HUMAN RIGHTS - Part 1 - Nature & Development

Defining the Nature of Human Rights

• Natural Law Rights: These are rights viewed as inherent to human existence, universal, and existing independently of any government or official recognition. Individuals possess these rights simply by virtue of being human, rather than having them granted by a legislative act.

• Positive Law Rights: These rights exist only because they have been written into law by a government or a legal system. Consequently, they are subject to change or removal by the legal system that created them.

• Moral Rights vs. Legal Rights: Moral rights are those believed to be owed to all individuals regardless of the status of existing law. Legal rights are those that are enforceable within a domestic or international legal framework because they have been formally recognized.

• Four Essential Features of Human Rights:

  • Universal: They apply to every person, everywhere in the world.

  • Inalienable: They cannot be taken away from an individual, nor can an individual voluntarily give them up.

  • Indivisible: All human rights are of equal importance; one cannot be sacrificed to protect another.

  • Interrelated: Rights are mutually dependent and reinforce one another. For example, the right to education is necessary to support the right to work.

Historical Development through Constitutional Documents

• Magna Carta ($1215$): This document was forced upon King John by rebel barons in England following periods of heavy taxation and arbitrary punishment. It established the principle that even the monarch is subject to the law and provided an early guarantee against imprisonment without lawful judgment. It represents the earliest formal legal limit on absolute power.

• English Bill of Rights ($1689$): Passed by the British Parliament following the Glorious Revolution ($1688$) and the removal of King James II, who had ruled without parliamentary consent. It limited royal power, guaranteed free speech and free elections within Parliament, and banned "cruel and unusual punishment." This language later served as a foundation for the United States Bill of Rights.

• US Declaration of Independence ($1776$): Written during the American colonies' break from British rule, it declared that all men possess "unalienable rights" to life, liberty, and the pursuit of happiness. It introduced the radical idea that government exists solely to protect these rights and that rights exist above and before the state.

• Constitution of the USA ($1787$): This document established a structural system of government featuring the separation of powers between the legislature, executive, and judiciary. It utilized a system of checks and balances to prevent any single branch from becoming powerful enough to threaten individual rights.

• French Declaration of the Rights of Man and of the Citizen ($1789$): Adopted during the French Revolution after the overthrow of the absolute monarchy. It declared rights to be natural, inalienable, and sacred, while asserting the principle of equality before the law as a rejection of the feudal system of inherited privilege.

• US Bill of Rights ($1791$): These are the first ten amendments to the United States Constitution. They were added because several states refused to ratify the original Constitution without explicit guarantees for rights. These amendments entrenched freedoms of speech, religion, and fair trial directly into binding law.

• Developmental Pattern: Human rights did not develop as a single, planned concept. Instead, they evolved reactively in response to specific abuses of power, such as overreaching monarchs, colonial rulers, or oppressive feudal systems.

The Evolution of Human Rights Struggles

• The Abolition of Slavery:

  • The British Slave Trade Act ($1807$) banned the trade of enslaved people throughout the British Empire.

  • The Slavery Abolition Act ($1833$) abolished the institution of slavery itself, taking effect in $1834$.

  • In the United States, the $13$th Amendment ($1865$) abolished slavery following the Civil War ($1861-65$) and Abraham Lincoln's Emancipation Proclamation ($1863$).

  • The League of Nations' Slavery Convention ($1926$) was the first global treaty committing states to end slavery and the slave trade.

  • The Modern Slavery Act $2018$ (Cth) in Australia signifies that the struggle continues, targeting forced labor and trafficking in contemporary supply chains.

• Trade Unions and Labour Rights:

  • The Industrial Revolution, beginning in the $1760$s, led to dangerous factory conditions, excessive hours, and child labor, which catalyzed the union movement.

  • The British Combination Acts ($1799-1800$) initially banned worker organization but were repealed in $1824$, legalizing unions.

  • The Tolpuddle Martyrs ($1834$): Six English farm workers were arrested and transported to Australia for forming a trade union. Public outrage over their treatment became a turning point for the legitimacy of unionizing.

  • The International Labour Organization (ILO) was founded in $1919$ under the Treaty of Versailles as the first international body for labor rights.

  • The Harvester Judgment ($1907$) in Australia established the "fair and reasonable" basic wage, marking an early recognition of economic rights.

• Universal Suffrage and Education:

  • British Reform Acts ($1832$, $1867$, $1884$) expanded male voting rights. The Representation of the People Act ($1918$) granted the vote to women over $30$, and equal rights were achieved in $1928$.

  • The Commonwealth Franchise Act ($1902$) in Australia granted federal voting rights to most women but explicitly excluded most Aboriginal and Torres Strait Islander people.

  • Indigenous Australians were not guaranteed the federal vote until the amendment of the Commonwealth Electoral Act in $1962$.

  • The $1967$ referendum in Australia passed with over $90\%$ "Yes," allowing the Commonwealth to make laws for Indigenous people and include them in the census by removing section $127$ and amending section $51(xxvi)$.

  • In the US, the $19$th Amendment ($1920$) granted women the vote, and the Voting Rights Act ($1965$) targeted racial barriers to voting.

  • Education rights developed alongside labor reforms; compulsory schooling (e.g., Britain's Education Acts of $1870$ and $1880$) was motivated partly to combat child labor.

Self-Determination and Indigenous Rights

• Self-Determination Foundations:

  • The UN Charter ($1945$), Article $1(2)$, lists respect for self-determination as a founding purpose of the United Nations.

  • UNGA Resolution $1514$ ($1960$), the Declaration on the Granting of Independence to Colonial Countries and Peoples, drove post-WWII decolonization in Africa and Asia.

  • Article $1$ of both the ICCPR and ICESCR ($1966$) recognizes self-determination as a right belonging to "all peoples."

• Indigenous Australian Challenges and Current Data:

  • Life Expectancy: Indigenous males born $2020-22$ have an average life expectancy of $71.9$ years, and females $75.6$ years. This compared to $80.6$ and $83.8$ years for non-Indigenous Australians represents a gap of approximately $8-9$ years.

  • Out-of-Home Care: In $2025$, $52.2$ per $1,000$ Indigenous children were in out-of-home care, a rate that is currently rising.

  • Early Childhood: In $2024$, only $33.9\%$ of Indigenous children were assessed as developmentally on track when starting school.

  • Youth Justice: On an average day in $2024-25$, $25.7$ per $10,000$ Indigenous children aged $10-17$ were in detention.

  • Suicide: In $2024$, suicide was the leading cause of death for First Nations people aged $15-39$, with a rate of $33.9$ per $100,000$.

  • Employment: This is a rare area of improvement, with employment for those aged $25-64$ on track to reach the $62\%$ target by $2031$.

  • Legal Milestones: The Native Title Act $1993$ followed the Mabo decision. Australia initially voted against the UN Declaration on the Rights of Indigenous Peoples ($2007$) but endorsed it in $2009$. The unsuccessful $2023$ referendum on an Indigenous Voice to Parliament demonstrates that self-determination remains an unresolved issue.

Three Generations of Human Rights

• First Generation (Civil and Political Rights): Responded to Enlightenment ideals and historical monarchical abuses. These are codified in the ICCPR ($1966$, in force $1976$). During the Cold War, Western/capitalist states prioritized these rights, focusing on individual freedom from state interference.

• Second Generation (Economic, Social, and Cultural Rights): Responded to inequalities from industrialization and the labor movement. Codified in the ICESCR ($1966$, in force $1976$). The Soviet/Eastern Bloc pushed for these, prioritizing collective welfare and state-provided services. This ideological split led to the creation of two separate covenants rather than one single treaty following the UDHR.

• Third Generation (Collective/Solidarity Rights): Emerged in the $1970$s-$80$s through decolonization, addressing global problems like development, the environment, and peace. Key instruments include the Stockholm Declaration ($1972$), the Declaration on the Right of Peoples to Peace ($1984$), and the Declaration on the Right to Development ($1886$).

Formal International Statements and Instruments

• Universal Declaration of Human Rights (UDHR, $1948$): Adopted by the UN General Assembly on $10$ December $1948$ in response to Holocaust atrocities. It is a non-binding declaration of aspirations containing $30$ articles, including the right to life and liberty (Art $3$), freedom from slavery/torture (Arts $4-5$), equality (Art $7$), and education/standard of living (Arts $23-26$). Much of it is now considered customary international law.

• International Covenant on Civil and Political Rights (ICCPR, $1966$): A binding treaty covering rights such as life (Art $6$), freedom from torture (Art $7$), and fair trial (Art $14$). States must respect these rights immediately upon ratification without the excuse of "progressive realization." It is monitored by the UN Human Rights Committee. The Optional Protocol allows individual complaints, such as in Toonen v Australia ($1994$).

• International Covenant on Economic, Social and Cultural Rights (ICESCR, $1966$): A binding treaty covering the right to work (Art $6$), social security (Art $9$), housing (Art $11$), health (Art $12$), and education (Art $13$). Unlike the ICCPR, it includes a "progressive realization" clause, meaning states must work toward these rights using their maximum available resources. It is monitored by the Committee on Economic, Social and Cultural Rights.

• Other Key Conventions:

  • ECPHRFF ($1950$): Regional European treaty that established the European Court of Human Rights.

  • CAT ($1984$): Prohibits torture absolutely with no exceptions for war or emergency.

  • ICERD ($1965$): Outlaws racial discrimination and hatred; forms the basis for Australia's Racial Discrimination Act $1975$.

  • CROC ($1989$): Rights specific to children, focusing on survival, development, and the right to be heard (Art $12$). It is the most widely ratified human rights treaty.

  • CEDAW ($1979$): An international bill of rights for women addressing discrimination in all spheres of life.

State Sovereignty as a Barrier to Human Rights

• South Sudan: Gained independence in $2011$ but has faced civil war since $2013$. A weak, contested government struggles to enforce human rights standards despite nominal agreement. The UN peacekeeping mission (UNMISS) is limited by sovereignty concerns.

• Myanmar: The military (Tatmadaw) seized power in a $2021$ coup and has committed alleged genocide against the Rohingya minority since $2017$. The junta rejects international jurisdiction on sovereignty grounds, highlighting the tension between state autonomy and the "Responsibility to Protect."

• Thailand: A constitutional monarchy where the military frequently intervenes (e.g., $2014$ coup). Strict lèse-majesté laws criminalize criticism of the monarchy, with sovereignty and cultural sensitivity cited to justify limits on freedom of expression.