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35 Cards in this Set
- Front
- Back
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Define Human rights |
Fundamental rights inherent in every individual on the basis of humanity. These are universal, inherent, inalienable and indivisible. |
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Developing recognition of human rights |
The abolition of slavery trade unionism and labour rights universal suffrage universal education self-determintation environmental rights peace rights |
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The abolition of slavery |
was morally wrong to buy, sell or own another human principally focused on using slaves to make money Universal declaration of human rights - article 4 - R v Tang 2008 accused found guilty of possessing and using a slave and sentenced to ten years imprisonment |
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Trade unionism and labour rights |
a collective right belonging to groups of works to receive a far and living wage. early trade unions were critical in establishing that employers had a duty to care for their employees ACTU, collective bargaining power is integral to their success. Article 23 (4) everyone has a right to join trade unions |
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Universal Suffrage |
right to vote, recognition that all people have a say in their government - Australia granted woman right to vote at 1908 - Indigenous Australians only granted to vote in 1962 - article 21 (3) |
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Universal education |
article 26 (1) UN recognizes that education is an essential element in the elimination of poverty and has implemented many programs aimed at improving the level of basic education throughout the world and womens access to it |
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Self-determination |
ICCPR and ICESR all people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development CommonWealth Consitution involves the exercise of the right to self-determination by the whole Australian people, including - the adoption and amendment of the constitution - provision for self-governments of territories - provision for free and fair elections Issue comes from state sovereignty and rule of law |
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Environmental rights |
right of people to enjoy a clean and safe environment over time - a clean and healthy environment is a fundamental prerequisite to ensuring that basic human rights are upheld and enjoyed Carbon tax |
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Peace rights |
the right of people to live their lives in peace UN charter 1945 article 2 |
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Major human rights documents |
The universal declaration of human rights (1948) international covenant on civil and political rights (1966) ICCPR International Conveant on Economic, social and cultural rights (1966) ICESCR these are known as International bill of Rights (LCMDI) |
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Development of international human rights |
Interntional customary law; those customs that the majority of the worlds nations accpt as being lawful Treaty law; treaties are voluntary international agreements that bind signatory nations to certain behaviors (UN- CROC) |
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Charter of the United Nations |
to save succeeding generations from the scourge of war article 1, UN promotes human rights and fundamental freedom for all article 55, states that the UN shall promote respect for and observance of human rights authoritative states limit or deny civil and political rights. economic conditions and poverty limit the full enjoyment of rights |
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UDHR Status
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lacks legal status (soft law) thus is not binding International customary law because its so widely accepted influences treaties, constitutions and domestic laws in member states |
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ICCPR |
-the right to life, freedom of thought and religion -the right of minorities to enjoy the culture 74 signatories and 168 parties however 29 have not signed or ratified it. E.g China - not directly enforceable in Australia because we are a dualist system, requiring our international obligations to be enshrined within domestic laws. UN CROC was placed in the young offenders NSW - Article 1 ICCPR is reflecting in privacy act 1988 (with) - freedom from unlawful interference with privacy - demonstrates the dualist system |
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ICESCR |
This is hard law and binding on nation sates, imposes obligations to provide minimum essential levels of rights
- basic education and health care - 2015 - 164 and further 125 who have signed but not ratified it - not directly enforceable in Australia because of dualist system - articles 6 and 8 ICESCR right to work and join a trade union are reflected in the fair work act 2009 (cwth) - article 13 right of everyone to access free education is reflected in the education act 1990 NSW |
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International bill of rights |
these three documents are statements of hope - dependent on nation state parties to implement measures domestically to enshrine and protect the rights. - |
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International community |
effectiveness of human rights is dependent on international community and nation states to implement the mechanisms in place to ensure human rights are enshrined - both international and domestic mechanism are to function concurrently - there are governing bodies responsible for complying with and promoting - courts responsible for enforcing and various organisation (NGO) |
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State sovereignty |
The ability for a country to make its own decisions free from interference of international laws and standards - ultimate law- making power of a state, its right to be free from external interference when using its legal and political power to make and enforce laws its own population (asylum seekers) - as state sovereignty as a shield, to justify their unwillingness to become involved in the human right abuses and lawlessness occurring elsewhere - UN Charter recognises the sovereign equality of all states - Modern international law dictates that state sovereignty is no longer absolute and is limited under international laws. (genocide or crimes against humanity) - human rights depend on goodwill of member states - hampers the effectiveness of intentional efforts to promote and enforce human rights - however, increasing globalization and technology has compelled countries to comply with their obligations - China and USA still have death penalty - enables countries to reflect human rights in domestic legislation - |
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United nations |
Chief organisation with significant power involved in international law - has been integral to international cooperation, treaty development, dispute resolution and development of human rights - main objective is to maintain global peace and security, but its influence and institutions are wide-reaching - UN 4 main purposes 1. to keep peace 2. develop friendly relations 3. to help nations work together to improve the lives of poor people 4. harmonizing the actions of nations to achieve these goals |
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Organs of the UN |
General Assembly - all member states with equal voting power - main forum Security Council - responsible for maintaining world peace and security with five permanent members which can veto decisions and then ten non-permanent members with two-year terms. - makes legally binding resolutions, military actions, economic sanctions as a incentive to change their policies Economic and social council - disccussion for economic, social, environmental and humanitarian issues Secretariat - main administrative body International court of justice - principal judicial organ of the UN - jurisdiction to settle international disputes submitted by member states (Australia and japan with whaling disputes) |
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Criticism of UN's effectiveness
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- state sovereignty remains a significant challenge in achieving world peace
- depends on political goodwill of nation-states - heavily criticized for reluctance to use its intervention powers to prevent mass atrocities occurring (Russian invasion of Ukraine) - article 2 of the UN Charter states that the UN is not authorized to intervene in matters which are essentially within the domestic jurisdiction of any state. - Right of veto undermines the effectiveness of the UN. Various resolutions aimed at protecting the citizens of Syria have been vetoed by China and Russia - |
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Protecting and enforcing human rights in Australia |
How human rights are incorporated in human rights into domestic law |
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Incorporation into domestic law |
There is no single document where all the human rights are listed this limits the accessibility of the law Human rights come from a variety of different sources - international treaties - constitution of Australia - common law - legislation law Signing treaty does not make it enforceable, these treaty agreements must be incorporate into Australia law either via common law or statute law. Australia customarily complies with international signing by creating new statute or amending existing laws |
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Human rights prioritised - Commonwealth Legislation |
two changes in federal parliament
1. a Parliamentary Joint Committee on Human Rights was established and is responsible for examining the compliance of all Bills with certain human rights 2. each bill introduced requires a statement of compatibility to be prepared, assessing compatibility with Australias human rights Protection of most Australian human rights is found in other sources of law; legislation and courts 2 ways, establishes a system of government which recognises human rights via the separation of power and division of powers Separation of power; three branches of government 1. legislature (parliament) - introduces the law 2. executive (government) - admin role 3. Judiciary (courts) - powers to make judgements on the law operates,concurrently, check and balance so that each branch operates with each other and doesn't abuse their power. Division of Powers Exclusive = commonwealth concurrent = commonwealth and state residual = state section 51 of the constitution, this enables the commonwealth government to enter into international treaties and then domestically legislate in relation to matters of international concern |
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Statue Law |
Racial discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Anti-Discrimination Right Commission Act 1986 Powerful protection tool as scope can be wide reaching and be easily amended easily as values and ethics change (themes and challenges) = role of law reform in protecting human rights - the effectiveness of legal measures in protecting human rights |
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Common Law |
Presumption of innocence, the burden of proof and the right to a fair trial. Common Law are not absolute and can be removed by legislation |
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The Role of courts and tribunals |
Are critical to the protection and enforcement of human rights as they interpret and develop human rights laws |
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High Court |
1.Develop the common law by creating binding precedents 2.uphold rights provided in the constitution 3.overturn legislation incompatible with the constitution R v Tang, the High Court noted that the definition of slavery in the Criminal Code 1995 (Cth) was very similar to the definition contained in Article 1 of the International Convention to suppress the slave trade and slavery 1927 |
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Australian Human Rights Commission |
- education and public awareness - discrimination and human rights complaints - human rights compliance - policy and legislative development The goal is to foster greater understanding and protection of human rights in Australia and address the human rights concerns of a broad range of individuals and groups. This achieved through educational programs, resolving disputes and providing advice |
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Non-governmental organisations |
-protecting individual rights - shaping opinion, both public and political by making submissions to parliamentary inquiries and law reform bodies - exposing human right violations Media - naming and shaming - exerts significance influence on public opinion and government action - ABC and SBS focus on raising awareness of key human rights issues. Treatment of asylum seekers, indigenous people, forced marriages
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A Charter of rights |
Many countries protect their citizens' human rights by adopting a bill or charter of rights - The government can pick and chose what pieces of international law they want. - can be either enshrined within the Australian constitution or an ordinary statute Arguments for a Charter of Rights - reflects basic Australian values - improves the quality and accountability of government - develop and enhance a culture of respect for human rights Arguments against a Charter of Rights - Current human rights protection is adequate, waste of resources - provide judges too much power |
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Key Human Right challenges for Australia |
- Indigenous Australias - Illegal immigrants in detention centres - disabled people - women 1.What is the human right being breached? and how is that right protected both internationally and domestically e.g - the right to everyone has to seek and enjoy in other countries asylum from persecution (article 14, UDHR) 2. provide an example of a breach - Australias mandatory detention of asylum seekers |
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sex slavery
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- People Trafficking is; acquisition of people by improper means such as force, fraud or deception with the aim of exploiting them. United Nations Office on Drugs and Crime reveals that sex slavery is the most common form of people trafficking. Thus its aims are to; 1. increase the level of protection and assistance provided to victims 2. develop state capacity to investigate and prosecute trafficking offences (R v Tang) 3. encourage cross-border co-operation in investigations and prosecutions International response |
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International responses |
UN.GIFT is the coordination of multiple international organisations attempting to solve trafficking. based on the principle, human trafficking is a crime of such magnitude and atrocity that it can't be dealt with successfully by any government alone UNODC is responsible for the convention against transnational organised crime and its protocols (trafficking in person protocol). Article 3 of the protocol aims to provide a consistent worldwide definition of trafficking in persons which can be used to guide nation states when enacting domestic legislation to criminalise this. However, not all nations view prostitution as an issue or an immediate issue. |
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Domestic responses |
Australia strives to meet its international obligations by enacting domestic criminal, migration and workplace laws which deter and punish slavery and trafficking Key Criminal Provisions are in the criminal code 1995 (Cth) with amendments by the slavery act amendment 2013, ensuring criminalisation of the broadest range of exploitative conduct Australian Federal police have dedicated trafficking team which is supplemented by cooperation with state police in investigations R v Tang (2008), High Court considered the definition contained in Article 1(1) of the International convention to slavery very similar to the Criminal Code 1995 (Cth) - the international treaty adopted within domestic law. The promotion is the code and the enforcement is the High Court. (parliament and courts) |
