HUMAN RIGHTS - LS

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

Definition of Human Rights

  • Human Rights: Fundamental rights inherent to every human being, defining the basic standards of treatment.

    • A right is something to which you are entitled.

    • Types of rights: moral rights, customary rights, legal rights, human rights, domestic rights, and international rights.

  • Characteristics of Human Rights:

    • Universal: Enjoyed by all individuals regardless of nationality, gender, race, or status.

    • Indivisible: All human rights are equally important and cannot be ranked.

    • Inherent: Exists as a birthright; to be enjoyed simply because one is human.

    • Inalienable: Cannot be surrendered or taken away.

  • Recognition in significant documents:

    • Charter of the United Nations 1945

    • Universal Declaration of Human Rights 1948

2. Types of Human Rights

Civil and Political Rights

  • Known as first generation rights, these rights focus on individual freedoms and participation in the civil and political spheres.

  • Characteristics:

    • Civil Rights: Protect freedoms such as freedom of thought and religion.

    • Political Rights: Enable participation in government (e.g., the right to vote).

  • Governed by:

    • Article 3 to 21 of the Universal Declaration of Human Rights 1948

    • International Covenant of Civil and Political Rights (ICCPR) 1966

  • Key Rights include:

    • Right to life, liberty, and security of person

    • Right to freedom from slavery

    • Right to freedom from torture or cruel, inhuman treatment

    • Right to self-determination

    • Right to recognition before the law

    • Right to equality before the law

Economic, Social and Cultural Rights

  • Known as second generation rights, these focus on material and cultural wellbeing requiring government action.

  • Subcategories:

    • Economic Rights: Related to production and management of resources for life's necessities.

    • Cultural Rights: Preserve and enjoy one's cultural heritage.

    • Social Rights: Provide security for individuals in learning and community aspects.

  • Governed by:

    • Articles 23 to 27 of the Universal Declaration of Human Rights 1948

    • International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966

  • Key Rights include:

    • Social security

    • Work and favorable work conditions

    • Equal pay for equal work

    • Right to join and form trade unions

    • Rest and leisure

    • Right to education

    • Adequate standard of living

    • Enjoyment of the highest attainable standard of health

    • Participation in cultural life

Environmental Rights, Peace Rights, and the Right to Self-Determination

  • Known as third generation rights that concern collective rights for communities rather than individuals.

  • Self-Determination: The right of peoples to govern themselves, with recognition in various international treaties.

    • Examples:

    • Kyoto Protocol 1992

    • Declaration on the Rights of Indigenous Peoples 2007

  • Environmental Rights: Right to a sustainable environment.

  • Peace Rights: Citizens’ expectation that governments will maintain peace and work toward the elimination of war.

3. Developing Recognition of Human Rights

Historical Context

  • The term emerged in the 1940s but has roots in ancient concepts of natural law.

  • Natural Law Doctrine: Maintains certain universal laws exist that protect human dignity and are applicable to all humanity. Developed notably by Classical Greek philosophers (Plato, Socrates).

  • Historically significant constitutional documents that contributed to human rights recognition include:

    • Magna Carta 1215: Established principles of personal freedom and legal rights.

    • Declaration of Rights 1689: Affirmed principles of supremacy of parliament and individual rights like free speech.

    • American Declaration of Independence 1776: Stated all men are created equal with unalienable rights to life, liberty, and pursuit of happiness.

    • French Declaration of the Rights of Man and the Citizen 1789: Emphasized that all are free and equal.

Movements for Human Rights

  • Abolition of Slavery: Recognized as a fundamental right in Article 8 of the ICCPR.

  • Trade Unionism and Labor Rights: Advocated for workers' rights including conditions of work and to join trade unions, specified in Articles 7 and 8 of the ICESCR.

  • Universal Suffrage: Defined as the right to vote, enshrined in ICCPR and ICESCR.

  • Universal Education: Right to free and compulsory education, outlined in Articles 13 and 14 of the ICESCR.

Self-Determination

  • Definition: Right of peoples to decide their own political status and governance forms with implications for indigenous peoples.

  • Recognized in various international documents including the UN Charter 1945.

  • Controversy noted with the Declaration on the Rights of Indigenous Peoples 2007 and the varying response by nations.

4. Environmental and Peace Rights

Environmental Rights

  • Defined as the right to a clean, healthy and sustainable environment encompassed in various regional documents.

  • Examples include:

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

    • Protocol 2 of the American Convention on Human Rights 1988

    • Stockholm Declaration 1972

    • Rio Declaration 1997

    • Kyoto Protocol 1997

  • Challenges noted regarding states’ commitments when national interests are at stake.

Peace Rights

  • Defined as citizens' expectation for governments to maintain peace and work to eliminate war.

  • Initiatives include:

    • The League of Nations and the UN Charter emphasizing the need for peaceful dispute resolution.

  • Declaration of the Rights of Peoples to Peace 1984 adopted by the UN General Assembly.

5. Formal Statement of Human Rights

Key Documents

  • Charter of the United Nations 1945: Began formal recognition of human rights, a binding treaty emphasizing peace.

  • Universal Declaration of Human Rights 1948: Lists human rights entitled to all; considered influential though non-binding.

  • ICCPR 1966 and ICESCR 1966: Bind states to respect civil and political rights and economic, social, and cultural rights respectively with many state parties.

Specific Human Rights Treaties

  • 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 Peoples to Peace 1984

  • Declaration on the Rights of Indigenous Peoples 2006

6. Promoting and Enforcing Human Rights

State Sovereignty

  • Definition: The ultimate law-making power a state holds over its territory, including independence from external influence.

  • Challenges:

    • States decide how (or if) human rights will be enforced, leading to potential abuses (e.g., cultural practices like child marriages).

    • Interference in state sovereignty is often viewed as infringement on domestic affairs.

Role of Organizations in International Responses

The United Nations (UN)

  • UN Structure:

    • General Assembly (UNGA): Inclusive forum for discussions and resolutions.

    • Human Rights Council (UNHRC): Principal human rights body addressing violations globally.

    • Security Council (UNSC): Responsible for peace and security, can authorize military actions.

    • Economic and Social Council (ECOSOC): Focused on international cooperation in economic and social development.

    • Secretariat: Administrative body led by the Secretary-General.

    • International Court of Justice (ICJ): Judicial organ handling disputes between states, with limited jurisdiction on human rights.

Intergovernmental Organizations Examples

  • European Union (EU): States upholding democracy and the rule of law.

  • NATO: Similar requirements regarding government and human rights adherence.

  • Commonwealth of Nations: Promotion of democracy and human rights, with expulsion for non-compliance.

  • ASEAN: Established an Intergovernmental Commission on Human Rights in 2009 without formal enforcement mechanisms.

Courts, Tribunals, and Independent Authorities

Major International Courts

  • International Criminal Court (ICC): Permanent court for severe crimes (e.g. genocide, war crimes).

  • Ad Hoc UN Tribunals: Set up by UNSC for specific humanitarian concerns.

  • European Court of Human Rights: Jurisdiction over human rights in Europe, but limited enforcement powers.

Statutory Authorities

  • Human Rights Committee: Oversees compliance with ICCPR, the First Optional Protocol allows individual complaints.

Example Case: Toonen v Australia (1994)

  • Nicholas Toonen contested Tasmanian laws violating his privacy, resulting in federal legal reform.

  • Reflected international standardization of human rights protections.

7. Non-Governmental Organizations

  • Role in Advocacy: Serve to pressure governments through research, public awareness, and activism (e.g., Amnesty International, International Red Cross).

  • Naming and Shaming: Publicizes violations to heighten awareness and spur action.

8. Media Influence

  • Critical for spreading awareness about human rights abuses, can mobilize public action, but causes challenges like compassion fatigue with constant reporting.

  • Explicitly ties in with Article 19 of UDHR ensuring free media as a vital tool for activism.

9. Effectiveness of International Responses

Assessment of International Human Rights Protection

  • Limits Include:

    • Not all states sign human rights treaties, leaving individuals without protections.

    • Enforcement mechanisms inadequately function due to state sovereignty.

    • Reliance on self-reporting can lead to understatement of violations.

    • Historical lack of Security Council action on evident crises like Rwanda genocide.

10. The Incorporation of Human Rights into Domestic Law

Australia’s Approach

  • Human rights protection characterized as high, but there are limitations.

  • Legislative Process:

    • Drafting, signing, and ratifying of treaties to integrate into domestic law.

  • Constitutional Provisions:

    • Contains expressed rights (e.g., freedom of religion, trial by jury).

    • Implied rights as defined by High Court interpretations.

Statue Law and Common Law

  • Multiple Acts aimed at human rights protection:

    • Racial Discrimination Act 1975, Sex Discrimination Act 1984, etc.

  • Common law evolves to address human rights but can only address them on a case-by-case basis.

    • Significant cases include Croome v Tasmania (1997) and the recognition of native title in Mabo v Queensland.

Courts and Tribunals

  • SC of Australia settings include mechanisms for addressing violations through various state and federal jurisdictions.

11. Arguments for and Against a Charter of Rights in Australia

Charter of Rights: Definition and Types

  • A legal framework outlining basic rights for individuals.

  • Entrenched Charter:

    • Part of the Constitution, difficult to amend, but ensures rights are preserved.

  • Legislative Charter:

    • Regularly adjusted by parliament, reflecting community values but more vulnerable to political swings.

Arguments For and Against a Charter

For:

  1. Addresses inadequacies in common law protection.

  2. Safeguards minority rights.

  3. Responds to the needs for contemporary legal standards.

  4. Adopts recommendations from the National Human Rights Consultation.

Against:

  1. Adequate protections already exist through current legal frameworks.

  2. Limited scope possible within the charter framework.

  3. Risk of judiciary politicization.

  4. Cost implications in creating a charter.

12. Overall Evaluation of Australia’s Human Rights Record

Achievements and Challenges

  • Active in international human rights discussions and drafting.

  • Critiques of the AHRC regarding powers not being legible.

  • Notably delayed actions on issues (i.e., Kyoto Protocol).

  • Ongoing issues with Aboriginal rights, care for asylum seekers, and treatment across borders remain critical points of evaluation.