10: Human Rights

Question 1

Definition of human rights:

Answer 1

Gerhardy v Brown:
Rights and freedoms which every legal system ought to recognise and observe.

Question 2

Examples of human rights @ national level:

Answer 2

Magna Carta
Bill of Rights (England)
Bill of Rights (US)
Declaration of the Rights of Man and the Citizen (France)

Question 3

Human rights in the Un Charter:

Answer 3

Art 1(3): purposes & principles
reaffirm faith in human rights
international cooperation in solving problems of an economic, social, cultural or humanitarian character.

Specific provision: Art 55
observance of human rights and fundamental freedoms for all

Question 4

Universal Declaration of Human Rights:

Answer 4

Purpose: common understanding of rights, a common standard of achievement…

Rights are inherent & inalienable.
many pragmatic benefits.

Question 5

ICCPR & ICESCR

Answer 5

An evolution of human rights - adopted by GA in 1966.
Entered into force 1976.

ensure all individuals have their rights recognised.

Question 6

Breakdown of the obligations:

Answer 6

Respect: avoid interference with rights by the State.

Protect: prevent interference with rights by third parties.

Fulfil: ensure enjoyment of rights by all.

Question 7

Monitoring, Adjudication and Enforcement of human rights:

Answer 7

Primary enforcement undertaken through national legal systems (art 2(2)).

Within the United Nations:
Human Rights Council - subsidiary organ of the GA.

Treaty monitoring bodies.

Action by States:
special treaty provisions
ordinary treaty enforcement

Individual complaint mechanisms

Question 8

Case examples of Human Rights Law?

Answer 8

A v Australia: immigration detention
Toonen v Australia

Show the limited scope of human rights law.
Toonen: effectiveness of international and national systems working in harmony.
A: the inability of the international system to protect individuals.

Question 9

Human Rights (Parliamentary Scrutiny) Act 2011:

Answer 9

Establishes parliamentary joint committee on human rights (s4).

Requires a statement of compatibility for a bill or legislative instrument.

Question 10

Diplomatic Protection:

Answer 10

The traditional means of protecting nationals overseas.
allows individuals with no standing to be protected/represented by their State.

Eg. Mavrommatis

However, entirely dependent on the State’s choice to intervene.
And a very low standard of treatment universally.