Human Rights Class Notes Booklet PDF

SGGHS HSC Legal Studies Human Rights Class Companion Human Rights Themes and Challenges: The changing understanding of the relationship between state sovereignty and human rights Issues of compliance and non-compliance in relation to human rights The development of human rights as a reflection of changing values and ethical standards The role of law reform in protecting human rights The effectiveness of legal and non-legal measures in protecting human rights. 1 SGGHS HSC Legal Studies Human Rights Class Companion Learning Intentions: The nature and development of human rights Definition of human rights Developing recognition of human rights – abolition of slavery, trade unionism and labour rights, universal suffrage, universal education, self-determination, environmental rights, and peace rights. Formal statements of human rights – Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), and International Covenant on Economic, Social and Cultural Rights (ICESCR) (collectively known as the International Bill of Rights). Promoting and enforcing human rights In the international community: State sovereignty The roles of: United Nations, intergovernmental organisations, courts, tribunals and independent statutory authorities, non-government organisations, and the media. In Australia: The incorporation of human rights into domestic law The roles of: Constitution (division of powers and separation of powers), statute law, common law, courts and tribunals, non-government organisations, the media, and a Charter of Rights (arguments for and against). Contemporary issue – Human Trafficking Definition Extent domestically and globally Causes Domestic legal and non-legal responses International legal and non-legal responses Effectiveness of both legal and non-legal responses 2 SGGHS HSC Legal Studies Human Rights Class Companion Success Criteria: I can define human rights I can outline the characteristics of human rights I can outline how human rights have changed and developed over time I can investigate the evolving recognition and importance of universal human rights I can examine the major human rights documents and explain their contribution to the development of human rights I can assess the role of state sovereignty in promoting and enforcing human rights I can evaluate the effectiveness of international responses in promoting and enforcing human rights I can outline how human rights are incorporated into Australian domestic law I can evaluate the effectiveness of Australian responses in promoting and enforcing human rights I can discuss the arguments for and against a Charter of Rights for Australia I can investigate a contemporary human rights issue (human trafficking) and evaluate the effectiveness of legal and non-legal responses to the issue. 3 SGGHS HSC Legal Studies Human Rights Class Companion Human Rights “Human rights are foreign to no culture and native to all nations; they are universal. One cannot pick and choose among human rights; whether civil, cultural, economic, political or social, human rights are indivisible and interdependent.” Kofi Annan, UN General Secretary, UN Briefing Papers, 1998 What are human rights? Human rights are fundamental entitlements of people arising by virtue of their humanity. Human rights are the basic rights and freedoms believed to belong justifiably to all human beings. What does this essentially mean? It means that since people are born as human, they have basic entitlements that arise from that. Basic human dignities have been considered and contemplated by philosophers and theologians for thousands of years e.g. Plato and Socrates. As stipulated in the Universal Declaration of Human Rights 1948, these rights differ from ordinary rights under domestic law in that they are considered to be universal, inalienable (cannot be taken away) and inherent in all people. They are a collection of fundamental standards for the treatment of individuals in a fair, just and free society. Human rights aim to protect people from injustice, allow people to achieve their full potential in society, and prevent the discrimination of groups of people because of their physical attributes or beliefs. It is widely acknowledged that countries have a moral and 4 SGGHS HSC Legal Studies Human Rights Class Companion legal obligation to respect and uphold these rights through domestic law and legal processes. The legal system reflects aspects of rights in every single law that is passed. The legal system in each nation will try to articulate laws that attempt to regulate behaviour and provide order in society. Since these laws express community standards and expectations then the laws will tend to reflect the rights which are most valued within the community. Hence: Human rights should reflect mainstream social values Laws that are consistent with broadly held values in a national system of government that encourages the freedom for people to express their rights and aspirations are likely to reflect the rights significant to the people within the society. Democratic societies are believed to uphold human rights the most effectively because the people select their members of parliament to create laws that reflect their views and fulfil their aspirations. What are the main characteristics of human rights? Universal: they apply to all people at all times regardless of circumstances. This means they apply to all individuals regardless of culture, gender, status, nationality, age, sexuality or any feature that can be used to distinguish between people. Inherent: are intrinsic to humanity and cannot be separated from the experience of being human. Whether a person has a physical or intellectual disability, because they are human they have, as a feature of being, fundamental entitlements. Inalienable: they cannot be removed, given up, traded or sold. Nations can legislate against rights and can punish the expression of rights but rights cannot be taken away even if an individual attempts to give them up. Indivisible: all rights are equally important and no rights are better than other rights. All people are entitled to the full expression of each and every human right, not just some rights and not just a partial recognition of rights. Interdependent: the enjoyment of rights depends on other rights. In order to fully express any rights, other rights must also be freely expressed. Therefore, the full expression of each right depends on the full expression of all other rights. Not all the above features of human rights are upheld in all countries around the world. For instance, the universality of rights is not shared by every culture, religion or social group, hence why there is difficulty in getting international consensus on any international issue. Similarly, some individuals choose not to express the rights they have and thus the question of whether rights are inalienable arises. In some nation states, civil 5 SGGHS HSC Legal Studies Human Rights Class Companion and political rights are not given legal protection, but economic rights are i.e. in some nations, rights are not regarded as being equal or indivisible. What are the different types of human rights? Civil and political rights: are also known as ‘first generation’ rights because they were the first to be recognised historically. - Civil rights are entitlements belonging to all humans and involve being a free citizen of a nation e.g. freedom of thought and freedom of religion. - Political rights are entitlements belonging to all humans and involve full participation in government e.g. the right to vote. Civil and political rights protect the individual from the arbitrary exercise of power by the state. These rights are set out in Articles 3 (Everyone has the right to life, liberty and security of person) to Article 21 (Everyone has the right to take part in the government of his country, directly or through chosen representatives…) of the Universal Declaration of Human Rights 1948 and in the International Covenant on Civil and Political Rights 1966 (Sec 2.1.3, page 107). These rights are: The right to life, liberty and security of person The right to freedom from slavery The right to freedom from torture or from cruel, inhuman or degrading treatment or punishment The right to self-determination The right to recognition everywhere as a person before the law The right to equality before the law The right to an effective judicial remedy The right to freedom from arbitrary interference with privacy, family, home or correspondence. 6 SGGHS HSC Legal Studies Human Rights Class Companion The right to freedom of movement and residence The right to freedom to leave and return to one’s country The right to asylum The right to a nationality The right to marry and found a family The right to own and not be arbitrarily deprived of property The right to freedom of thought, conscience and religion The right to freedom of opinion and expression The right to peaceful assembly and association The right to take part in the government of one’s country and to equal access to public service in one’s country. Many civil and political rights are viewed as negative rights because the state rather than performing certain actions, is required to refrain from certain actions against the individual in order to protect these rights. These ‘negative’ civil and political rights include the rights to: freedom from slavery; freedom from torture or from cruel, inhumane or degrading treatment or punishment; freedom from arbitrary interference with privacy, family, home or correspondence; freedom of movement and residence; freedom to leave and return to one’s country; freedom of thought, conscience and religion; freedom of opinion and expression. Even though these require the state not to interfere in order to protect civil and political rights, the state can also be required to take positive action in order to protect other civil and political rights, such as acting to establish appropriate institutions e.g. courts, as well as training the police and the judiciary. Economic, social and cultural rights: are also known as ‘second’ generation rights because they came to be recognised after civil and political rights. They are concerned with the material and cultural wellbeing of individuals. - Economic rights are concerned with the production, development and management of material for the necessities of life. - Cultural rights are the rights which assist in preserving and enjoying one’s cultural heritage. - Social rights are those that give people security as they live and learn together, such as the rights involving schools and other institutions. These rights are set out in Article 23 (Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment…) to Article 27 (Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancements and its benefits…) of the Universal Declaration of Human Rights 1948 and in the International Covenant on Economic, Social and Cultural Rights 1966 (Sec 2.1.3, page 107). 7 SGGHS HSC Legal Studies Human Rights Class Companion Economic, social and cultural rights include the right to: Social security (social right) Work, and just and favourable conditions of work Equal pay for equal work Join and form trade unions Rest and leisure Education An adequate standard of living (economic right) Enjoyment of the highest sustainable standard of physical and mental health Participate in the cultural life of the community (cultural right). Economic, social and cultural rights usually require government action e.g. an adequate health and education system requires the government to spend money on hospitals and schools. Environmental rights, peace rights, and the right to self-determination: are examples of ‘third’ generation rights which have emerged in recent years. These rights do not necessarily belong to the individual, as do other human rights, but rather to peoples collectively. Collective rights are those that do not belong to an individual but to a group of people (the right to continued survival of a race of people). This particular right is protected by the prohibition of genocide. The right to self-determination is the collective right of peoples to govern themselves e.g. Native Title. Some rights of individuals are also collective in their nature, such as the right to freedom of association and freedom of religion. The status of these rights in international law is not yet clear, although some have been recognised at least partially in various international treaties and declarations e.g. Declaration on the Right of Peoples to Peace 1984. 8 SGGHS HSC Legal Studies Human Rights Class Companion Test your understanding: 1. Define the term human rights. _____________________________________________________________________________________________ _____________________________________________________________________________________________ 2. Describe five important features of human rights. _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ 3. Identify the three main types of human rights. _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ 4. Explain why many civil and political rights are considered ‘negative rights’. _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ 5. Distinguish between social, economic and cultural rights. _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ 9 SGGHS HSC Legal Studies Human Rights Class Companion _____________________________________________________________________________________________ _____________________________________________________________________________________________ 6. Define collective rights and explain how Australian law has attempted to protect these rights. _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ 7. Select a specific article from the Universal Declaration of Human Rights 1948 and explain how it is being violated somewhere around the world. _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ 10 SGGHS HSC Legal Studies Human Rights Class Companion Developing Recognition of Human Rights _________ Despite the fact that the term human rights emerged in the 1940s, the actual concept of human rights was founded in ancient times by a number of civilisations: the Babylonians recognised the need to help the poor; early Confucianism focused on virtue and compassion; and, the Ancient Greek and Roman civilisations recognised the essential dignity of all human beings via the notion of natural law (humans have certain fundamental freedoms that cannot be taken away by anyone, not even a king or queen). The development of concepts of human rights have been influenced by the following: The idea of state sovereignty The ‘natural law’ doctrine Historic constitutional documents and international agreements Movements to recognise certain human rights. Historic Constitutional Documents Human rights have gradually been recognised through various documents which have become part of the constitutions of individual nation states, as well as through international agreements. The Magna Carta 1215 and English Common Law English law (of which Australian law is founded), first recognised that the king had limited power over individuals in the Magna Carta 1215. This document included the principles that: Every citizen has a right to freedom Anyone accused of a crime must be brought before the courts There must be equality of all before the laws Property cannot be confiscated by the king without compensation. The English common law also developed principles protecting the rights of individuals: Everyone is entitled to the due process of the law The writ of habeas corpus (individuals cannot be imprisoned without good reason). 11 SGGHS HSC Legal Studies Human Rights Class Companion English Bill of Rights 1688 & The Declaration of Rights 1689 UK The primary purpose of the English Bill of Rights 1688 was to consolidate protections and freedoms established in the Magna Carta and to permanently transfer power from the king to the parliament. The Bill of Rights was established after King James II attempted to forcibly pass a religious bill (which was contested by the majority of parliamentarians) and reduce the already limited power of the king. King James II was dethroned and his successor, William of Orange, was required to sign the English Bill of Rights before he ascended the throne. The significance of this Bill was that a monarch could not override laws created by a freely elected parliament. The separation of the Church and State is viewed as an important aspect of the rule of law in contemporary society. The principles of the Magna Carta and the common law were eventually expressed in the Declaration of Rights 1689. The main purpose of this document was to establish the supremacy of parliament over the king. In addition to this, individual rights of freedom of speech, and protection against cruel and unusual punishments were outlined in this document. Also included was the parliamentary control of the army. American Declaration of Independence 1776 The increasing emphasis on the right of the individual to be free from the arbitrary power of the state can be seen in the American Declaration of Independence 1776: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’. This declaration was a direct response to English colonial repression (British ex-patriots living in America felt that they were significantly separate from their mother land and wished to be recognised as independent). The historical experiences of these ex-patriots and the English were markedly different making it more pertinent that they should be governed separately. When Britain attempted to impose taxes on American colonists – even though they were not represented in British parliament – the English were viewed as an oppressive force and independence was declared by the Americans. This legal declaration was a significant step for the recognition and protection of human rights because it emphasised the right of the individual to be free from the arbitrary power of the state, and it enshrined specific human rights in domestic law. ‘All men are created equal’ ‘Life, Liberty and the pursuit of Happiness’ 12 SGGHS HSC Legal Studies Human Rights Class Companion Constitution of the U.S.A 1787 The American Constitution 1787 is significant because it is based on the separation of powers. What this essentially means is that the executive, legislature and judiciary (three arms of government) are separate and their functions and powers are mutually exclusive. This protects human rights because it prevents the arbitrary abuse of power by the state, hence upholds the legal principle of rule of law. French Declaration on the Rights of Man and the Citizen 1789 This declaration is very significant because it is the first attempt to create international human rights. Arising from the French Revolution, it was drawn up to protect the rights that its creators believed were inherent, inalienable and universal. Although it was created in the context of the French Revolution, these rights were stated to be applicable to all people, not just the citizens of France: Democratic governance Equality before the law Liberty Freedom of speech Freedom of action (within reason) Freedom of religion Respect of property U.S Bill of Rights 1791 A Constitutional Bill of Rights is a country’s statement of civil and political human rights. It guarantees freedom from government interference in private matters pertaining to the individual. In the United States, the first ten amendments of the Constitution 1791 comprise the U.S Bill of Rights. This is an important historical human rights document because it sets forth and guarantees many basis human rights: Freedom of speech Freedom of press Entitlement to a fair trial (procedural fairness) Freedom of Assembly Freedom from being held without charge Concept of double jeopardy Freedom from inhumane or unusual punishments 13 SGGHS HSC Legal Studies Human Rights Class Companion Freedom from the denial of rights as listed in the Constitution This also set the trend for a specific document pertaining to human rights in domestic legislation. 14 SGGHS HSC Legal Studies Human Rights Class Companion International Declarations Year Enacted Function on Human Rights Universal Declaration of Human 1948 The main instrument of the inalienable and Rights indivisible rights of all humans. It was the first comprehensive and explicit statement designed especially for the creation of a universal standard regarding the recognition and protection of human rights. The European Convention for the 1950 Set up the European Court of Human Rights Protection of Human Rights and and the European Commission on Human Fundamental Freedoms Rights. Together, these organisations monitor and regulate human rights in European States. International Convention on the 1969 Specifically protects people from Elimination of all forms of Racial discrimination on the basis of race/culture. Discrimination International Covenant on 1966/1976 Protect second generation rights which Economic, Social and Cultural ensure that citizens can participate fully Rights and safely in society whilst maintaining human dignity. International Convention on the 1979 Aims to eliminate all forms of Elimination of all forms of discrimination against women. Discrimination against Women (CEDAW) International Convention against 1987 Specifically protects individuals from Torture and other Cruel, Inhuman torture and inhumane treatment. or Degrading Treatment or Punishment Convention on the Rights of the 1990 Specifically protects human rights in Child relation to children. 15 SGGHS HSC Legal Studies Human Rights Class Companion Movements Recognising Human Rights The 19th and 20th Centuries were characterised by several important human rights struggles. Such struggles included the abolition of slavery, trade unionism and labour rights, universal suffrage, and universal education. These movements challenged the accepted notion of human rights and moulded the way in which subsequent new concepts of human rights were protected. The Abolition of Slavery “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”. Article 4, UDHR 1948 Defining slavery… Slavery is the condition in which one human being is the property of another, usually for the purposes of labour. From a historical perspective in law, a slave was regarded as an item of property and was therefore denied basic human rights. Slaves could be bought and sold and were even subject to public auctions. The existence of slavery – a historical overview… Most ancient civilisations (Egypt, Greece and Rome) had slaves. Since the Middle Ages Europeans went to Africa to obtain slaves. The African slaves were taken by force and sold to other European countries, and from the 17th Century, to North America. The movement to abolish the slave trade and end slavery began in the late 18th Century in Europe. The movement to abolish slavery began in the 18th Century and became more organised during the 19th Century. Denmark was the first European state to abolish slavery in 1792. France was the first country to pass a decree abolishing slavery in 1794, followed by the Declaration of the Rights of Man and the Citizen in 1789. In Britain, the slave trade from Africa ceased in 1807, and the keeping of slaves was abolished in 1838. Most European countries had stopped exporting slaves from Africa by 1838. In the United States of America, slaves were an important part of the southern states from well before the Declaration of Independence in 1776. Most Americans questioned whether slavery should exist in a nation which had declared that ‘all men are created equal’. The fight to end slavery in the U.S led to the American Civil War (1861 – 1865) that ultimately ended slavery in America. Through the Emancipation Proclamation 1863, the slaves in the southern states were freed and this led to the freeing of all slaves in America. Amendment 13 to the Constitution of the United States of America abolished all slavery. 16 SGGHS HSC Legal Studies Human Rights Class Companion In Australia, Polynesian islanders known as Kanakas were used as slaves on sugar and cotton plantations in Queensland from the 1860s. The Kanaka forced-labour system was abolished by the Queensland government in 1890, but only effectively came to an end in 1904 when the federal government agreed to offset any losses to sugar planters caused by the end of the system. In 1885, European countries met in Berlin to attempt to end the trade in African slaves. In 1890, they re-convened in Brussels and signed the General Act of Brussels, which was the first international treaty abolishing slavery. The Slavery Convention1926 was signed in Geneva and was amended in 1953. The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery 1956 came into effect in April 1957. Slavery is now protected against in the Universal Declaration on Human Rights (Article 4) and by the adoption of the International Slavery Convention in 1926. The Amistad case 1841: United States v Libellants and Claimants of the Schooner Amistad 40 U.S. (1841) Brief Narrative of the Amistad Incident | The Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition (yale.edu) The Amistad Case | National Archives This case was fought in the north-eastern US state of Connecticut. The main issue was the fate of a group of slaves who mutinied on the ship La Amistad against slave-traders who had kidnapped them from Africa in order to sell them to the southern United States. The US Supreme Court was given the task of deciding whether the Africans should be freed or sent back into slavery. John Quincy Adams, former US President, acted as the slaves’ defence lawyer and argued for their freedom. The Supreme Court decided in favour of the Africans, stating that they were free individuals. Kidnapped and transported illegally, they had never been slaves. Senior Justice Joseph Story wrote and read the decision: "...it was the ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice." The opinion asserted the Africans' right to resist "unlawful" slavery. The Court ordered the immediate release of the Amistad Africans. Thirty-five of the survivors were returned to their homeland (the others died at sea or in prison while awaiting trial). 17 SGGHS HSC Legal Studies Human Rights Class Companion Trade Unionism and Labour Rights “Everyone has the right to form and to join trade unions for the protection of his interests”. Article 23, UDHR A trade union is an association or organisation of employees (in a particular trade or industry), which exists in order to maintain and improve the working conditions of its members. Improved working conditions essentially entail better pay, working environment, safety, training, career progression, professional status and employer/employee relations via collective action. Trade unions also attempt to improve the social and political status of their members and represent employees during an industrial dispute. Trade unions developed to fight for what are now recognised as fundamental human rights: International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 The right to the enjoyment of just and favourable conditions of work (Article 7) The right to form and join trade unions (Article 8) The right to an adequate standard of living (Article 11) Trade unions first developed in England in the early nineteenth century. They formed in response to the Industrial Revolution which had become a main feature of England and other parts of the Western world during the previous century. The Industrial Revolution changed the production process significantly: manufacturing engulfed small craft-based industry and agriculture; factories emerged in cities and employed thousands of people who had previously been servants or labourers. This factory work was characterised by: Low wages Long working hours Unhealthy and unsafe working conditions Poor working conditions and insufficient pay led to the banding together of workers in an effort to improve their conditions. If all workers joined forces and formed a union, an employer could not fire them since all people who worked in an industry were demanding the same improvements and were refusing to work without them. This led to the formation of trade unions or combinations. When trade unions initially formed in England they were outlawed by Acts of Parliament called Combination Acts. These were subsequently repealed in 1824. Despite this, collective action by trade union members continued to be punished under criminal laws until the 1870s. In Australia, the Shipwrights Union emerged in 1829 as the first trade union. Laws designed to restrict collective action of union members remained in force until after the maritime strikes and shearers strikes of the 1890s. 18 SGGHS HSC Legal Studies Human Rights Class Companion International concern regarding the conditions of workers was highlighted in the mid- nineteenth century by two industrialists, Robert Owen (Wales) and Daniel Legrand (France), who stressed the need for an international organisation to protect workers. The International Association for Labour Legislation was founded in Basel (Switzerland) in 1901 and the ideas of Owen and Legrand were incorporated into the International Labour Organisation (ILO) which was created in 1919 at the World War 1 Peace Conference in Paris and Versailles. The International Labour Organisation was created to improve the working conditions of employees internationally and, when it initially convened in 1919, it passed several conventions to improve conditions for workers, including conventions concerning hours of work, night work, and minimum age requirements for work. Despite the fact that many workers in developing countries continue to be exploited and to work in poor conditions, the work of the ILO and the trade union movement has continually improved the human rights of workers globally. In Australia, trade unions have secured the following rights for workers: Minimum wages, based on maintaining an adequate standard of living The right to form trade unions Equal pay for equal work Occupational health and safety requirements A 40-hour working week. History of Trade Unionism Historical development As an organized movement, trade unionism (also called organized labour) originated in the 19th century in Great Britain, continental Europe, and the United States. In many countries trade unionism is synonymous with the term labour movement. Smaller associations of workers started appearing in Britain in the 18th century, but they remained sporadic and short-lived through most of the 19th century, in part because of the hostility they encountered from employers and government groups that resented this new form of political and economic activism. At that time unions and unionists were regularly prosecuted under various restraint-of-trade and conspiracy statutes in both Britain and the United States. While union organizers in both countries faced similar obstacles, their approaches evolved quite differently: the British movement favoured political activism, which led to the formation of the Labour Party in 1906, while American unions pursued collective bargaining as a means of winning economic gains for their workers. 19 SGGHS HSC Legal Studies Human Rights Class Companion Legal precedents British unionism received its legal foundation in the Trade-Union Act of 1871. In the United States the same effect was achieved, albeit more slowly and uncertainly, by a series of court decisions that whittled away at the use of injunctions, conspiracy laws, and other devices against unions. In 1866 the formation of the National Labor Union (NLU) represented an early attempt to create a federation of American unions. Although the NLU disappeared in the 1870s, several of its member trade unions continued, representing such diverse occupations as shoemakers, spinners, coal miners, and railway workers. The founding of the American Federation of Labor (AFL) by several unions of skilled workers in 1886 marked the beginning of a continuous large-scale labour movement in the United States. Its member groups comprised national trade or craft unions that organized local unions and negotiated wages, hours, and working conditions. Trade Union Movement in Australia The first Australian unions were formed by free workers (non-convict labourers) in Sydney and Hobart in the late 1820s. Unions spread across the country from the late 1830s. Between 1850 and 1869 about 400 unions were formed in Australia. These early unions represented craft-based workers such as stonemasons and carpenters, as well as informal combinations of craftsmen and other workers such as shop assistants, labourers and miners. Many of these trade unions were formed to assist members during illness, death and unemployment. Other unions combined social welfare assistance with campaigning for improved wages and working conditions. However, many of these early unions were short-lived. Unionism picked up again in the 1850s as workers rallied for the eight-hour work day. Workers outside the craft industry, such as road transport workers and miners, also began to organise. Women became active in the union movement from the 1870s, often forming separate unions. The growth of unions increased in the 1880s as trade and labour councils played a greater role in mediating disputes between workers and employers. Union presence in the political arena increased when labour councils formed electoral leagues, leading to the formation of the Australian Labor Party. Union membership increased and by 1890, 200,000 Australian workers were part of a union. The 1890s challenged the growing strength of the Australian labour movement. Union membership fell drastically due to the economic depression and union defeat following a series of strikes. Many small and recently formed unions collapsed as a result. 20 SGGHS HSC Legal Studies Human Rights Class Companion The introduction of compulsory arbitration in the early 20th century assisted in recovering union numbers. The arbitration system established minimum wages and conditions and encouraged employers to consult with unions. This led to the establishment of the Australian Council of Trade Unions (ACTU) in 1927. Although unions suffered industrial defeats and membership losses during the 1930s Great Depression, they recovered during World War II. The trade union movement in the post-war era was characterised by increased militancy and the presence of the Communist Party. Although communist influence strengthened the labour movement, it also led to bitter struggles between pro and anti-communist unionists. Many achievements were made by the trade union movement during the post-war era, including reduced work hours and equal pay. Unions also began addressing other social issues such as Indigenous rights, gender discrimination and migrant welfare. Furthermore, they turned their attention to political causes including apartheid, the Vietnam War and environmental and heritage preservation. Unions faced increasing challenges as the 20th century progressed. From the 1980s onwards, they had to deal with the effects of privatisation, deregulation, the modification of industrial laws and the increasing presence of casual workers and contractors. Members of the Ballarat branch of the Victorian Railways Union assembled on Eight Hours Day. Creator: Eden Studios Source: Museums Victoria (Licensed as All Rights Reserved) 21 SGGHS HSC Legal Studies Human Rights Class Companion International Labour Standards on Freedom of Association The principle of freedom of association is at the core of the ILO's values: it is enshrined in the ILO Constitution (1919), the ILO Declaration of Philadelphia (1944), and the ILO Declaration on Fundamental Principles and Rights at Work (1998). It is also a right proclaimed in the Universal Declaration of Human Rights (1948). The right to organize and form employers' and workers' organizations is the prerequisite for sound collective bargaining and social dialogue. Nevertheless, there continue to be challenges in applying these principles: in some countries, certain categories of workers (for example public servants, seafarers, workers in export processing zones) are denied the right of association, workers' and employers' organizations are illegally suspended or interfered with, and in some extreme cases trade unionists are arrested or killed. ILO standards, in conjunction with the work of the Committee on Freedom of Association and other supervisory mechanisms, pave the way for resolving these difficulties and ensuring that this fundamental human right is respected the world over. Selected relevant ILO instruments Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - [ratifications ] This fundamental convention sets forth the right for workers and employers to establish and join organizations of their own choosing without previous authorization. Workers' and employers' organizations shall organize freely and not be liable to be dissolved or suspended by administrative authority, and they shall have the right to establish and join federations and confederations, which may in turn affiliate with international organizations of workers and employers. Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - [ratifications ] This fundamental convention provides that workers shall enjoy adequate protection against acts of anti-union discrimination, including requirements that a worker not join a union or relinquish trade union membership for employment, or dismissal of a worker because of union membership or participation in union activities. Workers' and employers' organizations shall enjoy adequate protection against any acts of interference by each other, in particular the establishment of workers' organizations under the domination of employers or employers' organizations, or the support of workers' organizations by financial or other means, with the object of placing such organizations under the control of employers or employers' organizations. The convention also enshrines the right to collective bargaining. Workers' Representatives Convention, 1971 (No. 135) - [ratifications ] Workers' representatives in an undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers' representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements. Facilities in the undertaking shall be afforded to workers' 22 SGGHS HSC Legal Studies Human Rights Class Companion representatives as may be appropriate in order to enable them to carry out their functions promptly and efficiently. Rural Workers' Organisations Convention, 1975 (No. 141) - [ratifications ] All categories of rural workers, whether they are wage earners or self-employed, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations, of their own choosing without previous authorization. The principles of freedom of association shall be fully respected; rural workers' organizations shall be independent and voluntary in character and shall remain free from all interference, coercion or repression. National policy shall facilitate the establishment and growth, on a voluntary basis, of strong and independent organizations of rural workers as an effective means of ensuring the participation of these workers in economic and social development. Labour Relations (Public Service) Convention, 1978 (No. 151) - [ratifications ] Public employees as defined by the convention shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment, and their organizations shall enjoy complete independence from public authorities as well as adequate protection against any acts of interference by a public authority in their establishment, functioning or administration. Microsoft Word - Document6 (ilo.org) International Journal of Labour Research Unions must work together and find ways to organize new forms of work Trade unions need to strengthen their unity, attract more young people and organize workers in the digital economy, according to a new report. Press release | 26 September 2022 GENEVA (ILO News) – The urgent need to revitalize trade unions around the world has been highlighted in the 2022 edition of the International Journal of Labour Research launched by the Bureau for Workers' Activities (ACTRAV) at the International Labour Organization (ILO). Geopolitical tensions, climate change and natural disasters, as well as armed conflicts and food and financial crises are exacerbating inequalities and violations of workers’ and trade union rights, according to the study. This year’s International Journal of Labour Research, published by ACTRAV, urges trade unions to strengthen their unity and cooperation and calls for new forms of work to be organized, especially on digital platforms where young people are over-represented. Trade Union Revitalization: Organizing new forms of work including platform workers , shares best practices for innovative strategies that trade unions can adopt to strengthen their organizations. It also includes a series of recommendations to build strong, representative, and resilient workers’ organizations around the world. Maria Helena Andre, Director of ACTRAV said: "Trade unions play an important role in 23 SGGHS HSC Legal Studies Human Rights Class Companion ensuring peace, social justice and decent work for all. From the ILO's point of view, we strongly believe that the revitalization of trade unions is possible. For this to happen, it is important that trade unions strengthen their unity and develop innovative strategies to attract and organise workers in new forms of work, especially those in the digital economy. More young people should be attracted to trade unions to reinforce their membership. We hope that this issue will stimulate reflexions and actions to strengthen the trade union movement.” The 2022 edition of the Review contains a series of recommendations to strengthen trade unions. These include moving towards unity by collaborating within the labour movement to reach common positions, extending unionization to groups in vulnerable situations, and addressing strategic objectives such as the creation of decent employment, decent work deficits, low wages, the impact of climate change and gaps in social protection. Attracting young people is also a key concern for an increasingly ageing labour movement, the report says. The growing digital economy is challenging the fundamental governance of labour, but if engaged properly, young people can open an important avenue to increasing membership and strengthening trade unions. Trade unions are urged to strengthen their digital skills and knowledge to address the challenge of digitalization in the world of work. They must adopt innovative strategies to mobilize and organize workers in new forms of work, including those in the platform economy. Forming networks and alliances with emerging associations, such as self-organized workers, and deploying digital communication tools in reaching a dispersed, yet constantly connected, online workforce is also recommended. About the International Journal of Labour Research The International Journal of Labour Research (IJLR) is the flagship publication of the Bureau for Workers’ Activities of the ILO. A multidisciplinary journal, the IJLR is a vehicle for dissemination of international research on labour, economic, and sustainable development policies. Its target readership includes workers’ organizations, practitioners, researchers, labour ministries, and academics in all disciplines of relevance to ILO constituents in the world of work – industrial relations, sociology, law, economics, and political science. The IJLR is published in English, French, and Spanish, and each issue focuses on a specific theme. 24 SGGHS HSC Legal Studies Human Rights Class Companion Mission and impact of the ILO Promoting jobs, Protecting people The International Labour Organization (ILO) is devoted to promoting social justice and internationally recognized human and labour rights, pursuing its founding mission that social justice is essential to universal and lasting peace. Only tripartite U.N. agency, the ILO brings together governments, employers and workers representatives of 187 member States , to set labour standards, develop policies and devise programmes promoting decent work for all women and men. Today, the ILO's Decent Work agenda helps advance the economic and working conditions that give all workers, employers and governments a stake in lasting peace, prosperity and progress. Four strategic objectives at the heart of the Decent Work agenda Set and promote standards and fundamental principles and rights at work Create greater opportunities for women and men to decent employment and income Enhance the coverage and effectiveness of social protection for all Strengthen tripartism and social dialogue 25 SGGHS HSC Legal Studies Human Rights Class Companion Universal Suffrage ‘Everyone has the right to take part in the government of his country…this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage’. Article 21, UNDHR Susan Bronwell Anthony (February 15, 1820 – March 13, 1906) was an American social reformer and feminist who played a pivotal role in the women’s suffrage movement. Suffrage means the right to vote in government elections. Universal suffrage refers to the right of all adults to vote in government elections. The right to vote is recognised in Article 1 of both the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights as the right to self- determination. Universal suffrage also means the right to vote, regardless of race, gender, religion, language, political affiliation, national or social origin, birth or other status. Why is this right significant? Mainly because when all adults have the right to vote, then they are empowered to elect a government that will protect their rights and freedoms. Hence, voters have the power to vote out any government that infringes or violates their human rights. Universal suffrage has taken many years to evolve and be granted to the citizens of nations. At the beginning of the nineteenth century, only a few men and no women were permitted to vote in elections. Indigenous peoples and racial minorities were disenfranchised (unable to vote) in many countries e.g. Black women in South Africa were only granted the right to vote in 1994. It was not until the Enlightenment philosophical movement of the eighteenth century which questioned traditional views and brought about many humanitarian reforms, that the concept that all people should have a role in electing their leaders gained significant support. This philosophical movement was also 26 SGGHS HSC Legal Studies Human Rights Class Companion profoundly important because it argued that all people have the right to self-government, therefore, governments derive their right to govern from the people and so should be accountable to the people that they govern and represent. Male Suffrage: The idea that people have the right to choose their own government or to form a government was first recognised in the American Declaration of Independence 1776 and the Declaration of the Rights of Man and the Citizen 1789 (France). These documents were formed from revolutions in which the existing governments were overthrown. Male suffrage was granted… France: 1848 United States: 1825 Britain: 1918 Australia (NSW): 1858. Female Suffrage: In the latter part of the nineteenth century, a movement calling for female suffrage gained momentum in many Western democracies, especially after male suffrage was granted. New Zealand was the first country to grant women the right to vote in 1893. Australia was the second nation to grant this right: SA in 1894; and, NSW and the Commonwealth in 1902. American women gained this right in 1920, while British women secured the right to vote in 1928. Most other nations granted women suffrage between 1920 and 1950. Switzerland did not grant women the right to vote until 1971. The right to vote for women is now almost universal: since 2010, all nations granted female suffrage, except for Vatican City and Saudi Arabia. Racial Minority Groups: In the USA, even though black men were granted the right to vote in 1870, discriminatory laws and practices in many states prevented many black Americans from exercising their right to vote until the enactment of the Voting Rights Act 1965. In South Africa, Indians were not given the right to vote until 1984, while back South Africans secured this right in 1994. In Australia, universal suffrage was not granted for Aboriginal people until 1962. Despite the fact that most modern democratic governments embrace the idea of universal suffrage, it remains a human rights issue in some parts of the world e.g. Zimbabwe. In many nations, individuals with a criminal record are not permitted to vote, essentially meaning that millions of people are not represented in parliament, regardless of the fact that they have served their punishment e.g. America. Other factors can also deprive individuals of the right to vote such as insufficient literacy levels. If you consider the fact that Indigenous and Torres Strait Islander peoples are the most disadvantaged in terms 27 SGGHS HSC Legal Studies Human Rights Class Companion of access to education and health care, then this would essentially be denying them representation in parliament. O C TO B ER 5 , 2 0 20 Key facts about women’s suffrage around the world, a century after U.S. ratified 19th Amendment BY KATHERINE SCHAEFFER A woman casts her ballot at a polling station in Soweto in April 1994 for South Africa’s first free and democratic general election. (Brooks Kraft LLC/Sygma via Getty Images) This year marks the centennial of the ratification of the 19th Amendment to the United States Constitution, which guarantees women the right to vote. But the United States was hardly the first country to codify women’s suffrage, and barriers to vote persisted for some groups of U.S. women for decades. At least 20 nations preceded the U.S., according to a Pew Research Center analysis of women’s enfranchisement measures in 198 countries and self-administering territories. Today, none of these 198 countries and territories bar women from voting because of their sex; some countries do not hold national elections. Here is a closer look at the history of women’s suffrage around the world. This analysis focuses on when women in each country won the right to vote in national elections, not regional or local elections. 28 SGGHS HSC Legal Studies Human Rights Class Companion How we did this New Zealand enfranchised its female citizens in 1893, making it the first nation or territory to formally allow women to vote in national elections. At least 19 other countries also did so prior to the U.S. passage of the 19th Amendment in 1920, according to our analysis. These countries are spread across Europe and Asia, and about half first gave women this right while under Russian or 29 SGGHS HSC Legal Studies Human Rights Class Companion Soviet control or shortly after independence from Russia. Russia itself extended the vote to women after demonstrations in 1917. In at least eight additional countries, some women – but not all – gained equal voting rights in or before 1920. More than half of the countries and territories we analyzed (129 out of 198) granted women the right to vote between 1893 and 1960. This includes all but six European nations. Some of the European nations that allowed universal suffrage after 1960 include Switzerland (1971), Portugal (1976) and Liechtenstein (1984). In other world regions, women secured the right to vote in national elections only after major cultural or governmental shifts. For example, 80% of the countries in Africa we analyzed granted citizens universal suffrage between 1950 and 1975 – a period of sweeping European decolonization for the continent (as well for parts of Asia and Latin America). Many newly independent nations adopted universal suffrage along with new governments and constitutions. Bhutan, the United Arab Emirates and Kuwait are the most recent countries or territories to allow women to participate in national elections, although the picture is complicated. Bhutan and the UAE only established national elections recently. Bhutan shifted from a monarchy to a 30 SGGHS HSC Legal Studies Human Rights Class Companion parliamentary democracy in 2007. The UAE allowed a small number of male and female citizens to vote in the country’s first national elections in 2006. In Kuwait, the country’s Parliament amended an election law in 2005; the change guaranteed women the right to vote and run for office. In Saudi Arabia, women were enfranchised in local elections in 2015; the country does not hold national elections. South Sudan was established in 2011. It is not included among the most recent countries to give women the right to vote because women had this right starting in 1964, when the area was part of Sudan. At least 19 nations – including the U.S. – initially restricted the right to vote for women of certain backgrounds based on demographic factors such as race, age, education level or marital status. Sometimes, decades passed before all citizens were enfranchised. In the U.S., for example, more than four decades passed between the ratification of the 19th Amendment and the Voting Rights Act of 1965, which took aim at discriminatory state and local restrictions intended to prevent Black Americans from voting. Restrictions like these weren’t unique to the U.S. In Canada, for example, legislation in 1918 expanded suffrage to women, but it excluded Canadians from Asian Canadian and Indigenous backgrounds. Asian Canadians were not fully enfranchised until the 1940s, and Indigenous people could not vote until 1960. In Australia, Indigenous women were not enfranchised until 1962, six decades after non-Indigenous women were able to vote. In South Africa, more than 60 years passed between when White women won voting rights in 1930 and when Black women won them in 1993, following the end of apartheid. When India first expanded voting rights to women in 1935, only those who were married to a male voter, or possessed specific literacy qualifications, could vote. Universal suffrage followed in 1950. Some countries also initially set a higher minimum age for women voters than for their male counterparts. In 1915, for example, Icelandic women over age 40 gained the right to vote. Five years later, the voting age for women was lowered to 25, in line with the requirement for men. 31 SGGHS HSC Legal Studies Human Rights Class Companion Legal and cultural restrictions limited women’s voter participation in some countries and territories even after enfranchisement. Ecuador, for instance, became the first Latin American country to grant women voting rights in 1929, but it only extended the franchise to literate Ecuadorian women, and voting was not mandatory for women as it was for men. A new constitution in 1967 made voting mandatory for literate women, and it wasn’t until 1979 that the literacy requirement was dropped completely. Several other countries, such as Hungary and Guatemala, also imposed literacy requirements on women voters that were lifted later. More recently, Samoa’s government system allowed only those with chiefly titles, known as matai, to vote in parliamentary elections, effectively excluding women from the vote. The island nation adopted universal suffrage in 1990. In some places, women were able to vote in local elections before they were enfranchised at the national level – or vice versa. In Switzerland, for example, women secured the right to vote in national elections in 1971 but had been able to vote locally in some cantons, or states, since 1959. But in another canton, Appenzell Innerrhoden, women were only given the right to vote in local elections after a 1990 federal court ruling. Few countries and territories have rescinded women’s voting rights after initially granting them, but there are some notable exceptions. Afghanistan, for instance, was an early adopter of women’s suffrage after winning independence from Britain in 1919. Government shifts and instability over the next almost 100 years resulted in women losing and formally regaining the right to participate in elections several times. Women have the right to vote in Afghanistan today, but there are still barriers in place that limit their participation. In many countries, including the U.S., women often turn out to vote at higher rates than men. American women have turned out to vote at slightly higher rates than men in every U.S. presidential election since 1984, according to a Pew Research Center analysis in August. The same pattern appears in other countries, too. A 2016 study of voting patterns in 58 countries by the International Institute for Democracy and Electoral Assistance found that women’s voter turnout was higher than men’s in 21 countries. 32 SGGHS HSC Legal Studies Human Rights Class Companion Explore the history of the women's suffrage movement around the world Women could not participate in elections for much of human history, dating back to the ancient Greeks and Romans. In the 1800s women began fighting for the right to vote, petitioning their governments and rallying fellow citizens to the cause. In 1893 New Zealand became the first country to allow women to vote, after almost 25 percent of the country's women of European descent signed petitions. All New Zealand women—including Maori women—gained the right to vote. Australia followed suit in 1902. Enfranchisement did not extend to all Australian women, however. Aboriginal women and men could not vote for another 60 years. In Europe and North America suffrage supporters submitted petitions, gave speeches, and held rallies. Some women were arrested and engaged in hunger strikes while in jail. One advocate, the American Alice Paul, served six prison terms. Other leaders of the suffrage movement included Millicent Garrett Fawcett and Emmeline and Christabel Pankhurst in the United Kingdom and Susan B. Anthony, Elizabeth Cady Stanton, and Matilda J. Gage in the United States. When World War I spread across Europe, many women suffrage organizations shifted their energies to aiding the war effort. The role that women played during that war helped sway public support behind enfranchisement. In 1918 women in the United Kingdom, Germany, Poland, and Canada—among other countries—gained the right to vote. In Canada, however, First Nations women and men had to wait over 40 more years until they could vote. In 1920 women in the United States won their battle. Native Americans were barred from voting for four more years on the federal level, while some states withheld their voting rights even longer. Ecuador became the first South American country to enfranchise women, granting full voting rights to all women in 1929. The next year, South Africa began enfranchisement of women—but only those of European descent. This was due to apartheid, the white government's policy of segregation and discrimination against the country's non-white majority. Voting rights did not extend to all South Africans until 1994. In 1931 women in Spain gained the right to vote, but this lasted only five years—until Francisco Franco came to power in 1936. The end of World War II brought liberation to many European and Asian countries and with that, enfranchisement of women. In 1947 India and Pakistan gained independence from Britain, and both of their constitutions granted women the right to vote. Chinese women gained voting rights in 1949, after a new government took power following a civil war. During the late 1940s and 1950s, women across Latin America gained the right to vote. The end of World War II brought decolonization in Africa. As African countries gained independence, voting rights for women followed. By the end of the 1960s, women across most of Africa could participate in elections. As the 1970s began, there were still a few European countries that did not allow women to vote. Over the course of the decade, Switzerland, Portugal, Spain, and Moldova all enfranchised women. Liechtenstein followed in 1984. Some conservative Middle Eastern countries did not enfranchise women until the 21st century. In Bahrain women won the right to vote in 2002; in Qatar, 2003; and in Kuwait, 2005. In late 2015 women in Saudi Arabia voted in local elections for the first time, leaving Vatican City the last country to deny women the right to vote because of their sex. 33 SGGHS HSC Legal Studies Human Rights Class Companion Universal Education “Everyone has the right to education. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms”. Article 26 UDHR “The States Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace”. Article 13 ICESCR “Each State Party to the present covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all”. Article 14 ICESCR Universal education is the right for all people in the world to have acquired fundamental levels of education i.e. elementary level in which basic literacy, numeracy and comprehension skills are attained. In the eighteenth century, education was reserved for the aristocrats and anyone else who did not belong to this class, were mostly illiterate. With the onset of the Industrial Revolution in the late eighteenth century, the increased demand for literate and skilled workers prompted individuals of all classes to pursue some level of education in order to secure employment. As a result, in the 19th century, a national system of schooling was developed and in the 20th century, many nations passed legislation to enforce compulsory education. The gradual spread of suffrage around the world during the 1860s and 1870s helped to achieve universal education because it became recognised that citizens needed to be educated in order to effectively exercise their right to vote. In Australia in 1866, the Public Schools Act (NSW) set up a system of state elementary schools throughout NSW. Primary education became compulsory throughout the Australian states in the 1870s. Access to education was not equal for boys and girls, despite the fact that girls were included in the movement towards universal education. In Britain for instance, women were permitted to attend classes at Oxford University from 1921, however, other universities did not facilitate the attendance of females until several years later. In 34 SGGHS HSC Legal Studies Human Rights Class Companion Australia, women were allowed to attend some universities from 1867, but very few women completed secondary education. In 1969, 25% of university students were female, compared to today where women constitute 50% of Australian university students. Very few women, however, graduate from male-dominated fields such as engineering and construction. Despite the fact that compulsory basic education has become a universal phenomenon, approximately 50 per cent of school aged children do not attend school on a regular basis. In addition to this, many children in contemporary society continue to suffer from low literacy levels or a classified as functionally illiterate. About 130 million children aged between six and eleven still do not have access to primary education. The United Nations Education, Scientific and Cultural Organisation (UNESCO) instigated literacy campaigns and other educational projects on a global scale. The primary objective of their projects was to place every child, in every country into a school and ultimately eliminate illiteracy. The Universal Declaration of Human Rights 1948 (UDHR) also recognises the significance of universal education in securing other human rights. This is because a basic level of literacy would introduce the nature and importance of human rights to children and therefore, as adults they would have developed a better understanding and respect for the fundamental freedoms of others. Since individuals would have a deeper understanding of their own human rights entitlements, governments would become more accountable for their actions on a global scale. Refer to the PROGRESS ON THE SUSTAINABLE DEVELOPMENT GOALS THE GENDER SNAPSHOT 2022, to answer the following questions: Progress-on-the-sustainable-development-goals-the-gender-snapshot-2022-en_0.pdf (unwomen.org) Identify the direct and indirect benefits of educating girls and young women. …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… 35 SGGHS HSC Legal Studies Human Rights Class Companion Describe and account for the trends concerning access to education and schooling for girls and young women globally. …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… Explain why the number of girls and young women in STEM courses and careers is lower than it is for boys and young men. …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… 36 SGGHS HSC Legal Studies Human Rights Class Companion Write a PEEL paragraph in response to the question below. ‘Meeting the Education Goal will speed progress toward the achievement of every other goal’. UNICEF Explain the importance of universal education for women in achieving other human rights. …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… 37 SGGHS HSC Legal Studies Human Rights Class Companion Self-Determination Self-determination refers to the right of peoples to govern themselves and to choose their own form of government. Self-determination is a collective right since the attainment of their right to make their own laws and to govern themselves will affect their entire community or cultural group. The significance of this right is upheld strongly in the Charter of the United Nations 1945, where it is referred to in Articles 1(2) and 55, and by its inclusion in Article 1 of both the ICCPR and the ICESCR. Important features of the right to self-determination include: The right of colonised peoples to establish their independence. Most African and Asian countries achieved independence in the 1960s by invoking the right to self- determination. The right of people within a nation to freely choose their own form of government and to elect their own government. It is linked to the principle of sovereign equality of all United Nations member states, regardless of their size or power. This means that all member nations have an equal position in the United Nations and all have one vote in the General Assembly. Perhaps the most contentious facet of the right to self-determination is the right to native title i.e. the right of indigenous people to control and manage their own traditional lands and economy. This right is referred to in the Declaration on the Rights of Indigenous Peoples 2006 which was adopted by the United Nations General Assembly in 2007. 38 SGGHS HSC Legal Studies Human Rights Class Companion What is the right to self-determination? While there is no universally accepted agreement as to the content of the right to self- determination, it is agreed that at a minimum, it entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to pursue their economic, social and cultural development. Where does the right to self-determination come from? Australia is a party to seven core international human rights treaties. The right to self- determination is contained in article 1 of the International Covenant on Civil and Political Rights (ICCPR) and article 1 of the International Covenant on Economic, Social and Cultural Rights. This right is also contained in Article 3 of the Declaration on the Rights of Indigenous Peoples. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous people. When do I need to consider the right to self- determination? Self-determination is a right that pertains to groups of people, not individuals. In Australia, it is particularly relevant to Aboriginal and Torres Strait Islander peoples. You will need to consider the right whenever you are working on legislation, a policy or a program that will have a particular impact on Aboriginal and Torres Strait Islander peoples or other peoples with a common racial, ethnic or cultural identity which has been built up over a long period of time. The people impacted should be closely involved in the development and implementation of policies and programs that impact on them and with consultation and engagement strategies that facilitate this. The establishment of the National Congress of Australia's First Peoples is a leading example of this. What is the scope of the right to self-determination? It is generally understood that the right to self-determination accrues to 'peoples'. The UN Human Rights Committee has declined to consider individual complaints about the right under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The UN Committee on the Elimination of Racial Discrimination has stated that the right to self-determination involves 'the rights of all peoples to pursue freely their economic, social and cultural development without outside interference' and that 'Governments are to represent the whole population without distinction as to race, colour, descent or national or ethnic origin'. 39 SGGHS HSC Legal Studies Human Rights Class Companion The Australian Government believes that individuals and groups, particularly Aboriginal and Torres Strait Islander peoples, should be consulted about decisions likely to impact on them. This includes ensuring that they have the opportunity to participate in the making of such decisions through the processes of democratic government, and are able to exercise meaningful control over their affairs. Aboriginal and Torres Strait Islander peoples also have the right to preserve their group identity and culture. The importance of consultation is manifested in the establishment of the National Congress of Australia's First Peoples. Self-determination is widely understood to be exercised in a manner that preserves the territorial integrity, political unity and sovereignty of a country. Declaration on the Rights of Indigenous Peoples The international community has recognised the significance of the right to self- determination to Indigenous peoples in the Declaration on the Rights of Indigenous Peoples, which was supported by the Australian Government in April 2009. In Australia's response to the Universal Periodic Review recommendations in June 2011, the Australian Government stated that it supports promotion of and respect for the principles in the Declaration. The Declaration is not binding in international law, in the way that a treaty binds countries that are party to it. However, the Declaration reflects how a number of existing human rights standards under international law apply to the particular situation of Indigenous peoples. Can the right to self-determination be limited? Derogation Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.' While derogation to article 1 is not explicitly precluded, such derogation may be inconsistent with Australia's 'other obligations under international law', given that article 1 of the Charter of the United Nations refers to 'the principle of equal rights and self-determination of peoples' when enumerating the purposes of the UN. Limitation For the same reason, it would be difficult to justify any restriction on the right to self- determination in the ICESCR. 40 SGGHS HSC Legal Studies Human Rights Class Companion Which domestic laws relate to the right to self- determination? Section 3 of the Aboriginal and Torres Strait Islander Act 2005 states that the objects of the Act include to ensure the maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them and to promote the development of self-management and self-sufficiency among Aboriginal and Torres Strait Islander peoples. What other rights and freedoms relate to the right to self-determination? The right to self-determination may also be relevant to: right to take part in the conduct of public affairs in article 25 of the ICCPR rights of ethnic, religious or linguistic minorities to enjoy their own culture, religion and language in article 27 of the ICCPR right to be free from all forms of racial discrimination in articles 2 and 5 of CERD. Articles from relevant Conventions International Covenant on Civil and Political Rights Article 1 International Covenant on Economic, Social and Cultural Rights Article 1 All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co- operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. Where can I read more about the right to self- determination? United Nations, Office of the High Commissioner for Human Rights, Human Rights Bodies (human rights treaty bodies that monitor implementation of the core international human rights treaties) UN Declaration on the Rights of Indigenous Peoples (in particular articles 3, 4 and 46). 41 SGGHS HSC Legal Studies Human Rights Class Companion UN Committee on the Elimination of Racial Discrimination General Recommendation No 21 UN Committee on the Elimination of Racial Discrimination General Recommendation No 23 UN Human Rights Committee General Comment No 23 (on the rights of minorities under the ICCPR) UN Special Rapporteur on the Rights of Indigenous Peoples, Report to the UN Human Rights Council, A/HRC/15/37/Add.4, 1 June 2010 Australian Human Rights Commission Community Guide to the Declaration on the Rights of Indigenous Peoples Right to self determination Article 1 of both Covenants The right to self-determination is contained in article 1 of the International Covenant on Civil and Political Rights (ICCPR) and in article 1 of the International Covenant on Economic, Social and Cultural Rights. Article 1 of both Covenants states: 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. 42 SGGHS HSC Legal Studies Human Rights Class Companion A right of peoples rather than individuals The right to self-determination is a right of 'peoples' rather than of individuals. The Human Rights Committee has declined to consider individual complaints about the right under the First Optional Protocol to the ICCPR. It is, however, possible that in an appropriate case an organisation or an individual might be able to bring a complaint to the Australian Human Rights Commission regarding respect for or protection of this right. Self-determination and the Australian people The system of Government established under the Commonwealth Constitution involves the exercise of the right to self-determination by the whole Australian people. This includes the adoption and amendment of that Constitution from time to time; the continued existence and functions of the Australian States under the Constitution, and provision for self-government of Territories, provision for free and fair elections; the rule of law; and specific measures to protect human rights. The right to self-determination, together with the rights recognised in Article 25 of the ICCPR, may also be seen as relevant

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