2.1 Nature and development of HR

Question 1

Define human rights

Answer 1

Human rights are the universal, inherent, inalienable, and indivisible rights to which all people are entitled by virtue of being human.

Question 2

Magna Carta

(1215)

Answer 2

• Recognised the king had limited power over his subject
• Greater development of HR as policies weren’t as restricted by the king
• Formally acknowledged many fundamental HRs, e.g. right to freedom, equality before the law (RoL)

Question 3

English Bill of Rights

(1688)

Answer 3

• Transferred power from the monarchy to the parliament
• Strengthened the English democracy (freely elected govt., secularism) and recognised democratic rights, e.g. right to suffrage
• Further consolidated HR from the Magna Carta

Question 4

US Declaration of Independence

(1776)

Answer 4

• US declaring independence from Britain and forming their own state
• Emphasised an individual’s right to be free from the arbitrary power of a state + seek sovereignty (self-determination)
• Enshrined some HR in domestic law, e.g. “life to liberty, peace and the pursuit of happiness”

Question 5

US Constitution

(1787)

Answer 5

• Document of national governance based on the separation of powers
• Recognition of SoP upholds RoL - protects an individual from the arbitrary abuse of power by the state

Question 6

French Declaration on the Rights of Man and the Citizen

(1789)

Answer 6

• Declaration and protection of rights deemed inherent, inalienable, and universal by a representative National Assembly
• First attempt to create and recognise international HR  rights intended to be applicable to all people, not exclusively the French

Question 7

US Bill of Rights

(1791)

Answer 7

• First 10 amendments of the US Constitution - statement of civil and political HRs
• Guarantees freedom from govt. in private matters of the individual
• Acknowledges many basic HR in domestic law, e.g. right to freedom of speech, a fair trial, freedom of assembly

Question 8

International Bill of Rights

UDHR, ICESCR, ICCPR

(Post-WWII - 1948, 1966)

Answer 8

• First internationally asserted declaration of HR
• HRs decided by international community
• Arose from post-WWII – realisation of catastrophic HR abuses
• “recognition of the inherent dignity of and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”

Question 9

The abolition of slavery

Answer 9

• Transatlantic Slave Trade of 1800s (Industrial Revolution)
• Changing values and ethical standards on a societal level ignited movement
• Britain prohibited the slave trade
  
  • Slave Trade Act 1807 (UK)
  • Slavery Abolition Act 1833 (UK)
• US abolished after the American Civil War → Thirteenth Amendment
• Post WWI → Slavery Convention of 1926
• UDHR Art 4 — No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms
• Australia:
  
  • Criminal Code Act 1995 (Cth)
  • Modern Slavery Act 2018 (Cth)
  • Modern Slavery Act 2018 (NSW)

Question 10

Trade unionism and labour rights

Answer 10

• First trade unions during the Industrial Revolution — appalling working conditions
• Unions were initially criminalised but pressured the govt.
• British parliament legally permitted trade unions → Trade Unions Act 1871 (UK)
• Post-WWI → International Labour Organisation (1919)
• Post-WWII → International Bill of Rights
  
  • ICESCR
  • UDHR Arts 23 and 24
    
    • Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment
    • Everyone has the right to form and to join trade unions for the protection of his interests

Question 11

Universal suffrage

Answer 11

• 19th cent.: only wealthy men could vote → didn’t adequately represent population
• Vote extended to whole male population (generally globally) → Representation of the People Act 1918 (UK)
• Suffragette movement 19th/20th cent.
  
  • 1893: NZ – first nation
  • 1894: South Australia
  • 1902: Australia
• Equal vote regardless of race
  
  • 1967: Australia – Indigenous Australians re-given the right to vote through a constitutional referendum
• UDHR Art 21
  
  • Everyone has the right to take part in the government of his country, directly or through freely chosen representatives
• Majority of the world is either fully or partly democratic — progress still to be made

The right of all people within voting age to vote

Question 12

Universal education

Answer 12

• Only upper-class children would receive education; boys would receive complete schooling
• Industrial Revolution highlighted the need for a literate and educated population
  
  • Education Act 1870 (UK) → education became compulsory for all British children
• Australia
  
  • Public Instruction Act 1880 (NSW) → govt. took control over all church-run schools (except Catholic) to make education free, secular, compulsory
  • Education Act 1990 (NSW) → school made compulsory for children 6-17 years
• UDHR Art 26
  
  • Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be made compulsory …
• UN recognised as a major priority of economic and social development programs, e.g. Millennium Development Goals (2001), UNESCO

Question 13

Self-determination

Answer 13

Definition: Collective right of the people of a territory or national grouping to determine their own political status and to choose how they are governed without undue influence from another country

• US Declaration of Independence (1776) → America declaring sovereignty and independence
• League of Nations helped new states with self-determination post-WWI
• UN Charter (1945) led to the first universal recognition of the right to self-determination post-WWII
  
  • UDHR Art 15
    
    • Everyone has the right to a nationality.
    • No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
  • ICESCR and ICCPR → primary right under art 1(1)
• Example: Timor-Leste
  
  • 1999: East Timor exerted self-determination when declaring independence from Indonesia
  • 2001: UN voted in favour of recognising Timor-Leste as a nation state
• Declaration of the Rights of Indigenous Peoples (2007)
  
  • Non-binding
  • Set of minimum standards that outline the rights of Indigenous peoples, e.g. right to life, land, culture, religion, self-determination, no discrimination

Question 14

Environmental rights

Answer 14

Definition: mention intergenerational equity
- No universal recognition of environmental rights
- Challenges arise when nations disagree because it may disadvantage their economies
- Treaties to attempt to universally deal with specific environmental threats:
- Stockholm Declaration (1972) → product of first international conference; environmental management
- Rio Declaration (1992) → outlines relationship between economies and conservation
- Kyoto Protocol (1997) → hard law aiming to reduce greenhouse gas emissions
- 2015: UN Climate Change Conference
- Paris Agreement → to stabilise global temperature below 2°C above pre-industrial efforts
- ICC → breaches of environmental rights under international law dealt with criminally, e.g. leaders destroying the environment during wartime

Question 15

Peace rights

Answer 15

• Before 20th cent.: War deemed a legitimate method of resolving disputes
• Establishment of the League of Nations post-WWI — but ineffective; didn’t prevent WWII
• Charter of the UN (1945) → maintaining peace is the primary purpose of the UDHR (art 1(1))
• 1984: UN General Assembly adopted the Declaration on the Right of Peoples to Peace → non-binding declaration
  
  • “Peoples of our planet have a sacred right to peace”
  • Fundamental obligation of states to eliminate war as a threat to humanity, settle international disputes peacefully, and to promote and implement the right to peace domestically
• Needs to be balanced with self-defence
  
  • States have the right to self-defence if there’s an attack against them
  • Security Council can authorise actions to maintain or restore peace
  • ⇒ Wars can be considered legal, e.g. US invasion of Iraq in 2003
• Breaches of peace = war of aggression
  
  • Parties must follow international laws of war
  • 2017: ICC can prosecute crimes of aggression

Question 16

UDHR

Universal Declaration of Human Rights (1948)

Answer 16

• First international document creating a universal standard for the recognition and protection of universal HR + primary instrument
• Drafted by representatives with different legal and cultural backgrounds → created with multi-perspectives
• Statement of principles/ideals + non-binding agreement
  
  • More useful in promoting rather than enforcing
• Provides guidelines for nation states in protecting and enforcing HR domestically → what to make legal rights
  
  • No obligation for nation states to enact into domestic law + not enforceable
  • Especially relevant for emerging nations post-WWII
• Contributed significantly → established foundation for proceeding international instruments, including the ICCPR and ICESCR

Question 17

UDHR articles

Answer 17

• All human beings are born with equal and inalienable rights and fundamental freedoms.
• Article 4 (civil and political right)
  
  • No one shall be held in slavery or servitude: slavery and the slave trade shall be prohibited in all their forms.
• Article 21 (civil and political right)
  
  • Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
• Article 3 (economic, social, cultural right)
  
  • Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (1)
  • Everyone has the right to form and to join trade unions for the protection of his interests. (4)

Question 18

ICCPR

International Covenant on Civil and Political Rights (1966)

Answer 18

• Drafted 1966, entry into force 1976
• More detailed coverage and enforcement of 1st gen. than UDHR (Arts 3-21)
• Hard law
  
  • Legally binding on nation states that have signed and ratified
  • Obligation to implement in domestic law
• Treaty body: Human Rights Committee
  
  • Committee of independent experts
  • Monitors and recommends the implementation of civil and political rights by signatory nations

Question 19

ICCPR articles

Answer 19

• Article 1
  
  • All peoples 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.
• Article 6
  
  • Every human has the inherent right to life. This right shall be protected by law. No one shall arbitrarily deprived of his life.
• Article 7
  
  • No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
• Article 8 → more in depth in the right to be free from slavery and servitude, e.g. clarifying “forced or compulsory labour”

Question 20

ICESCR

International Covenant on Economic, Social and Cultural Rights (1966)

Answer 20

• Drafted 1966, entry into force 1976
• More detailed coverage and enforcement of 2nd gen. than UDHR (Arts 23-27)
• Hard law
  
  • Legally binding on nation states that have signed and ratified
  • Obligation to implement in domestic law
  • e.g. US agreed to the document in principle, but hasn’t ratified it to be held unaccountable to breaches — e.g. no legally determined minimum wage
• Treaty body: Committee on Economic, Social and Cultural Rights
  
  • Committee of independent experts
  • Monitors and recommends the implementation of economic, social, cultural rights by signatory nations

Question 21

ICESCR articles

Answer 21

• Article 1
  
  • All peoples 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.
• Article 8 → specifies and clarifies the right to form and join trade unions
  
  • (1b) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.
• Article 11
  
  • The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognising to this effect the essential importance of international co-operation based on free consent.