Legal Studies Notes - Human Rights

Flashcards

Human Rights

Fundamental entitlements of every human being simply because they are human, such as education, speech, and shelter.

Characteristics of Human Rights

Universal, indivisible, inherent, inalienable, and interdependent.

Collective Rights

Human rights that have emerged in recent years and have a generational impact, including environmental rights, self-determination, and peace rights.

State Sovereignty

The ability of a nation to govern itself independently, free from external interference in its affairs.

• protection of human rights undermines this idea

• nations may not sign a document, enter a reservation, or breach a document

Economic, Social, and Cultural Rights

Rights concerned with material and cultural wellbeing, such as the right to social security, fair work conditions, and education.

Civil and Political Rights

Rights that protect the individual from arbitrary power, such as freedom from slavery, equality before the law, and freedom of expression.

Positivism

The legal philosophy that laws are valid simply because they are enacted by authority, without regard to morals or human rights protection.

Natural Law Doctrine

The philosophy promoting that humans have fundamental freedoms that cannot be taken away.

Slavery

A situation where individuals are treated as property, bought and sold, and exploited for personal or commercial gain.

Slavery - Domestic and International Responses

Declaration on the Rights of the Man and the Citizen 1794 - France was first to pass legislation

Slavery Convention 1926 - first international response

Convention of the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 1949 – in response to WW2

UDHR (1948) - Article 4

ICCPR (1966) - Article 8

R v Tang 2008

A landmark Australian case that addressed human trafficking, highlighting the legal responsibilities of individuals and governments in combating slavery and exploitation.

• Purchased five Thai women to work in debt-bondage conditions in a legal brothel.

• Found guilty of 5 counts of possession of a slave under Australia’s Criminal Code Act (Cth) - 9 years imprisonment.

Trade Union

An organization of workers created to preserve and further their rights and interests.

Labour Rights

Rights at work, including the rights to safe working conditions, minimum wages, paid leave, and the right to join a trade union.

Labour Rights - Domestic and International Responses

Trade Union Act 1871 (UK)

Shipwrights Union (1892) - first Aus trade union

Labour Organisation (ILO) - established in 1919 to improve working conditions such as working hours, wages, OHS, and equal pay. Plays crucial role in promoting and monitoring labour rights.

ICESCR (1966)

UDHR (1948) - Article 23 and 24

Trade Unionism - Problems with Enforcement Example

Syndicate of Workers of Tehran and Suburbs Bus Company

• Sentenced to 6 years imprisonment for involvement in a trade union

• Breaches Article 8 of the ICESCR (1966)

Universal Suffrage

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

Universal Suffrage - Domestic and International Responses

Representation of the People Act 1918 (UK) - granted male suffrage

Australian Constitution Act (1842) - allowed two thirds of the Legislative Council to be elected by men who owned property

1858 - NSW granted universal male suffrage

1893 - New Zealand granted female suffrage

Cth Electoral Act 1918 - universal suffrage achieved in 1962 for all Australians including First Nations peoples.

UDHR (1948) - Article 21

Universal Access to Education

The ability of all people to have equal opportunity in education, regardless of their social class, race, gender, sexuality, ethnic background or physical and mental disabilities.

Universal Education - Domestic and International Responses

Education Act 1970 (UK) - free elementary schooling

Public Schools Act (1866) (NSW) - established state elementary schools

UDHR (1948) - Article 26 - education should be free and compulsory

ICESCR (1976) - Article 13/14 - right to education between 6 and 15

Self-Determination

The right of people to determine how they will be governed, or their political status based on territory or national grouping.

Self Determination - Domestic and International Responses

1999 - Timor-Leste voted in favour of becoming independent of Indonesia.

2009 - Rudd government formally endorsed the UN Declaration on the Rights of Indigenous Peoples (2007)

Treaty of Versailles (1919)

UN Charter (1945) - Article 1

UDHR (1948) - Article 15

ICCPR (1976) - Article 1

Environmental Rights

The rights to a clean, healthy and sustainable environment.

Environmental Rights - Domestic and International Responses

African Charter of Human and Peoples’ Rights - Article 23, right to a satisfactory environment

American Convention on Human Rights (1988) - obligation of state parties to protect, preserve, and improve the environment

Kyoto Protocol (1977) - reduction of greenhouse gases in 41 countries to below 5.2% 1990 levels

UN Climate Change Conference (2015) - produced the Paris Agreement, plan to stabilise global warming to 2 degrees

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.

Peace Rights - Domestic and International Responses

Charter of the UN (1945) - settle international disputes by peaceful means

Treaty of the Non-Proliferation of Nuclear Weapons (1968) - prohibits buying/building of nuclear weapons

Declaration on the Rights of Peoples to Peace (1984)

ICCPR (1976) - Article 6, right to life

International Bill of Rights

Universal Declaration of Human Rights (1948)

International Covenant on Civil and Political Rights (1976)

International Covenant on Economic, Social and Cultural Rights (1976)

Universal Declaration of Human Rights (UDHR)

Adopted by the UN in 1948 to created human rights for every individual.

• 30 articles - right to life, liberty, education, work

• in response to atrocities of WW2 e.g., genocide

• soft law - non-binding

Article 26 - right to education.

International Covenant on Civil and Political Rights (ICCPR)

A 1976 UN treaty detailing the civil and political rights of individuals, creating an obligation on states to respect these rights.

• 53 articles - right to life, freedom of movement, freedom of religion

• ratified by 173 countries

• overseen by UN Human Rights Committee

Article 1 - right to self-determination.

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

A 1976 UN treaty related to economic, social and cultural rights of individuals, creating an obligation on states to work towards granting these rights.

• 31 articles - labour right, standard of living, education

• overseen by UN Committee on Economic, Social and Cultural Rights

• ratified by 170 countries

Article 6 - right to work

Article 8 - right to form and join trade unions

Criteria of a Nation State

defined borders

government

capacity to enter international relations

permanent population

UN General Assembly

The body of the UN that represents all member states and acts as the main forum for international discussions, deliberations, declarations and recommendations.

UN Security Council

The chief decision-making arm charged with preservation of international peace and security.

• legally binding resolutions, military action, sanctions, peacekeeping operations

• P5 (China, Russia, France, US, UK) have veto power to refuse an action

Rwandan Genocide 1994 - UNSC

• 1 million Tutsis were killed by the Hutus

• UNAMIR was launched in 1993 to monitor a cease fire agreement - mission was limited to investigating breaches

• Troops could only use force in self-defence (Resolution 872) - UNSC was ineffective

• Rwanda breached the Convention on the Prevention and Punishment of the Crime of Genocide (1948) despite being a signatory

Human Rights Council

Examine situations of human rights violations and make recommendations for action back to the UN General Assembly.

• conduct the Universal Periodic Review every 4 years on all UN member states - relies on state reporting which can create bias.

Office of the High Commission for Human Rights

An administrative agency under the UN Secretariat that works to promote and protect human rights contained in the UDHR and international law.

• Headed by the High Commissioner for Human Rights.

International Criminal Court (ICC)

The ICC is a permanent international ‘court of last resort’ used if the national judicial system fails to investigate and prosecute, or if efforts to are not genuine.

• relies on domestic government to make arrests

• hears cases relating to international crimes, e.g., genocide

• seperate from the UN

• Rome Statute 2002 - sets out ICC jurisdiction

  Russia v Ukraine - Russia is not a signatory to the Rome Statue, unlikely Putin will face justice for overseeing the abduction of Ukrainian children

International Court of Justice (ICJ)

Its two roles are to hear and judge disputes between states and to issue advisory opinions on matters of international law.

• ICJ Statute (1946)

Rwanda v Congo (2006)

• Congo alleged Rwanda had launched armed attacks across the border, breaching the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

• Rwanda was not a signatory so could not be prosecuted

Ad Hoc Tribunals

Temporary courts set up the Security Council in the country where the breach of human rights has occurred, to prosecute individuals who commit war crimes.

• International Criminal Tribunal For Rwanda (ICTR 1994) - 93 individuals were indicted and 62 were sentenced.

Prosecutor v Kambanda (1988)

• Former Rwanda PM pled guilty to 6 counts of genocide and crimes against humanity.

• ICTR sentenced him to life imprisonment.

Independent Statutory Authorities

Human rights committees are created in accordance with the provisions of the treaty they monitor.

Toonen v Australia (1992):

• Complained to the UN Human Rights Committee that Tasmania laws criminalising consensual sex between adult males were in violation of his right to privacy (Article 17 of the ICCPR).

• The Committee found the law was unjustified and Tasmania eventually abolished the law.

Intergovernmental Organisations (IGOs)

Regional IGOs are international institutions made up of member states that meet regularly and can have great influence in encouraging compliance on human rights matters.

African Union (AU):

• Established in July 2002 - includes almost all African states (54 members)

• Aims to bring about security and peace in Africa, promoting good governance, democratic institutions, and human rights

Non-Government Organizations (NGOs)

Organizations that are independent of and without representation of any government, which contribute to international discussion and provide humanitarian intervention.

• Promote and protect human rights

• Rely on donations and role is informal

Invisible Children:

• Rebuilt schools in Uganda to reintegrate children who fled from the Lord’s Resistance Army

• Established early warning systems to protect communities from abductions

• Created a documentary that raised around $13 million

Media

Plays a crucial role in the ‘naming and shaming’ of governments and human rights violators by investigating, reporting and exposing instances of human rights abuse.

• Raise awareness

• Highly accessible

• Advocate for change

• Lack legal enforceability

Kony 2012:

• Raises awareness by providing first-hand accounts of the experiences of child soldiers.

• Uses stats about the severity of the issue.

• 103 million views on YouTube

Separation of Powers

The separation of the three branches of government including the Legislature (parliament), the Executive (government), and the Judiciary (courts).

• Upholds rule of law

• Prevents arbitrary power

Mabo v Queensland (1992):

• Courts responded before the parliament.

• Native Title rights were created through the judiciary rather than the legislature.

Division of Powers

The Constitution defines how legislative power is divided between the Commonwealth and state parliaments.

• Exclusive Power - federal (section 51), e.g.m marriage

• Residual Power - state, e.g., education and transport

Charter of Rights

A Bill of Rights aims to restrict the power of future parliaments to reduce or infringe certain rights.

• Would bring Australia into line with other democracies, reflects basic Australian values, protects the marginalised, High Court interpretation is too limited

• Major economic cost, referendum is needed, can’t keep up with changing values of society

Express and Implied Rights

Express Rights - freedom religion (116), right to vote in Cth elections (41), right to trial by jury (80)

Implied Rights - High Court judges create binding precedents based on their interpretations

Common Law

Common law in Australia is the body of law made by judgements of the courts.

• presumption of innocence, burden of proof, right to a fair trial

• rights can be removed by legislation

• set precedents - courts are adaptative when responding to change

Dietrich v Queen (1999):

• Found guilty of indictable drug offences in first trial, appealed on the basis he did not have legal representation which was successful

• Relied on as a precedent - a lack of legal representation can only be used as a defence if it is an indictable offence, and the individual has appealed after being found guilty after the first trial.

Statute Law

Statute law is most effective way in which we incorporate and protect human rights.

• SIGN → RATIFY → ENACT (dualist system)

• Statutes can be removed by a later Act of parliament

• e.g., Racial Discrimination Act 1975 (Cth)

Migration Act 1958 (Cth):

• Turn back the boat policy does not comply with the Convention Relating to the Status of Refugees which prohibits turning away someone seeking asylum

• Mandatory detention infringes Article 31 of Refugee Convention

Role of Courts and Tribunals in Australia

International Tribunals - can influence Australian law even when there is no domestic legislation enacting the treaty.

• Aus citizens can make complaints to the UN, e.g., Toonen v Australia (1992)

High Court - must consider international law when passing decisions in human rights cases.

• Set binding precedents, mechanism for responding to issues, e.g., Mabo V QLD 1992

Australian Human Rights Commission - oversees discrimination issues, statutory body.

• investigate and review complaints and human rights breaches, conduct public inquiries, promote awareness, e.g., Bringing Them Home Report 1997

Role of NGOs in Australia

Main role is to lobby governments and publicise human rights concerns in Australia.

• Lack legal standing

• Provide humanitarian support/aid

• Reliant on donations

Amnesty International: raises awareness about the need for Australia to change its offshore detention policy - hold rallies, vigils, forums to lobby for Australia to change its legislation.

Child Soldiers

Child soldiers are persons aged undera 18 who participate (directly or indirectly) in armed conflict as part of an armed forced or support role.

• Contemporary form of slavery

• Recruited by government forces, parliaments, and rebel groups

• 200,000-300,000 children serving in armed conflict

• Sierra Leone, Congo, Uganda, Iraq, and Sudan have the largest number of child soldiers.

Child Soldiers - Security Council

In 2001, the SC deployed Child Protection Advisers under Resolution 1379 - was purely an advisory response.

• Engage in dialogue, monitor and report violations against children, raise awareness about child protection, deliver mission-wide training, and advise leadership.

• BBC News 2017 - five peacekeepers were accused of acts of sexual abuse and exploitations including against minors in Congo.

Child Soldiers - International Documents

Geneva Convention 1949 - set minimum age at 15.

Convention on the Rights of the Child 1989 - restated the minimum age, discourages recruitment of under 18 year olds, requires minimisation of harm.

• No power over non-signatories, not specific to the issue of child soldiers.

Optional Protocol to the Rights of the Child on the Involvement of Children in Armed Conflict 2000 - sets the minimum compulsory age at 18, raised the absolute minimum voluntary age to 15, signed by 130 countries, strengthens CROC as it is specific.

• Lack responsiveness and some countries have entered reservations.

Child Soldiers - IGOs

African Union

• Developed the African Charter on the Rights and Welfare of the Child (1990)

• Put together 5000 troops in 2012 to track down Joseph Kony in Sudan and other militia leaders

• AU Auction Plan - legislative reforms, monitoring military forces, reintegration of child soldiers.

Child Soldiers - ICC Case

Prosecutor v Lubanga (2012):

• A former commander in the Patriotic Forces for the Liberation of Congo was investigated for conscription of 3000 child soldiers and other crimes against humanity.

• Trial commenced in 2009 → found guilty in 2012 with a 15-year imprisonment sentence.

• Sentence was lenient.

Child Soldiers - NGOs

Invisible Children:

• Rebuilt schools in Uganda to reintegrate child soldiers.

• Established early warning systems so communities can escape before abductions occur.

• Raised $13 million through their documentary, Kony 2012.

Child Soldiers - Media

Kony 2012:

• Raised public awareness, informed the public about the issue.

• Influenced a military response, leading to Kony’s indictment to the ICC in 2005.

• 103 million views on YouTube.

• No legal enforceability.