiwan (Vatican City is excluded and will never be a member state bc it is a religious city)

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

what are the 5 main organs of the UN

general assembly, security council, secretariat , international court of justice and the economic and social council

what does the UN general assembly do

The General Assembly is the main deliberative, policymaking and representative organ of the United Nations. 

what does the UN security council do

• The UNSC is charged with preservation of international peace and security.  

• It exercises its power through legally binding resolutions, including authorising military actions or sanction.

•  The UNSC has 5 permanent members with power to veto decisions (USA, UK, China, Russia and France) and 10 non-permanent members with two-year terms.

  • If one says no the decision does not proceed

what are the limitations of the security council

• Membership does not reflect today’s world

• Developing countries are underrepresented and there are no permanent members from either Africa or Latin America

• Five permanent members enjoy veto power and frequently abuse their privileges 

• Stripping Russia’s veto power on the Security Council is all but impossible

• There is a lack of transparency and efficiency in the Security Council’s decision-making process

what is the economic and social council

responsible for assisting in promoting international economic, social, environmental and humanitarian cooperation and development.   

what does the UN secretariat do

• main administrative body of the UN; provides the various information, studies, tasks and facilities needed by the UN and includes the departments and offices of the UN. 

• The Secretary-General of the UN is the main face of the  United Nations.

what does the international court of justice do (ICJ)

• The ICJ settles disputes between states in accordance with international law and gives advisory opinions on international legal issues. 

• The ICJ is the only international court that adjudicates general disputes between countries, with its rulings and opinions serving as primary sources of international law

• Exists as an advisory body in the creation of international law - role fo the ICJ to provide advice in terms of the legal documents

• Deals with disputes between nation states eg. border and environmental waste disputes 

• The decisions are considered binding however nation states can choose to not adhere to the decision due to state sovereignty - reduce ruling of ICJ

• You can refuse to attend the meetings with the ICJ whether you are a member state or not 

what is the security council

military organ of the UN - primary responsibility of maintaining world peace and security - order military intervention but also peace keeping missions - also hold veto power

what is the office of human rights commissioner (OHRC)

military organ of the UN - primary responsibility of maintaining world peace and security - order military intervention but also peace keeping missions - also hold veto power

what is the responsibility to protect(R2P)

a global political commitment which was endorsed by all member states of the United Nations at the 2005 World Summit in order to prevent genocide, war crimes, ethnic cleansing and crimes against humanity.

R2P example

mostly in Africa. Eg In 2007-08, R2P helped in mediating conflict in Kenya. In 2011, it was also used to support military action in Ivory Coast to stop crimes against humanity - in this case President Gbagbo was prosecuted by the ICC (unsuccessfully, due to lack of evidence).

another IGO is INTERPOL (international police) what do they do

work collaboratively with global domestic police to deal with transnational  crime (crime happening across border) - human trafficking, drug trafficking, organ harvesting, arms 

features of the ICJ

• Can 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

• Unable to hear cases brought by individual people or private organisation

• The International Court of Justice has heard relatively few cases since its establishment. 

what is the ICC

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

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

what are NGOs

organisations created by independent people without representation of any government.

• Not govt funded, govt cannot provide them with any money → makes them more open to criticise the govt → many are concerned with monitoring and reporting human rights abuses 

• Many are concerned with monitoring or reporting on human rights abuses.

Eg. Human Rights Watch, Amnesty International → two most significant and powerful NGOs which are concerned with the promotion of human rights 

limitations of NGOs

organisations created by independent people without representation of any government.

• Not govt funded, govt cannot provide them with any money → makes them more open to criticise the govt → many are concerned with monitoring and reporting human rights abuses 

• Many are concerned with monitoring or reporting on human rights abuses.

Eg. Human Rights Watch, Amnesty International → two most significant and powerful NGOs which are concerned with the promotion of human rights 

how are HR in Australia protected

1. The constitution

2. Common law decisions 

3. Statute Law (Most effective)

what is the constitution in protecting HR

• It lays down the system of government through which human rights are recognised, including the separation of powers and division of powers

• It is the source of some specific human rights, including those it states explicit (called express rights) and those rights that are implied in the document 

what is the division of powers

how legislative power is divided between the Commonwealth and state parliaments. so that no one body exercises arbitrary power

what is the separation of powers

• separation of the three branches of government: the legislature (parliament), the executive (government) and the judiciary (courts).

• This is essential in upholding the rule of law and avoiding the risk of abuse of power by the other arms of government or by a politicised judiciary.

what is statue law

law made by parliaments eg legislation

what is some statute law

Federal Parliament is able to enact legislation to uphold international treaties that the Australian Government has signed and ratified 

● e.g Commonwealth Legislation for slavery: Commonwealth Criminal Code 1995 and Modern Day slavery Act 2018 

what is common law

law that is established through precedent in Australia courts 

● courts may promote human rights by extending the rights that people have 

● courts may enforce legislation that the parliaments created to uphold our human rights obligations 

what are the charter of rights

a list of all the human rights that a nation decides to specifically protect through an act of parliament 

arguments for the charter of rights

• Extremely high community support

• Remedying the shortcomings of existing human rights protections

• Reflecting basic Australian values

• Protecting the marginalised and disadvantaged

• Improving the quality and accountability of government

• Supporting a culture of regard for human rights

• Improving how the international community views Australia with regard to human rights

• Bringing Australia into line with other democracies

• Generating economic benefits

arguments against the charter or rights

• Current human rights protections are adequate

• Might undermine parliamentary sovereignty, or 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.

what is the Australian Human Rights Commission

the nation’s independent statutory watchdog, established in 1986

it investigates complaints regarding discrimination, monitors Australia's international human rights obligations, and advises the government on legislative reform.

how is the Australian Human Rights Commission effective

● Report spanned over 300 pages 

● Concluded that children were suffering from extreme levels of physical, 

emotional, psychological and 

developmental distress 

● Found 257 children in Australian 

immigration detention 

● Identified multiple breaches of the Convention of the Rights of the child 

● According a 2017 Sydney Morning Herald Article the report reveals how “isolated and exceptionalist” Australia is in relation to human rights issues

how is the Australian Human Rights Commission ineffective

● Led to a lot of backlash from members of parliament 

● Immigration minister Scott Morrison dismissed the evidence as ‘out of date 

and meaningless’ 

● Tony Abbot accused the commission of being blatantly partisan