HSC Legal Studies Notes PDF
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These notes cover the nature and development of human rights, including the definition of human rights, types of human rights, and developing recognition of human rights, such as the abolition of slavery, trade unionism, and labor rights. The notes also include universal suffrage information on education.
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HUMAN RIGHTS Syllabus Content 1. Nature and 1. The nature and development of Human Rights development The definition of human rights of human - Rights that recognise the inherent value of each person,...
HUMAN RIGHTS Syllabus Content 1. Nature and 1. The nature and development of Human Rights development The definition of human rights of human - Rights that recognise the inherent value of each person, regardless rights of our background, where we live, what we look like, what we think The or what we believe. definition of - THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) & Human GENEVA CONVENTIONS (1949) Rights - Types of human rights: - Individual rights: Belongs to individuals separately - Collective Rights: Certain groups of people e.g, self-determination (right for a group to govern themselves) - Human rights have been grouped into Three categories First generation - Civil and political rights. These can be found in Articles 1-21 of The Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966) Second Generation - Economic, cultural and social rights. These can be found in Articles 22-30 of The Universal Declaration of Human Rights(1948) and the International Covenant on Economic, Social, and Cultural Rights (1966) Third Generation - These are rights that are international in scope and can only be addressed by global cooperation. The two most prominent of these rights are environmental rights and peace rights developing Developing recognition of human rights recognition The abolition of slavery of human The Universal Declaration Of Human Rights (1948) rights Article 4 the abolition of “ No one shall be held in slavery or servitude; slavery and the slave trade shall be slavery prohibited in all their faces” Slavery: A type of forced labour in which a person is considered to be the legal property trade unionism of another and labour rights Transatlantic slave trade: The trading of African people by Europeans who transported themes as slaves from Africa to the colonies of the New World universal suffrage Universal - Slavery had existed as a legal institution in nearly all civilisations education - Slavery was considered an integral part of society and the economy - THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) declared that to enslave someone was a violation of their rights Self-determination - However, the movement to abolish slavery was 150 years old - The abolition of slavery was one of the first successful movements for a globally environmental recognised right rights - Known as the TRANSATLANTIC SLAVE TRADE, this operated from the seventeenth century to the early nineteenth century. peace rights - European ships would trade products for slaves in West Africa, where slavery was still widely practised - After World War II the member states of the United Nations made a clear statement that slavery was prohibited Trade unionism and labour rights The Universal Declaration Of Human Rights (1948) Article 23 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment 2. Everyone, without any discrimination, has the right to equal pay for equal work 3. Everyone who works has the right to just and favourable remuneration, ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection 4. Everyone has the right to form and to join trade unions for the protection of his interests Article 24 - Everyone has the right to rest and leisure, including limitation of working hours and periodic holidays with pay International labour organisation - An International agency of the United Nations, created to improve conditions for workers around the world Labour flights - Rights at work, including the rights to safe working conditions, minimum wages and paid leave and to join a trade union International Covenant on Economic, Social and Cultural Rights (1966) - The binding international treaty creates obligations on states to respect the economic, social and cultural rights of individuals ➔ Like the movement to abolish slavery, campaigns to improve labour rights and conditions have been waged since the 1700s ➔ Conventional labour became the only legal means of securing large groups of workers ➔ In Europe, labour law as a protection for the workplace was based on status ➔ In Europe, labour law as protection for workers including demands for better conditions and lack of safety, low wages and long hours ➔ Many trade unions struggled ➔ The International Labour Organisation was created (International Agency of the UN, created to improve conditions for workers around the world) ➔ Labour rights were finally enshrined in the UDHR under articles 23 and 24 ➔ The Treaty of ICESCR (1966) and ongoing ILO work have further defined those rights and sought to implement them around the world Universal Suffrage The Universal Declaration Of Human Rights (1948) Article 21 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives 2. Everyone has the right to equal access to public service in his country 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures Suffrage - The legal right to vote in a democratic election Universal Suffrage - The right of all citizens to vote in political elections, regardless of status, gender, race, or creed ➔ Suffrage is also known as the right to vote ➔ Usually, only a limited number of men would vote ➔ New Zealand was the first nation to allow women to vote ➔ Australia granted this in 1902 ➔ Race became a voting problem ➔ Indigenous Australians were denied their voting rights in 1962 ➔ The right to vote is recognised in Article 21 of the UDHR Universal Education The Universal Declaration Of Human Rights (1948) Article 26 1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all based on merit 2. Education shall be directed to the full development of the human personality and the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, Tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace 3. Parents have a prior right to choose the kind of education that shall be given to their children ➔ Is the idea that all humans have the right to an education ➔ Without it, people cannot understand the society they live in ➔ UDHR article 26 ➔ Push grew in the 19th century ➔ Laws were passed in Australia making education free, secular and compulsory ➔ Compulsory for people 6-15 to attend school Self - Determination Charter of the United Nations (1945) Article 1 The purposes of the United Nations are ….. 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace The Universal Declaration of Human Rights (1948) Article 15 1. Everyone has the right to a nationality 2. No one will be arbitrarily deprived of his nationality nor denied the right to change his nationality International Covenant on Economic, Social, and Cultural Rights Article 1(7) - 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 Right to self-determination - The right of people to determine how they will be governed or their political status based on territory status based on territory of national grouping Collective Right - A right belonging to a group or a people as opposed to an individual right ➔ It is a collective right ➔ Right of people of a territory or national grouping to determine their own political status and how they will be governed ➔ Article 15 ➔ Internal is to give a group some autonomy but stay within the country where they can control their destiny ➔ External is to become a separate state/ country ➔ The collective right to self-determination means that people of the territory or national grouping have the right to determine their own political status; the group has the right to choose how it will be governed without undue influence from another country Environmental Rights - Increasing focus on the possibility of universally recognised environmental rights - It is a right to a clean and safe environment - Based on developments in “ Intergenerational equity” - There is no universal recognition but there are protocols and treaties to address specific environmental issues and threats Peace Rights Charter of the United Nations (1945) Article 1 The purpose of the United Nations are: 1. To maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about peaceful means and in conformity with principles of justice and international law, adjustment disputes or situations which might lead to a breach of the peace…. International Covenant on Civil and Political Rights (1966) General comment No.36 (2018) on Article 6 - The threat or use of weapons of mass destruction, in particular, nuclear weapons which are indiscriminate in effect and are of a nature to destroy human life on a catastrophic scale is incompatible with respect for the right to life and may amount to a crime under international law - State parties must take all necessary measures of mass destruction, including measures to stop the proliferation of weapons of mass destruction, including measures to prevent their acquisition by non-state actors, to refrain from developing, producing, testing, acquiring, stockpiling, selling, transferring and using them to destroy existing stockpiles and to take adequate measures of protection against accidental use, all following their international obligations THE UNIVERSAL DECLARATION OF HUMAN RIGHTS formal In February 1947, a committee was chosen to develop a draft of a document statements identifying and defining what human rights were. of human The commission referred to historical documents containing rights as well as rights worldwide political, philosophical and religious movements Universal The UN General Assembly created the Universal Declaration of Human Rights Declaration of (1948) on 10 December 1948 Human Rights The declaration was adopted on 10 December 1948 and was originally signed by 48 International of the 54 states that existed in the world at the time Covenant on The UN GENERAL ASSEMBLY proclaimed in the statement on this day that: THE Civil and UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) has 30 articles, Political Rights covering rights such as the right to life, liberty, security, thought, religion, International education, work, equality of movement and asylum. Covenant on The rights to join a trade union, have an adequate standard of living and be able to Economic, participate fully in cultural life, rights to freedom from slavery and torture Social and Soft Law Cultural Rights - International statements, such as declarations, that do not create legal obligations upon states but do create pressure to act per them Hard Law - Conventions and treaties that under international law create legally binding obligations International Customary Law - Actions and concepts that have developed over time to the extent that the community accepts them and have become law ➔ The Universal Declaration of Human Rights (1948) was adopted as a declaration, rather than a fully binding treaty, to define “fundamental freedoms” and “Human rights” in the UN Charter, which is binding on all member states ➔ As a declaration, it is soft law, meaning officially non-binding but still influential, rather than containing enforceable hard law obligations ➔ Most important human rights document and has stood the test of time ➔ Even though it is not a formal treaty, it has arguably become part of international customary law CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE - The Convention on the Prevention and Punishment of the Crime of Genocide (1948) (Genocide Convention) was adopted by the UN General Assembly in 1948 and came into force in 1951. - The main reason for the drafting of this convention was the widespread condemnation of the war crimes perpetuated against Jewish people during the Nazi reign - The convention is a high water mark for human rights, as it was the first time genocide was officially made a crime - The genocide convention was effective in securing nearly universal condemnation of genocide, it fueled to motivated politicians and diplomats to take concrete measures to ensure that these crimes do not occur in the future - It was not until the creation of the International Criminal Court in 2002 that the Genocide Convention was made legally enforceable GENEVA CONVENTIONS (1949) - These laws define the conduct and responsibilities of warring states in terms of international humanitarian law, which the Geneva Conventions also furthered of 1864, 1906, and 1929 - All the decisions of the earlier conferences were ratified in 1949 and are now simply called the Geneva Conventions (1949) - Nearly all states of the world today are signatories to the four treaties that make up the Geneva Conventions and to the three additional protocols to the Geneva Conventions that were added in 1977 INTERNATIONAL COVENENT ON CIVIL AND POLITICAL RIGHTS - ICCPR - Creates an obligation for states to respect the civil and political rights of individuals - Equality between men and women, right to life, right to freedom of movement, right to fair trial and right to innocence - ICCPR contains monitoring and periodic reporting arrangements for member states - It has been ratified by 168 states INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS - ICESCR - Came into force in 1976 - Created an obligation on states to work towards granting economic, social and cultural rights to individuals - Includes labour rights, living rights and the right to education - Overseen by the UN Committee on Economic, social, and cultural rights 2. PROMOTING AND ENFORCING HUMAN RIGHTS In the international INTERNATIONAL COMMUNITY: STATE SOVEREIGNTY community The concept of state sovereignty is central to international law and to the capacity of the State Sovereignty world to enforce states' compliance with recognised human rights. States often cite infringements of their state sovereignty as a justification for failing to comply with international human rights standards - Sound democracies have developed respect for human rights - Some countries however continue to justify the mistreatment of citizens - They can rely on state sovereignty - The nature of the UDHR, ICCPR and ICESCR puts responsibility on sovereign states to uphold their commitments to face consequences - Treaties oblige countries to comply through reporting and also allowing other states and citizens to complain THE UNITED NATIONS The roles of - There are 5 organs of the UN The united nations THE GENERAL ASSEMBLY (UNGA) consists of representatives from all member states with equal voting power. It is the main forum for Intergovernmental international discussions, deliberation, declarations and recommendations, organisations relating to the issue of human rights Courts, tribunals THE SECURITY COUNCIL (UNSC) UN organ that is charged with the and independent maintenance of international peace and security. Exercises power. Through statutory legally binding resolutions and can authorise military actions, sanctions authorities and peacekeeping missions. It had 5 permanent members that had the power to veto and 10 non-permanent members. They have the power to Non-governmental intervene in the most serious of human rights abuses by states. organisations ECONOMIC AND SOCIAL COUNCIL (ECOSOC) promotes The media international economic and social cooperation and development. It includes various committees and acts as the central forum for discussion of economic, social, environmental and humanitarian issues SECRETARIAT is the main administrative body of the Un and provides information, studies, tasks, and facilities needed by the UN. It is headed by the Secrecy General INTERNATIONAL COURT OF JUSTICE (ICJ) is the principal judicial organ that settles international disputes submitted to it by member states and produces advisory opinions on matters of international law. Cases rarely relate to human rights issues - Office of the High Commissioner for Human Rights (OHCHR) - UN Human Rights Council (UNHCR) - Human rights, committee assesses compliance with ICCPR and allows individuals to bring complaints - All UN bodies have a role to play in the promotion/protection of human rights - They facilitate the role of the UN in the development and recognition of international human rights standards through the International Bill of Rights - UN is a vast organisation with substantial power INTERGOVERNMENTAL ORGANISATIONS - An intergovernmental organisation (IGO) is an international institution made up of member states - IGOs are created by agreement between states and each has an international treaty that acts as a charter outlining the organisation's purpose and organisation - They are usually permanent, meet regularly and have international legal ‘personality’ which means they enter into enforceable agreements and are subject to international law - IGO include the promotion of human rights in their state's goals - The Commonwealth of Nations promotes democracy, the rule of law and human rights - Members can be suspended for human rights violations COURTS, TRIBUNALS, AND INDEPENDENT STATUTORY AUTHORITIES - There are numerous international courts, tribunals and other independent authorities with power to hear matters involving human rights abuse INTERNATIONAL COURT OF JUSTICE - is an organ of the United Nations. - It started in 1946. - The ICJ has two roles: to hear and judge disputes between states and to issue advisory opinions on matters of international law - ICJ requires the consent of state parties to hear matters and so has very little jurisdiction - The court is unable to hear cases brought by individual people or private organisations - It is restricted to states - It had very little power or enforcement with security council members being able to veto any enforcement action - The court has, however, issued important judgments that carry the weight of international law and act as a significant guide to future actions INTERNATIONAL CRIMINAL COURT - Prosecutes international crime - It was preceded by various tribunals known as “ad hoc” - ICC is not a court specifically for human rights violations - It does however prosecute and hear matters relating to the most serious international crimes - It has jurisdiction to hear crimes of aggression, but the international community is still in the process of agreeing on the definition of this term - ICC has jurisdiction to prosecute individual people rather than states EUROPEAN COURT OF HUMAN RIGHTS - To apply and protect the human rights of the citizens of Europe - Considers cases brought by individuals, as well as by organisations and states - It is extremely influential and compliance has been incorporated into the treaties of the EU STATUTORY AUTHORITIES - Human rights committee NON GOVERNMENTAL ORGANISATIONS - These are independent and without representation of any goverbment - They have been growing in numbers - International Committee of the Red Cross (ICRC) - Amnesty International - Play a key role in informing the global community about human rights violations and progress - They help ensure greater government compliance by investigating, researching, documenting and publishing cases of human rights violations - One of the oldest and most important NGO’s is the International Committee of the Red Cross (ICRC) - They are strictly concerned with international humanitarian law - The importance of the ICRC is recognised internationally - It works closely with the International Federation of Red Cross THE MEDIA - They have a crucial role of ‘naming and shaming’ – bringing events and situations of Human Rights abuses to the attention of the people - The right to information through media is recognised as a human right (Article 19 UDHR) - The influence of the media is also recognised by violators - Media freedom is severely restricted in many countries THE INCORPORATION OF HUMAN RIGHTS INTO DOMESTIC LAW In Australia - There is no document where all human rights can be found The incorporation - Rights that correspond with internationally recognised human rights are drawn of human rights from different sources into domestic law - These include international treaties, the Australian Constitution, common law, statute law INCORPORATION INTO DOMESTIC LAW - When an international treaty is negotiated, states indicate their agreement to the principles of the treaty by signing it - A treaty must be ratified before it becomes binding and enforceable - The rights and obligations of the treaty need to be incorporated into Australian law in some way - Parliament will usually pass legislation that echoes the words of the treaty or amends existing law - Australia ratified the Rome Statute of the International Criminal Court in 2002, and the Commonwealth Parliament simultaneously passed the International Criminal Court Act 2022 (Cth) and the International Criminal Court (Consequential Amendments) Act 2022 (Cth) to enact the provision of the treaty into Australian law THE ROLE OF THE AUSTRALIAN CONSTITUTION The roles of: - It lays down the system of the Australian Government through which human The Constitution, rights are recognised, including the separation of power and division of powers including division - It is the source of some specific human rights and separation of powers SEPARATION OF POWERS AND DIVISION OF POWERS The doctrine of separation of powers is important in protecting human rights. It involves Statute law the separation of the branches of state Common law The legislature – elected lawmakers in parliament Courts and tribunals The Executive – the government, including ministers and agencies The Judiciary – the courts that interpret and apply the law Non-government organisations The media A charter of Rights (arguments for and against) → Separation is preventing one person or group from gaining total power by dividing power between the Executive, the Legislature and the Judiciary → Division is how powers are divided between the federal and state government DIVISION OF POWERS - How powers are divided between the federal and state governments Delegated legislation - Laws made by people or bodies to whom parliament had delegated law-making authority STATUTE LAW - While many laws have been adopted via ratification, some have also been established independently by state or federal parliaments - Statute law is a powerful tool in human rights protection and many laws have been wide-reaching - Rights laid out in statute are not fixes – they too can be removed by a later Act or Parliament - Some of the most important include Racial discrimination Act 1975(Cth) Sex Discrimination Act 1984 (Cth) Australian Human Rights Commission Act 1986 (Cth) Disability Discrimination Act 1992 (Cth) Age Discrimination Act 2004 (Cth) Anti-Discrimination Act 1977 (NSW) COMMON LAW - It is the body of law made by judgements of the courts - It has involved and been passed down over centuries, independently of government and carries the power to protect human rights - Many Australian statutes are silent on many aspects of the law - Some fundamental rights are the. Presumption of innocence and the right to a fair trial - Common law does not offer absolute protection of human rights because common law rights are not fixed - Common law cannot be relied upon to develop new rights as judgements are only determined on a case-by-case basis COURTS AND TRIBUNALS - All courts and tribunals have some role in applying and enforcing human rights laws - Courts also play a role in interpreting and developing human rights law - AUSTRALIAN HUMAN RIGHTS COMMISSION It is an independent national body, established by the Human Rights Commission Act 1986 (Cth) AHRC has the responsibility to: receive and investigate complaints about discrimination Promote public awareness about human rights and provide legal advice, conduct public inquiries into human rights issues and produce recommendations, give advice and make submissions to parliaments and government on the development of laws policies and programs - HIGH COURT OF AUSTRALIA Can set precedents that are binding on other courts and overturn state or Commonwealth legislation where it conflicts with the Constitution NON - GOVERNMENT ORGANISATIONS - Play a vital role in researching and reporting on human rights issues, making submissions to state and commonwealth parliaments or law reform bodies - They are importnat in protecting individual rights, shaping public and political opinion and exposing violations by governments and individuals MEDIA - Plays an indispensable role in the ‘naming and shaming’ of governments and human rights - It has a significant influence on public opinion and government action - The rights of Australia report to disseminate information and the right of the public to receive information are not enshrined in law - The constitution protects the freedom of political communication, but in Australia there are not yet any general rights to freedom of speech - Australian reporters, particularly those from ABC and SBS also play an important role in investigating and reporting on human rights on both regional and worldwide basis A CHARTER OF RIGHTS (ARGUMENTS FOR AND AGAINST) ISSUES COULD INCLUDE HUMAN TRAFFICKING Investigate A Contemporary DESCRIPTION OF HUMAN RIGHTS ISSUE issue which - Human trafficking is the commercial trade or trafficking of human beings for some illustrates the form of slavery, usually involving recruiting, transporting or obtaining a person by Promotion and enforcement of Human Rights force, coercion or deceptive means. People are taken for forced labour, or debt bondage or for sexual slavery - It is a complex crime that involves some of the most serious violations of human rights - Can involve a line of criminal activity from recruitment, harbouring of victims, transport and sale, obtaining or buying a person INTERNATIONAL LEGAL RESPONSE - 1956 treaty on the Supplementary Convention on the Abolition of Slavery, and the slave trade and practices similar to slavery - Protocol of The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children came into force in 2003 It was the first legally binding instrument with an agreed definition of Human Trafficking Has created greater awareness of this global issue and better cross-border cooperation in investigating and prosecuting violations In 2015, 117 states ratified the treaty - EFFECTIVENESS: legally binding in 117 nation-states according to UN’s 2009 Global Report on Trafficking in Persons - INEFFECTIVENESS: many countries still do not have the legal instruments or the political will to implement the law. Issue of State Sovereignty DOMESTIC LEGAL RESPONSES - The Australian Government established a human trafficking strategy in 2003 and has dedicated $60 million to tackling this problem - Australia ratified the protocol to prevent, Suppress and Punish Trafficking in Persons especially Women and Children with effect from October 2005 - Human trafficking provisions have been added under the Criminal Code in the Criminal Code Amendment (Trafficking in persons offences) Act (2005) - Increases training for AFP in detecting and investigating human trafficking - Additional funding and training for the production of HT - Targeted Communication awareness strategy that gives information about trafficking - Corporation with regional and international agencies in tackling the sources of human trafficking - Serious problems are the issue of protection visas and the threat of deportation of victims, deprived system of witnesses and the effect of punishment INTERNATIONAL NON-LEGAL RESPONSES - UN ILO and other NGOs are involved in combatting slavery and human trafficking - UN established the Global Initiative to Fight Human Trafficking Increase awareness about human trafficking Assist non-state actors in anti-trafficking campaigns Reduce demand for exploitation of people and vulnerability of potential victims - ILO established a Special Action Programme on Forced Labour in 2001 to raise global awareness of forced labour Done studies and reports on aspects of human trafficking - NGOs include Anti-SLavery international International NGO founded in 1839 and based in the UK, aims to draw attention to human trafficking and slavery - American Anti-Slavery Group, Abolish Anti-slavery NGO that works on awareness, advocacy and aid DOMESTIC NON-LEGAL RESPONSES - In Australia, the A21 NGO make an indispensable contribution to fighting all forms of modern slavery - The media informs the public about the existence and nature of modern slavery LEGISLATION MEDIA CASES DOCUMENTS -Divisions 270 and ABC 2019 ‘Cyntonia -R v Wei Tang: -’ UN’s 2009 Global 271 of the Brown, sex Brothel owner that Report on Commonwealth trafficking victim’ brought five women trafficking of Criminal Code Act to Australia under persons 1995 unlawful conditions Sydney morning of debt bondage -The OHCHR Heeld ‘just one in and slavery document on - The protocol to five cases of human trafficking prevent, suppress modern slavery are -R v Mclvor and talks about the and punish known to police’ Tanuchit: effectiveness of UN trafficking in processing and and treaties on persons, especially using a slave of five abolishing human women and Thai women trafficking children - Supplementary Convention on the abolition of Slavery, the salve trade and practices similar to slavery