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The Nature and Development of Human Rights Definition of Human Rights: Human rights are rights inherent to all human regardless of race, sex, nationality, ethnicity, language, religion or any other status. They are inalienable and are the foundation of freedom, justice and peace in the world. Three types of human rights: Civil and Political Rights (1st Generation): -

Protect individuals from arbitrary/totalitarian exercises of power by the state. E.g. Freedom of religion, freedom from arbitrary arrest. Set out in the ICCPR (1966) Economic, Social and Cultural Rights (2nd Generation):

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Concerned with the cultural and material wellbeing of individuals E.g The right to education, the right to rest and leisure Set out in the ICESCR (1966) Collective Rights (3rd Generation):

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Belong to ‘peoples’ as a whole, not individuals E.g Self determination, the right for a people to govern itself Beginning to be recognized in treaties and declarations

The Abolition of Slavery Legislation/Case: Somerset (R v. Knowles) 1772, Slave Trade Act 1807 (UK), Declaration of Independence 1776 (USA), League of Nations Slavery Convention 1926. History: Slavery predates recorded history – it was common in antiquity and continued worldwide in various forms throughout the Middle Ages. Slavery was practiced legally in many parts of the world until the 20th century. In the ancient Mediterranean, the most common forms of slavery included debt slavery, slavery was punishment for crime, or prisoners of war committed to slavery. Definition: Slavery is a type of forced labour in which a person is considered to be the legal property of another. Important Dates/Facts: United States abolished slavery in 1808, American Civil War 1861-65, League of Nations National Slavery Convention 1926.

Trade Unionism and Labour Rights Type of Right: Individual Right Legislation/Case: 1834 a group of farm labourers in Tolpuddle, England, formed a society to campaign for higher wages, 6 of the leaders were arrested and sentenced to transportation to Australia for 7 years. History: Employment law as we know it today is a relatively recent development. Rights to a minimum wage, safe working conditions or paid holidays were not recognised in older legal systems. Although much of the work carried out in ancient times was done by slaves or non-slave labour groups. In Europe, labour laws as protection for workers, including demands for better conditions and the right to organise, arose with the Industrial Revolution and the introduction of mechanised manufacture. Definition: A group of law in which protects workers from employers taking advantage of them. Important Dates/Facts: The Industrial Revolution 1820-40, 1834 Tolpuddle arrests, 1868 First Trade Union Congress, Trade Union Act 1871 (UK), International Labour Organisations (ILO) 1919.

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Universal Suffrage Type of Right: Individual Right Legislation/Case: ICCPR – Right to participate in the political process – Right to vote, Representation of the People Act 1918 (UK), Article 21 (UDHR) History: The concept of universal suffrage consists of the right to vote to all adult citizens. In most countries universal suffrage followed about a generation after WW1, originally the right to vote was only for a minority of the male population (land owners and businessmen) yet as of 2012, all countries have given all citizens the right to vote. Definition: The concept of universal suffrage consists of the right to vote of all adult citizens, regardless of wealth, income, gender, social status, race or ethnicity. Important Dates/Facts: 1893, New Zealand gave women the right to vote, 1894 South Australia, 1902 Australia Commonwealth, 2012 Saudi Arabia.

Universal Education Type of Right: 2nd Generation Right Legislation/Case: Public Instructional Act 1880 (NSW), Article 26 UDHR, Education Act 1870 (UK), ICESCR History: In early civilisations formal education was generally associated with wealth and power, most people would have received informal education. With development of literacy it became possible for ideas and information to be accurately passed on over time and space. The need for reading and writing to be a basic skill was exceeding the current standard. Definition: Universal Education is the idea that all human beings have a right to an education. Important Dates/Facts: Scotland 1561 (educated the poor), Norway 16th Century (grammar schools), Aboriginal education in Australia 1880 yet fewer than 200 out of 1500 were accepted.

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Self-Determination Type of Right: Third Generation Right Legislation/Case: 1776 US Declaration of Independence, French Revolution 1789-99. History: Political self-determination is something that has been fought for throughout history, by peoples against various powers and regimes. The rise of self-determination as a right began with the declaration of independence, which was the start of the right to fight for political opinion. Definition: That people of a territory or national grouping have the right to determine their own political status; the group has the right to choose how it will be governed without undue influence from another country. Important Dates/Facts: 1919 League of Nations, Article 1(2) UDHR, Article 1 ICESCR 1966.

Environmental Rights Type of Right: Collective Right…………….Third Generation Legislation/Case: African Charter on Human and Peoples Rights (1981), Article 23. History: More recent discussion of human rights have been focused on the possibility of universally recognised environmental rights. Environmental rights are unlike individual rights, or even collective rights, but are argued to relate to many existing agreed rights. Right to Life, Health, Property. Definition: The right for an individual to live in a safe and healthy environment. Important Dates/Facts: Kyoto Declaration 1997, Stockholm Declaration 1972, UN Climate Charter (2009) Peace Rights Type of Right: Collective Right……………….Third Generation Right Legislation/Case: 1919 League of Nations Peace Conference. History: In1919, that countries that emerged victorious from WW1 held a peace conference at Versailles, France. This became known as the Paris Peace Conference and was the beginning of peace rights. This conference headed towards these main goals: elimination of the threat of war, particularly nuclear war, renunciation of the use of force in international relations and the settlement of international disputed by peaceful means on the basis of the UN Charter.

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Definition: To save succeeding generations from the scrouge of war, ensuring peace is remained between countries and states. Important Dates/Facts: In 1984, the Un General Assembly adopted a Declaration on the Right of Peoples to Peace, since signing the charter major wars include Korean War, Vietnam War, Iran-Iraq War, Gulf War, Yugoslav Wars, Iraq War, Afghanistan War.

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Formal Statements of Human Rights Universal Declaration of Human Rights (1948) -

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Pressure for an international bill of rights had been growing from some time, but it was World War II that finally stirred the world into action. 30 Articles of UDHR list the human rights entitled to every individual UDHR = Soft Law The declaration was adopted on 10 December 1948 and was originally signed by 48 of 58 states existing in the world at that time. Four Freedoms : The freedoms for all people called for by US President Franklin Roosevelt in his 1941 State of the Union address: freedom of speech and conscience, and freedom from fear and want. Provides a forum for discussion Intention for “universal respect for; and observance of, human rights and fundamental freedoms for all” UDHR has now become international customary law and has become the foundation for a number of later human right treaties. 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

International Covenant on Civil and Political Rights -

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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 ICCPR = Hard Law The ICCPR contains monitoring and periodic reporting arrangements for member states. It is monitored by the Human Rights Committee (a separate body from the Human Rights Council), which reports on compliance by member states and investigates violations. At the beginning of 2010, the ICCPR had been ratified by 165 states.

International Covenant on Economic, Social and Cultural Rights -

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Came into force in 1976 It states that primary education should be compulsory and free for all. ICESCR ratified by 160 states, notably the US signed the ICESCR in 1979 but has never ratified. As well as Burma, Malaysia and Saudi Arabia have not signed nor ratified the treaty.

Promoting and Enforcing Human Rights State Sovereignty The concept of state sovereignty is central to international law and to the capacity of the world to enforce states’ compliance with recognized human rights. A state is basic unit of the international system. Generally known as countries, states are the only entities in international law capable of exercising full political capacity. Statehood should not be confused with political entities within a federal system, such as the domestic states of Australia or the United States. In international law, recognition as a state requires a number of factors. Outlined in Article 1 of the Montevideo Convention on the Rights and Duties of States (1933), their characteristics must include: -

A defined territory A permanent population Effective government The capacity to enter into international relation

The sovereignty of states is one of the most essential components of the international system. State sovereignty refers to the ultimate law-making power of a state – its independence and freedom from external interference in its affairs. Sovereignty is the source of a state’s legal and political power to make law over its own population and to enforce those laws. In regard to human rights, one of the major problems of state sovereignty is that not all governments equally accept the idea that their own people have certain rights. While robust democracies may have developed institutional respect for their citizens’ rights, with internal mechanisms to enforce them, some countries without democratic processes may rely on sovereignty to justify mistreatment of their own citizens. In extreme cases, such countries may commit human rights abuses with impunity, with little or no avenue for their citizens to respond. In such cases, state sovereignty may be used as a shield against outside interference. At the beginning of 2010, 165 states had ratified the ICCPR and another 160 states had ratified the ICESCR – and all UN states are subject to the UDHR. Known collectively as the International Bill of Rights, these treaties create legal obligations on states to comply with their human rights provisions, which include submitting periodic reports to the Human Rights Committee, allowing their own citizens to complain to the Committee

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about their treatment in the state. These and other mechanisms, including the capacity of the United Nations to intervene.

Role of International Organisations Intergovernmental Organisations An international institution made up of member states. IGOs are created by agreement between states, and each has an international treaty that acts as a charter outlining the organisation’s purpose and operation. Courts, Tribunals and Independent There are numerous international courts, tribunals and other independent authorities with power to hear matters involving human rights abuse. ICJ: The International Court of Justice is an organ of the United Nations. It started operation in 1946 at the Peace Palace in The Hague, The Netherlands. The ICJ has two roles: to hear and judge disputes between states, and to issue advisory opinions on matters of international law. ICC: The International Criminal Court was established in 2002 to prosecute international crime. The ICC was preceded by various tribunals (known as ‘ad hoc’) established by the UN Security Council or the United Nations to deal with specific events involving serious international crimes. The tribunals established by the Security Council, including the International Criminal Tribunal for the former Yugoslavia (ICFY) and the International Criminal Tribunal for Rwanda (ICTR), are finalising the operation. European Court of Human Rights (ECtHR): The European Court of Human Rights was set up in 1959 in Strasbourg, France, to apply and protect the human rights of the citizen of Europe. It considers cases brought by individuals, as well as by organisations and states, against all countries bound by the European Conventions on Human Rights (ECHR). This convention, like the UDHR, was a landmark human rights treaty drawn up following World War II. Its members are 47 countries on the continent of Europe, including Russia and Turkey, but excluding Belarus.

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The Australia situation Unlike Europe, or Africa or the American states, Australia is not currently party to any regional human rights instrument or human rights court, the Association of Southeast Asian Nations (ASEAN) is in talks to develop a human rights charter and a human rights court. The ASEAN Charter contains some provisions on upholding law with respect to human rights and enabling the establishment of a human rights body and unresolved dispute mechanism, and there is a Working Group for a human rights mechanism, which would create: à a regional declaration of human rights principles à a regional human rights commission for monitoring and recommendation purposes (established in 2009) à a court that would render binding decisions

In Australia Human Rights in Domestic Law When an international treaty is negotiated and formed, states indicate their agreement to the principles of the treaty by signing it. Signing a treaty means the country means the country will have to act within spirit of the treat, but it is not directly binding. In most cases a treaty will need to be ratified by the state before it becomes binding and enforceable. Australian Constitution The Australian Constitution plays two important roles in protecting human rights in Australians: à It lays down the system of Australia government through which human rights are recognised, including the separation of powers and division of powers. à it is the source of some specific human rights. Division and Separation of Powers The doctrine of separation of powers, as previously studied, is important in protecting human rights. It involves the separation of the branches of state: à the legislature – elected lawmakers in parliament à the executive – government, including ministers and agencies à the judiciary – the courts that interpret and apply the law. The Australia, separation of powers is protected under Chapter I to III of the Australian Constitution, which describe the functions of each branch respectively. As a Westminster system of responsible government, Australia has no strict separation between the legislature and executive – the Constitution provides for ministers to sit in parliament and to be executive, which can make delegated legislation.

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Statute Law Over the last half-century, a large body of Australian statute law, both Commonwealth and state, that protects human rights has been adopted. While many of the laws have been adopted in response to the establishment and ratification of international treaties protecting rights, some have also been established independently by state or federal parliaments. Statute law is a powerful tool in human rights protection and many laws have been wide-reaching, but like common law, rights laid out in statute are not fixedthey can too be removed by a later Act of Parliament. Some of the most important pieces of human rights legislation in recent times are: à Racial Discrimination Act 1975 (Cth) à Sex Discrimination Act 1984 (Cth) à Australian Human Rights Commission Act 1986 (Cth) à Disability Discrimination Act 2004 (Cth)

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Common Law Common law is a collection of court decisions developed over hundreds of years by Australian superior courts, English courts and the courts of other countries that have similar legal systems to those of Australia and England. Common law is judge made law in which says that people have a duty to read contracts. Courts and Tribunals Under Australia’s Constitution, the judiciary is independent from the other arms of government. The Constitution establishes the Hugh Court of Australia and empowers parliament to create other federal courts. Each state and territory has their own laws and court system.

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