human rights Flashcards
(66 cards)
1
Q
Human rights are:
A
- Universal
- Indivisible
- Inherent
- Inalienable
2
Q
Civil and Political Rights
A
- 1st gen rights
- belongs to all humans
- involves being a free citizen
e,g right to vote, assemble, freedom of speech
3
Q
Economic, social and cultural rights
A
- second gen rights
economic: concerned with the production, development and management of material for the necessities of life
cultural rights: rights which assist in preserving and enjoying one’s cultural heritage
social rights: rights that give people security as they live and learn together
often req gov action
e.g social security, equal pay, join & form trade unions
4
Q
Environmental rights, peace rights and the right to self determination
A
- third gen rights (emerged recently)
- don’t belong to individuals but the people as a whole i.e collective rights
e.g right to freedom of association, freedom of religion, prosperity
5
Q
Key Human Rights Legislation
A
- Universal Declaration of Human Rights (UDHR 1948)
- International Covenant on Civil and Political Rights (ICCPR) 1966
- International Covenant on Economic, social and cultural rights (ICCESR) 1966
6
Q
Universal Declaration of Human Rights (UDHR) 1948
A
- soft law (no enforcement)
- created to obtain as many signatory countries as possible
- contributed to the development and validity of the UN as an international organisation
7
Q
International Covenant on Civil and Political Rights 1966
A
- hard law
8
Q
International Covenant on Economic, Social and Cultural Rights
A
- hard law
9
Q
Abolition of Slavery timeline
A
- first HR issue to arouse wide international concern
- Was an accepted practice in the ancient world → transatlantic slave trade; trading of Africans by Europeans
- Abolitionist movement gained strength and publicity throughout the 19th century
- UN banned slavery under the UDHR 1948 followed by the Convention on the Abolition of Slavery 1957, which made penalties more enforceable and widespread
- Today slavery still exists in the form of child labour, child soldiers, human trafficking and prostitution → estimated 27 million people enslaved worldwide according to the ILO
10
Q
Abolition of Slavery legislation
A
- Importation of slaves to the colonies officially ended in the British Empire with the passing of: Slave Trade Act 1807 (UK)
- Emancipation Act 1833 → Britain abolished slavery in their colonies
- 13th Amendment of US Constit → outlawed slavery in 1865, however discrimination continued until the 1960s through segregation
- Art 8 ICCPR → recognises freedom from slavery
- Art 4 UDHR → prohibits slavery
- 2019 Modern Day Slavery Act → NSW + Fed Gov
11
Q
Trade Unionism and Labour Rights timeline
A
Trade unionism and labour rights: association of employees that aim to protect the rights of workers e.g pay, safe working conditions and environment
- formed after the industrial revolution in 18th century
- employers have an owed responsibility to their workers
- in the 1890s unions in Australia jointed together to form their own political party (Aus Labour Party) → led to min wages, right to form & join trade unions, OHS
Relatively effective through (domestically) ILO, Fair Work Act and (internationally) UDHR and ICESCR
12
Q
Trade unionism and labour rights legislation
A
ICESCR 1966
- Art 7: right to enjoyment of just and favourable conditions of work
- Art 8: right to form and join trade unions
= International Labour Organisation (ILO) 1919
= Art 23 and 24 of UDHR
13
Q
Universal Suffrage timeline
A
Universal Suffrage: right to vote
- removes injustice and powerful political barriers to equality
- democracy → Australia vs China gov systems
- in 1842, voters had restricted suffrage and had to be male, white and wealthy
- women suffrage societies formed in 1990
= SA 1894: first state in Aus to give women the vote
= 1902 women won the right to vote - Aus as a whole
= 1962 ATSI gained the vote
Women in Saudi Arabia are still not allowed to vote today
14
Q
Universal Suffrage legislation
A
- Art 1 of ICCPR and ICESCR
- Art 21 of UDHR
According to a 2019 report by Freedom House, there has been a decline in political rights and civil liberties for the 13 years from 2005 to 2018 therefore effective to an extent.
15
Q
Universal Education
A
- Before the 19th century, formal education was rare; few people were literate
- The mid 1800s → growing demand for educated people to meet the requirement of the globalising world
- 1870 Aus colonies made primary education compulsory → estimated 19% of children in NSW were receiving any education in 1810
- UN recognises that “education is a vital part in the alleviation of poverty, the adoption of family planning and the improvement of the status of women”
- Today around 130 million children 6-10 yrs old don’t have access to primary education
16
Q
Universal Education legislation
A
- Art 26 (1) of the UDHR → right to education
- In Aus: The Public Instruction Act 1880 (NSW) or the Education Act 1990
17
Q
Self Determination timeline
A
Self Determination: the right of peoples to govern themselves and choose their own form of gov
- collective right
- particularly applies to minority groups (ATSI) to have some type of control of their global traditional lands
- Important global notion during imperialism
- Grew rapidly in the 1960s: Asia, Pacific, Africa e.g East Timor
- Handing land to traditional owners has led to negative instances due to barriers between ethnic groups e.g Rwandan Genocide
Fraught with issues due to state sovereignty and rule of law. Conflict occurs due to the desire to achieve independence e.g South Sudan
18
Q
Self Determination legislation
A
- Article 1 (2), 12, 55 of UN Charter
- Article 1 of ICESCR + ICCPR
- Declaration of the rights of Indigenous peoples 2007
= took 20 years to complete
= non-binding - only four states have rejected it
19
Q
Environmental Rights timeline
A
Encompasses the right to a clean, healthy and sustainable environment
- collective right: matter for common concern for humankind
- Intergenerational equality: grants the right of future generations to enjoy the same quality of the earth as the present
Main barrier: difficulty in gathering global cooperation
However, the Glasgow Climate Change Conference held in 2021 concluded that actions committed by governments did not guarantee that catastrophic events caused by global warming would not occur
20
Q
Environmental Rights legislation
A
- Stockholm and Rio Declarations + Kyoto Protocol were attempts by the international community to deal with environmental problems: global warming, the spread of epidemics etc
- Designed to protect the environment from greenhouse gas emissions by compelling NS to cut their emissions by agreed amounts within certain timeframes
- hindered by state sovereignty
2015 UN Climate Change Summit Paris
- Long term goal to limit the global temp. Increase to only 1.5 degrees above pre-industrial levels
- Australia’s stance on climate change hasn’t changed since the summit; ranked last of all the OECD (organisation for economic cooperation and development) countries on climate action
21
Q
Peace Rights timeline
A
The right of people to have their government maintain peace and eliminate war
- peace first recognised as an international right by the declaration on the rights of peoples to peace, a non-binding resolution of the UN passed in 1984
- Charter of the UN creation in 1945 based off the primary intent to maintain peace
- The creation of the ICC ensures a degree of peace and mediation when countries are in conflict
22
Q
Peace Rights legislation
A
- Art 2 (3) of the UN Charter “nations settle their international disputes by peaceful means”
- NNPT Nuclear Non-Proliferation Treaty 1968 promotes peace
- Art 51 of UN Charter
23
Q
Universal Declaration of Human Rights (1948)
A
- Declaration was adopted on 10 Dec 1948 with 48 original signatures
- UDHR had 30 articles covering all human rights: extremely important and has potentially enormous implications for society and the individual
- adopted as a declaration rather than a fully binding treaty to define fundamental freedoms and human rights
- arguably became party of the international customary law and has become the foundation for eight core human rights treaties and various treaty bodies that continue to monitor and report on the state of human rights worldwide
24
Q
International Covenant on Civil and Political Rights (1966)
A
- signatory depended on which side they supported in the cold war or whether they were part of the non-aligned movement
- both of these treaties came into force in 1976 and together they are known as twin covenants
- overseen by the UN Human Rights Committee and reports on compliance by member states and investigates violations
25
International Covenant on Economic, Social and Cultural Rights (1966)
- covers education, housing and health
- overseen by the UN committee on economic, social and cultural rights
- after the twin covenants entered into force in the mid 1970s there was a period of improved relations between the two Cold Wars superpowers (USA + SOVIET UNION)
- This period is known as detente and led to the emerging of human rights as a truly global movement
26
Promoting Human Rights
1. Any action that encourages, makes known or works to further the course of human rights
2. Non-legal methods or bodies that lack enforcement power
3. NGOs, Media, United Nations, Intergovernmental Organisations
27
Enforcing Human Rights
1. Legal mechanisms that ensure the observance of human rights by addressing human rights infringements
2. Legal mechanisms that have enforcement power
3. Courts & tribunals (Int & domestic)
28
State Sovereignty
The main barrier to effective enforcement of human rights through both ratification and enactment. It means that international law cannot interfere with what happens within a state without that state's consent
29
Popular Sovereignty
Developed gradually → people themselves were sovereign and could delegate their power to a parliament and revoke that power if necessary. Such rights only applied to citizens of nations willing to proclaim/protect these rights on behalf of their citizens, not all of society e.g slaves
30
National sovereignty
National sovereignty without declarations could treat their citizens or subjects as they wished without interference
31
State sovereignty as a barrier
Some countries may rely on state sovereignty to justify mistreatment of their own citizens - in extreme cases, countries may commit human rights abuses with impunity. State sovereignty can be used as a shield by states against outside interference in their own affairs:
- although generally, other international states cannot intervene in state affairs of a sovereign state, alongside the UN they can intervene on certain circumstances
- This right of intervention is entrusted upon the UN Security Council: they can intervene only when the state's actions or laws can be considered as a threat to international peace and security
32
Right to Protect (R2P)
At the 2005 World Summit on reform of the United Nations, the world community decided to embrace the Responsibility to Protect or R2P. “If a state fails to protect its own citizens, then the international community has the responsibility to step in.
Problems:
- Intervention in large scale case abuses of human rights can still be limited by veto
- “But while western governments and human rights groups welcomed enforcement of the concept of the “responsibility to protect” civilians, Moscow and Beijing did not hide their disdain for an idea they equate with violating states’ sovereignty, which the United Nations was founded to protect: Russia U.N veto on Syria aimed at crushing West’s crusade, Reuters, 2012.
33
UN General Assembly
- representatives from all member states with equal voting power
- main forum for international discussions, deliberations, declarations and reccomendations
34
UN Security Council
- In charge of preserving international peace and security
- authorises military action, sanctions and peacekeeping operations
- has 5 permanent members with the power to veto decisions
- has the power to intervene in the most serious of human right abuses by states
- numerous proposals have been made to change the structure & power of the UN Security Council to reflect today's world more accurately but this has yet to occur
35
UN Economic and Social Council
Has 54 rotating members meeting annually to assist in promoting international economic and social cooperation and development
36
Office of the high commissioner for human rights (OHCHR)
- Administrative agency under the UN secretariat that works to promote and protect the human rights contained in the UDHR and international law
- advances universal ratification and implementation of the UDHR and human rights standards and treaties
- provides support and information for other UN human rights bodies and treaty
37
Human Rights Council
- reports directly to the UN General Assembly
- Made up of representatives of member states (7 member seats that are rotated every 3 years)
- Aims to address human rights violations worldwide and make recommendations
- In recent years, the council has received some criticism for acting not in the interests of human rights but according to political considerations e.g china and Russia have also been accused of backing and controlling certain candidates to block criticism of themselves
38
UN Human Rights Committee
Monitor the enforcement of civil and political rights in countries who have become signatories and ratified the ICCPR
- makes recommendations for how member states can better comply with the ICCPR
- supposed to serve as an 'enforcement' mechanism, but their power is very limited
39
UN Economic and Social Council (ECOSOC)
Monitors the enforcement of economic, social and cultural rights in countries who have signed and ratified the ICESCR
- monitors and reports on the human rights records of UN member states that have ratified the ICESCR
- Makes clear recommendations for how member states can improve human rights protections and compliance
- Enforcement power is limited due to state sovereignty
40
Intergovernment Organisations (IGOs)
Powerful in protecting against human rights abuses within member states. They can punish member states but this power varies
41
Why is being expelled from IGO’s a sanction/punishment?
- Weaker political links
- Weaker defence links
- Weaker trade links
- Shame
- Exclusion from special activities and events
42
Commonwealth of nations (IGOs)
- 54 members of Britain's former colonies
- aims to promote democracy, rule of law and human rights
- suspended nations in the past for human rights abuses e.g 2002 Zimbabwe and Fiji due to military coups
43
International Court of Justice
Unbiased decision maker however
- limited due to state sov and compliance
- no effective power
- only between states: many environmental issues are now global and transboundary
44
International Criminal Court (ICC)
- Prosecutes individuals accused of serious human rights abuses: prosecuting individuals in an attempt to beat limitations of state sovereignty
- known as the 'court of last resort' as it only hears cases if they are improperly investigated or prosecuted by a national judicial system or if they are in-genuine
45
Limitations of ICC
- Slow and expensive
- Under Rome Statute, ICC can only investigate and prosecute signatory nations
- support not universal
- insufficient resources and methods for protecting witnesses
46
Tribunals
A faster, less expensive and more informal process for deciding disputes between people
e.g Inter criminal tribunal for Rwanda 1994: bases of genocide committed in Rwanda 1994
47
NGOs
- Helps ensure greater government compliance through investigation/research/publication of HR abuses
- Provides evidence to international courts
Encourage states to use diplomatic pressure
e.g Human Rights Watch
- prevents discrimination
- upholds political freedom
- protect people from inhumane conduct in wartime
- bring offenders to justice
48
Media
- Used by NGOs to gain public awareness
- Effective because it can quickly mobilise public action against HR abuses
- Public action can then call up the gov and inter organisations to uphold HR
- Tendency to be broad and not deep in coverage → public knows about the “what” but little about “why”
- News can present a HR abuse, and once the initial outcry has subsided, the story may be ignored
49
Express rights of the Constitution
Express rights: clearly and explicitly outlined in the constitution
S41: the right to vote
S51: protection of acquisition of property on unjust terms
S80: the right to trial by jury
S116: freedom of religion
S117: prohibition of discrimination on the basis of your state of residency
50
Implied rights in the constitution
Implied rights: not clearly outlined, and are rather suggested or inferred → very vague
Freedom of speech
The ability of the constitution to protect HR is very limited → ineffective mechanism of protecting HR
51
How does the constitution protect human rights?
The constitution protects human rights explicitly through … as it is hard to change and the separation and division of powers ensures transparent operation of the rule of law which allows for our right and freedom.
52
Residual Powers
Left with the states at federation
53
Specific powers
Given to the Commonwealth
54
Exclusive Powers
Given to the Commonwealth under s51 of the constitution or made exclusive by other sections
55
Separation of Powers
Divided power between: legislature, executive and judiciary
- Maintaining the independence and separation of each gov ensures basic civil and political rights are protected, and that no one arm can hold too much power
- Protects abuse of power which could lead to HR abuses → allows judiciary to quash any legislation deemed to be an obstruction to HR
- Criticism of any charter of rights in aus is that it will override the separation of powers, especially in relation to the independence of the judiciary
56
Statute Law
Rights laid out in statute law are not fixed → can be removed by a later act of Parliament
e.g The NSW Anti-Discrim Board and Fed Aus HR Com (AHRC) established by legislation to examine cases of violation of HR
- Promotes public awareness about HR
- Independent statutory bodies that administers fed HR legislation
- Role of investigating and conciliation complaints about abuses of HR in legislation under its jurisdiction
- Doesn’t have the power to make legally binding decisions, only recommendations
57
Common Law
Does not offer absolute protection of rights because common law rights are not fixed; rights in the common law can be removed by any act of parliament because any legislation that conflicts with the common law position overrides that common law position
- Evolving → independent from gov, ability to protect many HR
E.g right to presumption of innocent until guilty and right to fair trial protected by statute law
58
High Courts
- power to set precedents binding on other courts
- can overturn legislation that conflicts with the Constitution
- critical in protecting HR because the judges can take into consideration international standards, consequently applying these standards in the absence of legislation that properly enforces international standards of human rights
- High Court Australia most important HR protector, especially with the power of declaring legislation inconsistent or invalid → effective protection
Case: Croome V Tasmania which led to the decriminalisation of homosexuality.
59
Arguments FOR Charter of Rights
- improves government policy making and administrative decision-making from a human rights perspective
- better meets the obligations Australia has undertaken, under international law, to protect human rights standards such as those contained in the ICCPR and the ICESCR
- would protect minority groups who are not adequately protected e.g ATSI
60
Arguments against Charter of Rights
- HR are already adequately protected through international agreements, common and statute law
- Can only protect people within the limits of the rights it lists → there is a danger that people will have no rights, expect for those within the charter
Any entrenched charter of rights is difficult to change and may become irrelevant or inappropriate overtime e.g US right to bear arms
Entrenched: sometimes it needs to be amended due to changing social values → once it may have been necessary, but not anymore
61
Entrenched
difficult to change, meaning citizens are protected no matter who is in Gov → no Gov can pass laws that contradicts a right given by the charter
62
Legislative
can be changes by the legislature, allowing for updates to fit society’s values
63
The effectiveness of Aus Responses in promoting & enforcing HR
1. Generally good record on HR
Prominent role in international promotion of rights
2. Active participants in drafting of the UDHR, ICCPR, ICESCR
However, limited effectiveness of legal measure in addressing HR issues
Lack of charter of rights and failure to ratify HR treaties
Treatment of ATSIs; face discrimination and struggle for self-determination, land rights and economic, social and cultural equality
Mandatory detention of asylum seekers
64
Human Trafficking key features and statistics
- Rights being infringed upon include “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
- 49.6 million living in modern slavery in 2021, of which 27.6 million were in forced labour and 22 million in forced marriage
- To put this into context. The Transatlantic slave trade involved the enslavement of 12.5 million people over the course of centuries
- Most victims are women and children. It is almost impossible to escape
65
International legislation for human trafficking
- ICCPR AND ICESCR
- International Convention on Slavery
- ILO Convention No. 29 on forced compulsory labour 1932
- Convention against transnational organised crime 2000
66
Domestic legislation for human trafficking
