HUMAN RIGHTS

Themes and Challenges:

•the changing understanding of the relationship between state sovereignty and human rights 

•issues of compliance and non-compliance in relation to human rights 

•the development of human rights as a reflection of changing values and ethical standards 

•the role of law reform in protecting human rights 

• the effectiveness of legal and non-legal measures in protecting human rights.  

1. The nature and development of human rights:

The definition of human rights: 

-         A right is something to which you are entitled. 

-         There are moral rights, customary rights, legal rights, human rights, domestic right and international rights. 

-         Human rights are fundamental rights. They are things to which every human being is entitled for just being a human being. 

●     Universal:​ To be enjoyed by all individuals regardless of their nationality, gender, race or status.

●     Indivisible:​ That is, all human rights are equally important.

●     Inherent: The birthright of all humans and are to be enjoyed by all​        people simply by reason of their humanity.

●     Inalienable: People cannot agree to give them up or have them​          taken away. 

-         The indivisibility and universally of human rights is recognised in the Charter of the United Nation 1945 ​and in the Universal Declaration of​            Human Rights 1948.  

Types of human rights: 

There are three types of human rights:

Civil and Political Rights 

Civil and political rights are also called ‘first generation’ rights, because they were the first to be recognised historically.

-         Civil rights are entitlements belonging to all humans and are to do with being a free citizen of a nation. (For example freedom of thought and freedom of religion).

-         Political rights are entitlements belonging to all humans and are to do with full participation in government. (For example the right to vote). 

Civil rights and political rights both protect the individual from the arbitrary exercise of power by the state. These rights are set out in Article 3 to 21 of the Universal Declaration of Human Rights 1948 ​and in the International Covenant​         of Civil and Political Rights (ICCPR) 1966.

These rights are: 

-         The right of life, liberty and security of person

-         The right to freedom from slavery 

-         The right to freedom from torture or cruel, inhuman treatment

-         The right to self-determination

-         The right to recognition everywhere as person before the law

-         The right to equality before the law

Economic, Social and Cultural Rights: 

Known as second generation rights, they are concerned with the material and cultural wellbeing of people. They usually require government action. 

-         Economic rights are the rights concerned with the production development and management of material for the necessities of life.

-         Cultural rights are the rights which assist in preserving and enjoying one’s cultural heritage.

-         Social rights are rights that give people security as they live and learn together, such as the rights involving schools and other institutions. 

These rights are set out in Articles 23 to 27 of the Universal Declaration of​      Human Rights 1948​ and in the International Covenant on Economic, Social and​   Cultural Rights (ICESCR) 1966. 

These rights are: 

-         Social security (social right)

-         Work, and just and favourable conditions of work

-         Equal pay for equal work

-         Join and form trade unions 

-         Rest and leisure

-         Education 

-         An adequate standard of living

-         Enjoyment of the highest sustainable standard of physical and mental health

-         Participate in the cultural life of the community 

Environmental rights, peace rights and the right to self-determination:

-         These collective rights are third generation rights which do not necessarily belong to the individual, but rather to “the people”.

-         The right to self-determination is the collective right of peoples to govern themselves.

-         The status of third generation rights in international is not yet clear, although some have been recognised at least partially in various international treaties and declarations. Examples:​ Kyoto Protocol 1992 & Declaration on the Rights of Indigenous Peoples 2007

Developing recognition of human rights:

-         The termed emerged recently, around the 1940’s, however has been a concept rooted in ancient times through such things like the notion of natural law. 

-         Natural law doctrine: The philosophy of natural law is based on the idea that there exist certain ‘natural’ laws which apply to all humanity and which maintain the basic dignity of human beings. Was developed in Ancient Greece by philosophers such as Plato and Socrates.

-         Historical constitutional documents: Human rights have been gradually recognised through various documents which have become part of the constitutions of individual nations and international agreements. The central ones are:

●     The Magna Carta 1215:  The Magna Carta included the principles​         that: every citizen has a right to freedom, anyone accussed of a crime must be brought before the courts, there must be equality of all before the laws and the writ of habeas corpus (cannot be imprisoned without good reason). 

●     Declaration of Rights 1689: Expressed clear the principles in the​   

Magna Carta. Primary purpose was to establish the supremacy of

parliament over the king. Also established some individual rights like freedom of speech. 

●     American Declaration of Independence 1776: (​ “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”)

●     French Declaration of the Rights of Man and the Citizen 1789: (​ “All men are born and remain free and equal in rights.”)

Movements recognising human rights:

-         Abolition of slavery: Right to freedom from slavery is recognised in​        Article 8 of the ICCPR. It’s international development is:

-         Trade Unionism and labour rights:  ​A trade union is an association of wage earners which exist in order to maintain and improve the working conditions of its members. They developed to fight for what are now recognised as fundamental human rights, listed in the ICESCR 1966 such as: 

●     The right to enjoyment of just and favourable work conditions (Article 7)

●     The right to form and join trade unions (Article 8) ● The right to an adequate standard of living (Article 11) ● Articles 23 and 24 of the UNHR 1948.

●     The International Labour Organisation (ILO) was formed in 1919, an intergovernmental agency of the League of Nations, to discuss social reforms and implement them – the ILO still exists but now is an agency under the UN.  

-         Universal suffrage: ​The right of all adults to vote in government elections. Recognised as the right to self-determination in Article 1 of both the ICCPR and the ICESCR.  This is a concept that has undergone gradual development.

-         Universal Education: ​The right to free and compulsory education for all children. The right to education is enshrined in Articles 13 and 14 of the ICESCR.

●     Education Act 1870 (UK)​ by 1880 all children under the age of 15 were required to attend school, with free and secular public instruction

●     In NSW, ​Public Schools Act 1866 (NSW)​ was introduced to establish a system of state elementary schools throughout the state

●     Public Instruction Act 1880 (NSW)​ saw the government taking control of all the Church-run schools (except the Catholic Church) and making education free, secular and compulsory.

●     Compulsory for all Australians to attend school from at least the ages of

6 to 15 (since 2010 in NSW 17), with 99% literacy rate

●     Article 26 UDHR: “children’s elementary education should be compulsory and be made widely available after that”

●     Millennium Development Goals 2001 (all member states of the UN agreed): all children in the world will have a minimum education up to the end of primary level by 2015 (however, 130 million children aged between 6 and 11 still do not have access to primary education)  

-         Self Determination: ​The right of peoples to decide their own political status and to choose their own form of government. 

●     A collective human right, most clearly first established with the 1776 US Declaration of Independence against British colonial rule

●     Articles 1(1) and 55 of the Charter of the United Nations 1945

●     Article 1 of ICCPR and ICESCR

●     Article 15 of the UDHR (everyone has a right to a nationality and no one should be arbitrarily deprived of this or of the right to change nationality)  

●     The non-binding declaration of the ​Declaration of the Rights of Indigenous Peoples​ ​2007​ was adopted by the UN to address the controversial claim to self-determination rights of indigenous people – four states rejected the declaration (including Australia) with many more abstaining from the vote – in April 2009, however the Rudd Government formally endorsed the declaration  

- Environmental Rights: the right to a clean, healthy and sustainable​       environment.  

●     Article 23 of the African Charter on Human and Peoples Rights 1981

(adopted by 53 African states). the right to a satisfactory environment  

●     Protocol 2 of American Convention of Human Rights 1988 of the

Organisation of American States (North and South American) — right to a healthy environment and the obligation of all states to protect, preserve and improve the environment  

●     Stockholm Declaration 1972 – natural resources of the earth, including the air, water, land, flora and fauna must be safeguarded for future.

●     Rio Declaration 1997 — States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem

●     Kyoto Protocol 1997 — commits states to reduce greenhouse gases emissions, based on the premise that (a) global warming exists and (b) man-made CO2 emissions have caused it

●     States fail to adequately commit to measures for the benefit of the global community when they may be disadvantageous in the short-term for their national interest^. ​ The Copenhagen UN Climate​  Change Conference 2009 exemplified this.

Peace rights: ​ the right of citizens to expect their government will do all in its​              power to maintain peace and work towards the elimination of war. 

●     The Paris Peace Conference 1919 lead to the creation of the League of Nations with an aim to “to promote international co-operation and to achieve peace security”.

●     The Charter of United Nations 1945 obliged nations to “settle their international disputes by peaceful means” (article 2/3). 

●     The UN General Assembly adopted the Declaration of the Rights of​        Peoples to Peace 1984. ​Though non-binding, it aims that all “peoples of our planet have a sacred right to peace/promoting the right as a fundamental obligation of states/government policies.”

●     Article 51 of the UN Charter: states have an inherent right of individual or collective self-defence if an armed attack occurs against them. Article

39 of the UN Charter: the UN Security Council can authorize actions to maintain or restore peace if necessary. Formal Statement of Human Rights: 

The atrocities of World War 1 and 2 led to a wider recognition of human rights. Certain documents developed that marked the beginning of international recognition of human rights, they were: 

●     Charter of the United Nations 1945:​ Marked the beginning of international recognition of human rights and of their protection. Was a binding treaty for member states, with the primary purpose being peace.

●     Universal Declaration of Human Rights 1948:​ This document lists the human rights to which every person is entitled. It is non-binding but still influential and is a cornerstone for international human rights law.

●     International Covenant on Civil and Political Rights 1966:​ Was created to give legal force to part of the UDHR. The ICCPR is a binding international treaty creating obligations on states to respect civil and political rights of individuals. Came into force in 1976 when ratified by the requisite number of countries: 35. Now have 165 state parties.

●     International Covenant on Economic, Social and Cultural Rights 1966: Gave legal force to the second part of the UDHR. Is a binding international treaty creating obligations on states to respect economic, social and cultural rights of the individual. Have 160 state parties.

Treaties dealing with specific human rights:

▪ Convention on the Elimination of All Forms of Racial

Discrimination 1965  

▪ Convention on the Elimination of All Forms of Discrimination

Against Women 1979  

▪ Convention on the Prevention and Punishment of the Crime of Genocide 1948  

▪ Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment 1984  

▪ Convention on the Rights of the Child 1989  

▪ Declaration on the Right of People s to Peace 1984  

▪ Declaration on the Rights of Indigenous Peoples 2006  

2. Promoting and Enforcing Human Rights:

State sovereignty:

-                     The ultimate law-making power of a state over its territory and population, including independence and freedom from external influence^.​

-                     States have the ability to choose whether they will enforce human rights and the extent to which they will protect them.  

-                     State sovereignty may be used as a justification for the unfair abuse and exploitation of a population by its government — not all governments equally accept the idea that their own people have certain rights  

-                     e.g. Child Brides in Pakistan highlights the violation of children’s rights but due to state sovereignty other states cannot overrule that government.  

-                     State sovereignty can impact negatively on the protection of human rights because breaches of these rights cannot be controlled.  

-                     The protection of human rights internationally undermines the idea of national sovereignty because it means interfering with a nation’s domestic affairs

The role of organisations in international responses: 

The United Nations (UN): ​A vast organisation with 192 member states. There is:

-                     General Assembly (UNGA): representatives from all member states, equal voting power, main forum for international discussions, deliberations, declarations and recommendations, the UN Human Rights Council (UNHRC) is the UN’s principal human rights body and reports directly to the UNGA. Aims to address human rights violations worldwide and make recommendations, works closely with the OHCHR to perform its duties.  

-                     Security Council (UNSC): maintenance of international peace and security, exercises power through legally binding resolutions, can authorise military action, sanctions or peacekeeping operations.

-                     Economic and Social Council (ECOSOC): 54 rotating members meeting annually to assist in promoting international economic and social cooperation and development  

-                     Secretariat: the UN administrative body headed by the UN

Secretary-General; contains the departments and offices of the UN (e.g.

Office of the High Commissioner for Human Rights)  

-                     International Court of Justice (ICJ): principle judicial organ of the UN (empowered by the UN Charter), has jurisdiction to hear disputes submitted by member states and issue advisory options, cases only rarely relate to human rights  

Intergovernmental Organizations: 

European Union (EU):  

-                     States must be democracies that uphold the rule of law, respect and uphold universal human rights and adhere to the UN Charter on the use of force  

North Atlantic Treaty Organisation (NATO):  

-                     States must be democracies that uphold the rule of law, respect and uphold universal human rights and adhere to the UN Charter on the use of force

Commonwealth of Nations:

-                     Abide by the principles of democracy and respect human rights  

-                     Can be expelled from the Commonwealth due to non-compliance

(e.g. Fiji, Nigeria, Pakistan and Zimbabwe have all been temporarily suspended)  

-                     Promotion of democracy, the rule of law, human rights, individual liberty and good governance  

Association of Southeast Asian Nations (ASEAN):  

-                     ASEAN Charter 2008  

-                     ASEAN Intergovernmental Commission on Human Rights:

established in 2009, aims to promote and protect human rights, no formal enforcement powers, members cannot be punished for infringements  

Courts, Tribunals and Independent Authorities: 

International Court of Justice (ICJ):

-                     To hear and judge disputes between states, and to issue advisory opinions on matters of international law  

-                     Relatively few cases  

-                     Strong criticism over the requirement of the consent of state parties to hear matters and thus has limited jurisdiction  

-                     Unable to hear cases brought by individuals or private organisations  

-                     Limited powers of enforcement  

International Criminal Court (ICC):  

-                     Permanent international court that hears cases relating to the most serious international crimes and gross human rights abuses (i.e. genocide, war crimes and crimes against humanity)  

-                     Individuals can be tried for crimes against humanity and human rights infringements  

-                     Established by the Rome Statue (111 parties have agreed to the statute’s provisions and the jurisdiction of the ICC)  

Ad Hoc UN Tribunals:  

-                     Set up by the UNSC under the rules of UN Charter  

-                     Individuals could be prosecuted for crimes against humanity  

-                     e.g. International Criminal Tribunal for the former Yugoslavia 1993 heard breeches of the Geneva Conventions (i.e. war crimes)  

-                     e.g. International Criminal Tribunal for Rwanda 1994 (cases of genocide)

European Court of Human Rights:

-                     Member states are all bound by the European Convention on Human Rights  

-                     Individuals can bring forward cases  

-                     Jurisdiction over human rights issues in the EU  

-                     Limited enforcement powers (states that do not comply to its ruling could be expelled from the Council)  

-                     Influential body: numerous laws in the UK have been revised following ECHR rulings. However has a backlog of 120 000 cases.

Statutory Authorities:

Human Rights Committee:  

-                     Assesses member states compliance with the ICCPR and can hear petitions raised by the states about each other’s compliance  

-                     The First Optional Protocol to the ICCPR hives the Committee jurisdiction to hear personal complains brought by individuals of member states about human rights violations in their own country

-                     Toonen v Australia 1994 (UN Human Rights Committee)  

•  Tasmanian Nicholas Toonen complained about Tasmanian laws that criminalised consensual sex between adult males; were a violation of his right to privacy (protected under Article 12 of UDHR and 17 of ICCPR)  

•  Discrimination based on sexual activity and orientation breeched Articles 2 and 7 of UDHR and Article 26 of ICCPR  

•  The Committee ordered Australia to repeal the law as it was in violation of Toonen’s right to privacy  

•  Tasmania refused to repeal the law and thus the federal government was forced to enact the ​Human Rights (Sexual Conduct) Act 1994 (Cth)​, which legalised consenting sexual activity between adults throughout all of Australia  

Human Rights Council:  

-                     Universal Periodic Review of all member states  

-                     However, it is up to the state to declare what action they will take if inadequacies present themselves  

Committee on Economic, Social and Cultural Rights (CESCR)

Committee on Elimination of Racial Discrimination (CERD)

Committee on the Elimination of Discrimination Against Women (CEDAW) Committee on the Rights of the Child (CRC)

-                     Their role is to consider reports, individual complaints and communications and publishing general comments and organising forums and discussions related to issues  

Non-Governmental Organisations: 

Independent and without any representation of government i.e. private voluntary organisations, citizens associations and civil society organisations

‘Naming and shaming’ can pressure governments to act in the right way

-                     International Committee of the Red Cross 

•   Permanent observer status of UNGA

•   International humanitarian law: to protect the life and dignity of the victims of international and internal armed conflicts (often overlapping with human rights abuses) 

Amnesty International: 

•   "To conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated”

The Media: 

-                     ‘Naming and shaming’s governments and human rights violators by exposing instances of human rights abuse/places pressure on governments to enact change 

-                     Article 19 of UDHR 1948; right to a free and impartial media

(important as it influences public opinion significantly)

-                     Quickly mobile public action against human rights abuses e.g. Kony 2012 

-                     ‘Compassion fatigue’ can be a result of constant news coverage - Tendency for media to have broad as opposed to deep coverage Evaluate the effectiveness of international responses in promoting and enforcing human rights.

While the international legal system has been reasonably effective in promoting and publicising protection of human rights, there have been limits to its success in actually providing protection. The limits to the effectiveness of international law in protecting human rights are:

The incorporation of human rights into domestic law: 

Protection of human rights in Australia has been generally of a high standard; however some court action and statutes have place limitations on human rights. Australia incorporates human rights into their legislation in a process of:

-                     The treaty is drafted

-                     States sign treaty (with intention to mirror it in their domestic law)

-                     It is when the treaty is then ratified that it becomes legally binding in the state’s legal system. Australia requires domestic law incorporation.

The role of domestic law measures:

The Constitution (including division and separation of powers):

Expressed Rights:

-                     s. 116 (freedom of religion i.e. Commonwealth not to legislation in respect of religion)  

-                     s. 117 (right against discrimination on the basis of out-of-State residence i.e. no subjection to any disability or discrimination on a state basis)  

-                     s. 109 (inconsistency of laws i.e. legislature hierarchy –

Commonwealth law shall always prevail)  

-                     s. 80 (trial by jury i.e. indictable offences against any law of the

Commonwealth shall be by jury in the state where the offence was committed)  

-                     s. 51 (xxxi) (right to just compensation i.e. acquisition of property on just terms)  

-                     s. 51 (xxxvii) (residual powers i.e. States can refer power back to

Commonwealth)  

-                     s. 51 (legislative powers of the Parliament: “power to make laws for the peace, order, and good government of Commonwealth”)

Implied Rights:

-                     s. 7 & s. 24 (implied HCA right to vote i.e. “composed of members directly chosen by the people of the Commonwealth” — Roach v Electoral Commissioner 2007)  

-                     s. 7 & s. 24 (implied HCA freedom of political communication — Lange v Australian Broadcasting Corporation 1997) 

(Separation of Powers): the prevention of one person or group from gaining total power by dividing power between the executive, the legislature and the judiciary  

-                     The Legislature: elected law-makers in Parliament  

-                     The Executive: government ministers, the Governor-General and Prime Minister  

-                     The Judicature: the courts that interpret and apply the law  

•  Since the New South Wales v Commonwealth (Wheat Case) 1915, the HCA decided that a strict separation of judicial power was a fundamental principle of the Constitution — does not want to be politicized.

•  The judiciary is able to strike down any legislation that is deemed incompatible with the provisions of the Constitution  

(Division of Powers): the arrangement of how the powers between the federal and state government are divided.

-                     Heads of Power: powers listed in s. 51 and s. 52 describe the area that the Commonwealth can legislate on  

• e.g. currency (s. 51 (xviii)), marriage (s. 51 (xxi)), external affairs (s.

51 (xxix) – ability to legislate on treaties (ICCPR, ICESCR, CROC, CEDAW, UDHR)  

-                     Residual Powers: powers not listed (thus omitted) in the

Constitution for the Commonwealth to legislate on are deemed to remain the powers of states  

• e.g. air navigation and terrorism regulation  

Statute Law:

Commonwealth and state legislation has been adopted by successive parliaments to protect human rights e.g.

-                     Racial Discrimination Act 1975 (Cth) 

-                     Sex Discrimination Act 1984 (Cth) 

-                     Australian Human Rights Commission Act 1986 (Cth) 

-                     Disability Discrimination Act 1992 (Cth) 

-                     Age Discrimination Act 2004 (Cth) 

-                     Anti-Discrimination Act 1977 (NSW) 

-                     Social Security Act 1991 (Cth) – adequate standard of living for all 

Creation of Bodies (e.g. Australian Human Rights Commission and NSW Anti-Discrimination Board) administer federal human rights legislation, including anti-discrimination and privacy legislation

The AHRC investigates and conciliates complaints about human rights abuses but it does not have the power to make legally binding decisions.

Parliamentary committees and law reform bodies investigate the protection of human rights in Australia and make recommendations for reform e.g. Parliament’s Human Rights Subcommittee. 

Common Law 

The body of law passed down by judgements of the courts. Has evolved over the years independent of government and carries the power to protect many human rights. Common law cannot be relied upon to develop new rights as judgements will only define those rights on a case-by-case basis e.g.

-     ABC v Lenah Games Meats Pty Ltd 2001, the HCA suggested the possibility of a tort for invasion of privacy

-     Giller v Procopets 2008, the Supreme Court of Victoria recognised a person’s right to privacy 

-     Mabo and other v the State of Queensland 1992, decided ‘native title’ existed if the Indigenous occupiers of the land could demonstrate an ongoing traditional connection with the land and the title had not been extinguished by a valid government action.

Courts and Tribunals

-     The NSW Administrative Decisions Tribunal can hear complaints about discrimination and make legally binding decisions about the matter (can award damages up to $40 000).

-     The ACT and Victorian courts can also hear and make decisions about the abuse of human rights contained in their legislative Charter of Rights. 

-     High Court of Australia: can set binding presents on other courts and overturn state of Commonwealth legislation 

-     e.g. decriminalisation of homosexuality (Croome v Tasmania 1997), Constitution right to freedom of political communication (Lange v Australian Broadcasting Corporation 1997), possible common law right to privacy (ABC v Lenah Games Meats Pty Ltd 2001), all peoples right to vote (Roach v Electoral Commissioner 2007), recognition of the Australia’s indigenous peoples’ right to their traditional land i.e.

‘native title’ (Mabo v Queensland 1992) 

-     International tribunals can also be effective in addressing human rights violations where there is no domestic legislation enacting the provisions of signed treaties e.g. Toonen v Australia 1994 (Tasmanian homosexuality laws interfered with his right to privacy under Articles 17 and 26 of the ICCPR – lead to Human Rights (Sexual Conduct) Act 1994 (Cth)).

Non-Government Organisations 

•   Amnesty International 

•   The Red Cross 

•   The Australian Human Rights Centre at UNSW (provides information about human rights and publishes material about current developments that affect human rights law)

•   The NSW Council for Civil Liberties (monitors and comments on developments that may affect civil rights) 

•   Effective in cultivating public awareness, researching issues, making submissions to the Commonwealth, prompting law reform and exposing violations, however, are have very limited on-the-ground functionality 

The Media 

•   Indispensable role in ‘naming and shaming’ governments and human rights violators e.g. ‘Slaving Away’ by Four Corners expose s human rights violations in more depth

•   Significant influence on public opinion and government action 

•   The rights of Australian reports to disseminate information and the right of the public to receive information are not enshrined in law but the freedom of political communication is protected to an extent by HCA interpretation. 

Discuss the arguments for and against a Charter of Rights for Australia.

Charter of Rights (aka Bill of Rights or Declaration of Rights) is a legal document which sets out the basic rights (civil, political and cultural) to which every human should be entitled.

Entrenched Charter: Part of the Constitution therefore all citizens are protected no matter who is in government (no government can pass a law which contradicts a right given by the charter), however, difficult to amend as it requires a referendum and thus is not as fluidly reflective of changing social values (e.g. the US’ right to bare arms sees mass shootings, violence and murder as it is no longer relevant)            

Legislative Charter (aka Statutory Charter): an act passed by a parliament in the same way as any other law is passed, the Human Rights Consultation Committee suggested that Australia should pass a legislative charter as it can be continually reflective of community values, however, it does not have the same level of protection as an Entrenched Charter as the political party in power can change it (e.g. Britain, New Zealand, Victoria and the ACT)  

Evaluate the effectiveness of Australian responses in promoting and enforcing human rights

Australia has generally had a good record on human rights, and also a prominent role in the international arena in the promotion of human rights.