Part 2 of the core – Human Rights

The nature and development of human rights:

Human Rights: the basic rights and freedoms believed to belong justifiably to all human beings. They are considered to be universal, inalienable and inherent.

Developing Recognition of Human Rights:

  • The Abolition of Slavery: A type of forced labour where a person is considered to be the legal property of another. After the end of WW2, the United Nations made a clear statement that slavery was prohibited under Article 4 of the UDHR. The last state officially abolish slavery was Mauritania in 1981. Despite centuries of anti-slavery efforts, illegal slavery still occurs, with an estimated 27 million people enslaved worldwide.
  • Labour Rights & trade unionism: Trade unionism is an act of which allows employees a free choice of employment and favourable conditions to protect them against unemployment. It’s also an organisation that protects employees against any discrimination, and holds the right to protest for equal pay and equal work. Trade union first emerged during the Industrial Revolution in response to the appalling conditions, lack of safety, low wages and long working hours. Since then, the United Nations has created an International Labour Organisation with the aim of improving conditions for workers, and rights of all kinds in the workforce.
  • Universal Suffrage: gives people the legal right to vote in a democratic election. Suffrage was usually restricted to certain classes. People like third-class, women, and Aboriginals were unable to vote due to societal stereotypes and status of citizenship. Universal suffrage has only been a recent development and now that it’s achieved it’s considered a human right, especially in countries that believe in democracy.
  • Universal Education: the idea that all humans have a right to education as stated in Article 26 of the UDHR. In early civilisations, education was only permitted to the wealthy and the people with power. Now everyone is permitted to have an education no matter what status, promoting equality. Education is important to the youth of the world to expand opportunities and freedoms and contributes to fostering peace, democracy and economic growth as well as improving health and reducing poverty.
  • Self-Determination: a collective right for a person to determine their own political status, where they are allowed to choose how it will be governed without undue influence from another country. Throughout history, political self-determination is something that has been fought for through the centuries by collective people against various powers and regimes. The establishment of the UN Charter after WW2 was the first universal recognition of the right to self-determination. Under Article 1(2) of the Charter, it calls for respect of the principle of self-determination. The United Nation’s International Covenant on Social, Economic and Cultural Rights (ICSECR) includes self-determination as a primary right.
  • Environmental Rights: to work towards protecting the natural environment from destruction and pollution. Other examples that relate to environmental rights are the right to life, health and property. The supporters of environmental rights argue that these rights cannot be fully recognised without the right to a healthy, safe and adequate environment. There is no universal recognition of environmental rights but there have been numerous treaties to attempt to deal universally with specific environmental threats.
  • Peace Rights: The beginning of peace and peace rights was after WW1, where victorious countries held a peace conference to end the war and to aim to prevent war, as well as promote international co-operation and to achieve international peace and security, but both failed. After WW2, the UN was formed, and aimed to save succeeding generations from war. Despite declarations aiming to eliminate war, the world has seen it’s fair share of the disruption of the peace. Article 1 (1) of the UN Charter makes the maintenance of peace its primary purpose and gives it the power to take measures to prevent and remove threats to peace.

Formal Statements of Human Rights:

  • Universal Declaration of Human Rights (UDHR): was developed in response to WW2. It aims to create recognition of the inherent dignity and the equal and alienable rights of all members of human beings The UDHR is the foundation of freedom, justice and peace in the world. The UDHR was adopted as a declaration, rather than a full binding treaty for the purpose of defining “fundamental freedoms” and “human rights” in the UN Charter. As a declaration, the UDHR is soft law, meaning officially non-binding but still influential, rather than containing enforceable hard law. The declaration consists of 30 articles:
  • Article 1 – asserts the right of all people to freedom and equality in dignity and rights
  • Article 2 – prohibits discrimination on the grounds of race, colour, sex, language and religion
  • Articles 3-21 – outlines civil and political rights including the right to participate in government
  • Articles 22-30 – details social, economic, social and cultural such as the right to work, to join trade unions.
  • International Covenant on Civil and Political Rights (ICCPR): binding international treaty creating obligations on states to respect civil and political rights of individuals. Their main function is to protect people from the actions of oppressive governments. Key rights provided by the ICCPR include the right to life, the right to be free from torture and slavery and democratic rights of participation in government.
  • International Covenant on Economic, Social and Cultural Rights (ICESCR): binding international treaty creating obligations on states to respect economic, social and cultural rights of individuals. Key features of the covenant include equal rights for men and women, the right to social security, and the right of everyone to an adequate standard of living including adequate food, housing and clothing.
  • International Bill of Rights: informal term collectively describing the UDHR, ICCPR and ICESCR combined.

Promoting and enforcing human rights

  • Historically, human rights have developed throughout various campaigns to achieve partial and scattered recognition, resulting finally in a formal declaration and binding international treaties. Today, the promotion and enforcement of human rights commands a great deal of attention from both governments and citizens, and the international community.

State sovereignty: the ultimate law-making power of a state over its territory and population, including independence and freedom from external interference. The concept is central to international law and to the capacity of the world to enforce other states’ compliance with recognised human rights.

  • Statehood: the basic unit of the international system. Generally known as countries, states are the only entities in international law capable of exercising full political capacity. There are 192 fully recognised states within the UN. The issue of statehood can have implications on human rights, as an unrecognized state or people may be unable to claim protections under the international human rights regime.
  • Sovereignty: the source of a state’s legal and political power to make laws over its own population and enforce those laws. It is also major in human rights, as in its strictest sense it means that no foreign state or law can interfere in another state’s domestic jurisdiction, except with consent. Under the UN, all states are fundamentally equal, and so all states have equal power over their own affairs. In a modern international system, a state’s sovereignty isn’t absolute, as it is limited under international law by certain duties owed to the international government.
  • State sovereignty and human rights: one of the major problems of state sovereignty is that not all governments accept the idea that their people have certain rights, with some countries without democratic processes relying on sovereignty as a rationale to justify mistreatment of their own citizens. In extreme cases, state sovereignty may be used as a shield by states against outside interference in their own affairs. However countries today form a community where they are interdependent and interrelated through finance, environment and laws. In particular, many states have signed human rights documents, which enable states to maintain their sovereignty whilst providing rights to citizens.

The roles of:

- The UN: a vast organisation with responsibility for almost every aspect of international affairs. The UN has five principle organs, all of which play a role in the promotion and protection of human rights:

  • General Assembly: acts as a forum for global discussion and runs numerous committees and programs, responsible for overseeing and making recommendations on human rights in all member states.
  • Security Council: UN forum of member states responsible for overseeing and making recommendations on human rights in all member states, exercising power through legally binding resolutions.
  • Economic and Social Council: acting as a forum for international economic and social cooperation and development.
  • Secretariat: UN administrative body headed by the UN Secretary-General; contains the departments and offices of the UN, which are responsible for monitoring and reporting on human rights worldwide.
  • International Court of Justice: the principal judicial organ of the UN has jurisdiction to hear disputes submitted by member states and issue advisory opinions.
  • Office of the High Commissioner for Human Rights: their purposes include advancing universal ratification and implementation of the UDHR and human rights standards and treaties, and promotion universal enjoyment of human rights.
  • Human Rights Council: aims to address human rights violations worldwide and make recommendations to rectify them, and works closely with the OHCHR to perform its duties.

- Intergovernmental Organisations: an international institution comprised of various member states. Important IGO’s include the UN, the World Trade Organisation and INTERPOL. Apart from the UN, a number of IGO’s have the promotion of human rights as part of their stated goals and can exert significant influence on the human rights of their member states, although the influence of every organisation will differ. Examples include

  • The Commonwealth of Nations, with aims to promote democracy, the rule of law, human rights, individual liberty and good governance.
  • African Union, with aims including achieving peace and security, promoting democratic institutions, good governance and human rights
  • Organisation of American States, which is responsible for overseeing the region human rights instrument in the country, the American Convention on Human Rights

- Courts, tribunals and independent authorities: there are numerous international courts, tribunals and other independent authorities with power to hear matters involving human rights abuse.

  • International Court of Justice: UN Organ, which has the roles to hear and judge disputes between states and to issue advisory opinions on matters of international law.
  • International Criminal Court (ICC) and ad hoc tribunals: established to prosecute international crime. The ICC isn’t a court for human rights violations, but prosecutes and hears matters that would constitute as serious human rights abuse, such as genocide and crimes against humanity. It has the jurisdiction to prosecute individuals rather than a state, making it a powerful institution for combating individuals who seek state sovereignty as a defence.
  • European Court of Human Rights: applies and protects human rights of the citizens of Europe. It is an extremely influential human rights body, and compliance has crucially been incorporated into the treaties of the European Union.

- Other authorities established by treaties: the International Bill of Rights, as well as other key human rights treaties have established particular authorities to hear matters of compliance by member states with the treaties. One of the most important of these is the Human Rights Committee, which assesses member state compliance with the ICCPR and can hear petitions raised by states about each other’s compliance.

- Non-Government Organisations (NGOs): organisations created by people that are independent and without representation of any government. Today, many NGOs collaborate on a daily basis on human rights and humanitarian work with various government and intergovernmental organisations and specialised UN agencies. NGO’s engaged in human rights play a major role in informing the global community, governments and the UN of human rights violations and progress. They help ensure greater government compliance by investigating, researching, documenting and publicizing cases of human rights violations. A great example is the International Committee of the Red Cross, who are strictly concerned with international humanitarian law, to protect the life and dignity of the victims of international and internal armed conflicts.

- The Media: like NGO’s, the media plays a crucial role in the “naming and shaming” of governments and human rights violators by exposing instances of human rights abuses and helping to bring about change. By investigating and reporting on human rights issues, the media can have a significant influence on public opinion and government action. The role of a free and impartial media and people’s right to information is recognised in the UDHR, as well as by violators of human rights.

In Australia:

The incorporation of human rights into domestic law: Human rights are incorporated into domestic law through the Constitution, statute and common law. Australia is a dualist system, meaning that signing an international treaty doesn’t automatically make it enforceable in Australian law.The rights and obligations of a treaty will need to be passed through government as new legislation. Legislation in reference to treaties will pass through government, ratifying the treaty into Australian domestic law.

The roles of:

- The Constitution: plays two important roles in protecting human rights for Australians; it lays down the system of Australian government through which human rights are recognised, including the separation and division of powers, including express and implied rights. Four means by which the Australian Constitution protects human rights include through the separation of powers doctrine, through the division of powers between the Commonwealth and the states, through express and implied rights and through the nature of the Constitution as a document that is different to change.

  • The Division of Powers: the effect of the division of powers is that each state is treated equally and so no person is disadvantaged as a result of where they are born or where they live. Each state retains its own identity because it can pass on its own laws with respect to state matters.
  • Express and implied rights: express rights are those expressly included in a document, and implied rights are those implied through the text, structure or purpose of the document, with further interpretation needed. Examples of express rights, which outline human rights in the Constitution include: the right to vote (s7 and s24), the right to acquire property on just terms (s51), the right to trial by a fair jury (s80), the right to freedom of religion (s116) and the right to be free from discrimination (s117)

- Common Law: Common law does not offer absolute protection of human rights as common law rights are not fixed – that is rights in the common law, no matter how crucial they may be seen to be, can be removed by any act of parliament.

- Statute Law: both Commonwealth and state law has been adopted by successive parliaments to protect human rights. Many of the laws have been adopted in response to the ratification of international treaties protecting rights, and some have also been established independently by state or federal parliaments. Statute is a very powerful tool in human rights protection, however rights laid out in the statute are not fixed, but can be removed by a later act of parliament if a government chooses to do so. Important human rights legislation includes the Australian Human Rights Commission Act and the Anti-Discrimination Act.

- Courts and tribunals: all courts and tribunals will have some role in applying and enforcing human rights laws. Occasionally, courts will also play a role in interpreting and developing human rights law.

  • Australian Human Rights Commission:the most significant human rights body in Australia. Established under the Human Rights Commission Act to deal mainly with alleged violations of Australia’s anti-discrimination legislation, which at the same time covered racial and sexual discrimination, the Human Rights Commission has grown to be responsible to receive and investigate complaints into discrimination and breaches of human rights, promoting public awareness of human rights, conducting public inquiries into human rights issues and issue recommendations and give advice to parliament and government on development of laws, policies and programs consistent with human rights.
  • Australian High Court: where human rights issues often become most important. This is because the high court has the power to set binding precedents on other courts or to overturn state or Commonwealth legislation. High Court cases involving human rights include the decriminalization of homosexuality, a Constitutional right to freedom of political communication or a possible common law right to privacy. Combined with the court’s power to declare legislation inconsistent or invalid, to uphold the rights of the Constitution and to continue to develop the common law, the High Court is arguably the most important protector of human rights in Australia.

- NGOs (non-government organisations): There are numerous NGOs in Australia that works in the area of human rights. Similar to international NGOs, these organisations play a vital role in researching and reporting on human rights issues, making submissions to state and Commonwealth parliaments or law reform bodies on human rights inquiries, or working in the field of human rights with victims of rights violations.