Core Part 2: Human Rights Study Notes

The Nature and Development of Human Rights

The definition of Human Rights Define human rights. A right is something to which every human being is entitled to, simply because they are human.

Human rights are fundamental and it is recognized that human rights are; Universal; enjoyed by all regardless of race, gender, status Indivisible; all human rights are equally important Inherent; birthright of all humans Inalienable; cannot be given up or taken away

Human rights are recognized in the Charter of the United Nations 1945 and the Universal Declaration of Human Rights 1948.

The 3 types of Human Rights are; Civil and political rights (First generation rights) Economic, Social and Cultural Rights (Second generation rights) Collective rights (environmental & peace rights and the right to self determination)

Developing Recognition of Human Rights- abolition of slavery, trade unions, universal suffrage, universal education, self-determination, environmental and peace rights Outline how human rights have changed and developed over time.

REFER TO ESSAY 29TH OCTOBER 2012.

Investigate the evolving recognition and importance of universal human rights. REFER TO ESSAY AS WELL.

The development of human rights is a reflection of changing values and ethical standards of society over time. Human rights can arguably be seen as essentially a Western concept and therefore not universally applicable. Emerging arguments saying that economic and social rights are more important than civil and political rights (that is, people need to be fed and sheltered before civil rights became important). The way the growth of collective rights has watered down the importance of individual rights.

Formal Statements Of Human Rights UDHR, ICCPR, ICESCR

Examine major human rights documents and explain their contribution to the development of human rights. The Universal Declaration of Human Rights (UDHR) was established in 1948, and was developed as a response of World War II, with the purpose of promoting universal respect and observance of human rights, as well as the dignity and worth of individuals and educating people to respect these rights and freedoms internationally. The UDHR consists of 30 articles such as: o The right of all people to freedom, equity in dignity and rights. o It prohibits discrimination. o The right to participate in Government. o The right to life, liberty and security. o Freedom from slavery, torture and cruel and unusual punishment, inhumane and degrading treatment. o The right to work and join trade unions. o The right to participate freely in cultural life. The declaration is not legally binding, but because the rights stated in it are so widely accepted they have become a part of the general principles of international law.

The International Covenant on Civil and Political Rights (ICCPR) was established in 1966, and its main function is to protect people from the actions of oppressive governments. The covenant expands on many of the rights set out in the UDHR. These are: o The right to life o Freedom from torture and slavery. o Freedom from thought, conscience and religion. o Prohibition on war propaganda and advocacy of racial hatred. o Freedom from assembly and association only limited by the needs of a democratic society. o Democratic rights of participation in government. o The rights of minorities to enjoy their culture, profess and practice their religion and use of their own language.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was also established in 1966 and recognizes the cultural, social and economic rights of all people. Key rights include: o Right to self-determination, and the right to determine their political status. o Equal rights for men and women. o Right to work in jobs that are freely chosen and accepted. o Right to social security. o Right to an adequate standard of living. o Right to the highest standard of physical and mental health. o Right to education.

Promoting and enforcing Human Rights

The International Community: State Sovereignty Assess the role of state sovereignty in promoting and enforcing human rights.

State Sovereignty recognizes that nations have the right to govern themselves and to determine their own destiny, and that other nations or organizations have no right to interfere in the internal affairs of another nation without its official consent.

The protection of human rights covered by international law is undermined when it comes to state sovereignty, because it means interfering with a nations internal affairs. However, it has been recognized that nations have the responsibility of protecting human rights within its own boarders, as human rights instruments have been incorporated into domestic legislation through treaties and enforcing customary international law principles. A number of countries now have features of international law as part of their legal systems to assist in enforcing human rights. Some of these include Germany, France, Belgium and Australia.

Internal agreements consensually signed by states mean that there is no infringement on state sovereignty, however they are expected to comply with them or face consequences. These agreements are usually put in place to protect and enforce human rights.

Therefore, even though there is resentment when nations have involvement in their domestic human rights protection, most recognize the need and importance of protecting, enforcing and preventing human rights violations within their nation creating a big impact on the role of state sovereignty in relation to the promotion and enforcement of human rights.

The Roles of: The UN, Intergovernmental organisations, courts, tribunals and independent statutory authorities, non-governmental organisations and the media Evaluate the effectiveness of international responses in promoting and enforcing human rights. Not all countries are party to human rights treaties those treaties dont protect Individuals in those countries that arent parties to the treaties. It is argued though, that the UDHR binds nations whether they are or arent a party.

Lacks of adequate enforcement mechanisms Enforcement mechanisms do not apply to all human rights treaties, depending on which one is being implemented.

Enforcement by consensus Enforcement of any international law is problematic, because it relies on consensus (general agreement) and this means that nations do not always feel compelled by these reasons to follow international law.

Reliance on state reporting Human Rights action groups rely on member states to accurately report its own infringements and actions they take to address them. This means that they can decide whether or not to comply.

Lack of Security Council action The UN Security Council has proved to be wary of intervening to stop human rights abuses in sovereign states.

War Crimes tribunals War crimes tribunals represent a willingness to enforce human rights in times of war, however it is argued that they might cause conflict rather than end it. Other violations may have been committed in times of war, and there arent any similar structures in place to deal with these.

Lack of funding HR organizations suffer from chronic lack of funding, which hampers their ability to be fully effective.

Informal recognition of NGOs reporting procedures of nations to the UN have been criticized because they do not provide unbiased information, and do provide independent information to the UN. Reporting has also been informal, and there needs to be formal recognition for their impact to be fully effective.

Effectiveness of the media the media quickly mobilizes public action against human rights abuses, and calls upon governments and international organizations to uphold human rights.

In Australia; The incorporation of human rights into domestic law Outline how human rights are incorporated into Australian domestic law. Human rights are incorporated into Australian domestic law through the legal measures such as: o The Australian constitution o Common law o Statute law

o Non-interference o Courts and tribunals o Proposition for an Australian charter (or Bill) of rights o Government and non-government organizations o The media

The roles of ^ Evaluate the effectiveness of Australian responses in promoting and enforcing human rights. The constitution Has powers over international affairs, and means that only the Australian government can enter into international agreements but state and territory governments can mirror any acts but do not have power to ratify them (due to division of power).

Common law common law restricts rights in some cases, such as the right to legal representation but states some, such as the right of a tenant to quiet enjoyment of the property they are renting.

Statute law statute law and non-interference remain the way that human rights are protected in Australia. Parliamentary bodies and law reform bodies investigate HR protection and make recommendations for change.

Non-interference many rights exist for Australians simply because the law doesnt interfere with them, such as the right to freedom of movement.

Courts and tribunals Some treaties that Australia is signatory to have no force unless the legislation has been passed into Australian domestic law. Courts and tribunals protect human rights, even when there is no legislation to protect it.

Non Government organizations Groups such as Amnesty, The Red Cross, The Australian Human Rights Centre at the University of NSW etc. lobby governments about issues, which publicize human rights concerns in Australia.

Media Reports human rights infringements and rallies public action.

Discuss the arguments for and against a Charter of Rights for Australia. FOR; o High community support in favour. o Redressing the inadequacy of existing human rights protections. o Reflecting basic Australian value. o Protecting the marginalized and disadvantaged. o Improving quality and accountability of Government. o Contributing to a culture of respect for human rights. o Improving our international standing in relation to human rights. o Bringing Australians into line with other democracies. o Generating economic benefits. AGAINST; o Adequacy of current human rights protections in Australia. o Undermining tradition of parliamentary sovereignty, For example transferring legislative power to unelected judges. o Better human rights protection is not necessarily guaranteed. o Potentially negative outcomes for human rights. o Excessive and costly litigation. o Democratic processes and institutions offer better protection of rights. o Major economic cost. o Unnecessary legalized human rights.

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

 Evaluate the effectiveness of legal and non-legal responses to the issue. REFER TO ASSIGNMENT (CHILD ABUSE), DECEMBER 2012 AND CLASS WORK (HUMAN TRAFFICKING & SLAVERY).

Class notes 2012, Excel Legal Studies Brassil 2011.