1. the nature and development of human rights

the definition of human rights

Entitlements that all people have because they are human.

• Universal: apply to everyone regardless of race, age, gender, sexuality, disability

• inalienable: cannot be taken away

• Indivisible: unable to be divided or separated

• inherent: permanent and essential

three categories:

1. civil and political rights: protect individual from state eg. life, freedom from slavery

2. economic and social: cultural and social wellbeing eg. education

3. environmental and peace: rights of future general eg self determination

developing recognition of human rights

• the abolition of slavery

Slavery: a type of forced labour in which a person is considred to be the legal property of another.

The Slave Trade Act 1807 (UK): ended UK importation of slaves to colonies

Thirteenth Amendment to the Constitution of the United States of America 1787 (US): freed over 4 million slaves in the US at the end of the Civil War

End of WW2: all memember states of UN declared slavery ptohibited under article 4 of UDHR (No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms)

1958: Aus ratified the un refugee convention 1951 (UN) through the migration act 1958 (cth)

still approximated to be around 50 million slaves worldwide eg. trafficking, child labour

• trade unionism and labour rights

trade unionism: rights of workers to join together. Unions protect workers rights through lobbying government to create better legislation to protect labour rights, advocacy for workers in negotiation and other action eg. strikes

labour rights: rights of employees when dealing with employers. relates to minimum wage, safe condition, sick and annual leave

1919 treaty of Versailles established ‘International Labour Organisation’. government, employers and workers have equal voice for labour standards (tripartism)

2030 decent work agenda: 4 objectives to promote decent employment opportunities, enhance social protection, strengthen tripartism and social dialogue, guarantee fundamental priciples and rights at work

also covered in UDHR:

article 23: right to work, choiceof employer, just conditions, protection against unemployment, equal pay equal work,just and favourable remuneration, right to form and join trade unions

article 24: right to rest and leisure, reasonable working hours, holidays with pay

article 26: no right to force someone to be part of a trade union

• universal suffrage

universal suffrage: the right of all citizens to vote in political matters

Universal Development:

1870 (US): all men got voting rights (US 15th Amendment)

1893: NZ grant voting rights to women, first country to do so

1894: SA granted women’s right

1902: Australian Commonwealth granted women’s suffrage

1918: Representation of the People Act 1918 (UK) gave all male citizens right to vote

1920: US women got the right to vote (19th Amendment)

1928: UK women got equal voting with men

2015: Saudi Arabia women allowed to vote

Australia:

1901: Indigenous people received voting rights. taken away due to legal interpretations and discriminations

1908: Franchise Act 1908 gave women full voting rights

1967: referendum gave indigenous people the full right to be included in the census

2007: roach v electoral commission (2007) interpreted all people even some prisoners have the right to vote

• universal education

universal education: all people should have an equal right to education

ICESCR: articles 13&14 state all governments make primary education free and compulsory

UDHR: everyone has right to education

UNESCO: Education for all, Dakar Pledge 2000. involved 164 NGOs

development:

19th century first push, sunday schools

1870: UK education act made compulsory 5-10years

1880 Aus: Public Instruction Act 1880 (NSW), education became free/compulsory

Now: NSW leaving age 17 years, 99% literacy

• self-determination

self determination: the collective right of a territory or national grouping of people to determine their political status and how they will be governed, without interference

sovereign state: a state with a defined territory that administers its own government and is not subject to or dependent on another power.

can be achieved external: become a separate country/state or internal: eg. indigenous people

recognised globally:

1776: US Declaration of Independence

French Revolution, World Wars

recognised australia:

1970s: Asked to control their affairs (internal self-determination) - wasn’t granted

1990: ATSIC is established. A group of elected ATSI people who formally represent themselves at a federal level & administer government programs

2004: ATSIC is abolished due to corruption by Howard gov. Left ATSI people without self-determination

2010: National Congress of Australia's First People Ltd was established

UDHR: article 15 everyone has right to nationality

ICESCR: article 1 all people have right to self-determination

• environmental rights

aren’t universally recognised, however many basic rights can’t be met without right to healthy, safe environment. current and future generations. challenged by failure of all states to commit, economic benefits

1972: Stockholm Declaration first major agreement

1987: Brundtland Report recognised environmental stress can cause conflict

1992: Rio declaration focus on sustainable future development

1999: Aus environmental protection and biodiversity conservation act

Kyoto Protocol and the Paris Accord. Domestically (eg in Australia) the right is protected by Commonwealth, state and territory legislation.

• peace rights

peace rights: the right of citizens to expect their government to do all in its power to maintain peace and act towards elimination of war. right to enjoy peace as all rights are protected

1919: Paris Peace conflict held after WW1, produced Treaty of Versailles and league of Nations

1945: UN established after WW2/failure of LEague of Nations. Has power to take measures to prevent and remove threats to peace

1984: Declaration on the Rights of People to Peace by UN general assembly. everyone has a sacred right to peace

formal statements of human rights

• Universal Declaration of Human Rights 1948

first widely agreed statement of human rights, 192 states

stated rights are universal

includes civil, political, social and cultural

is a declaration - no legal requirements

has given rise to other agreements which are legally binding when ratified

clear benchmark for universal human rights standards

• International Covenant on Civil and Political Rights 1966, fully implemented 1976

In accordance with Charter of the UN and UDHR, expands upon

individual duties to others and as wider community

right to freedom/security of person, freedom of movement and equality before the law

• International Covenant on Economic, Social and Cultural Rights 1966

states economic, social, cultural rights in accordance with Charter of UN and UDHR

eg social security, trade unions, standard of living, right to education.

legally binding when ratified

2. promoting and enforcing human rights

international:

state sovereignty

protection of human right inherently undermines state sovereignty. whilst resenting interference, nations recognise the importance of this particularly when world peace is at stake.

state sovereignty: the authority of an independent state to govern itself

in international law, recognition of state requires:

• a defined territory

• a permanent population

• an effective government

• the capacity to enter into international relations

sources of international law

• customary: principles and procedures that have developed through general uses eg. slavery

• treaties (between states/written/bilateral/multilateral)

• conventions and declarations (treaties that are proclaimed by a large number of nations)

• resolutions

• decisions of international courts

costly, slow, complex, difficulty enforcing

roles of international community:

the UN

very good promoting human rights, weakness is enforcing, therefore more successful with less controversial eg. rights to clean water etc

The office of the High Commisioner for Human Rights

supports other various human rights monitoring bodies and systems within the UN. also issues the Universal Periodic Review (a review of 192 countries every 4 years)

the high commissioner carries out the functions assigned by the General Assembly, advises the secretary-general on the HR policies of UN, represent the secretary general.

very effective in promoting (education, awareness etc), limited effectiveness enforcing. helped establish icc

UN human rights council (UNHRC)

subsidiary to make recommendations on human rights in all member states (47) through compulsory annual reports. can make recommendations to the General Assembly for better promotion of issue and request intervention from security council

relatively ineffective due to absence of influential countries. has been criticised for acting according to political considerations

general assembly

main forum for international discussions, deliberations, declarations and recommendations. 15 member nations, 5 have veto.

relatively effective in promoting eg. East Timor, Afghanistan, and aiding in the introduction of numerous committees, programs and funds eg. UNHRC

UN security council

focuses on preserving international peace and security. has legally binding resolutions and can authorise military actions, sanctions or peacekeeping.

The Security Council began to make regular use of sanctions in the early 1990s, starting with Iraq, the former Yugoslavia, and Haiti. Russia vetoes.

can be very effective for matters of serious human rights violations, yet less effective when they occur internally in states

intergovernmental organisations

african union

has authority to intervene in major crises to stop sever human rights violations, zero tolerance policy to unconstitutional change of government

european union

promotes human rights through participation in multilateral forums

EU Policy includes: promoting the rights of women, children, minorities, and displaced persons, opposing the death penalty, torture, human trafficking, and discrimination, defending civil, political, economic, social, and cultural rights, defending human rights through active partnerships, and the inclusion of human rights in agreements.

organisation of american states

commonwealth of nations

all highly effective as they are usually permanent, meet regularly and have international legal personality. able to exert significant influence on HR of member states at a smaller, more effective scale

courts

International Court of Justice (ICJ) 1946 un

• hears and judges disputes between states and issues advisory opinions on matters of international law

• relatively ineffective as requires consent of states to hear matters has very little jurisdiction. It’s unable to hear individuals or private organisation. Effectively promotes and recommends solutions

International Criminal Court (ICC) 1998 rome statute

• prosecutes international crime including individuals and hears crimes of aggression (illegal war)

• very powerful and effective institution for hearing matters of serious human rights violations. Powerful at combating individuals who attempt to use their state sovereignty as a defences for their abuses. Eg. prosecution of individuals from Darfur Sudan

European Court of Human Rightd (ECtHR)

• applies and protects the human rights of citizens of Europe. Hears cases brought by individuals, organisations and states against all states bound by the ECHR.

• highly important and effective at the promotions of human rights in Europe. Very influential, its compliance has been incorportated into the treaties of the EU. regarded as one of the most successful regional courts in the world. all member states must comply with the ruling of the UCCtHR.

tribunals

• international criminal tribunal for the former Yugoslavia in 1993, to hear breaches of the geneva convention (effective, 161 high profile indictments) un

• international criminal tribunal for rwanda un (limited effective)

• nuremberg trials

allow greater scope for more domestic governmental and legal input into the operations of the international court structure

independent statutory authorities

International bill of rights

• consistes of the udhr, icescr, iccpr and its two optional protocols

• effective with promotion and publicising of HR. however only enforceable and binding on those states which have ratified the declarations, allowing them to pick and choose

human rights committee

• assess member states on their compliance with the ICCPR and can hear petitions raised by the states about each other’s compliance. has jurisdiction to hearmatters brought by individuals on human rights in ther own country

• influential although not enforceable, pressure on governments to comply due to reputation. can influence domestic legal interpretation to abide by international laws. supply compulsory periodic reports of member states with recommendations/complaints. eg. Toonen v Australia 1994 homosexual man, committee had a strong persuasive power

non-government organisations

Amnesty International

• campaign for a world in which every person enjoys all human rights from the UDHR

• largest human rights NGO, 3 million members worldwide. operate via direct (eg. letter writing) and indirect action (publishing reports about abuses), influencing governments to abide by the laws

• helped with the abolishment of the death penalty in Colorado in 2017, 2020 report on human rights abuse in Tigray led to a UN inquiry

Australian Red Cross

• eg. Ukraine, provided humanitatian access to 14.5 million people, clean water to 10.6 million, health interventions to 1.1 million people

the media

eg. dondale detention centre, royal commission

• plays a crucial role in increasing public awareness, provoking action, shaping choice in government, provide accessible information eg. Boston Globe spotlight io the catholic church abuse 2022

• issues with compassion fatigue, both-sides eg. climate change, endanger journalists eg. Peter Grest 2014 jailed for reporting news that was damaging to the government

• many of the cases that inflict the most severe human rights issues do not allow freedom in the media

Australia:

the incorporation of human rights into domestic law

Australia has a dualist system; treaties must be ratified AND incorporated into domestic legislation (constitution, laws, cases)

Human Rights (Parliamentary Scrutiny) Act 2011: if a law is incompatible with our International human rights obligations, the governer general can refuse to sign

the Constitution, including division of powers and separation of powers

explicit rights: freedom of religion, right to trial by jury, right to vote, protection against acquisition of property on unjust terms, prohibition of discrimination on the basis of State of residency

statute law

eg. Anti-discrimination Act 1977 (NSW) and Sex Discrimination Act 1984 (Cth)

common law

eg. Dietrich v the Queen (1992)

sometimes work together: eg. Mabo v Queensland (1992)

courts and tribunals

the australian human rights commission

• monitors human rights issues in australia, check laws for breaches of human rights commitments, investigations into government actions and can make suggestions

• eg. bringing them home 1997, inquiry into stolen generation, recommended apology

• investigates reports of discrimination, hosts an education program on social media (Something in Common), has an important influence on Australia’s laws

• eg. brown v Immigration department (2012) - a woman held in immigration with men, suggested apology and compensation, gov chose not to

high court of australia

• has the power to set precedents over other courts and overturn state or commonwealth legislation where it conflicts with the constitution

• eg. Mabo v Queensland (1992) recognised native title and declared that a common law doctrine founded on unjust discrimination demands reconsideration

• methods of interpretation have been highly influential eg. roach v electoral commissioner (2007) right to vote

non-government organisations

vital roles in researching and reporting on human rights issues, making of submissions to parliaments/law reform bodies and working with victims of rights violations. important in protecting individual rights, shaping political and public opinion and exposing HR violations

• australia NGO coalition: group of 70+ NGOs, hold more power together

• Amnesty international: researches human rights violations worldwide, places pressure on government to end abuses

• human rights watch australia: uses targeted advocacy to build public pressure on human rights violation and work on legal improvements

• human rights council of australia: monitors actions of governments and calls for observance of international human rights obligations, implementing a variety of projects

the media

no explicit protection of free speech, but vital in drawing awareness/pressure/ forming public opinion.

issues:

• “dumbing down” of complex news stories

• 70% of aus newspapers owned by news corp

• media rarely have true access to those who are suffering abuse of human rights

a Charter of Rights (arguments for and against)

3. contemporary issue

human trafficking and slavery

trafficking: the commercial trade or trafficking in human beings for the purpose of some form of slavery, usually involving recruiting, transporting or obtaining a person by force, coercion or deceptive means

slavery: a type of forced labour in which a person is considered legal property of another

smuggling vs trafficking: smuggling voluntary, free after arrival

contemporary slavery: a form of forced or bonded labour, with or without pay, under threat of violence. eg. forced labour, debt bondage, sexual slavery, child soldiers, forced marriage

debt bondage: a situation where a person is forced to repay a loan with labour instead of money, where the proper value of the labour is not applied towards repayment and/or the type of duration of services is not properly limited

Evaluation of international and domestic responses

• developing states do not have the resources to fight these forms of exploitation and transnational crime

• in a globalised economic system there is an increased demand for all types of labour, legal and illegal

• poverty in source countries, combined with a lack of both education and the rule of law, can contribute to the vulnerability of victims and the success of recruiters coercive or deceitful techniques

• We cannot expect much change in the short term to the economic drivers of migration and people movement, but improved awareness and monitoring of vulnerabilities, including locations, sectors and businesses where trafficking occurs, will prevent and reduce trafficking in people in Australia and the wider region.

international responses

legislation/aus ratified

• slavery convention of 1926: provided for the official abolition of slavery worldwide & expanded definition of slavery, however didn’t address illicit slavery and human trafficking

• article 4 UDHR (1948): ‘no one shall be held in slavery or servitdtude; slavery and the slave trade shall be prohibited in all their forms’

• the protocol to prevent, suppress and punish trafficking in persons especially women and children: adopted by the UN in 2000, ratified in 166 countries, aus ratify in 2005. first legally binding instrument with agreed definition of human trafficking. greater global awareness, greater conformity between laws, better cross border cooperation in investigating and prosecuting. reasonably sucessful, progress to be made

non-legal responses

• UN establised global intiative to fight human trafficking: aims to increase awareness, assist NGOs in campaigns and reduce the demand for exploitation of perople, support for victims who have escaped

• ILO (international labour organisation): implementing and reporting on workers rights worldwide and their complaining of forced labour. released reports such as the special action programme on forced labour 2001 to raise awareness of different forms

• american anti-slavery group: works on awareness primarily on slavery in sudan and mauritania

• vital in encouraging countries to continue their efforts and supporting victims

australia’s response

legislation

• human trafficking strategy of 2003: dedicated $60 million to tackles the full trafficking cycle, from recruitment to reintergration, and the key areas of prevention, detection and investigation, prosecution and victim support

• criminal code amendment (slavery and sexual servitude) act 1999 (cth): first introduction of sexual slavery laws

• Now: Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth); includes penalties of up to 25yrs imprisonment for some offences

• 2004 commonwealth action plan to eradicate trafficking in persons: us commended the aus gov for its assistance to trafficking victims

• commonwealth government anti-trafficking strategy (2008): increased specialist training of the AFP to detect and investigate human trafficking, additional funding and training for the prosecution of human trafficking, a national Policy Strategy, victim support measures, a targeted community awareness strategy and cooperation of regional and international agencies

• australia and indonesia 2003 - bali process: ratified UN protocol to prevent, suppress and punish trafficking in persons, especially women and children, made people trafficking impressionable for up to 20 years

non-legal

media and NGOs

• anti slavery international: founded in 1939, aims to draw attention to continuing problem of slavery worldwide and campaign for recognition and action in the countries most affected today

• media plays a vital role in informing the public about the existence and nature of modern day slavery. eg. 2006 SBS ‘trafficked’ 500k viewers, legal history

• University of Technology Sydeny’s Anti-Slavery Project began in 2004; its dedicated to the elimination of modern day slavery in all its forms through collaboration with government agencies and community groups.

evaluation

• issues regarding protection visas, threat of deportation of victims upon discovery, deprive witnesses, punish victims further, limits effectiveness

• reporting mechanisms such as the US TIP report helps expose the continuing deficiencies of these countries efforts - The 2012 TIP report lists Australia as a tier 1 best practice country, but identifies a number of areas where improvements can be made. saw a 30% increase in prosecutions within Indonesia and legislation now in place within over half of the pacific island nations.

• regional reform: further technological assistance programs and policy