Legal Studies Notes - Human Rights

Human Rights: Nature and Development

• Definition: Fundamental entitlements for every human simply by being human.

• Characteristics:

  • Universal: Applicable to all.

  • Indivisible: Equally important.

  • Inherent: Entitled from birth.

  • Inalienable: Cannot be taken away.

  • Interdependent: Rights are linked.

• Types of Rights:

  • Collective: Environmental, self-determination, peace rights.

  • Economic, Social, and Cultural (2nd Gen): Material and cultural well-being, e.g., right to education; UDHR (1948) and ICESCR (1966).

  • Civil and Political (1st Gen): Protection from arbitrary power, e.g., freedom of speech; UDHR (1948) and ICCPR (1966).

Concepts of Human Rights

• Positivism: Laws valid if enacted by authority; morals irrelevant.

• Natural Law Doctrine: Humans have fundamental, inalienable freedoms.

• State Sovereignty: Governing without external influence; international law should not interfere.

Developing Recognition of Human Rights

• Abolition of Slavery:

  • Definition: Individuals treated as property and exploited.

  • Historical Context: Transatlantic slave trade, approx. 12 million Africans to Americas.

  • International Responses: Slavery Convention 1926, Convention of the Suppression of the Traffic in Persons 1949, UDHR (1948) Article 4, ICCPR (1966) Article 8.

  • Current Enforcement Issues: Forced labor in North Korea, modern slavery.

  • R v Tang (2008): Tang guilty of possessing slaves in Australia.

• Trade Unionism and Labour Rights:

  • Definition: Rights at work like safety, wages, unionization.

  • Historical Context: Response to poor conditions during the Industrial Revolution.

  • International Responses: ILO conventions, ICESCR (1966), UDHR (1948) Articles 23 & 24.

  • Current Enforcement Issues: Imprisonment of trade union members in Iran.

• Universal Suffrage:

  • Definition: Right of all citizens to vote, regardless of status.

  • Historical Context: Gradual expansion of voting rights in Western nations.

  • International Responses: UDHR (1948) Article 21, ICCPR and ICESCR.

  • Current Enforcement Issues: Denial of voting rights to religious communities in Pakistan.

• Universal Education:

  • Definition: Equal opportunity in education for all.

  • Historical Context: Education initially for aristocracy; expanded with industrialization.

  • International Responses: UDHR (1948) Article 26, ICESCR Articles 13/14, Convention on the Rights of the Child.

  • Current Enforcement Issues: Taliban ban on girls' secondary education in Afghanistan.

• Self-Determination:

  • Definition: Right of people to determine their governance and political status.

  • Historical Context: Related to Nationalism; colonial exploitation.

  • International Responses: UN Charter (1945) Article 1, UDHR (1948) – Article 15, ICCPR (1976) Article 1, Declaration on the Rights of Indigenous Peoples (2007).

• Environmental Rights:

  • Definition: Rights to a clean, healthy, and sustainable environment.

  • Focus: Climate change and its impact on human rights.

  • International Responses: Kyoto Protocol (1997), Paris Agreement (2015).

• Peace Rights:

  • Definition: Citizen expectation for government to maintain peace and eliminate war.

  • Focus: Preventing atrocities of world wars; promoting peaceful dispute resolution.

Formal Statements of Human Rights

• International Bill of Rights:

  • Universal Declaration of Human Rights (UDHR) (1948): Soft law, influential.

    • Inspired conventions, treaties, and declarations.

    • Article 1: All human beings are born free and equal in dignity and rights.

    • Article 9: No one shall be subjected to arbitrary arrest, detention or exile.

    • Article 26: Everyone has the right to education.

  • International Covenant on Civil and Political Rights (ICCPR) (1976): Hard law, binding.

    • Article 1: All peoples have the right to self-determination.

    • Article 6: Every human being has the inherent right to life.

    • Article 18: Everyone shall have the right to freedom of thought, conscience and religion.

  • International Covenant on Economic, Social and Cultural Rights (ICESCR) (1976): Hard law, binding.

    • Article 3: The equal right of men and women to the enjoyment of all economic, social and cultural rights.

    • Article 6: The right to work.

    • Article 8: The right to everyone to form trade unions and join the trade union of his choice.

• Other Treaties/Documents:

  • Geneva Convention (1949): Conduct of war, treatment of non-combatants.

    • Article 3: The wounded and sick shall be collected and cared for.

    • Article 18: Civilian hospitals organised to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack.

  • Convention on the Prevention and Punishment of Genocide (1948).

    • Breached during the Rwandan Genocide 1994.

Promoting and Enforcing Human Rights in the International Community

• State Sovereignty: Nation's ability to govern itself without external interference.

• The United Nations:

  • Roles: Introducing documents, peacekeeping, investigating.

  • General Assembly: Forum for discussions and recommendations.

  • Security Council: Preservation of peace and security.

  • Human Rights Council: Examines violations and makes recommendations.

  • Office of the High Commission for Human Rights: Promotes and protects human rights.

  • Councils: Economic and Social Council.

  • Sustainable Development Goals.

• Courts, Tribunals, and Independent Statutory Authorities:

  • International Criminal Court (ICC): Court of last resort for human rights crimes.

  • International Court of Justice: Hears disputes between states.

    • Regulated under the ICJ Statute 1946.

    • Article 94: Each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

  • Ad Hoc Tribunals: Temporary courts for specific breaches.

  • Independent Statutory Authorities: Monitor compliance of signatory states.

• Intergovernmental Organizations (IGOs):

  • Influence compliance; can sanction members.

Promoting and Enforcing Human Rights through Non-Legal Responses

• Non-Government Organizations (NGOs):

  • Contribute to discussion and intervene humanely; rely on donations.

• Media:

  • 'Naming and shaming' violators; raises awareness.

Promoting and Enforcing Human Rights in Australia

• Incorporation of human rights into domestic law (scattered and fragile in statue law).

• The roles of:

  • Constitution, including division of powers and separation of powers.

  • Charter of Rights (arguments for and against).

  • Common law.

  • Statute law.

  • Courts and tribunals.

  • Non-government organizations:

• Key concepts:

  • Separation of Powers: Legislature, Executive, Judiciary.

  • Division of Powers: Exclusive (federal) and Residual (state).

  • Rights in the Constitution: Express and Implied.

Contemporary Issue Which Illustrates the Promotion and Enforcement of Human Rights

• Child Soldiers: Persons aged under the age of 18 who participate (directly or indirectly) in armed conflict as part of an armed forced or support role.

• LEGAL RESPONSES:

  • UN Security Council: UN Peace Keeping Forces have a role of protecting the rights and welfare of children.

  • International Documents:

    • Geneva Convention 1949: set a minimum age for recruitment or use in armed conflict at 15 years old.

    • Convention on the Rights of the Child 1989.

    • Optional Protocol to the Rights of the Child on the Involvement of Children in Armed Conflict 2000

  • Intergovernmental Organisations:

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

  • International Criminal Court: Rome Statue 2002: Their role is to prosecute those individuals involved in the recruitment of child soldiers.

• NON - LEGAL RESPONSES:

  • NGOs: The ILO and the UN Children’s Fund (UNICEF) research and provide recommendations to the UN.
    Invisible Children launched Kony 2012 and are actively involved in the rescue of child soldiers through the use of warning systems.
    The Coalition to Stop the Use of Child Soldiers is a joint venture between several NGOs including Amnesty International and Human Rights Watch to assist in prevention, rehabilitation, reintegration, monitoring and research, and lobbying for governments to become signatories to the Optional Protocol 2002.

• Media: Kony 2012 raised public awareness and gave way for troops to be sent in, but were ineffective in leading to an arrest.