Human Rights HSC Notes PDF

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Legal Studies - Human Rights 1. The Nature and Development of Human Rights • Define Human Rights : - Human Rights are a collection of fundamental entitlements to which individuals are due by virtue of their humanity. - Human rights are not granted to citizens by governments, nor can they be taken away. All people are entitled to human rights simply because they are human beings. - They are considered to be universal (apply to everyone), inalienable (cannot be taken away), inherent (birthright of all humans), and indivisible (all human rights are equally important. - They ultimately aim to protect people from injustices. - Essential ingredient of justice and equality. - Aim to prevent discrimination against a group/individuals due to physical characteristics, race or beliefs. - Human rights are a collection of fundamental standards for the treatment of individuals in a fair, just and free society. They aim to protect individuals from injustice, allow people to achieve their full potential in society, and prevent discrimination. — Types of Human Rights : - Individual Rights : Belongs to individuals separately. - Collective Rights : Certain groups of people, e.g. Self Determination (right of a group to govern themselves). • Outline how Human Rights have changed and developed over time : These represent systematic attempts to enshrine individual human rights and freedoms in the laws of specific nations. — Natural Law : - This is a theory that certain ‘natural’ laws apply to all humanity and maintain the dignity of human beings. No one can take these away. — Magna Carta 1215 : - The Magna Carta was the first legal document that recognised a kind has only limited power over his subjects. This also includes principles such as every citizen has the right to freedom. — The Declaration of Rights 1689 (UK) : - The principles of the Magna Carta and Common Law eventually found clearer expression through this document. This established the authority of parliament over king and individual rights, such as 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 inalienable rights, that among these are life, liberty and pursuit of happiness.” — The French Declaration of the Rights of Man and the Citizen 1789 : - “All men are born and remain free and equal in rights”. • Investigate the evolving recognition and importance of universal human rights - The Abolition of Slavery - Trade Unionism & Labour Rights - Universal Suffrage - Universal Education - Self Determination - Environmental Rights - Peace Rights : — Abolition of Slavery : - Slavery is a type of forced labour in which a person is considered to be the legal property of another. Slaves were mistreated and brutalised with no legal rights or escape. - The most common from of slavery was debt slavery (forced to pay off a loan with labour). - In the 18th Century, abolitionism began and was a worldwide political movement that sought to abolish slavery. Iceland abolished slavery in 1117. - In 1890, European countries met in Brussels and Belgium to sign the General Act of Brussels. This was the fi rst ever collaboration of international states to abolish slavery. - The International Convention on Abolishing Slavery Worldwide (League of Nations Slavery Convention) was passed in 1926 by the League of Nations.

Legal Studies - Human Rights - After World War 2, member states of the UN states slavery was prohibited under Article 4 of the UDHR; “No one shall be held in slavery or servitude; slavery shall be prohibited”. — Trade Unionism and Labour Rights : - Labour rights are rights at work, e.g. right to safe working conditions, minimum wages and paid leave. These were not previously recognised in the legal system. - Trade unions are an organised group of workers who negotiate agreements with employers on paying conditions. Their main goal is to protect and advance the interest of its members. - They first emerged during the Industrial Revolution in response to horrible working conditions, lack of safety and low wages in factories of the new industrial cities. - Unions in Australia joined to form the Australian Labour Party. - First international (1864-76) and the second international (1889-1916) were gatherings of unions and political parties from the world to urge improved conditions for workers. - In 1919, groups of individuals created International Labour Organisation which discusses social reforms and puts them into practice. - Today, Labour Rights are outlined under Article 23 of the UDHR - “Everyone has the right to form/join trade unions for the protection of his/her rights”. — Universal Suffrage : - Universal Suffrage is the right of all citizens to vote in elections, regardless of status, gender or race. It is an essential human right because individuals have different opinions and universal suffrage allows one to voice their opinion. - Demands for suffrage for males began in the 19th century. The Representation of the People Act 1918 UK in the UK resulted in votes extending to the whole male population. - Suffragettes (supporters of women’s right to vote) fought a long and diffi cult campaign for the rights to vote which was an important symbol of women’s struggle for equality. The Australian Commonwealth allowed women suffrage in 1902. - In Australia, Indigenous peoples were allowed the right to vote since (1962) the time of federation in 1901. In 2012, 89 countries were classified as freely democratic. Today, 47 countries are still classified as ‘not free’. - Women are still unable to vote in countries such as Saudi Arabia. - Today, Article 21 of the UDHR allows the right to vote. — Universal Education : - The idea that all human beings have the right to an education. - The push for universal education began in the 19th century. In England, churched began giving free education on Sundays (reading, writing, arithmetic). - Overtime, governments began providing funding for schools. - In NSW, the Public Instruction Act 1880 NSW led to government taking control of all the church-run schools, except those run by Catholic churches. - The United Nations deemed education as a major priority through Article 6 of the UDHR “Everyone has the right to education”. — Self Determination : - Collective Rights are rights of a group to govern their own affairs without external influences. - The rise of the right to self determination began with the 1776 US Declaration of Independence against British colonial rule. - The establishment of the UN Charter in 1945 led to the first universal recognition of the right to self-determination. Article 1(2) of the charter calls for respect for the principle of self determination. This is further strengthened through Article 15 of the UDHR; “everyone has the right to a nationality” . - Article 1 of the International Covenant on Economic, Social and Cultural Rights : “All peoples have the right of self determination.” - In 2007, the UN adopted the Declaration of the Rights of Indigenous People because there is an issue of Indigenous people who have been excluded from the democratic process. - This took over 20 years to complete and is a non-binding declaration on member states.

Legal Studies - Human Rights — Environmental Rights : - Environmental rights have been recognised in some international agreements. For example, the African Charter on Human and People’s Rights 1981 has been adopted by 53 African states and includes the right to a satisfactory environment under Article 23: “All peoples shall have the right to a general satisfactory environment.” - Second protocol in the American Convention on Human Rights 1988 : “Everyone shall have the right to live in a healthy environment”. - The Stockholm Declaration 1972, the Rio Declaration 1992 & the Kyoto Protocol 1997 are attempts by the international community that deal with environmental problems, such as global warming. — Peace Rights : - Peace rights are the right to live in a peaceful environment free from war or conflict. - In 1919, the countries that emerged from WWI held a peace conference at Versailles, France, where parties achieved treaties that officially ended WWI. - These treaties failed to stop the military aggression of WWII which resulted in 100 million people killed. After the formation of the UN, peace was made its primary and ultimate purpose. - Prior to the 20th century, war was seen as a legal means of solving disputes and determine political and economic control over populations. - In 1984, the UN General Assembly adopted a Declaration on the Right of Peoples to Peace, proclaiming “peoples of our planet have a sacred right to peace”. This declared that promoting the right to peace is an obligation of states. - The right to peace is balanced with the right to self defence. - Article 51 of the UN Charter declares that states have a right to individual or collective self defence if an armed attack against them occurs. - —> This right is usually abused, e.g. 2003 invasion of Iraq by the United States. • Examine major Human Rights documents and explain their contribution to the development of Human Rights - Universal Declaration of Human Rights - International Covenant on Civil and Political Rights - International Covenant on Economic, Social and Cultural Rights : - The United Nations Charter (1944) established the United Nations in 1945 and is a treaty binding all members of the UN. - International Bill of Rights is made up of : — The Universal Declaration of Human Rights (UDHR) 1948 : - Lists the human rights to which every person is entitled. - Promotes peace, universal respect, non-discrimination, and human rights in the dignity and worth of all persons. - Article 1 & 2 relate to this purpose since everyone is entitled to these rights. - e.g. Article 25 - Everyone has the right to a standard of living adequate. - Contribution to Human Rights : - UDHR is a declaration, hence being a soft law: it does not create any legal obligations upon states, but it does apply moral pressure/authority to act in accordance with them. - Arguably, it has become part of the International Customary Law. - E.g. Because of the UDHR, Australia enacted the Anti Discrimination Act 1977 to uphold human rights as brought about by the UDHR. — International Covenant on Civil and Political Rights (ICCPR) 1966 : - Came into force in 1976. - Civil = To do with being a free citizen in a nation state, e.g. Freedom of religion. - Political = To do with full participation in government, e.g. Right to vote. - Contribution to Human Rights : - By 2010, 165 states had ratified this Convention. - UN Torture treaties such as Convention against Torture. - Protects the individual from the arbitrary exercise of power by the state.

Legal Studies - Human Rights — The International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 : - Came into force in 1976 and lives legal force to the second part of the UDHR. - Economic = Production and management of material for the necessities of life, e.g. Right to an adequate standard of living (Article 25 of the UDHR). - Cultural = Assist in preserving ones cultural heritage, e.g. Right to participate in the cultural life of the community. - Social = Rights that give people security, e.g. Right to education. - Contribution to Human Rights : - Since 2010, 160 states have ratified this Convention. - States that all people have the right to not be discriminated against. - Article 3 specifically relates to sex discrimination and that there should be ‘equal rights for men and women’. In response this, the Australian government ratified the ICESCR with the Sex Discrimination Act 1984 .

2. Promoting and Enforcing Human Rights In the International Community : • Assess the role of State Sovereignty in promoting and enforcing Human Rights : - State Sovereignty is the right of a nation-state to make its own laws and govern its own affairs without any external influences. - State sovereignty can be both used to promote and enforce human rights, or hinder human rights. — FOR : - Nations have the power to ratify international treaties and conventions into domestic law in order to protect the human rights of its citizens. - For example, Australia has ratified and encoded the International Convention on Civil and Political Rights into domestic law. Article 8; “No one shall be held in slavery” is an example of this treaty in effect through the conviction of Wei Tang who made fi ve women work under illegal conditions of slavery and debt bondage in the CASE - R v Tang 2008. — AGAINST : - However, the problem arises when domestic structures fail to uphold rights either because they are unable to, or unwilling to take action. - For example, child brides in Pakistan highlights the violation of children’s rights but due to state sovereignty, other states cannot override that government. - Thus, state sovereignty can impact negatively on the protection of human rights as breaches of these rights cannot be controlled.

- State sovereignty is simultaneously the greatest strength and weakness of international law.

- Rights can only be enforced through domestic legislation, which vary from each nation-state. - SAMPLE RESPONSE - Asses the roles of State Sovereignty in promoting/enforcing HR (3 marks) :

- State sovereignty impedes (delays/prevents) the promotion and enforcement of human rights as determined by international means (such as the UDHR) as it places no legal obligation on states to ratify, promote or enforce the rights of humans. This power of state sovereignty enables a state to ratify its own laws which may breach the international standards of human rights. For example, Article 2 of the UDHR prohibits discrimination on the basis of sex, however some women in countries such as Saudi Arabia still face sex discrimination as a result of state sovereignty and the absence of obligation to follow such international legislation. This starkly highlights how state sovereignty can impact the promotion and enforcement of human rights.

Legal Studies - Human Rights • Evaluate the effectiveness of International responses in promoting and enforcing human rights. The roles of : The United Nations - Intergovernmental Organisations - Courts, Tribunals and Independent - Statutory Authorities - Non-Government Organisations - the Media : — The United Nations (UN) : - The UN is a large organisation with substantial power, established through the UN Charter 1945. - It is the principal international organisation with responsibility for almost every aspect of international affairs. - The UN General Assembly passes resolutions that reflect world opinion on human right issues. It may send special rapporteurs to report on Human Rights violations. It is the main forum for international discussions, declarations and recommendations, many relating to human right issues. - Security Council : Role is to maintain peace and security globally. It is the chief decisionmaking arm of the UN. The Security Council also has the ability to proceed with humanitarian intervention, and can intervene by force to stop defi ned mass atrocities, such as genocides and war crimes. — Office of the High Commissioner for Human Rights (Agency of the UN) : - Oversees the Human Rights Council and the Universal periodic review. - Promotes, educates and takes action on human right issues. — The Human Rights Council (2006) : - Consists of 47 member states responsible for the promotion and protection of human rights globally. - Examines situations in which human rights violation are occurring and makes recommendations for back to the UN General Assembly position. — The Universal Periodic Review : - Is a review of the human rights record for all 192 UN member states every four years. - The Human Rights Council runs this. Effectiveness : - The UN’s powers to intervene into any state is restricted by the state sovereignty (as mentioned in the Charter Article 2, stating that the UN cant intervene on matters of domestic jurisdiction). - Not all countries are party to human right treaties, therefore are not protected by treaties (may breach). - The UN’s lack of enforceability means it is not effective until it is ratified and enforced within domestic legislation. - It relies on the state reporting of the human rights council. This reliance may lead to inaccuracies and states may chose to only report certain situations to avoid international embarrassment. - Suffers from lack of funding, which ultimately hampers their ability to be fully effective. - One has to reflect back in the atrocities that occurred in Rwanda where Hutu extremists destroyed the Tutsi Tribe, in order to show the ineffectiveness of international treaties of the UN. - An example of the United Nations’ effectiveness in addressing human rights is the ‘R2P’ document. The ‘Responsibility to Protect’ document makes every government responsible for the protection of human rights of their citizens. If a government is unable to do so, then it is the international community’s responsibility to assist them. — Intergovernmental Organisations : - An intergovernmental organisation is an international institution that is comprised of various member states aiming to protect human rights. - They have international legal personalities and thus can enter into enforceable agreements. - Example : The Human Rights Council which has 47 representatives from member states. - Aims to address human rights violations worldwide, making recommendations. - Individuals can bring complaints to the Council’s attention where they have been a victim of human rights abuse in a state. - There are compulsory periodic reviews of human rights in all 192 member states. However, it has been criticised for not acting in the interests of human rights, but according to political considerations.

Legal Studies - Human Rights — Courts : - International Court of Justice (ICJ) : Role is to hear and judge disputes between states to issue advisory opinions on matters of international law. - Has very little power of enforcement and cannot adjudicate on disputes raised by individuals. - It relies on consent from state parties, thus has little jurisdiction.

- International Criminal Court (ICC) : Hears cases relating to most serious international crimes e.g. genocide or abuse of human rights, such as Rwanda and Yugoslavia.

- Has jurisdiction over genocide, crimes against humanity and war crimes + jurisdiction to prosecute individual power rather than state therefore making it powerful with moral authority.

- Tribunals : - International Criminal Tribunals : Deals with serious branches of international criminal law. - However, they're not permanent, e.g. The International Criminal Tribunal for Rwanda in 1994 grew because of conflict between tribes in Rwanda and hears cases of genocide committed in Rwanda.

- Independent Statutory Authorities : Committees of independent experts that monitor compliance with the chief international human right treaties by signatory states.

- Treaty bodies include : Human rights committee, Committee on the rights of a child, Committee of migrant workers.

- Roles of these treaty bodies include : Consider the reports made by states (Universal Periodic Review), consider individual complaints or communications, publish general comments on the treaties. — Non-Government Organisations : - Organisations such as Amnesty, that operate separately, working towards a certain cause. - NGO’s involved in human rights play a pivotal role in informing the global community, the government and the UN on human rights violations. - They help ensure greater government compliance by investigating, documenting and publicising cases of breaches of human rights. - Process of naming and shaming can have a profound effect on government behaviour. - However, they do suffer from a lack of funding, enforcement, and thus jurisdiction. — The Media : - Because the media is a vehicle for conveying information, it is used by government and non governmental institutions. - Uses the ‘naming and shaming’ method by exposed injustices of human rights abuses and helps to bring about change. - Influences and pressures the government...