Julie Middleton

Legal Studies Topic 1 Human Rights

1. The nature and development of human rights The Definition of Human Rights
Human Rights: Universal fundamental rights that every person has on a basis of being human without regard to gender, race, religion or other. They apply to everyone everywhere. Aim: to protect individuals from injustice, allow people to achieve their full potential in society and prevent discrimination because of physical characteristics or beliefs. Universal and Inalienable

 

Human rights are said in International Law to be accessible for everyone everywhere, they are universal and without regard to sex, race or any other characteristic. 80% of states have ratified 4 or more of the core HR treaties, creating legal obligations for them and giving concrete expression to universality.

Interdependent and indivisible

 

You cannot have one without the others One rights advancement facilitates the others

Equal and Non-discretionary

Equal and non-discriminatory, they prevent discrimination on a number of catagories such as sex, race, colour etc.

Both Rights and Obligations

States assume obligations and duties under international law to respect, to protect and to fulfil human rights, meaning states must refrain f rom interfering of curtailing the engagement of human rights and to protect individuals from human rights abuses.

Three types of Human Rights:

  

Civil and political rights eg. Right to life, freedom from torture and slavery Economic and social rightseg. Right to work, right to education Environmental, cultural and developmenteg. Right to live in an environment that is clean and protected from destruction

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developing recognition of human rights

Natural Law: the theory that we are entitled to rights because God or some kind of higher authority, has given us these rights. They are moral laws that people generally follow without being told. Positive law: laws are what they are because they have been enacted by the appropriate authority. These became natural rights developed into natural law as someone decided they were necessary to maintain a functional society. UN formed in 1945 as a response to the two world wars, Hitler s extermination of half the German population where 90 million people died. The UN declaration o human rights purpose is to reaffirm faith in fundamental human rights in the dignity and work of the human person. Statistics:

   

Right to food and shelter: 16,000 children will die of starvation everyday Right to freedom of speech: thousands in jail for speaking their minds Right to freedom: 27million people are enslaved today Right to education: over 1 billion adults are unable to read

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the abolition of slavery

Slavery: a type of forced labour where a person is considered to be the legal property of another. History Of Slaves:

 

Egypt: Enslaved Hebrews, Babylonians and war captives. Slaves worked for people of high status. In 1250AD slaves rose to rule Egypt. Zanzibar: Rulers relied on slave labour. Composed of 90% of population. Worked under harsh conditions, many died increased slave trade. Ended in 1860 -70 as British influence grew Germany: Nazi Germany enslaved millions of Jews, gays etc. Slavery began in 1942. Prisoners worked to death and the weak were killed.

Types of Slavery:

Chattel Slavery: slaves considered their masters property. They are exchanged for things like trucks or money and expected to perform labour and sexual favours ; their children are expected to do the same. E.g. Slavery is a weapon of war in South Africa Debt Bondage: most widely practised form of slavery. Extreme poverty forces parents to give up themselves or their children as collateral against a loan. Though they are told they will work of debt, due to inflation they never do, resulting in a vicious cycle from generation to generation. E.g. Immokalee agricultural workers in Florida Sex slavery: women and children are forced into prostitution. Lured by false job offers, beaten and forced to work in brothels. Some are kidnapped. E.g. Brothels in Thailand Forced Labour: individuals are lured by the promise of a good job but instead find themselves subjected to slaving conditions working without payment while enduring physical abuse and often harsh and hazardous conditions. Charcoal workers in the Minas Gerais Region of Brazil

Factors that influenced the spread of slavery and transatlantic slave trade

    

America exploited the people of Africa and their descendants to build the empire that it is today They traded weapons, horses and rum for African slaves Slave trade began when many African Americans were shipped during the 9 th and 10th centuries from Zanzibar to Southern Iraq They were traded by Muslims and forced to do hard labour such as cutting sugar cane Religious and Economic factors: Muslims enslaved Christian and Christians enslaved Muslims

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Slave trade became popular in Europe due to its profita bility Labour shortage 15 th to 16th century increased demand Africans were enslaved as they suited the tropical weather and were cheap. Natives were too hard to enslave as they knew the land and fought back, so they bought slaves from Africa Christians and Islamic provided moral justification and legal protection of slavery. Unbelievers were used as slaves. Driven by greed for money and power.

Conditions Slaves faced and how were their Human rights breached

       

Suffered unhealthy and unsanitary conditions on sh ips. Often died or were thrown overboard Packed in with no room to move and they were shackled breach of the right to freedom Suffered malnutrition right to food Not allowed to read or write right to education Lived in unhealthy conditions and did ba ck breaking work Beaten, lynched and treated as less than humans Lack of rights to vote marry, own property Removal of names.

Abolition of slavery in UK, Europe, the US and Africa Cases

Slavery ruled illegal in the common law of England in a 1772 judgment by the court of King s Bench in the case of Somersett ( R v Knowles;exparte Somersett(1772)) made slavery illegal in England but not the rest of Britain

Acts

  

Slave Trade Act 1807 (UK) made importation of slaves illegal US followed in 1808 Slavery Abolition act 1807 (UK) Slavery abolished and slaves freed.

Legal Documents

    

1776 US declaration of Independence stated all mean were equal but slavery continued in the Southern States Thirteenth Amendment Act to the US Constitution made slavery illegal (US) General Act of Brussels first collaboration o international states to abolish slavery League of Nations Slavery Cinvention Universal Declaration of Human Rights -> states all men where created equal - UN prohibits slavery

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People

Africa last state to abolish slavery in 1981

 

William Wilberforce pressured Governments to end the slave trade Abraham Lincoln

trade unionism and labour rights universal suffrage universal education self-determination environmental rights peace rights

formal statements of human rights Context (what led to the development of this document) Group of rebels forced King John of England in 1215 to sign the Magna Carta After King James II was overthrown in 1688, William of Orange was invited to take the thrown if he agreed to sign the English Bill of Rights A declaration of war against repressive British Government. Primarily written by political philosopher Thomas Jefferson After winning the war of Independence (1776-83) against Britain. The constitution was written Concerns that the new constitution did not provide safe guards against a future government violating the rights of its citizen amended Aims

Historical constitutional Documents Magna Carta (1215)

The English Bill of Rights

To ensure the freedom of all men and to develop a very basic system of what is now defined as human rights Stop King and Queen overruling parliments, freedom of speech, no jail without trial.

The declaration of Independence of USA (1787)

Rights are seen to exist because we think and feel them, all people have basic rights, everyone is equal.

Constitution of the USA (1787)

Created federal union in the USA, separation of powers

United States Bill of Rights (1789)

Improved rights: - Freedom of speech - Freedom of assembly - Freedom of Religion - Freedom of press

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The French Declaration of the Right of Man (1789)

Occurred after French Revolution, similar to US Bill of Rights

Same as ^

Universal Declaration of Human Rights 1948 (UDHR)

The UDHR contains general provisions that relate to human rights. It promotes human rights and fundamental freedoms for all, regardless of race, sex, language or religion, as well as respect and observance of human rights. It was developed as a response to the barbarity of WW2, to uphold the dignity and worth of a person. It is a common standard for every individual, and requires education in terms of respect for these rights on both a national and international scale. The declaration:

   

Asserts the right of all people to freedom and equality in dignity and rights Prohibits discrimination on the grounds of race, colour, sex, language, religion, political or social opinion, national or social origin, property, birth or other status Outlines civil and political rights e.g. participating in government Right to life, liberty and security; freedom from slavery, torture, cruel, inhumane and degrading treatment; equality before the law and protection of the law; effective remedies for human rights violations; freedom from arbitory arrest and detention; the right to a fair trial; freedom of movement, thought, conscience and religion; and freedom of association and the right to participate in government through genuinely free elections Economic, social and cultural rights such as joining a trade union

All the rights are interrelated. The lack of legal status has given the Declaration moral authority. E.g. condemnation by the UN of racist regimes in South Africa and Zimbabwe. It has made it flexible enough to help ground demands for increased human rights against authoritarian governments. It was also a foundation for later instruments such as ICCPR and the ICSECR. The Declaration is not legally binding, however the rights are so widely accepted as part of the general principles of international law. In 1966 it was deemed necessary to clarify the nature of these rights in two additional international human rights agreements. See below International Covenant on Civil and Political Rights

International Covenant on Economic, Socialand Cultural Rights

2. Promoting and Enforcing Human Rights

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In the International community:  State sovereignty

International Human Rights law is made up of treaties, agreements between states intended to have a binding legal effect between the parties that have agreed to them; and customary international law, rules of law derived from consistent conduct of states a cting out of the belief that the law required them to act that way. Other international human rights instruments whilst not legally binding contribute to the implementation, understanding and development of international human rights law. Enforcement of International Human Rights Law can occur on either a domestic, regional or international level. States that ratify human rights treaties commit themselves to respecting those rights and ensuring domestic law is compatible with international legislation. When domestic law fails to provide a remedy for human rights abuses parties may be able to resort to regional or international mechanisms for enforcing human rights. At each level there are governing bodies responsible for complying with and promoting human rights, courts responsible for enforcing them, and various organisations and pressure groups that report on them and expose violations that occur including:

    

Numerous branches of the UN International courts, tribunals and other authorities Inter-governmental organisations (IGOs) Non-governmental organisations (NGOs) Media groups

A countries ability to enforce human rights is influenced by:

  

The will of the community to implement them Mechanisms in place to ensure they are respected, promoted and enforced Resource availability structures, policy, authority, money

Nation: people who share a common heritage, culture or race State: basic unit of the international system, they are the only entities in international law capable of exercising full political cap acity. It must be defined by a territory, permanent population, effective government, and the capacity to enter into international relations. An unrecognised state may be unable to claim protections under International Human rights regime. E.g. 2009- Taiwanese parliament ratified the ICCPR and the ICESCR into domestic law. As an unregistered state, it does not have acces to international human rights framework, which includes the right to complain to the UN Human rights committee. For Taiwan s 23 million citizens, this also means no other state can submit any complaint to the committee about Taiwan.

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State Sovereignty: the legal and political power of a country to make and enforce l aws over its own population , free from external interference.

 

Laid down in th e Treaty of Westphalia (1648) All member states are equal in relation to one another

Importance in protecting Human Rights Although state sovereignty does exist in many cases, without any limitations a system of international anarchy would result allowing governments to attack each other without cause, abuse their own citizens with no fear of consequences nor any means for their citizens to seek help. Therefore the international community imposes limitations along with consequences for violation. Not all governments equally accept the idea that their own people have certain rights, and some commit human rights abuses with impunity with little or no avenue for their citizens to respond. It has been used as a shield by states against outside interference. Ho wever countries today are all interrelated in terms of politics, finance, environment and legal matter, seen through the numerous international agreements, providing concrete legal obligations, which are consensual so do not infringe on sovereignty. Burma Example:

 

 

 

Human rights of the Burmese people are violated by their own government Under a dictatorship rule, the citizens do not enjoy freedom of expression and assembly or guarantees of due process. There has been torture and ill treatment of political prisoners. Authorities persecute minorities, and there are many reports of extra -judicial executions, torture and forced labour and displacement Burmese national law prohibits the recruitment of children under the age of 18 into the armed forces, however a report by Human Rights Watch in 2002 found force recruitment of boys as young as 11. The government ignores the only two treaties that bind it to the international community. The responsibility to protect of the International Commission on Intervention and State Sovereignty, gives the international community the responsibility to: 1. Protect the community from mass killing, women from systematic rape and children from starvation 2. Fulfil its responsibility if a state is unable, unwilling or is itself a perpetrator, to act in place of government 3. Prevent and rebuild Due to Burma s right to sovereignty as a state, it has been and still is getting away with severe breaches of human rights. However, as it is unwilling to protect its

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citizens and is in many cases the perpetrator, the international community has the right to interfere, taking away their sovereignty.

The roles of: - The United Nations - Intergovernmental organisations - Courts, tribunals and independent - Statutory authorities - Non-governmental organisations - The media

In Australia:

 The incorporation of human rights into domestic law

 The role of: - The Constitution, including division and separation of powers
Separation of Powers: the prevention of one group or person from gaining total power by dividing power between the executive, the legislature and the judiciary. Involves the separation of branches of state: o The legislature elected law-makers in parliament o The executive government, including ministers and agencies o The judiciary the courts that intercept and apply law The judiciary is separate from the other to uphold the rule of law, ensuring that all people including the government are equally subject to the same law. It helps to ensure that rights and liberties are protected from risk of abuses of power that could come with a pollicised judiciary. Enables the judiciary to strike down any legislation that is deemed incompatible with the provisions of the Australian Constitution and the rights and limitations it contai ns. Division of Powers: the arrangement of how the powers between the federal and state government are divided. Legislative power is divided between Commonwealth and state. While division of power can act as a check on governments by ensuring power is not too centralised in one place, the Commonwealths power has grown significantly since federation in 1901. The external affairs power gives the Commonwealth authority to legislate on external affairs including Australia s Treaty obligations

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Human Rights treaties have transformed the country by enabling the Commonwealth parliament to bind states to those rights and if necessary legislate to protect rights universally across Australian jurisdictions. Expressed Rights: minimal rights included in the constitution Implied Rights: intended by the constitution although not expressly written (controversial).

Statute law

Since WW2 there has been a growing body of statute law in Australia, due to the increasing volume of international laws. Many pieces of state law are the product of ratification of International treaties such as: o The Human Rights and Equal Opportunity Commission Act 1986 (Cwlth) is based on the ICCPR, ILO Convention 111 o The Disability Discrimination Act 1992 (Cwlth) is based on the ICCPR, the ICESCR and the ILO Convention 111 o The Racial Discrimination Act 1975 based on the International Convention of the Elimination of All forms of Racial Discrimination Australia s first Anti-discrimination Law Aims to ensure that Australian of all backgrounds are treate d equally and have same opportunities Protects people across the nation from discrimination based on race, colour, decent, nationality or ethnic origin. Gives effect to Australia s obligations under the IC on the Elimination of All forms of Racial Discrimination, which Australia has signed.

Common law

In Australia, common law has evolved over centuries, and carries the power to protect many Human rights. Many Australian statutes, particularly criminal law, are silent on many aspects of the law and it is co mmon law that holds and defines these rights and obligations. Elements of common law have both protected and impeded human rights. It has been important in establishing the right to a fair trial in Australia, and the concept of the presumption of innocence. However in the case of McInnis v R (1979) his trial for rape was ordered to proceed despite, the defendants lawyer withdrawing the day before. He was convicted. His appeal to the High Court was dismissed, due to the seriousness of his case, and as there is no right to legal representation only in exceptional circumstances . Impacts of Common Law and the protection of human rights:

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One issue associated with common law and human rights protection is that they re not fixed, meaning they can be removed at anytime. However they can be removed by a later act of parliament if a government chooses to do so. The common law has been in establishing some rights of recent times e.g.:

ABC v Lenah Game Meats Pty Ltd (2001) suggestion of privacy invasion by the High court of Australia. In 2005, the Supreme Court of Vic. Recognised a person s right to privacy in Giller v Procopetsas there was a breach of privacy by the defendant. In 2010 the High court is yet to confirm rights of privacy.

Courts and tribunals

In Australia, all courts and tribunals will have some role in applying and enforcing human rights laws, and will occasionally have a role in interpreting and developing them. The most important human rights bodies are the: The Australian Human Rights Commission: established under the Human Rights Commission Act 1986 (Cth) to deal mainly with alleged violations of Australia s anti discrimination legislation. Responsibilities:  Education and Public Awareness  Discrimination and Human Rights Complaints  Human Rights compliance  Policy and legislative development Through:

 Resolving complaints of discrimination or breaches of human rights under federal laws  Holding public inquiries into human rights issues of national importance  Developing human rights education programs and resources for schools, workplaces and the community.  Providing independent legal advice to assist courts in cases that involve human rights principles  Undertaking and coordinating research into human rights and discrimination issues  Works with other human rights institutions  Undertake bilateral international activities
Complaint Functions:

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1. It is able to investigate many areas of discrimination e.g. race, age disability as well as work place discrimination 2. The AHRC is able to hear complaints on other human rights breaches in Australian Law and International law. Unlike fist complaint function, the complaint is unable to be taken to the federal court. However, a report can be made to the Attorney General who is required to take this to parliament 1997 Inquiry into the separation of indigenous children from their families:

 The government was asked to look at 4 areas of key concern.  Basic areas looked at laws that resulted in removal of children as well as adequacy of these laws and if they needed to be changed.  The inquiry found that such children separated have been permanently scarred from abuse. It showed these children were also more likely to experience sexual abuse, basic education, and loss of heritage.  Recommendations of the inquiries include ac knowledgements and apology, guarantees against repetition, rehabilitation, compensation and implementation. The High Court of Australia  Deals with the most important rights Constitutional rights  Because the high court has the power to set binding precede nts on other courts or to overturn state or CthLegeslation  E.g. Decriminalisation of homosexuality (Croome v Tasmania).  The high court s methods of interpretation has been particularly influential but controversial. For example Mabo v Queensland (No 2) (1992) was very important case for the high court and was the first time Indigenous Australians were given Native Title . The judge looked to the constitution and declared the case as a breach of human rights and called for the reconsideration of common law s, and the opening up of numerous international human rights documents to domestic consideration  The high court has been criticised for exceeding its powers under the doctrine of separation of powers and trying to create laws not just interpret them. The power of the high court in protecting human rights is critical as:  Judges can be influenced by agreed international standards with the potential to apply th ese standards in absence of conforming legislation passed by parliaments  The courts power to declare legislation inconsistent to uphold constitutional rights and to continue to develop common law.

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Non-governmental organisations

NGO s play an important role in the promotion and enforcement of human rights . They play a vital role in researching and reporting on Human rights issues, making submissions to state and commonwealth parliament, assisting victims of human rights violations. NSW Council of Civil Liberties Founded in 1963 , it functions to:

  

Secure equal rights to everyone and oppose any abuse or excessive power by the state against people Listen to individual complaints and the public with civil liberty problems Prepare submissions to government, court cases civil liberties, public debates

It has been involved in cases to do with rights of asylum seekers, anti-terrorism legislation, same sex marriage and Australia s mandatory detention system.

The media

Play an important role in promoting and protecting human rights. They names and shame governments and human rights violations by exposing there abuse to bring about change, influencing public opinion and government action. The media also play a role in reporting on human rights and worldwide e.g. ABC and SBS

* Summarise page in Booklet 6 For Extremely high community support for a Charter of Rights Redressing the inadequacy of existing human rights protections Reflecting Australian values Protecting the marginalised of and disadvantaged Improving the quality and accountability of government Contributing to a culture of respect for human rights Improving Australia s international relation to human rights Bringing Australia into line with other democracies Generating economic benefits Against The adequacy of current human rights protections in Australia Undermining a tradition of parliamentary sovereignty, including transferring legislative powers to unelected judges No better human rights protection is guaranteed Potentially negative outcomes for human rights Excessive and costly litigation Democratic processes and institutions offer better protection or rights A major economic cost Unnecessarily legislated human rights

Charter of Rights (arguments for and against)

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3. Investigate a contemporary issue which illustrates the promotion and/or enforcement of human rights Discrimination against People with a Disability: Education-AustraliaDisability Discrimination is a serious issue within Australian society which can be overcome by the cohesive use of both legal and non -legal responses. Disability Discrimination is the unfavourable or unfair treatment of a person who possesses aphysical or mental unfitness. Legal: Disability Discrimination Act 1992 The Disability Discrimination Act 1992 is a legal response which aims to ensure that disabled people receive the same standard of treatment in all areas of life as the rest of the community. It outlines that people who live with a disability have the same fundamental rights within the community as others do. The act prohibits discrimination in educati on services through its purpose of ensuring all children receive equal treatment and are not excluded or disadvantaged due to any disability. Effectiveness: Enforceability: This law is enforced well within Australia. Cases which breach the law often surface with the media or other NGOs and are dealt with swiftly. Responsiveness:The law highly responsive in this area, many schools have implemented new structural features such as ramps and technology to accommodate for disabled students, as well as the introduction of many teacher aides who assist with learning. Resource efficiency:The resource efficiency however is deficient in this area, as there isinadequate funding, classroom support, and a lack of specialised equipment. Numbers of available teacher aides do not equate to thedemand of students in need of help. This issue was brought up recently in an article published by The Australian in August 2009, Schools Telling Disabled children to stay home, where a 6 year old boy with attention issues was asked to remain at home several days a week as the school could not afford to provide teacher aid on those days. Graeme Innes, the Disability Discrimination Commissioner, had his say on the issue: it's a breach of the law." It goes against the act whichprohibits the denial or restriction of provision of a disabled person in accessing any benefit provided by the educational authority.

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Non-Legal: Disability Discrimination Legal Centre NSW The Disability Discrimination Legal Centre NSW is a Non Legal, Non-government Organization working to promote and protect the human and legal rights of people with disabilities . They do so by providing legal advocacy, such as free legal advice, and by acting as representatives of the disabled who have faced discrimination, whilst promoting their rights and raising awareness of the issue. Effectiveness: Responsiveness: The Disability Discrimination Legal Centreare highly responsive in dealing with the issue, and are often involved with many cases which arise. In the past they have had a great influence on the outcome of many cases. They work to reform laws in order to achieve greater justice, and often appear in the media. Accessibility: They are highly accessible, and can be reached by a variety of mediums both electronic and in person as well as via their advice hotline. Protection of Individuals: They are an individualistic focussed organisation who give legal advice and support to each unique case that they deal with . Disability Discrimination Act, the Disability Discrimination Legal Centre and others like them have brought Australia closer to the eradication of the issue, however there is still a long way to go before we will be able to achieve justice for all.