Human Rights Revision

Human Rights Revision

Part II of the Core: Human Rights.

· Look at the syllabus and what it says on this topic.

· The themes and challenges incorporated throughout this topic states

o The challenging understanding of the relationship between state sovereignty and human rights

o Issues of compliance and non-compliance in relation to human rights

o The development of human rights as a reflection of changing values and ethical standards

o The role of law reform in protecting rights

o The effectiveness of legal and non-legal measures in protecting human rights.

Following the syllabus – Make brief notes on the following

· Define human rights

· Outline how human rights have changed and developed over time.

Look at:

- Natural law and positive law

- How the incidents of World War 2 led to the UN charter

- How UDHR and other protocols were incorporated into Australia’s constitution.

- How HR are recognised by international treaties

- Recent developments in Human rights

- Un Courts and Tribunals and their role

· Investigate the evolving recognition and importance of universal human rights.

Historic constitutional documents

The protection of human rights is a gradual process through history, several important documents contributed to the development of human rights, they are:

o Magna Carta (1215), it was a mean of resolving a power struggle between King John of England and his nobles. This document placed certain limits on the king’s power. This was a revolutionary at the time as kings always possessed absolute power.

o The English Bill of Rights (1688), this document ensured parliament could function without royal interference. It brought about an important and permanent transfer of power from monarchy to the Parliament.

o The Declaration of Independence of the United State of America (1776), this declaration declared every person has the right to live their own life and to be free from the oppression of others.

o Constitution of the United States of America (1787), this important document included the separation of powers In order to prevent any branch of government becoming too powerful. The governments had power only to act in the interests of its citizens and that changes to law could not be arbitrary, but must follow established legal procedures. (Separation of power is also a central theme in Australia’s constitution.)

o The declaration of the Rights of Man (1789), the common people of France declared themselves a ‘National Assembly’, representing the will of the people after their long oppression under their monarch. Early in the revolution the assembly declared this document as to the rights of man. They included the right to democratic government, equality before the law and right to liberty and property etc. These rights were said to apply to all people and not just citizens of France. This made the Declaration the first attempt to develop universal rights.

Movement for slavery abolition

Slaves were used extensively in ancient times. It was a system in which individuals had no personal rights. They could be bought and sold and were often physically, emotionally and sexually abused. Britain and other colonial powers took slavery for granted until late 18th century where there were growing awareness of natural rights and political liberty.

o Emancipation Act 1833, abolishes slavery throughout British colonies

o 13th amendment of the US Constitution outlawed slavery in 1865

o Slavery Convention of 1926 was negotiated

o New supplementary convention on Abolition of Slavery in 1965

o Slavery banned under Article 4 of the Universal Declaration of Human Rights

Trade unionism

One outcome of the Industrial Revolution which began in 18th century Britain was the emergence of trade unions. They are associations of employees that were created to protect the rights of workers. Trade union holds enormous collective power; where single employees have very limited power but many workers together combined in a single cause have a great deal of power.

o Universal Declaration of human rights, Article 23 (4) states ‘everyone has the right to form and to join trade unions for the protection of his or her rights’.

Universal suffrage

Suffrage refers to the right to vote. In the most voting was only opened to male and the wealthy people. By the 1890s there were women’s suffrage societies in all Australian colonies. South Australia became the first jurisdiction in Australia to grant women the right to vote in 1894. Voting rights for Federal Parliament were won in 1902. British women were not entitled to vote until 1928. However ATSI groups did not have to right to vote until 1962.

o Right to vote is now protected under Article 21 (3) of the Universal Declaration of Human Rights

Universal education

The concept of universal education is the right of all to a basic education. Any kind of formal education was rare in most nations before the 19th century. People of all social class recognised education as a means of ensuring the future of their children. Australian colonies made several Acts that made education free and compulsory for all. However the standards of education in developing countries remain poor today. The United Nation has invested large amounts of money to improve the level of basic education throughout the world.

o The right to education is protected under Article 26(1) of the Universal Declaration of Human Rights

· Examine major human rights documents and explain their contribution to the development of human rights.

a. What is the role of the UN?

b. UDHR 1948 – influence around the world

- Governments not obliged to obey (state sovereignty)

- Moral authority

construct a table outlining the key elements of:

§ UDHR

§ ICCPR

§ ICESCR H1

Human rights are recognised and enforced in two ways:

Ø Internationally

Ø Domestically

International recognition and enforcement of Human Rights

Ø United Nations Charter 1945: established UN and is a treaty which binds all members of the UN. It promotes respect for human rights.

Ø International Bill of Rights: this is made up of 3 documents

- Universal Declaration of Human Rights 1948

- The International Covenant on Civil and Political Rights 1966

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

Ø Customary international law: Jus cogens is a principle of international law that may not be contradicted by any nation. Any treaty that goes against international customary law that is just cogens is declared invalid.

Ø Charter based bodies

Ø Commission of Human Rights

Ø Treaties based bodies

Ø Criminal tribunals: mainly deals with war crime

Ø Non-government organisations: Amnesty International

Ø Media

Ø Watch Amnesty International animated video explaining the articles of the Universal Declaration of Human Rights (UNDHR) on YouTube

http://www.youtube.com/watch?v=epVZrYbDVis

· Assess the role of State Sovereignty in promoting and enforcing human rights.

Domestic (Australia’s) recognition of and enforcement of Human Rights

Ø The Australian Constitution

Ø Statute law

Ø Common Law

Ø Human Rights and Equal Opportunity Commission

Ø Non-legal measures: NSW Council for Civil liberties

Ø Media

6. Assess the role of state sovereignty in promoting and enforcing human rights

- Outline the concept “state sovereignty” and explain the significance of Article 2(1) UN Charter.

- What is the “relationship” between sovereignty and the enforcement of human rights?

7. Evaluate the effectiveness of international responses in promoting and enforcing human rights

- Make notes on the role played by the 5 (current) key organs of the UN with regard to human rights

- http://www.un.org/en/mainbodies/index.shtml

8. evaluate the effectiveness of international responses in promoting and enforcing human rights

Ø make a summary of relevant IGOs and their role in human rights.

Ø Look at:

o Funding

o NGO’s

o Treaty based bodies

o Regional organisation

o Enforcement by consensus

o Enforcement mechanisms

o War crime tribunal

o International Criminal Court

9. Outline how human rights are incorporated into Australian domestic law.

Domestic

Domestic law is effective to an extent; they are far more effective in comparison to international laws. Domestic laws are hard laws which mean that there is a definite punishment or sanction if proven to have breached a specific law. In Australia domestic law is a combination of:

o Constitutional laws. Look at Separation of Powers

o Statute laws

o Common laws

Constitutional laws are laws derived from the Constitution; it deals with the power of the government in general. Statute laws are laws made by parliament (legislature), hence are called legislations. Common laws are set precedent derived from a judges’ decision (judiciary) they are only binding on lower courts. It is important to note that statute laws overwrite common laws in times of conflict which means that human rights established by precedent can be easily removed by the parliament.

Australian law has been highly regarded throughout the world in regard to human rights issues. Australia has played a major role in the development of important human rights documents. However in recent years there have been growing amount of criticism. Some concerns were:

o Failure of the government to sufficiently resource and empower the Human Rights and equal opportunity Commission.

o Australia’s slow response in preparing reports on domestic human rights issue for UNHRC.

o Mandatory sentencing laws in N.T.

10. Evaluate the effectiveness of Australian responses in promoting and enforcing human rights.

The High Court’s role in:

· Setting binding precedents

· Upholding constitutional rights

· Declare legislation invalid

· Important protector of human rights

· Use examples such as R v Toonan and Mabo 1992

11. Discuss the arguments for and against a Charter of Rights for Australia

A number of attempts have been made to introduce a Bill of Rights into the Australian Constitution. However none of the attempts succeed. There is great debate over what a Bill of Rights should contain and indeed whether Australia really needs one, or whether the current mixture of limited constitutional rights and more extensive common and statute law rights is sufficient. Following table lists the arguments for and against an Australian Bill of Rights.

Argument for / Argument against
§ Australian law affords inadequate protection of rights / § Rights are already well protected in Australia
§ Empower powerless Australians and minority groups / § It would be very expensive given the amount of litigation that could be generated
§ Universal rights would get greater recognition / § It would actually restrict rights because to define a right is to limit it
§ Put rights above politics as Constitution is hard to change / § The political system itself is the best protection of rights
§ Promote tolerance and understanding in the community / § Past referendum shows people saw no need for a Bill of Rights

12. Investigate a contemporary human rights issue and evaluate the effectiveness of legal and non legal responses to the issue

Revisit the human rights issue you researched for assessment task 2 and re-evaluate your research in light of the effectiveness of legal and non-legal responses. Refer to your textbook for pointers or see me for some links.

ANSWER THE FOLLOWING QUESTIONS. WE WILL GO THROUGH THE ANSWERS ON WEDNESDAY 27/7/11

Question 1 (10 marks)

(a) Distinguish between domestic law and international law.

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(b) Using ONE specific example of an international human rights issue, outline how domestic law has responded to this issue.

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