Human Rights Syllabus Notes

Core Part 2

Principal focus: Through the use of a range of contemporary examples, students investigate the
notion of human rights and assess the extent to which legal systems embody such human rights and
promote them in practice.
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. The nature and development of human rights

 Definition of human rights
A right is something you are entitled, human rights are fundamental rights, they are what every
human is entitled to because they are human. Human rights are:
 Universal: which means they apply to everyone, everywhere, at any time.
 Indivisible: which means that all human rights are equally important.
 Inherent: which means that it is given to all humans at birth.
 Inalienable: which means that people cannot agree to give them up.
There are three types of human rights:
 Civil and political rights – 1st generation: right to life, right to freedom from slavery,
right to asylum
 Economic, social and cultural rights – 2nd generation: right to education, social
security, and an adequate standard of living.
 Collective rights – 3rd generation: belong to a group of people rather than an individual,
such as environmental and peace rights.

 Developing recognition of human rights

 Abolition of Slavery
 Slaves were used extensively in ancient times.
 This was a system in which individuals had no personal rights.
 They could be bought and sold and were often physically, emotionally and sexually abused.
 Britain and other colonial powers took slavery for granted until late 18th century where
there were growing awareness of natural rights and political liberty.
- Emancipation Act 1833, abolished slavery throughout British colonies
- France was first to pass a decree abolishing slavery, Declaration of the Rights of the
Man and Citizen 1789
- 13th amendment of the US Constitution outlawed slavery in 1865
- Slavery Convention of 1926 was negotiated
- New supplementary convention on Abolition of Slavery in 1965
- Slavery banned under Article 4 of the Universal Declaration of Human Rights

 Trade Unionism
 One outcome of the Industrial Revolution which began in 18th century Britain was the
emergence of trade unions.
 They are associations of employees that were created to protect the rights of workers.
 Holds enormous collective power; where single employees have very limited power but
many workers together combined in a single cause have a great deal of power.
 - Universal Declaration of Human Rights, Article 23 (4) states ‘everyone has the right to
form and to join trade unions for the protection of his or her rights’

 Universal Suffrage
 Refers to the right to vote
 In the most voting was only opened to male and the wealthy people
 By the 1890s there were women’s suffrage societies in all Australian colonies
 New Zealand became the first country to pass universal suffrage in 1893.
 South Australia became the first jurisdiction in Australia to grant women the right to vote in
1894
 Voting rights for Federal Parliament were won in 1902
 British women were not entitled to vote until 1928
 However, ATSI groups did not have to right to vote until 1962
- Right to vote is now protected under Article 21 (3) of the Universal Declaration of
Human Rights

 Universal Education
 The concept of universal education is the right of all to a basic education
 Any kind of formal education was rare in most nations before the 19th century
 People of all social class recognised education as a means of ensuring the future of their
children
 Australian colonies made several Acts that made education free and compulsory for all
 However, the standards of education in developing countries remain poor today
 The UN has invested large amounts of money to improve the level of basic education
throughout the world
- The right to education is protected under Article 26(1) of the Universal Declaration of
Human Rights

 Self-determination
 The right of peoples to govern themselves and choose their own form of government.
 It involves the right of colonised people to establish their independence.
 Right for people within a nation to freely choose their form of government.
 It is linked to the principle of sovereign equality of all UN’s member states, no matter their
size or power.
- Right to self-determination is protected under the Charter of the United Nations 1945
 Most controversial aspect of self-determination is the right claimed by indigenous peoples to
control their own traditional land and economy.
 This right is referred to in the Declaration on the Rights of Indigenous Peoples 2006 which
was adopted by the UN General Assembly in 2007

 Environmental Rights
 Encompass the right to a clean, healthy and sustainable environment.
 Environmental law protects the right of future generations to the same level of
environmental quality as the present generation enjoys.
 Kyoto Protocol, commits State Parties to reduce greenhouse gases emissions.
- Australian government signed this protocol in 2007 and ratified it immediately
 Other notable conventions for environmental rights are:
- The Stockholm Declaration (1772)
- Rio Declaration (1992)
- Paris Climate Agreement (2015)
 Peace Rights
 The right of people to have their government maintain peace and eliminate war.
- The Charter of the United Nations 1945 obliges nations to settle disputes by peaceful
means and to refrain from acts of war.
- Peace was recognised as an international right by the Declaration of the Right of Peoples
to Peace 1984
- Treaty on the Non-Proliferation of Nuclear Weapons 1968, prohibits signatories from
buying or building new nuclear weapons and commits signatory nation who already
have nuclear weapons to disarmament.

 Formal statements of human rights

Following the atrocities of WWI and WWII, the United Nations was formed, to formally
recognise a wider range of human rights. The International Bill of Rights is made up of the
following:

Universal Declaration of Human Rights (UDHR) – 1948

This list the human rights to which every human is entitled, each of the 30 articles sets out a
particular right or set of rights.
1. Right to freedom and equality
3. Right to life
4. Freedom from slavery
26. Right to education

International Covenant on Civil and Political Rights (ICCPR) – 1966

Gives legal force to the first part of the UDHR, protects civil and political rights.
6. Right to life
8. Freedom from slavery
17. Right to privacy and protection by the law
The second optional protocol to the covenant eliminates the death penalty.

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

Gives legal force to the second part of the UDHR, protects economic, social and cultural
rights.
1. Right to self-determination
8. Right to join trade unions
11. Right to an adequate standard of living

2. Promoting and enforcing human rights

In the International Community:
 State Sovereignty
State sovereignty is the power of a country to govern without interference. This can lead to
issues in international law and treaties, where human rights are neglected by their own country
and cannot be protected internationally as other countries have no jurisdiction. Even if a
country ratifies an international law, it can simply repeal its domestic laws and no longer be
beholden to the international document.
- Whilst this is a major problem in international law generally, we must remember
international agreements are only possible because of state sovereignty.

 The roles of:

The United Nations
The Un was established under the United Nations Charter (1945). Article 1 states that the
purpose of the UN is to promote respect for human rights.
  General Assembly: the main deliberative, policymaking and representative organ of the
UN. Each year they meet for a general assembly and debate, important questions
(peace, security) require a 2/3 majority to be implemented and simple questions just a
majority. This is the only body with universal representation.
 Security Council: under the UN charter has primary responsibility for the maintenance
of international peace and security. 15 members. The SC can impose sanctions or
authorise the use of force to main international peace and security.
 International Court of Justice: principal judicial organ of the UN, located in the Hague,
the court’s role is to settle, in accordance with international law, legal disputes
submitted to it by states and give advisory opinions on legal issues to the other UN
organs.
 The Office of the High Commission for Human Rights (OHCHR) – offers support and
expertise to the various human rights monitoring bodies and systems within the UN.
 The UN Human Rights Council – has 47 member states responsible for promoting
human rights globally, Human rights council can also request that the UN Security
Council takes action to stop human rights violations.

Intergovernmental Organisations
An IGO is an organisation composed primarily of sovereign states, established by a
treaty/agreement that acts as a charter creating the group.
 The Human Rights Council: responsible for strengthening the promotion and
protection of human rights violations and making recommendations on them. For
example, they made a recommendation to Australia that their treatment of asylum
seekers detention needed to change and was ‘arbitrary.’ (2013)
 Commonwealth of Nations: 54 members including Australia; has a strong history in
promoting human rights and has in the past suspended or expelled members for
persisted abuses. E.g. apartheid south Africa.
 African Union: 53 members across Africa; includes the African Commission on
Human and People’s Rights, African Charter on Human and People’s Rights and
African Court on Human and Peoples’ Rights.
 European Union: 28 member states across Europe including France, Germany and
Italy; the EU Charter of Fundamental Rights ensures that all EU member states respect
human rights; the European Court of Justice enforces the before mentioned charter.

Tribunals
 Ad hoc tribunals are set up by the UN Security Council to prosecute individuals for
crimes against humanity.
 ICT for the former Yugoslavia was established in 1993 to hear breaches of the Geneva
Conventions and war crimes when Yugoslavia was breaking up
 ICT for Rwanda genocides was set up in 1994
 Effectiveness: deterrent, offers crime a world stage, gives family justice
 Ineffectiveness: unlikely to deter a group with strong convictions, do not alleviate
underlying causes of the conflict.

The ICC
 The International Criminal Court (ICC), alongside the Rome Statute, is a permanent
international court that hears matters of the most serious international crimes, such as
genocide and war crimes.
 ICC Case: Prosecutor v Bemba (2008) found guilty of 2 counts of crimes against
humanity and 3 counts of war crimes, received an 18 year sentence.
  ICC Case: Prosecutor v Thomas Lubanga Dylio (2006) found guilt of war crimes of
enlisting and conscripting child soldiers under the age of 15, and using them in
hostilities. 14 years imprisonment.
 ICC ineffective: rule of law – sentence disproportionate to the crime, the Rome statute
doesn’t have sufficient sentencing guidelines. Responsiveness – Took 13 years to
prosecute from when crimes were committed up to sentencing. Resource efficiency -
cost of 13-year case is very high. Only prosecutes leaders of crime, so lower down
people get off even though they participated.
 ICC effective: possible deterrent to other war crimes in future, Thomas Lubanga’s
actions acted as a deterrent to Columbia and Sri Lanka.

The ICJ
 Judicial arm of the UN, established under the charter.
 Main role is to settle legal disputes submitted by states and give advice on issues of
law to other bodies of the UN
 Decision is final with no appeal, but not enforceable
 41 cases since 1946 and only two refused recommendations

Independent Statutory authorities

A statutory authority is a body set up by law, which is authorised to enact legislation on behalf
of the relevant country or state. Statutory Authorities include the UN High Commissioner for
Human Rights and committees monitoring human rights conventions.
 UN HCHR: protects and promotes human rights for all. Responsible for human rights
activities and reports to the General Secretary. Has a high international profile through
condemnation speeches, conferences and publicity. Such as the condemnation of the
president of Iran’s speech where he attacked Israel and doubted the existence of the
Holocaust.
 Human Rights Committee: monitoring body on behalf of the ICCPR. Requires reports
of signatures every 5 years on their measures to give effect to the convention.
Individuals may petition the committee, but decisions are not legally binding, however
there is an obligation for member states to provide remedy for such complaints. Case
Toonen v Australia (1994) – Toonen complained to the committee saying that the
Tasmanian law that it is illegal to live homosexually was a breach of article 17 of the
covenant, a right to privacy. So the Australian Commonwealth created a national law
decriminalising homosexuality (Human Rights (Sexual Conduct) Act 1994 (Cth)).
 UNHRC can be ineffective as judgement is a recommendation, as shown in A v
Australia (1997), where Mr A was seeking refugee status and complained his rights to
liberty were violated by the Aus. Gov., and the UNHRC agreed, but Australia argued
that they were wrong and rejected the finding.
 Committee on Economic, Social and Cultural Rights: monitors the ICESR, similar to
HRC.

Non-government Organisations
 Amnesty International
 Human Rights Watch
 Effective as they are accessible independent bodies separate from the government, but
this means they have no enforceability.

The media
 Important in raising public awareness of an issue
 Very responsive
  Easily accessed
 Not enforceable, but can pressure governments to make changes through public
outrage
 Can be biased to particular countries, political parties

In Australia:
 The incorporation of human rights into domestic law
How Human Rights are Incorporated into Domestic Law (Ratification)
 Unlike some nations, simply signing a treaty does not incorporate it into Australian
domestic law, for that it must be ratified.
 Thanks to the external affairs power stated in the Constitution, the Federal
Government has sole responsibility for negotiating and ratifying treaties.
 For a treaty to be ratified, existing laws (including common, constitutional and
statute) must cover the same grounds as the treaty or new laws must be enacted.
 One example is the incorporation of the Convention of the Rights Of the Child
(CROC) into Australian law with the Family Law Act 1975 (Cth).

 The roles of:

The Constitution, including division and separation of powers

 Division of powers: constitution expressly states the exclusive, residual and concurrent
powers of the commonwealth and states.
 Separation of powers: constitution dictates that there will be 3 law-making bodies to
avoid arbitrary power, the legislature, the judicature, and the executive.

Express rights in the constitution:

 40: the right to vote
 51: right to compensation for property acquired by the government
 80: right to trial by jury
 116: right to freedom of religion
 117: freedom from discrimination

Implied Rights in the constitution:

 7, 24: freedom of speech

Statute law
This is the main way that human rights are protected in Australia.

Racial Discrimination Act 1975 (Cth)

Anti-Discrimination Act 1977 (NSW)
Age Discrimination Act 2004 (Cth)
Disability Discrimination Act 1992 (Cth)

The Australian Human Rights Commission

 Not a judicial body or tribunal but investigates and conciliates complaints.
 Given power under the Australian Human Rights Commission Act 1986
 Jones v Toben (2000): the commission upheld a complaint against Toben who
published online that the Holocaust was a myth. Jones a child of a Holocaust survivor
complained and the commission ordered that the online material be taken down and an
apology issued.
 Common Law
The greatest limitation to common law is that it can be overruled by statute law. Parliament
has the authority to overrule any common law rights, making common law rights privileges as
they can be removed. This makes common law ineffective at protecting human rights.

Some common law rights include the right to natural justice and the presumption of innocence.
Common law has also impeded rights, as in McInnes v The Queen (1979) where it was found
that there was no legal right to legal representation. However it was decide in Dietrich v The
Queen (1992) that you do have a right to a fair trial, and a lawyer is apart of a fair trial (natural
justice).

The case Mabo v Queensland (1992) is pivotal in the recognition of human rights in
Australia, as it established that ‘native title’ existed, recognising the indigenous peoples rights
to land.

Courts and Tribunals

Australia is a signatory to many Human Rights treaties, but these do not have force in
Australia unless they domestic law has been passed enacting the provisions of the treaty.

The Administrative Decisions Tribunal (ADT) is an example of a tribunal who can make
legally binding decisions of up to $40000. An example is the case Abdulrahman v Toll
(2006) where Abdulrahman was called discriminatory words like ‘bombchucker’ by
management of Toll, it was hell that this was racial discrimination and because it had lasted
several months was awarded $25000 in damages.

Non-government Organisations
A domestic NGO’s role is to investigate and gain publicity regarding issues and actions, by
highlighting the issue pressure is placed on the government to make changes. Such NGOs
include Amnesty and the Red Cross.

The Media
The media’s role is to promote justice, freedom and mutual respect through highlighting
human rights issues. Change can be brought about by public pressure on the government.

Example: The ABC’s Four Corners episode on NT Youth Detention - Dondale was
followed by public outcry, making the NT government announce $18 million youth justice
overhaul.

A Charter of Rights – For and Against

For
 Common law doesn’t protect rights adequately McInnes v the Queen (1979)
 Would protect minority groups who are not adequately protected such as indigenous
peoples
 Would protect people from government making laws infringing on human rights
 The law is too slow in adapting too technological needs such as surveillance\
 The Hon Michael Kirby 2009 – ‘would expressly state the Human Rights afforded to
all Australians’

Against
 HR already protect by international agreements and common and statute law
 Can only protect people within the limits of the rights it list
  Judiciary would have to take on a larger role deciding whether laws infringed the charter
of rights, this would be undemocratic as judges are not elected by the population
 An entrenched charter/bill of rights is too difficult to change so may become irrelevant
and lag behind the times
 A legislative charter of rights is too easy to change and can be amended dependent on
those in power

For Against
 High community support for a Charter of  The adequacy of current human rights
Rights protections in Australia
 Redressing the inadequacy of existing  Undermining a tradition of parliamentary
human rights protections sovereignty, including transferring
 Reflecting basic Australian values legislative power to unelected judges
 Protecting the marginalised and  No better human rights protection is
disadvantaged guaranteed
 Contributing to a culture of respect for  Potentially negative outcomes for human
human rights rights
 Improving Australia’s international  Excessive and costly litigation
standing in relation to human rights  Democratic processes and institutions offer
 Bringing Australia into line with other better protection of rights
democracies  A major economic cost
 Generating economic benefits  Unnecessarily legalised human rights

3. Investigate a contemporary issue, which illustrates the promotion and/or enforcement of

human rights.

 A child soldier is defined as any person below 18 years of age who is, or has been, recruited or
used by an armed force or armed group in any capacity.
- This includes children being used as fighters, cooks, potters, spies, or for sexual
purposes.
 Use of child soldiers falls into three main forms:
- Direct Involvement: where the child may be expected to take part in the fighting and
armed with a weapon.
- Indirect Involvement: where the child acts in supporting roles such as a messenger,
scout, cook, servant or even as sexual servants.
- Use for Political Advantage: where the child soldier is used for political purposes, such
as propaganda or as a human shield.
 Children are recruited as child soldiers either voluntarily (usually due to socioeconomic
factors or a misplaced desire for adventure) or in-voluntarily (when armed forces conscript
children, usually due to desperation or for the psychological effects on enemy combatants).
 The current number of child soldiers is unknown (estimated to be in the 10s of thousands),
but was previously reported by the UN and Human Rights Watch in 2007 to be between
200,000-300,000.

The Effectiveness of Legal Responses

 The use of ‘Child Soldiers’ is illegal under international law, however compliance ranges
throughout the world.
 The main international documents include:
 - The Additional Protocols to the Geneva Convention of 1977: considers the recruitment
of children under the age of 15 as illegal, a war crime.
- The Convention on the Rights of the Child 1989: now all but universally adopted
(looking at you US), states the minimum age of recruitment as 15, discourages
recruitment of children under 18 years old, and creates obligations to minimise harm to
all children during armed conflicts.
 This only regulates child soldiers when ratified.
- The Rome Statue 1998: established the International Criminal Court to try persons
charged with committing crimes against the international community. This includes the
use of child soldiers, and as such, the ICC holds jurisdiction to prosecute individuals that
recruit child soldiers.
 One example of the ICC successfully prosecuting an individual for war crimes is
Thomas Lubanga, although this took a significant amount of time and money.
 These legal responses have been largely effective:
- all nations in the developed world banning child soldiers.
- However, there remains compliance issues in the developing world – particularly in
Africa.
 An example of this is the use of child soldiers in the Ugandan rebel forces known as
the Lord’s Resistance Army.

 ICC Case: Prosecutor v Thomas Lubanga Dylio (2006) found guilt of war crimes of
enlisting and conscripting child soldiers under the age of 15, and using them in hostilities.
14 years imprisonment.
 ICC ineffective: rule of law – sentence disproportionate to the crime, the Rome statute
doesn’t have sufficient sentencing guidelines. Responsiveness – Took 13 years to prosecute
from when crimes were committed up to sentencing. Resource efficiency - cost of 13-year
case is very high. Only prosecutes leaders of crime, so lower down people get off even
though they participated.
 ICC effective: possible deterrent to other war crimes in future, Thomas Lubanga’s actions
acted as a deterrent to Columbia and Sri Lanka.

The Effectiveness of Non-Legal Responses

 Whilst there are many legal responses, their effectiveness can vary – and this is when non-legal
responses shine.
 Brought back into spotlight thanks to media and NGOs such as Human Rights Watch (which
monitors and reports on violations) and Child Soldiers International (which differs as it is a
collection of NGO’s that aim on preventing and rehabilitating child soldiers)
 Examples of large scale efforts is the Kony2012 campaign.
- Largely successfully raising awareness and money
- Problem was, Kony had been missing for years
- Most of the money paid individuals running the campaign and few actually helped child
soldiers.