HSC Legal - Human Rights PDF

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Course notes for core topic: human rights...

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Definition of human rights According to the Office of High Commission for Human Rights (OHCHR), Human rights are inherent to all human beings, whatever our race, nationality, place of residence, sex, ethnic origins, religion, language or any other status. We are all equally entitled to our human rights without discrimination. These rights are universal, inherent, inalienable. - Magna Carta 1215 recognised the principle that everyone, even the king was subject to the law.

Developing recognition of human rights Abolition of slavery -

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Slavery has existed since ancient times: the Roman Empire was built off the back of slavery In 1887 the Society for the Abolition of Slavery was formed and they campaigned for the abolition of slavery throughout the British Empire. Of the opinion that slavery was against the teachings of Christianity. In 1862 Abraham Lincoln issued his ‘Emancipation Proclamation’ in which all slaves in states still in rebellion would be free. In twentieth century slavery still existed in pockets around the world. Treatment of Australian and US forces by the Japanese as slaves was seen to be one of the most barbaric acts in history and it’s seen as a key driving force for the formation of the UN and the Declaration of Human Rights UDHR article 4: “no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” Australia based Walk Free Foundation is a non-legal response to the 30 million people living as forced labourers, forced prostitutes, child soldiers, child brides in forced marriages and as pieces of property.

Trade unionism and labour rights -

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A trade union is an organisation formed by workers that may campaign on broader social and political issues such as global warming or political conflicts. Emerged as a result of the Industrial Revolution in response to appalling conditions. Workers wished to address the imbalance of power between the employer and employee by combining to form unions. Union movement in Australia led to the formation of the Labor Party in 19th century who believe “Workers have fundamental democratic rights to representation in the workplace, to freedom of association, to collectively bargain, and to organise and be represented by their union.” UDHR article 23 section: 1,2,3,4 and article 24 and ICCPR protects this right ACTU is now peak body representing unions in this country.

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Universal suffrage -

Universal suffrage is the right for every adult citizen to vote in an election. Right to vote was originally confined to males who satisfied the requirement of owning land. Women did not receive the vote until 1902 for the Federal parliament. Suffragette movement at the end of 19th century non-legal response to try and gain suffrage for women. In the US women received the vote in 1920 but suffrage was still not universal as black americans were prevented by groups such as the Ku Klux Klan. In 1994 universal suffrage was introduced to include all adults of all races. The right to vote is included in the UDHR article 21 The UN has taken a major role in ensuring suffrage in many nations. As a member state, Australia is called on to supply a system of voting that ensures universal justice: The Australian Electoral Commission (AEC).

Universal education -

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The right to an education is a fundamental right. Enshrined in articles 13 and 14 of the ICESCR Education was only available to the aristocracy The gradual widening of suffrage during the 1960s and 70s helped to achieve universal suffrage because it became recognised that people needed to be educated in order to vote In france and germany, government started to fund schools In 1844, the NSW Legislative Council conducted an inquiry into education and found that only 50% of the children aged between 4 and 14 received an education 130 million children aged between 6 and 11 are denied a basic education even though the right to an education is set out in the International Covenant on Economic, Social and Cultural Rights of the Child and in the UDHR art 26 Australian colonial governments gradually established secular schools, which were free and compulsory unless a child was enrolled in a church school. The Public Instruction Act 1880 NSW made education in NSW free, secular and compulsory. Today, governments provide preschool education, compulsory schooling from kindergarten to their 17th birthday and senior secondary education for years 11 and 12.

Self-determination -

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According to the UN, self determination is: the right of people to determine how they will be governed, or their political status, based on territory. In order to avoid nations disintegrating into tiny ethnic enclaves, the process of selfdetermination aims to allow minority groups the right to have some control over their land, while still being part of the broader nation. This is a collective right and can not be claimed by an individual.

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Article 1 (2) of the UN Charter calls for respect for the principle of self-determination and is further strengthened by art 15 of the UDHR. ICSEC includes self determination under art 1 (1) Involves the right of colonised people to establish their independence. Many African and Asian countries achieved independence in the 1960s by invoking this right

Environmental rights -

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Environmental law protects the right of future generations to enjoy the same level of environmental quality as the present generation. This is referred to as intergenerational equality. The Kyoto Protocol 1998 and the Rio declaration (1992) were important international environmental agreements that moved the world towards a sustainable future. However, if only some countries sign up to these treaties then their effectiveness is limited because worldwide environmental problems will still occur Paris Agreement 2016 Nevertheless, environmental advocates may soon be taking up these issues in the courtroom because legal action can heighten public awareness of issues and place pressure on governments to act. Aus V Japan in the ICJ for whaling in Australian waters

Peace rights -

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The right of people to have their government maintain peace and eliminate war In ancient times there was no recognition of a right to peace. Countries acted in their own interests and international order was determined by the self interest of countries. The development of new and deadly weapons created so much destruction that by the 19th century there was a considerable incentive to find peaceful solutions to conflict. Rules for waging war were developed through international conferences that became the forerunners of the UN. The charter of the UN (1945) identified peace as one of its main aims. The only time the UN has actually waged war was on the korean peninsula from 1950 to 1953. Under the charter, the security council of the UN could act where it determined there was a threat to peace or an act of aggression; measures including military force could be used. Charter also permits military force in self-defense. ‘War on terror’ was justified by these terms. In 1984 a non-binding resolution of the UN general assembly asserted the right of peoples to peace.

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Major human rights documents and their contribution to the development of human rights Universal Declaration of Human Rights -

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The UDHR, agreed to in 1948, was a historic document that brought together expressions of a wide variety of human rights, including the right to life, liberty, security, thought, religion, education and work. Non-binding declaration of minimal rights for all states to aspire to, with binding obligations to be later agreed. However it was not until 1975 that it was finally succeeded by two binding international treaties setting out many of the minimum rights: the ICCPR and the ICESCR Provides a forum for discussion Intention for “universal respect for; and observance of, human rights and fundamental freedoms for all’ “Soft law”, meaning that it is highly influential but does not contain “hard law” obligations. This approach allowed the maximum number of countries to sign up. UDHR has now become international customary law and has become the foundation for a number of later human rights treaties.

International Covenant on Civil and Political Rights -

Creates binding obligation to respect civil and political rights ICCPR is monitored by the human rights committee, which reports on compliance by member states and investigates violations 167 signatories Adopted in 1966

International covenant on economic, social and cultural rights -

Came into force in 1976 Includes labour rights (conditions, fair wages), adequate standards of living, and rights to education Monitored by the UN Committee on Economic, Social and Cultural Rights Widely ratified (160 members) US signed it in 1979 but has not ratified it

Role of state sovereignty in promoting and enforcing human rights State sovereignty refers to the ultimate law-making power of the state - it’s independence and freedom from external interference in it’s affairs. - Sovereignty is the source of a state’s legal and political power to make laws over its own population and to enforce those laws.

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Sovereignty means that international law cannot interfere with what happens within a state without that state’s consent Not all governments accept the idea that their own people have certain rights, and some rely on sovereignty to justify mistreatment of their own citizens. One way to promote human rights is to automatically make international law, domestic law as they do in Belgium, France, Germany and Austria. The netherlands has gone one step further; having international treaties ratified into their constitution. The UN International Bill of Rights creates concrete legal obligations for the state to comply with their human rights provisions. Allows other states to complain about them, and allows their own citizens to complain to the committee about their mistreatment in the state.

International responses in promoting and enforcing human rights The United Nations The UN is a vast intergovernmental organisation with substantial power, consisting of 193 member states. UN General Assembly - Consists of representatives from all member states with equal voting power - Main forum for international discussions, deliberations, declarations and recommendations relating to human rights. UN Security Council - Charged with preservation of international peace and security - Exercises it’s power through legally binding resolutions, and can authorise military sanctions, actions or peacekeeping operations. - Has 5 permanent members who have the power to veto decisions (US, UK, China, Russia, France) and 10 non-permanent members elected every two years. Responsibility to Protect R2P: - this doctrine aims to make protection of human rights an integral part of the responsibility that goes with being a sovereign state and includes three ‘pillars’: - States have a responsibility to protect their population from these crimes - assisting states to build their own capacity to protect their own populations - when a state has failed to protect their population the international community must take action. Eg. Syria: US invaded in 2003 as ISIS accused of countless human rights breaches. Economic and Social Council - Has 54 rotating members - Central forum for discussion of economic, social, environmental and humanitarian issues. UN Secretariat - Provides various the various information, studies, tasks and facilities needed by the UN - Headed by Ban Ki-Moon

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ICJ -

Primary judicial organ Has jurisdiction under the UN Charter to settle international disputes submitted to it by member states and produce advisory opinions on matters of international law. UN Human Rights Council - Main purpose is to promote and protect human rights by investigating and making recommendations on human rights violations - 47 members - The UNHRC allows for a procedure for complaints by individuals with breached human rights, a period of reviews of the human rights situation in all 193 member states, and an advisory committee to provide expertise and advice.

Intergovernmental Organisations An intergovernmental organisation is an international institution made up of member states, created through an agreement, or a treaty, that outlines the organisation’s purpose and operation. The UN created in 1945 under the UN Charter is the most important IGO. Commonwealth of Nations - 54 members - Operates within the framework outlined in the singapore declaration of commonwealth principles - Stated aims include the promotion of democracy, the rule of law, human rights, individual liberty, and good governance.

Courts, tribunals and other statutory authorities ICJ -

The international Court of Justice is an organ of the UN started in 1946 at the Hague, Netherlands. - Hears and judges disputes between nation states and to issue advisory opinions on matters of international law. - Defines and interprets conventions - Requires the consent of state parties to hear matters and so has very little jurisdiction. - Unable to hear cases brought by individuals or by private organisations - Little power of enforcement Eg. Australia v Japan (whaling case where Japan was ordered to stop whaling in Australian waters however they still do so)

International Criminal Court (ICC) -

The ICC was established in 2002 to prosecute the most serious international crimes

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It is a court of last resort: meaning it will only hear cases if they are not being handled by a national judicial system, unless the national system that are investigating or prosecuting the crime are not genuine or do not have the resources Preceded by various tribunals to deal with specific events involving serious international crimes eg. ICT for former Yugoslavia (ICTY) or ICT for Rwanda (ICTR). Prosecutes and hears matters relating to serious international crimes such as genocide, crimes against humanity, and war crimes. Prosecutes individuals rather than states, who seek to use state sovereignty as a defence for their abuses.

Ad-hoc tribunals -

A latin phrase meaning literally ‘for this’ purpose There have been two ad hoc tribunals, set up by the Security Council, under the UN Charter ICT for former Yugoslavia (ICTY) in 1993 for human rights crimes during the breakup of the former Yugoslavia in 1991 And ICT for Rwanda (ICTR) in 1994 for genocide committed in Rwanda in 1994.

Non-government organisations -

NGOs are independent and without government representation They help ensure greater government compliance to human rights by investigating, documenting and publicising cases of human rights violations (naming and shaming) - May provide evidence to international courts, or lobby other states to apply diplomatic pressure or take action against violating states. - As concepts of human rights have evolved, the establishment of NGOs concerned with human rights has increased. International Committee of the Red Cross (ICRC) - Concerned with international human rights law - Since 1990 has been an observer at the UN General Assembly

The Media -

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Vehicle for ‘naming and shaming’ governments and human rights violations by investigating, reporting and then exposing instances of human rights abuses. The growth of dedicated 24hr news channels and the internet means global news is now broadcast instantly across the globe Many countries that inflict the greatest human rights abuses on their people do not allow freedom of the media - limiting internet access, for instance, severely restricts the information people can access and so affects the decisions they make about their government. The role of a ree and impartial media and people’s right to information is recognised as a human right: art 19 of the UDHR. Public action can call upon the governments and international organisations to uphold human rights

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NGOs are also able to use the media to gain access to the public However, the general public can get ‘compassion fatigue’ from being exposed to too many horrors via the media

Incorporation of Human Rights into domestic law Human rights are enshrined within: - The constitution - International treaties - Common law - Statutory law Australia, unlike most signatories to the ICCPR has failed to give effect to the rights recognised in the convention by enacting a bill of rights. - This is due to our dualist system. - Some countries such as France and The Netherlands have a monist system that gives effect to the treaty immediately by having it automatically incorporated as a statute.

Australian responses in promoting and enforcing human rights Evaluating effectiveness ❏ Criteria to evaluate effectiveness could include: ❏ resource efficiency ❏ accessibility ❏ enforceability ❏ responsiveness ❏ protection of individual rights ❏ meeting society’s needs ❏ application of the rule of law ❏ has justice been achieved?

The roles of the Constitution: division / separation of powers -

Lays down the system of Australian government, including the division and separation of powers The division of power is how legislative power is divided between commonwealth and state parliaments. Source of 4 specific human rights: right to vote, trial by jury, freedom of religion, right to property Freedom of speech is also an implied right Separation of powers involves: - The legislature (lawmakers in parliament) - The executive (government) - Judiciary (courts)

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The independence of the judiciary upholds the rule of law, restricts a politicised judiciary, and enables them to strike down any legislation deemed incompatible with the constitution.

The role of common law -

Common law is the body of law made by judgements of the courts. It fills in the gaps that statutes do not cover The presumption of innocence and the right to a fair trial are rights contained in the common law. - Common law rights are not fixed however. Statute law overrides common law so any legislation passed by the government could potentially diminish the rights within the common law. Eg. Dietrich v The Queen 1992 recognised right to fair trial through legal representation Eg. Mabo Case of 1992 established for the first time that Aboriginal and Torres Strait Islanders have a right to some lands through Native Title.

Role of statute law -

While many of our laws have been adopted in response to the ratification of of international treaties protecting rights, some have also been established independently by state or federal parliaments. - Statutes, like common law, are also not fixed as they can be removed by a later Act. Anti-Discrimination Act 1977 NSW

Role of courts and tribunals Australian Human Rights Commission (AHRC) Established under the Australian Human Rights Commission Act 1986 Cth As Australia’s human rights legislation has expanded, so too has the role of the AHRC: - Receive and investigate complaints into discrimination and breaches of human rights - Promote public awareness about human rights and provide legal advice - Conduct public inquiries into human rights issues and produce recommendations - Give advice and make submissions to parliament and governments on the development of laws, policies and programs consistent with human rights In 2010 the commission had a key role in making recommendations about the possibility of having an Australian Charter of Rights. AHRC produced the Bringing Them Home report in 1997, recommending that the government make an apology to ...