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Topic 2Human RightsNature and Development of Human RightsDefinition of Human RightsHuman rights refers to the concept of all human beings are equal and deserve fair, human treatment and basic treatments.Rights are fundamental entitlements. Rights are:Universal: Apply? ?to? ?all? ?people? ? Inalienable: ?Cannot? ?be? ?taken? ?away? ?or? ?given? ?upInherent: ?? ?People? ?have? ?human? ?rights? ?because? ?they? ?are? ?human? ?beingsInvisible: ?? ?All? ?people? ?are? ?entitled? ?to? ?all? ?rights? ?Independent: ?? People's? ?enjoyment? ?of? ?one? ?human? ?right? ?is? ?affected? ?by? ?their? ?enjoyment? ?of? ?all? ?othersRights can be put into 3 categories:Civil? ?and? ?Political? ?Rights? ? (1st? ?Generation) Rights to life, liberty, security of the individualE.G. Freedom? ?of? ?religion, ? ?freedom? ?from? ?torture/slavery Set? ?out? ?in? ?the? ?ICCPR? ? (1966) Economic and Social Rights (2nd Generation)Security orientated rightsE.G. ?The? ?right? ?to? ?education, ? ?the? ?right? ?to? ?rest? ?and? ?leisure Set? ?out? ?in? ?the? ?ICESCR? ? (1966) Environmental, Cultural and Developmental Rights (3rd Generation)Rights to live in an environmental that is clean Rights to cultural, political and economic development Developing Recognition of Human RightsAbolition of SlaveryBegan in the 18th century and grewIn England slavery was ruled illegal in 1772 and ultimately abolished in 1833 through the Slavery Abolition Act 1833 (UK)Slavery? ?was? ?made? ?illegal? ?in? ?Australia? ?through? Slave trade Act 1824 (CTH)Taking slaves from AfricaAll slaves were freed by the end of the war in 1865Article 4: No one should be held in slaveryIllegal slavery still occurs todayTrade Unionism and Labour Rights Association? ?of? ?workers? ?which? ?exists? ?to? ?maintain? ?and? ?improve? ?working? ?conditions. The Trade Unions Act 1871 (UK) secured? ?the? ?legal? ?status? ?of? ?trade? ?unions In? ?Australia? ?the? ?unions? ?joined? ?together? ?to? ?form? ?the? ?Australian? ?Labour? ?Party Came in during the Industrial RevolutionTrade unions fought for their minimum wage, age and man hoursArticle 23: Everyone has the right to work without discriminationArticle 24: Everyone has the right to rest and leisureUniversal Suffrage Suffrage is the legal right to vote1893 =?New? ?Zealand? ?granted? ?women? ?the? ?right? ?to? ?vote?, ?followed? ?by? ?Australia? ?in? ?1902 1962: ? ?Aboriginal? ?people? ?now? ?could? ?vote? ?in? ?federal? ?elections1928 = The? ?UK? gave? ?women? ?the? ?rate? ?to? ?vote? ?1967 = Indigenous people had the right to vote in Australia The? ?right? ?to? ?vote? ?was? ?recognised? ?as? ?a? ?universal? ?human? ?right? ?in? ?Article? ?21? ?of? ?the? ?UDHR Article 21: Everyone has the right to take part in government Universal Education Right to education Education only available for the rich until the 18th century Didn’t begin until the 19th century and upwardsBritish parliament passed on the Education Act 1870 (UK) This act made education compulsory for British kids aged 5-10 and 12Australia made education free and compulsory at a primary levelArticle 26: Everyone has the right to educationSelf – Determination People’s? ?right? ?to? ?govern? ?themselvesCollective right = belonging to a group or nationFirst? ?article? ?of? ?ICCPR? ?and? ?ICESCR Environmental Rights Rights about environmental issuesHealthy, safe and adequate environment Stockholm Declaration (1972), Rio Declaration (1992) and Kyoto Protocol (1997) are all attempts by the international community to deal with global warming, spread of epidemics, ? ?marine? ?pollution? ?and? ?atmospheric? ?pollution. Peace Rights First established at the Paris Peace conference that formed the Treaty of Versailles following WW1Failed without US membershipUN charter was signed in 1945 and has its purpose1984 = UN General Assembly adopted a Declaration on the Right of People to PeacePeace? ?rights? ?are? ?recognised? ?as? ?fundamental? ?to? ?the? ?UN ?yet? ?war? ?still? ?continuesFormal Statements of Human RightsUniversal Declaration of Human Rights First? ?declaration? ?written? ?by? ?the? ?UN30? ?ArticlesBecome part of international customary law, and continues to monitor and report on the state of? ?human? ?rights? ?around? ?the? ?world.There can be soft and hard law Influenced by the NGOsInspired more than 200 treaties, convections, declarations and bills of rights (50 years)Widely accepted by the international communityInternational Covenant of Civil and Political Rights Hard lawCreates obligation on state parties to respect civil and political rights of individuals2010 = widely ratified by 165 state partiesChina and Cuba signed USA ratified the treatySaudi Arabia and Singapore didn’t sign International Covenant on Economic, Social and Cultural Rights Hard lawApproved in 1966 and came into force in 1976Includes labour rightsCreated rights to adequate standard of livingRight to educationNever been ratified in Africa 160 state parties say yes Promoting and Enforcing Human Rights In the International Community:State Sovereignty Power of a state over its territory and populationEvery nation is equal (right to control itself and make its own laws)International enforcement of human rights seems to undermine state sovereignty, involves international? ?interference? ?in? ?domestic? ?affairs Balance must be achieved between respecting state sovereignty No nation can be forced to join the UNNo nation can be focused to go to courtNo nation can be forced to sign a treatyNations have a choiceMost countries still follow international law Roles:The United Nations Organisation that was signed in 1945Promote and enforce human rights 5 organs under the UN charter and play an important role in the promotion or protection of? ?human? ?rights. General AssemblyMain forum of discussions, deliberations and recommendations Hears? ?reported? ?on? ?human? ?rights? ?abuses? ?and? ?sends? ?Rapporteurs? ?to investigate? ?human? ?right? ?violations. Makes? ?recommendations? ?to? ?member? ?statues? ?on? ?any? ?matter? ?under? ?the Charter? ?of? ?the? ?UN. Security CouncilMaintains? ?international? ?peace? ?and? ?security Can? ?pass? ?legally? ?binding? ?resolutions? ?on? ?Member? ?states Approve? ?military? ?intervention? ?or? ?political? ?sanctions? ?to? ?protect? ?human rights? ?and? ?encourage? ?compliance? ?with? ?human? ?rights? ?standards Economic and Social CouncilThis? ?body? ?has? ?54? ?members? ?meeting? ?Assist? ?in? ?promoting 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 Provides? ?various? ?information, ? ?tasks? ?and? ?facilities? ?needed? ?by? ?the? ?UN. International Court of Justice?Has? ?jurisdiction? ?to settle? ?international? ?disputes? ?submitted? ?to? ?it? ?by? ?member? ?statesCan produce? ?advisory? ?opinions? ?on? ?matters? ?of? ?international? ?lawRarely hears cases about human rights issuesHuman Rights CouncilPromotes? ?human? ?rights? ?and? ?reports? ?on? ?human? ?rights violations, ? ?making? ?recommendations? ?to? ?the? ?General? ?AssemblyHas? ?a? ?new? ?procedure? ?for? ?impartially? ?hearing? ?complaints about? ?violations? ?of? ?human? ?rights? ?and? ?can? ?appoint? ?Rapporteurs? ?to investigate? ?possible? ?human? ?rights? ?abuses ?It? ?has? ?adopted? ?measures? ?that aim? ?to? ?increase? ?its? ?power? ?to? ?address? ?HR? ?abuses. Intergovernmental Organisations International institutions with various member statesUN is the most important of all IGOsPromote human rights in stated goals They have a legal personality Develop society Courts, Tribunals and Independent International Criminal? ?Court (2002) ? ?and? ?ad hoc? ?tribunals: Established? ?in? ?2002? ?by? ?the? ?Rome? ?Statute Prosecute? ?international? ?crimeHears? ?matters? ?that? ?fall? ?under? ?human rights? ?abuses? ?such? ?as? ?genocideJurisdiction? ?to? ?prosecute? ?individual? ?people? ?rather? ?than? ?states, ?makes? ?it? ?a? ?powerful? ?constitution? ?for? ?combating? ?individuals? ?who? ?seek to? ?use? ?state? ?sovereignty? ?as? ?a? ?defence? ?for? ?their? ?abuses. Since? ?its? ?establishment? ?the? ?ICC? ?has? ?two? ?convictions; ? ?Lubanga? ?in? ?2012 and? ?Katanga? ?in? 2014 ?International Court? ?of? ?Justice (1946):Provides? ?advisory? ?opinions? ?to? ?UN? ?on? ?international? ?law? ?matters, including? ?human? ?rights? ?issuesJurisdiction? ?is? ?limited? ?in? ?terms? ?of? ?civil? ?disputesUnable? ?to? ?hear? ?private? ?human? ?rights? ?complaints European? ?Court of? ?Human? ?Rights:1959? ?in? ?France? ?to? ?apply? ?and? ?protect? ?human? ?rights? ?of? ?the? ?citizens? ?of EuropeCases? ?brought? ?by? ?individuals, ? ?as? ?well? ?as? ?by? ?organisations? ?and? ?states, against? ?all? ?countries? ?bound? ?by? ?the? ?European? ?Convention? ?on? ?Human Rights? Influential? ?human? ?rights? ?bodyIn? ?2010? ?it? ?announced various? ?procedural? ?reforms? ?that? ?would? ?allow? ?it? ?to? ?deal? ?with? ?120? ?000 cases? ?across? ?Europe Statutory AuthoritiesTreaty? ?bodies? ?which? ?monitor? ?compliance? ?with? ?major? ?human? ?rights? ?treaties Consider? ?individual? ?complaints? ?and? ?reports? ?where? ?requiredPublish? ?opinions? ?and? ?suggestions? ?on? ?treaty? ?complianceOrganise? ?forums? ?on? ?relevant? ?themes Decisions? ?not? ?enforceable? ?but? ?highly? ?influential Examples:Human? ?Rights? ?Committee: ? ?Assesses? ?compliance? ?with? ?international? ?bills? ?of? ?rights Committee? ?on? ?the? ?Rights? ?of? ?the? ?ChildCommittee? ?on? ?the? ?Elimination? ?of? ?Discrimination? ?Against? ?WomenCommittee? ?on? ?Economic, ? ?Social? ?and? ?Cultural? ?Rights Non - Government Organisations There are many NGOs that aim to protect and promote human rightsSome include:International Committee of Red CrossDoctors without bordersAmnesty InternationalNot funded by the government Their work is independent Addresses international human rights and where they occurSome NGOs are powerful and some have status of the UNThe Media Raises? ?public? ?awareness? ?of? ?human? ?rights? ?responsibilities? ?and? ?abusesRallies? ?public? ?and? ?government? ?action? ?similarly? ?to? ?NGO’sIncreasing? ?role? ?of? ?media? ?ensures? ?full? ?coverage? ?of? ?human? ?rights? ?issues Promoting and Enforcing Human Rights (Australia)The Incorporation of Human Rights into Domestic LawAustralia and the UK are dualist systems. E.G. a treaty does not make it enforceable in Australian? ?law. Signing a treaty = country will act in the spirit of the treaty = not bindingThe rights and obligations of the treaty will need to be incorporated into Australian law by the parliament usually passing legislation that echoes the words of the treaty or amends existing laws. When Australia ratified Rome Statute of the International Criminal Court in 2002?, the Commonwealth Parliament passed the International Criminal Court Act 2002 (cth) and International Criminal Court (Consequential Amendments) Act 2002 (Cth) to enact? ?the? ?provisions? ?of? ?the? ?treaty? ?into? ?Australian? ?law. The Constitution Separation of PowersIs important in protecting human rights Enables the judiciary to strike down any legislation incompatible with the rights and limitations in the? ?Australian? ?Constitution?Involving? ?the? ?branches? ?of? ?state: The? ?Legislature?: ? ?The? ?lawmakers? ? (The? ?House? ?of? ?Reps? ?and? ?the? ?Senate) The Executive: Administer laws by parliament (Governor-General, the? ?PM? ?and? ?the? ?Cabinet)The? ?Judiciary: ?? ?The? ?Courts? ?which? ?interpret? ?and? ?apply? ?the? ?law. The Division of powersDivides governmental power between the Commonwealth and the States Limits the power of CommonwealthEnsures power is not too? ?centralised? ?in? ?one? ?place: Exclusive? ?powers: ?? ?Powers? ?of? ?the? ?Commonwealth Residual? ?powers: ?? ?Powers? ?of? ?the? ?State Concurrent? ?powers: ?? ?Powers? ?of? ?both? ?the? ?Commonwealth? ?and? ?state Statue Law Contribution to the protection of human rightsMany of its laws have been wide reachingRights laid out in the statute are also not secured and can be removed by an Act of Parliament Examples:Racial Discrimination Act 1975 (CTH)Australian Human Rights Commission Act 1986 (CTH)Anti – Discrimination Act 1977 (NSW)Common Law Rights? ?have? ?been? ?developed? ?by? ?common? ?lawSome fundamental rights are protectedCannot be relied upon to develop new rights, as judgements would only define those rights Courts and Tribunals Role in applying and enforcing human rights lawsHigh Court of Australia:Influential and controversial interpretation of human rights E.G. The case of Mabo v Queensland (1992)Human rights issues mostly appear before the High Court as it has the power to set decisions that are binding on other courts Overturn state or Commonwealth legislation where it conflicts with the ConstitutionAustralian Human Right CommissionReceives complaints about discrimination, promotes public awareness, gives advice, makes submissions to parliaments and governments and etc.?If issue cannot be resolved it can take the matter to the Federal Court, which has the power to make? ?enforceable? ?orders? ?on? ?recommendations? ?of? ?the? ?Commission. Hear complaints on many other human rights breaches in Australian law and international human? ?rights? ?law. Non – Government Organisations The Human Rights Council of Australia:Makes submissions to State and Commonwealth parliaments or law reform bodies on human rightsWorks? ?in? ?the? ?field? ?of? ?human? ?rights? ?with? ?victims? ?of? ?rights? ?violations.Australian NGOs are important in protecting individuals’ rights, shaping public and political opinion? ?and? ?exposing? ?violations? ?of? ?human? ?rights? ?by? ?governments? ?and? ?individuals. The Media Exposes? ?instances? ?of? ?human? ?rights? ?abuse? ?and? ?help? ?to? ?bring? ?about? ?change. Influence? ?on? ?public? ?expressions? ?and? ?government? ?action. Australian reporters, particularly those from the ABC and SBS, also play an important role in investigating? ?and? ?reporting? ?on? ?human? ?rights? ?on? ?both? ?a? ?regional? ?and? ?worldwide? ?basis. Charter of Rights While Australia lives under a peaceful democracy, where rights for most people are protected, minorities? ?and? ?non-Australian? ?citizens? ?lack? ?the? ?benefits? ?that? ?a? ?Charter? ?of? ?Rights? ?would? ?give:- ?If a Charter of Rights was introduced in Australia the Constitution may be entrenched or statutory. - ?If made statutory, it is created and placed into society like any other law and can result in it not being as effective as other laws. - If entrenched it is embedded in the constitution of that country, which may severely limit government's power to intervene in the lives of Australian citizens. Arguments? ?FOR? ?a? ?Charter? ?of? ?Rights Arguments AGAINST a Charter of RightsExtremely? ?high? ?community? ?support Puts? ?rights above? ?politics Reflects? ?the? ?disadvantaged Improves? ?quality? ?and? ?accountability? ?of governmentImproves? ?Australia’s? ?international standingBalancing? ?rights? ?and? ?responsibilities? ?is the? ?essence? ?of? ?freedomIf? ?made? ?law, ? ?it? ?would? ?be? ?hard? ?to? ?amend. Democratic? ?processes? ?and? ?institutions offer? ?better? ?protection? ?of? ?rightsNo? ?better? ?human? ?rights? ?protection? ?is guaranteed. A? ?major? ?economic? ?cost. Potentially? ?negative? ?outcomes? ?for human? ?rights.Individual? ?rights? ?are? ?protected? ?very? ?well under? ?common/statute? ?law. Contemporary Issue: GenocideMain 4 genocides are:WW2CambodiaRwandaBosnia ................
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