HSC in the Holidays - Human Rights

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Legal Studies ‐ Human Rights notes

Human Rights

Chapter 7‐ the nature and development of human rights

The definition of human rights

The fundamental entitlements that come from being human e.g. right to life

They aim to protect individuals from injustice

Notion transcends race, nationality, ethnicity, gender, ability, sexuality...

Prior to WW2, it was widely accepted that human rights were a concern for individual

countries

The atrocities committed by Hitler’s Nazis made human rights an internal concern

Developing

recognition

of

human

rights

The abolition of slavery

o Accepted practice in the ancient world

o

Humane and liberal ideas surfaced in the French and American revolutions

o

The British govt passed the Emancipation Act 1833, abolishing slavery throughout the

British colony

o

Following this initial act, various other laws worldwide were passed

o

UN banned slavery under the Universal Declaration of Human Rights (1948) and later,

the Convention on the Abolition of Slavery (1957) – made penalties more enforceable

and widespread

o

Yet despite

these

mechanism,

‘the

number

of

people

living

in

a situation

of

forced

servitude is in the region of 200 million’, ‐ Italian Anti ‐Mafia Commission

o

Contemporary forms of slavery‐ Child Soldiers, and prostitution (turnover of 13 billion a

year)

Trade Unionism

o

Associations of employees that aim to protect the rights of workers

o Formed after the Industrial Revolution in the 18th

century

o Played an important role in establishing that employers owed a responsibility the their

workers, such as a safe working environment

Universal suffrage




o That every adult has the right to vote

o

The right to vote removes injustice and powerful political barriers to equality

o Granted in Aus, although relatively new as voters used to be strictly white, male and rich

o Women won the right to vote in federal elections in 1902

o

Women still do not have the vote in Saudi Arabia

o Aboriginals weren’t granted the vote until 1962

o

There are

still

many

nations

without

a democratic

govt

(e.g.

China

‐illegal

to

set

up

opposition political parties to Communist Party)

Universal education

o The right of all the basic education

o

Rare before the 19th

century

o A growing demand for educated people to meet demands of Industrial Revolution

o In 1870s, Aus colonies made education free and compulsory

o

The UN has recognised that education is essential to the alleviation of poverty, the

adoption of family planning and the improvement of the status of women

o

Universal education is protected under the Universal Declaration of Human Rights

Right to Self ‐Determination

o

The collective right of people (particularly Indigenous and other minority groups) to have

at least partial control of their land, whilst still being part of the broader nation

o

Can also mean granting independence to the traditional owners

o

Grew rapidly in the 1960s, particularly in Asia, Africa and the Pacific, where much

decolonisation occurred, as land was handed back to Indigenous peoples e.g. in East

Timor

o

Handing back

land

to

traditional

owners

has

lead

to

some

instances

where

there

are

barriers between ethnic groups. E.g. Rwanda‐ Hutus sought to kill the entire population

of Tutsi’s

Environmental Rights

o This is a collective right‐ a matter of common concern for humankind

o Intergenerational equality ‐ grants the right of future generations to enjoy the same

level of environmental quality as the present generation

o Has gained as increased recognition due to an understanding of the limited resources of

our planet

o

Stockholm and

Rio

Declaration

are

moves

towards

a sustainable

future

Peace Rights

o the right to peace

o

in ancient times, countries acted in their own interests

o

the development of deadly nuclear weaponry has created so much destruction and fear

that peace rights have gained recognition

o

the UN identified peace as one of its main aims

o the Security Council acts when there is a threat to peace e.g. in Korean war (1950‐1953)

Formal Statements of Human Rights




Universal Declaration of Human Rights (1948)

o UDHR developed largely in response to the atrocities of WW2

o

At its core is non‐discrimination and respect for individual dignity

o Its lack of legal status has helped give it moral authority help strengthen its demands for

increased HR against authoritarian governments

o

It has

been

a foundation

for

later

instruments

and

similar

rights

in

domestic

legal

systems

o It is not legally binding, however its universal acceptance has made it part of the

principles of I.L

International Covenant on Civil and Political Rights (1966)

o Relate to the treatment of the individual both as an individual and as a member of wider

society

o

Mainly protects people from the actions of oppressive govts

o Often denied in authoritarian states

o

Expand on rights set of by UDHR

o Includes right to life, liberty, security, participate in government, freedom from torture

and slavery, freedom of religion

o

has been quite ineffective, as reports show that despite being signatories, various

nations abuse HR

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

o Relate to economic, social and cultural freedom

o Often denied in poor countries

o

Includes right

to

work,

education,

join

trade

unions,

participate

freely

in

cultural

life,

an

adequate standard of living, self ‐determination, equality between men and women




Chapter 8‐ Promoting and Enforcing human rights

In the international community:

State Sovereignty

The right of a state to make laws within its jurisdiction without external interference

e.g. Aus

and

asylum

seekers

Sovereignty and IL

The most effective way for IHRL to be enforced, is to ratify treaties into domestic law

Some states automatically make it part of their legal system (France, Germany)

Common‐law states usually consider it binding between states but not with respect

to individual rights unless it has been ratified (Australia, India)

SS can prevent the effectiveness of I.L, as it only applies to countries that have

agreed to be bound by it and many do not sufficiently enforce it (e.g. Pakistan Govt.

Testing nuclear weapons despite it being a breach of I.L)

The right to govern themselves is used as an excuse to breaches of IHRL (Aus asylum

seekers)

The roles of:

The United Nations

o

protection of human rights

General Assembly

The main debating forum of the UN

Hears reports on human rights abuses

It may

send

special

Rapporteurs

to

investigate

human

rights

violations

Makes recommendations to member states on any matter under the Charter of the

UN

Passes resolutions (e.g. 2003 as the beginning of the UN literacy decade)

Although these are not legally binding, they carry moral force and raise awareness of

HR issues. They also provide a foundation for other legally binding conventions (e.g.

UDHR lead to Covenants)

Security Council

Handles

threats

to

international

peace

and

security

Permanent 5: Russia, US, UK, China and France

Can arrange humanitarian aid

Can arrange peacekeeping forces in trouble spots around the world (e.g. conflict

between Israel and Palestine)

Can impose sanctions

o

Moral ‐ states express their opinion towards offending state

o Political‐ breaking diplomatic relations

o

Economic‐ punished economically (refusing to trade, blockades) e.g. in Iraq

after Gulf war

o

Financial‐refused

financial

assistance

from

states




o Physical‐ use of force (e.g. US threatening to invade North Korea due to its

nuclear weapons program)

o Effectiveness:

May force states into following IHRL, however...

Can harm the citizens and not the government

Intergovernmental organisations

Human Rights Council

UN body that promotes human rights

Reports on HR violations and makes recommendations to the General Assembly

Has a new procedure for impartially hearing complaints about violations of HR‐ A

Working Group assesses the complaint based on certain criteria, replies to the states

concerned and reports to the HR council

can appoint Rapporteurs to investigate possible human rights abuses (e.g. in North

Korea)

Courts and Tribunals

See World Order

Statutory Bodies

UN High Commissioner for HR

Coordinates the promotion of human rights

Provides advisory services and financial assistance

Maintains a high international profile for HR through speeches and publicity

Reports directly to general secretary

Committees monitoring human rights conventions

Committees include:

o Human Rights Committee

o Committee on Economic, Social and Cultural Rights

o Committee Against Torture

o Committee on the Elimination of Racial Discrimination

Although they all operate in different ways, they all have the same general function

They monitor various human rights conventions, investigating non‐compliances with

them

They receive regular reports from states on the progress of their implementation of

these

They hear inter‐state complaints of HR abuses and attempts to mediate them

Decisions are not binding on nations and are not enforceable

NGOs

an association based on common interests, which has no connection with any govt

Play a crucial role in investigating HR issues, encouraging governments and

individuals to comply with HR laws




Red Cross is particularly powerful and has status at the UN. Red Cross was involved

in the drafting of Geneva Conventions. Its main activities is to give humanitarian aid

to victims of war and natural disasters

The media

A vehicle for conveying info, used often by NGOs

Expose human

rights

issues,

influence

public

opinion

and

to

embarrass

governments

and individuals who abuse HR by exposing their acts to public, pressuring them into

obeying IHRL

In the Australia:

The Incorporation of human rights into domestic law

Main Sources of HR law in Aus includes constitution, common and statute law.

The role of the Constitution:

Although it contains few references to rights of Australians, it plays 2 important roles:

1. Through the division and separation of powers

2.

Through reference to some specific rights, including expressed and implied rights

Separation of powers

Separates the power of the state into three arms:

o Legislature (parliament)

o

Judiciary (courts)

o Executive (governments and its administrative departments)

Limits the

power

of

each,

as

each

act

as

a check

on

the

other

Limitation‐ only at a Commonwealth level, meaning that at a state level, the

executive arm may be able to bind the judicial arm, creating a serious HR concern

Division of powers

Divides government power between the Commonwealth and the States

Limits the power of Commonwealth and hence, ensures power is not too centralised

in one place

o Exclusive powers‐ powers of the Commonwealth (trade, defence, external

affairs)

o Residual powers‐ powers of the State Govt (transport, law and order)

Limitation‐ Commonwealth power has grown significantly since federation

Pos‐ Its external affairs power means that it controls Australia’s treaty obligations. It

can bind states to those rights and legislate to protect those rights across Aus

Expressed and Implied rights in the Constitution

Express rights‐ expressly included in it e.g. freedom of religion

Implied rights‐ implied through the text of it. The High Court is responsible for

judging what rights are implied. e.g. Lange v. Aus Broadcasting Corporation ‐ High

Court decided

that

political

communication

was

a form

of

freedom

of

speech,

and

therefore an implied right




The role of Statute Law

Aus parliaments make laws to protect HR

Many have been adopted through the process of ratifying international treaties

Various anti‐discrimination legislation:

o Racial Discrimination Act 1975 (Cth)

o

Sex Discrimination

Act

1984

(Cth)

The Role of Common Law

Made through the judgements of courts

Rights protected by CL‐ presumption of innocence, right to a fair trial, silence and appeal

Ineffectiveness of CL:

o

It does not offer absolute protection of human rights as CL rights are not fixed

and can be easily removed by an act of parliament

However, has been effective in establishing some rights

The role of Courts and Tribunals

Australian Human Rights Commission

Has a monitoring role

Has the responsibility to:

o Conduct public inquiries into HR abuses and issue recommendations to

governments

In 1997, it conducted an inquiry into the separation of Indigenous children from their

families. The report called ‘Bringing them home’, recommended an apology by the Aus

Govt to victims, which was ignored for a decade under Howard Govt. In 2008, the

apology was

made

under

Rudd

Labour

govt

High Court of Australia

Supreme power over other courts in HR issues‐ it has the power to set precedents on

other courts and to overturn government legislation

E.g. Mabo v Queensland (1992) – involved recognition for the first time of Aus’

Indigenous people’s right to ‘native title’ of their traditional lands. IL was influential in

this case.

Limitation‐ some have criticised the court for exceeding its powers

Its

power

to

declare

legislation

invalid,

uphold

the

rights

of

the

constitution

and

to

continue to develop common law make it possibly the most important protector of HR in

Aus

Role of NGOs

Play a crucial role in investigating HR issues, encouraging governments and individuals to

comply with HR laws

Shape public opinion and expose violations of HR by governments and individuals

Role of the media

Aus is

ranked

one

of

the

top

10

countries

for

media

freedom




Expose human rights issues, influence public opinion and to embarrass governments and

individuals who abuse HR by exposing their acts to public, pressuring them into obeying

IHRL(particularly ABC and SBS)

A charter of Rights (for and against)

There is great debate over whether Aus needs a charter of rights

A bill

of

rights

is

a document

setting

out

human

rights,

which

may

be

constitutional

(part

of the constitution) or statutory (developed by an act of parliament‐ often called Charter

of Rights)

The main difference between these is that a bill is entrenched in the constitution and

can only be changed by a referendum. This may create inflexibility. Whereas a charter is

mainly statutory and can be changed by a majority vote of the parliament. This may not

provide as strong protection as a Bill however, it can easily respond to changes in

society’s views of human rights (e.g. gun control in US is greatly hindered by the fact that

the American bill of rights grants the right to bear arms. It is entrenched, meaning that

it’s almost impossible to change)

Arguments for Arguments Against

Common law does not adequately protect

HR

Rights are well protected by common law

Statute law does not protect HR

effectively, particularly where parliament

passes laws infringing on human rights

Statute law protects HR well. It can be

written to deal with existing HR problems

as the need arises

Rights contained in international

documents can

be

better

guaranteed

Parliament is the best protector of rights

through recognition

of

IL

and

implementing it in statute

The democratic system does not always

protect individual or minority rights against

those of the majority

The democratic system best protects

people’s rights with a free media and the

separation of powers

Judges will be able to protect HR more

effectively by interpreting a charter of

rights. Rights would be put above politics

Judges become involved n making

political decisions as a result of a

generally drawn charter of rights

Parliaments decision‐making would

improve, as they would have to consider

the charter in making their decisions

Parliament may be inhibited in its need to

govern by the possibility of legislation

being referred back to parliament by a

judge’s interpretation of a charter

A charter would educate the public about

HR

Society is best educated about HR

through the media and education

A charter would encourage tolerance Australia is already a tolerant society

A charter

would

protect

individuals

from

the possibility of oppressive laws enacted

Rights of

Individuals

are

already

well

protected by common law or legislation




by parliament passed in response to such problems by

parliament

Investigate a contemporary human rights issue and evaluate the effectiveness of legal and

non‐legal responses to the issue

‐Child

soldiers

Human rights are the fundamental rights held by all people. With an estimated 300 000

children worldwide currently serving as soldiers, the use of child soldiers represents a

contemporary breach of these rights. According to Cape Town Principles, a child soldier is

‘any person under 18 years of age who is part of any kind of regular or irregular armed force

or armed group in any capacity ,’ not just those carrying arms. Various legal and non‐legal

responses have been subsequently employed to eradicate this universal concern.

The use of child soldiers is a human rights issue, as under the Universal Declaration of

Human Rights, children are ‘entitled to special care and assistance’. They are used worldwide

in both

government

and

rebel

groups,

including

in

recent

conflicts

in

Afghanistan,

Myanmur,

Sudan and Uganda. They are even used in Australia, where the minimum recruitment age is

17. Children are commonly abducted and forced to serve. Others ‘volunteer’, yet this often

involves coercion or deception. They live in constant danger with no healthcare and cruel

treatment, such as beatings and sex slavery. Many suffer from psychological scarring and are

stigmatised, making reintegration difficult. The exploitive nature of child soldiers is a serious

human rights concern.

The international community has recently responded to the issue of child soldiers through a

variety of legal instruments, providing a progressive series of international standards. The

first of these was in 1977, when Additional Protocols to the 1949 Geneva Conventions were

adopted, illegalising

the

use

of

child

soldiers.

This

is

effectively

binding

on

all

groups.

Yet

despite the general consensus that a child is anyone under 18, it set the minimum age of

child soldiers at 15 and parties are merely required to take ‘all feasible measures’ to comply,

revealing ineffectiveness.

The 1989 Convention on the Rights of the Child included standards relating to the

recruitment of children into ‘hazardous’ areas of work, effectively protecting child soldiers

under this definition. However, CROC also set a minimum age of 15, despite its definition of a

child as under 18. This inconsistency also suggests ineffectiveness.

The regional instrument, the African Charter on the Rights and Welfare of the Child (1990),

effectively sets

the

highest

standards

of

all

legal

responses,

with

a ‘without

exception’

minimum age of 18 and use of stronger language, ‘all necessary measures’. Yet, it remains

ignored by various African states.

The International Labour Organisation Convention 182 (1999) prohibits the forced

recruitment of children under 18 and effectively binds signatory nations to take immediate

measures to eliminate the issue.

At the turn of the century, The Optional Protocol to the Convention on the Rights of the Child

on the Involvement of Children in Armed Conflict (2002) was introduced. This effectively

strengthened universal standards by prohibiting the compulsory recruitment of children

under 18.

However,

it

set

the

voluntary

recruitment

age

at

16,

and

as

discussed

earlier,

‘voluntary’ is often not genuine.




When the first permanent court to try individuals charged with international crimes was

established under the Rome Statute of the International Criminal Court (2002), the use of

child soldiers under the age of 15 was added as a war crime. An obvious weakness is again

the age limit. However, it increased the enforcement of previous legal agreements,

demonstrated through a current case of the ICC, Prosecutor v. Thomas Lubanga Dyilo.

Lubanga is the first individual to be brought to trial solely on the grounds that he used child

soldiers in his forces, revealing the effectiveness of the Rome Statute in criminalising the use

of child

soldiers.

It is obvious that these legal responses have effectively built a much stronger international

framework for ending the use of child soldiers. Due to state sovereignty however, these

international agreements only apply to those countries that have agreed to be bound by

them, significantly limiting their effectiveness. Furthermore, the issue of age remains a

source of inconsistency, reducing the strength of international standards. Clearly, the law

must be strengthened to eliminate child soldiers.

Various non‐legal responses attempt to combat the issue. In particular, NGOs are effective in

raising awareness, lobbying governments to comply with legal standards and assisting

previous child

soldiers

to

reintegrate

into

society.

For

example,

the

main

purpose

of

The

Coalition to Stop the Use of Child Soldiers is ‘Disarmament, Demobilization and Reintegration’

of child soldiers. According to its website, it aims to ‘achieve this through advocacy, research

and monitoring’, including regular ‘Global Reports’ on their research.

The International Committee of the Red Cross is a special NGO, whose reputation of

neutrality allows it to gain access to many armed groups worldwide and lobby them to

reduce their use of child soldiers. It also educates them on laws relevant to child soldiers.

Similarly, the pressure applied by the NGO Human Rights Watch to the armed group,

Liberians United, saw them abandon their policy of using child soldiers.

Other forms

of

non

‐legal

responses

also

exist

to

raise

awareness.

Red

Hand

Day

is

an

annually‐celebrated initiative. Its logo of a red hand has become a universal symbol for

ending child recruitment. The media’s widespread coverage of child soldiers pressures

governments to comply with international standards. Films, books and documentaries also

successfully raise awareness, such as Blood Diamond (2006), which included the recruitment

of child soldiers in the horrific diamond trade parts of Africa.

Non‐legal responses have been effectively focussed global attention on the issue and lobby

governments’ worldwide. This ultimately places pressure on all armed groups to alter their

policies of using child soldiers.

The use

of

child

soldiers

is

evidently

a grave

human

rights

concern.

Legal

responses

have

established a set of universal standards and non‐legal mechanisms have been effective in

pressuring universal compliance with these. However, the pace of progress remains slow,

with over 300 000 children currently employed as soldiers. This ineffectiveness reveals that

there is still much to be done to eliminate this issue.

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HSC in the Holidays - Human Rights