Human Rights

Characteristics of HR

• Inherent - apply from birth 

• Universal - apply to everyone 

• Inalienable - Cannot be taken away regardless of race, sex, culture etc. 

• Indivisible - one set of rights cannot be enjoyed fully without the other

• Other characteristics - interdependent, equal and non-discriminatory, both rights and obligations 

bill of rights

•  30 articles of UDHR 1948 

• ICCPR - Int. covenant on civil and political rights 

• ICESCR - int. Covenant on economic social and cultural rights  

Abolition of slavery

Slavery: forced labour in which a person is considered to be the property of another person

• Recognise that humans cannot be owned, equality ,dignity

Global system of slavery → existed when no one had personal rights

• Britain started to abolish slavery 1833 - ended slavery in all overseas colonies as well

• 13th Amendment of the US constitution: outlawed slavery in 1865 - discrimination continued to occur to future generations

Modern:  Modern slavery is hidden in plain sight and is deeply intertwined with life in every corner of the world.

• Est. 50mill in 2021(+10mill since 2016)

Article 4 of UDHR “no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all forms.”

Trade Unionism and Labour Rights

• History: emerged around industrial revolution

  • Protect rights of workers

  • Labour party → movement in AUS

  • 1920s: British trade unions given status to improve wages and conditions

  • ILO 1919 - detect labour and human trafficking

  Modern:  

  • Come along way but there are still issues

  • AUS: Melbourne law school → 1.3 of 2814 workers paid $15/hr

  • Article 23  UDHR - rights for workers - right to work, form and join trade unions

  • AUS: Fair Work Act 2009 → everyone has the right to join a trade union

Universal Suffrage

Right for all citizens to vote

History: 

• 1842 → only white, male rich would vote

• Movement began in the 1890s → 1893 NZ gave women's right, in 1894 SA gave women right

• 1904: victoria the last Aus jurisdiction to grant universal suffrage

• 2011 : only 45% of world living in democratic country
  

Modern:  

• UDHR → Article 21 = the right to take part in gov. Equal access to public service, periodic & genuine elections of universal suffrage

• Article 25 of the International Covenant on Civil and Political Rights 1966

• AUS Constitution Section 8/30 → relate to universal suffrage

• Saudi Arabia → women couldn't vote women turned down as universal election voters in 2011 but

  • → right granted in 2015 & can run for municipal offices.

Universal Education

everyone has right to free education

• History: 

  • 1870 Education Act 1870 (UK) and Public Instruction Act 1880 (NSW)

  • Education Act 1990 (NSW) made schooling compulsory until 17 

• Current recognition 

  • Article 26 of the Universal Declaration of Human Rights

  • Article 13 of the International Covenant of Economic, Social and Cultural Rights

  • Article 28-29 of the UN Convention of the Rights of a Child (1989)

Self-determination

the right of people to determine their own political status and to pursue their economic, social, and cultural development

• History: 

  • gained prominence after WWI but became central post-WWII with the UN Charter (1945) and global decolonisation. Also applied to indigenous rights movements globally 

• developments: 

  • International: Article 1 ICCPR (1966) and ICESCR (1966) → people have the right to freely determine their political status and pursue development, UN Declaration of Rights of Indigenous Peoples (2007) → strengthens indigenous self-determination rights

  • Australia: Mabo v Queensland 2 (1992) → recognised native title overturning terra-nullius, Ongoing constitutional reform debate (e.g Indigenous Voice to Parliament)

Environmental Rights

the right to a safe, clean and sustainable environment, recognising that environmental damage directly impacts human survival, health and dignity 

• History: 

  • emerged in the late 20th century with the growth of the environmental/justice movement. UN resolutions and ecocide as an international crime alongside genocide and crimes against humanity

• developments: 

  • International law: UN general assembly resolution 76/300 (2022) → recognises human right to clean environment, Stockholm Declaration (1972) → first major global recognition of environmental protection as integral to human wellbeing, Ecocide amendment → fifth core international crime 

  • Australia: Tuvalu advocacy at COP conferences → argues that climate change threatens its very statehood and its citizens’ human rights, Environmental Protection and Biodiversity Conversation Act 199 (Cth) → provides framework for environmental protection

  • Paris Agreement 2015 195 Signatories and 147 Parties. Only 55 parties to be entered into force. The USA, Syria and Nicaragua are not parties to the agreement.

Peace Rights

the right of all peoples to live in peace and security, free from war, armed conflict and violence 

• History: recognised after the devastation of WWII, reinforced by Cold War disarmament campaigns and modern anti-war movements 

• developments: 

  • International: UN Charter (1945) Article 1 → purposes of UN include maintaining peace and security, UN Declaration on the Right of Peoples to Peace (1984) → affirms that the promotion of peace is a human obligation 

  • Australia: Australia’s participation in UN peacekeeping operations i.e. East Timor 1999 and Solomon Island & Ratification of disarmament treaties like the Treaty on the Non-Proliferation of Nuclear Weapons (1973)

UDHR

• 1948 - outlines the minimal conditions of dignified life

• Strongest promoter

• Approval is a condition of UN membership 

• Coincide w/Genocide convention

International covenant on civil and political rights (ICCPR)1976 

Civil and political rights of individuals; 

• right to life,

• freedom of religion

•  freedom of speech

• right to fair trial

• 74 signatories and 168 parties - 2016

  • Enforceable nature deters countries desire to join

• Overseen by the UN Human Rights committee (separate body from the UN human rights council) which reports on compliance

• R v Toonen

  • Privacy rights invaded by Tasmania ⇒ went to ICCPR, Aus ratified right to privacy → Australia immediately changed law overriding Tasmania criminal code

International covenant on Economic, Social and Cultural Rights (ICESCR)

• Obligation on states to work towards granting economic, social, cultural rights to individuals.

  • Labour rights

  • Rights to education

  • Right to health

• 164 parties and 71 signatories 

UNSC

Exercises power through making binding resolutions and can authorise military actions and sanctions.

E.g Libya UNSC evoked R2P principle to prevent attacks on civilians -  R2P=attempt at maintaining HR when leaders weren’t upholding HR of citizens

UN High Commission (OHCHR)

Promoter only of UDHR and universal ratification. It promotes universal co-operation and provides support to Human Rights council and human rights committee (The body that ensures compliance with ICCPR - Toonen v Australia)

Human Rights council

Intergovernmental body w/47members. Often criticised for prioritising political interest over HR interest, placing influential nations above HR.

E.g Australia successfully elected to the UNHRC in 2018 despite criticism of asylum seeker treatment.

Effective → E.g Right to clean and sustainable environment ⇒ developing rights: newest (wasn’t in declaration) - HR council first international body to recognise right - PROMOTION

General Assembly

Main forum for discussion about HR between states - GA best example of what promotion can do.

E.g “The UNGA suspended Libya's membership in the Human Rights council.” - During Gaddafi regime and violent crackdown on anti-gov. protestors ⇒ damaging reputation on global scale

Intergovernmental Organisations

Created by agreement between states using international treaty as charter outline purpose and operation. Permanent, meet regularly and are involved in international law.

• Commonwealth of Nations

54 member states of Britain's former colonies aim to promote democracy, rule of law and human rights.

Has ability to suspend nations in the past for HR abuses - E.g 2002 Fiji due to military coups.

• Council of Europe

Binding → lack of sovereignty → sacrificed.

Promoting by forcing them to keep democratic system/rule of law.

Courts and Tribunals European court of human rights (ECHR)

Part of the council of Europe, considers cases from individuals and states against nay country bound by the ECHR, whereby all states must comply with

Comparative to the HR committee Toonen case where Australia didn't have to listen to HR but chose to.

E.g Developing rights; Euro court rules Switzerland violent HR in climate change cases

Courts and Tribunals  - International court of justice

• ICJ can be ignored, while also countries can leave treaties → unlike COE where there is forced cooperation (COE = achiever)

  Yet the ICJ is the biggest promoter, international stage allows for scrutiny and damage to reputation when countries violate.

  E.g Israel Separation wall endures, 15 years after ICJ ruling → ICJ had very  little impact

Courts and Tribunals - international criminal tribunal

Adhoc → don't deter future HR abuses

• Nuremburg Trials = tribunal —> holocaust

Independent Statutory Authorities - Human Rights Committee 

Assesses the member state compliance with the ICCPR, where citizens can take complaints against a state directly to the Committee.- not enforceable but highly influential.

E.g R v Toonen

Media

Notion of scrutiny to apply pressure to governments.

• “Michelle Obama raises pressure over kidnapped school girls.” (The Guardian 2014) 

  • abduction of more than 300 girls from a school in Chibok

  • Tweeted picture of herself #bringbackourgirls hashtag

“Role of a free and impartial media and peoples right to information” is recognised as a human right - article 19 UDHR → no censorship 

NGO + MEDIA working together → E.g Human Rights watch reports new evidence of Ukrainian use of banned landmines (ABC news 2023)

• Unbias source of information

Media = so powerful → countries censor/kill journalist → known potential of media

E.g New York TImes, 2022), “Russia takes censorship to new extremes, stifling war coverage.”

E.g UNESCO, 115 journalists killed in Syria since 1993

Human rights AUS - where can they be found

no single bill of rights therefore rights can be found

• The Australian Constitution 

• Common Law 

• Statute Law  

The Constitution

• It lays down a system of Aust gov through which human rights are recognised, including division and separation of powers and role of the High Court.

  • Separation of powers: legislature - elected law makers in parliament, executive - government, Judiciary - courts that interpret and apply law ⇒ upholds rule of law and the abuse of power

  • Division of powers (responsible for HR on federal and state level) : exclusive powers - federal parliament made legislation to protect human rights Racial Discrimination Act 1975 (Cth)

  • Residual powers - governments power that are not listed in section 51 of constitution → belong to the states Education Act 1990 (NSW)

• It is the source of some specific human rights including express and implied rights

  • Express rights: written in the constitution E.g freedom of religion, right to vote 

  • Implied Rights: implied based on text E.g freedom of press as seen in R v Lange Australian Broadcasting Company → HCA ruled constitution has implied right to freedom of political communication.

Common Law

Human rights that are not fixed but can be removed by acts of parliament

• Cannot be relied upon to develop new rights as judgement can only define those rights on a case by case basis

• Role of judges ⇒ separation of powers

• precedent

Dietrich vs The Queen (1992) HCA - importance of a fair trial through the provision of legal aid to the accused in a serious criminal manner

• Recognition of HR because of precedent

Statute Law

• Federal and state governments have enacted a large body of statute law to protect human rights in Australia.

• Legislation = defined rights ⇒ explicit

  • Not constitutionally protected/firmly locked in place ⇒ benefits to amenable nature → changing values = RESPONSIVE

E.g Racial Discrimination Act 1975 (Cth)

Courts and Tribunals - Australian Human Rights Commission

Independent statutory boyd to deal with issues relating Australia's HR legislation, receives and investigates complaints into discrimination and breaches of human rights.

• Findings are not enforceable and complainants have no rights to have wrongs rectified.

Courts and Tribunals - High Court of Australia

Power to set binding precedents and to overturn legislation incompatible with the Australian Constitution.

• To declare state and/or Commonwealth legislation to be inconsistent or invalid

• To uphold rights listed in the Constitution

• Therefore, the HIGH COURT is the most important court to protect human rights in Australia

Charter of Rights

• A charter of rights is a document which sets out the basic rights to which every human should be entitled. 

  • Controversial issue, in 2009 National Human Rights Consultation Committee recommended the Federal govt introduce a Federal Human Rights Act enshrining human rights in Australian legislation. The Australian government in 2010 said such legislation would not be introduced.

• Australia is the only western democracy without a Charter or Bill of Human Rights. 

Charter of Rights - for

• Centralise HR: HR are scattered throughout statutes, common law and the Constitution. 

• We do have problems with human rights  - asylum seekers, mandatory detention , as well as the issue of the homeless where people can’t access their rights. 

• It would make Australia’s standards on human rights clearer and promote recognition of hr, morally right

• Improve our international reputation, UN Human Rights Council 2011 recommends we have one, also we are the only western democracy without a Charter of Rights

• A charter of right would give people the right to ENFORCE their rights in Court

Charter of Rights - Against

• Lack of responsiveness - if constitutional really hard to change → VOICE failing, US constitution being out of date

• A C of R does not necessarily ensure HR are better protected e.g. Zimbabwe has one and that hasn’t stopped the HR abuses.

• Making a list of rights could limit our rights to whatever is on the list

• C of R could clog up our Court system[amount of litigations] could clog up the system.