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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.