Week 2 Flashcards
Universal Declaration of Human Rights?
UDHR
Adopted in 1948
30 Articles outlining basic human rights
Includes political, civil, cultural and social rights
As it is a declaration, it is not legally binding or enforceable
Many of its rights have been incorporated into legal frameworks
What is a positive and negative right?
What are examples?
Positive: A right owed to a person such as Article 3 in UDHR, the right to live, and to do so in freedom and safety
Negative: A right that prohibits one from doing something such as Article 4 where they cannot treat you and you cannot treat anyone as a slave.
Human Rights?
Fundamental rights claimed by everyone
Universal as everyone is entitled irrespective of background
Inalieable and cannot be denied for any reason
Takes precedance over all other laws and claims
What are the characteristics of Covenants?
Similar to a treaty and convention (terms often used synonymously), but are generally multilateral agreements which are a promise for governments to refrain from particular actions
Example: International Covenant on Civil and Political Rights
What are the characteristics of a Convention?
A type of treaty, a convention usually involves nations agreeing to a certain set of standards on a particular issue.
Example: International Convention on the Elimination of All Forms of Racial Discrimination
What is are the similarities of Treaties, Conventions and Covenants?
An agreement reached by two or more nations, to be bound by certain terms
Bilateral and Multilateral
Treaties binding in international law, however, must be ratified in the Australian Parliament before creating valid legal rights and obligations within Australia
What are the characteristics of a Treaty?
A treaty is a formal agreement between two or more nations about a particular area of mutual interest
Treaties are often made in the domains of trade, environmental protection, armed conflict and human rights
Example: ANZUS Treaty – defence alliance between Australia, New Zealand and the United States
What are the characteristics of the United Nations Charter - Rights of Member States
To become a member of the UN nations must sign and ratify the charter
Includes a number of rights of member states including equality, political independence, territorial integrity and sovereignty
Sovereignty: All governments exercise full and sole authority over affairs within their territorial limits, and nations have sole power to pass laws and enforce them, independant of outside interference
Sovereignty results in the UN only being able to advise and recommend the coopoeration of Articles:
- 1 Sovereignty - equality of member states
- 4 Peaceful resolution - political and territorial independance
- 7 Political independance
What are the characteristics of Ratification?
The process of full acceptance into Australian law of the obligations imposed by a treaty
The executive has the power under s61 of Constitution to enter into treaties, but not create laws
Ratification occurs when legislation which mirrors the obligations of the treaty passes through Parliament
Sections of the treaty may be excluded from the ratified version; these sections are reservations
For example, the Convention on the Elimination of all forms of Racial Discrimination was ratified by the Australian Parliament as the Racial Discrimination Act 1975 with reservations relating to racial villification
Explain why the separation of powers requires that treaties be ratified before they become sources of domestic law.
The separation of powers requires that treaties are ratified before they become sources of law as the executive cannot be responsible for the legislature. As the executive signs the treaties and the legislature implements them, they must be ratified as the executive cannot practice the role of the legislature.
Identify the section of the Constitution which gives power to the executive branch to enter treaties with other nations.
S61 of the Australian Constitution
Discuss what is meant by the phrase “signal of intent” with respect to Australia entering into treaties.
It shows the intent to follow the obligations despite the inability to implement them immediately
Discuss what is meant by the phrase “signal of intent” with respect to Australia entering into treaties.
It shows the intent to follow the obligations despite the inability to implement them immediately
Explain the role of reservations in the ratification of treaties.
The role of reservations in the ratification of treaties is to enable an article to be left out in the implementation of a treaty. Example: Article 4(a) of the Convention on the Elimination of all forms of Racial Discrimination.
Define the term accession.
When a nation-state enters into a treaty that has already been formed after it has been negotiated and signed by other city-states.
