human rights Flashcards
definition of human rights (universally ___(ILEntit) associated with ___ for ___ and ___)
human rights are the universally recognised interests, liberties and entitlements associated with respect for human dignity and freedom
UN declaration of human rights quote
“recognition of the inherent dignity and of the (EI)(HF)_________ is the foundation of FJP______”
“recognition of the inherent dignity and of the equal and inalienable rights of the human family is the foundation of freedom justice and peace in the world.”
all human rights are considered (UIII)
universal: apply to all people
inalienable: cannot be taken away
inherent: apply because people are human
indivisible: all human rights have equal stays and cannot be positioned in a hierarchical order
magna carta 1215 protected ___
protected the rights of the rich and powerful → considered revolutionary at the time
english bill of rights 1688 (military, taxation, parlimentary)
included clauses relating to military power → powers of taxation, parliamentary freedom of speech and control of the army
first ten amendments to the US constitution are referred to as the US Bill… (17__)
united states of america bill of rights 1789
the abolition of slavery - international covenant on civil and political right (ICCPR): “no one shall be held … and the slave trade and all their forms shall …”
international covenant on civil and political right (ICCPR): “No one shall be held in slavery and the slave-trade in all their forms shall be prohibited”
slavery definition
circumstance where a person is completely under the control of another and is considered to be their property → control is physical and usually includes works under duress for no reward
main argument against slavery
all men are created equal so no man is above another and thus should not be traded or sold as property
amendment to abolish slavery
13th amendment to US constitution - campaigned by abraham lincoln outlawed slavery in 1865
Slavery Convention 1926
required signatories to end slavery as soon as possible → Supplementary Convention on the abolition of slavery, the Slave Trade, and institutions and practices similar to slavery 1956 came into force in 1957
The Queen v Tang (2008)
brother was found guilty of intentionally exercising a power of ownership over a slave regarding the sexual servitude of women in melbourne
1807 - slave trade act (UK)
passed the banning of importing slaves to british colonies → US followed in 1808
1833 - slavery abolition act 1933 (UK)
all remaining slaves in empire were freed the following year
1865 - 13th amendment to US constitution
campaigned by abraham lincoln outlawed slavery in 1865 after civil war
1945 - Article 4 of the Universal declaration of Human Rights (slavery)
UN made a clear statement that slavery as prohibited → UDHR is not enforceable law
what did the Queen v tang 2008 show and describe the case
Slavery still exist in Australia, particularly in the sex industry
a brothel proprietor was found guilty of intentionally exercising a power of ownership over a slave, regarding the sexual servitude of a number of women in Melbourne
response to queen v tang
Crimes Legislation Amendment (Slavery, Slave-Like Conditions and People Trafficking) Act 2012
what did Crimes Legislation Amendment (Slavery, Slave-Like Conditions and People Trafficking) Act 2012 do
mended the Criminal Code Act 1995 (Cth) to insert offences of forced labour, forced marriage, organ trafficking and harbouring a victim, to ensure the slavery offence applies to conduct which renders a person a slave, as well as conduct involving a person who is already a slave and extend existing offences to ensure the broadest range of conduct is criminalised
trade unionism and labour rights in UDHR: Article 23(4)) – “Everyone has the right…
Article 23(4)) – “Everyone has the right to form and to join trade unions for the protection of his or her rights”
why were unions formed
in response to appalling conditions, lack of safety, low wages and long working hours
was the organisation of workers into trade unions, beginning in the UK and moving globally with the aim of protecting workers’ rights and improving their working conditions
universal suffrage in UDHR: (Article 21(1)) – “Everyone has the right to take part…
(Article 21(1)) – “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”
universal suffrage definition: the right of all adults to…
the right of all adults to vote in government elections
Suffrage may be considered a human right due to the fact that voting permits a voter a say in the determination of government
The first partly elected body in NSW, the Legislative Council 1842, had a very restrictive suffrage:
voters had to be male and own a certain amount of land to qualify
first nation to grant women the ability to vote and what year
New Zealand, 1893
why was the voting age lowered to 18? (1973 amendment to the Electoral Act)
everal recent wars had been fought and the number of 18-21 year olds who lost their lives or were seriously injured was significant
Asking someone to give their life for their country yet not allowing them to vote was a pivotal part of the argument for lowering the voting age to 18
universal education in the UDHR (Article 26(1)) – “Everyone had the right to..
(Article 26(1)) – “Everyone had the right to education. Education shall be free, at least in elementary and fundamental stages. Elementary education shall be compulsory”
education in developed countries post WWII + less developed nations
By the end of WWII, free and compulsory education existed in most developed nations and seen as a basic human right
However, the enforcement of compulsory elementary education is often lax or non-existent in less developed nations, especially girls
self determination definition and type of right
the right of a people to choose their own form of government and run their own affairs (The right claimed by indigenous peoples to control their own traditional lands and economy)
collective right
example of self determination
The people of East Timor (Timor-Leste) exercised their right to self-determination in a United Nations supervised plebiscite (vote) in 1999, as a result of which they were recognised as independent of Indonesia
environmental right defenition
the right to a clean and safe environment
Many environmental lawyers regard environmental rights to be a matter of common concern for humankind rather than for the protection of individual human rights and hence regard them as a collective right
peace rights
the fundamental entitlements afforded to all people to live free from conflict, war or any form of oppression
the right to peace was set out in a non-binding UN General Assembly resolution: Declaration…
Declaration on the Right of Peoples to Peace in 1984
US and russia peace rights example
Both the US and Russia have worked towards arms reduction through treaties between themselves and various international treaties and conventions (e.g. the NPT) and thereby sought to limit nuclear testing, nuclear weapons proliferation and the development and stockpiling of other weapons of mass destruction – however, failure
in 1984, the Universal Declaration of Human Rights was adopted to: set a common standard of…
a common standard of achievements for all peoples and all nations
International Covenant on Civil and Political Rights protects individuals from …
arbitrary exercise of power by oppressive governments – known as first generation rights
International Covenant on Economic, Social and Cultural Rights
The rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR) are concerned with the material and cultural wellbeing of people – known as second generation rights
International Covenant on Economic, Social and Cultural Rights includes the right to… x3
The right to self-determination
The right to education
The right to health
state sovereignty definition
supreme and independent authority to govern claimed by a state over its territory
problem regarding human rights and state sovereignty
s that not all governments equally accept the idea that their own people have certain rights
Some countries without democratic processes may rely on sovereignty as a rationale to justify mistreatment of their own citizens
what happens when a state abuses state sovereignty in human rights
the victims are given recourse through domestic institutions
The problem arises when domestic structures fail to uphold human rights either because they are unable or unwilling to act
It is in these cases that scholars recognise an inherent tension between state sovereignty and the protection of human rights
how does UN protect human rights
through the establishment of treaties, such as the UDHR, however, these vary in effectiveness as they require ratification in domestic law, not simply signing them
they have worked towards the Genocide Convention, but this also has varying levels of effectiveness (Rwanda)
UN organs (GA and UNSC)
General Assembly – main forum for international discussions relating to human rights
UNSC – purported to have the power to intervene in the most serious of human rights and IHL abuses by states
IGO definition
An intergovernmental organisation (IGO) is an international institution comprised of various member states
IGOs are created by agreement between states, by an international treaty that acts as a charter outlining the organisation’s purpose and operation
example of UN protecting human rights (south africa)
elimination of South Africa’s system of legalized racial discrimination known as apartheid
drawing world attention to the inhumanity of the system, legitimizing popular resistance, promoting anti-apartheid actions by governmental and non-governmental organizations
UNSC rwanda and east timor examples
was ineffective during Rwandan genocide in 1994
much more successful in defending human rights during the East Timor crisis of 1999
IGO example (NATO)
military alliance of 29 European and North American countries committed to each other’s defence
instigated military action to end the conflicts in Bosnia & Herzegovina
elped to provide air transport for peacekeepers and civilian police from African troop contributing countries into and out of Darfur, Sudan
courts tribunals and independent definition
authorities with power to hear matters involving human rights abuse
courts tribunals and independent examples
ICJ west bank barrier wall - israel only complying with israeli supreme court and not UNSC
ICTR - established to maintain national peace post genocide and persecution of those involved in genocide
example of UN protecting human rights (south africa)
elimination of South Africa’s system of legalized racial discrimination known as apartheid
drawing world attention to the inhumanity of the system, legitimizing popular resistance, promoting anti-apartheid actions by governmental and non-governmental organizations
UNSC rwanda and east timor examples
was ineffective during Rwandan genocide in 1994
much more successful in defending human rights during the East Timor crisis of 1999
non governmental organisations definitions role
They help ensure greater government compliance by investigating, researching, documenting and publicising cases of human rights violations
NGOs effect
By naming and shaming, NGOs can have a profound effect on countries and their behaviours
NGOs will also work with victims, provide evidence to international courts, and encourage other states and the UN to place diplomatic pressure or take action against states
NGOs example (HRW)
Human Rights Watch
- nonprofit,
- non governmental human rights organisation
- Established in 1978
- known for its fact-finding, impartial reporting, effective use of media and targeted advocacy
-often in partnership with local human rights groups
-pressing for changes in policy and practice that promote human rights and justice around the world
the media role
The media plays a crucial role in the naming and shaming of governments and human rights billators
exposing instances of human rights abuse and helping to bring about change
media example (Rwanda)
Radio television Libre des Mille Collines (RTLM) - broadcast list of Tutsis to be killed and where they would be found - calling for a”final war” or to “exterminate the cockroaches”
HRW - effectively brought awareness to crimes of Rwandan Patriotic Front (RPF) calls on UN to use the word ‘genocide’ - April 19.
Effectiveness as it puts international, public pressure on the UN to respond more promptly
HUman rights/media quote: we find it very… and “there were also problems…”
“We find it very problematic that this other side of the genocide has not been dealt with by the court,”
“There were also problems involving fairness and protection of the rights of the accused.”
UNSC rwanda and east timor examples
was ineffective during Rwandan genocide in 1994
much more successful in defending human rights during the East Timor crisis of 1999
example of UN protecting human rights (apartheid)
elimination of South Africa’s system of legalized racial discrimination known as apartheid
drawing world attention to the inhumanity of the system, legitimizing popular resistance, promoting anti-apartheid actions by governmental and non-governmental organizations
how human right are incorporated into domestic law
treaty is signed → nations agree the principles of the treaty
signing treaty = country has to act in the spirit of the treaty but is not directly (legally) binding
treaty will need to be ratified by the nation state before it becomes internationally binding
example of treaty that has been included in domestic legislation
Convention on the Elimination of All Forms of Racial Discrimination (CERD) → Racial Discrimination Act 1975 (Cwlth) → rights of australians are now protected legally
what did he teoh case demonstrate
if the treaties are not enacted, they have limited impact – they may mean that judicial bodies should take not of them, but not if the executive government has expressed its opposition to the relevant provision
rights in the australian constitution
Religious freedom
The right to vote
The right to due process in the courts
dietrich precedent (The right to due process in the courts)
if an indigent (poor) accused is unrepresented through no fault of their own, then serious criminal proceedings should be stayed until representation can be obtained”
separation of powers role
the legislature, judiciary and Executive act as a check and balance on each of the others so as to prevent an abuse of power
it allows the High Court to strike down any legislation that it deems incompatible with the provisions of the Australian Constitution and the rights and limitations it contains
division of powers v seperation of powers
constitution states that a valid Commonwealth law prevails over an otherwise valid State law (e.g. NSW or QLD law)
gay tasmanian man (when being gay was criminalised) argued that this violated his right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR) ultimately agreed that because of Tasmania’s law, Australia was in breach of the obligations under the treaty
toonen case
gay tasmanian man (when being gay was criminalised) argued that this violated his right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR) ultimately agreed that because of Tasmania’s law, Australia was in breach of the obligations under the treaty.
statute law definition + ineffectiveness
law made by Parliament
statute laws can also restrict human rights – e.g. the Crimes (Serious Crime Prevention Orders) Act 2016
statute law can be changed and thus ineffective when a new government comes in
common law definition
law created by judges which acts as precedent
common law limitation
may be reversed or abolished by legislation
examples of common law protecting human rights
The presumption of innocence
The right to have a fair trial with a judge presiding over the proceedings
A jury should only consider the evidence presented in court – did not occur in the Skaf case
statute law examples
relevance of courts in human rights
power of courts is significant especially in the high court where judges can be influenced by international standards and apply standards (common law) in the absences of parliament
Minister for Immigration and Ethnic Affairs v Teoh (1995)
(courts and tribunals in Aus case)
high court decided that CRC could have effects on domestic law even through provisions of the instrument had not been brought into effect through legislation
Immigration officer ordered that Teoh (malaysian citizen) be deported based on his conviction of heroin importation and possession
CRC should be incorporated to domestic law by statute
the court held that the ratification created an expectation that in all actions concerning children, the best interests of the child would be a primary consideration
Dietrich v The Queen (courts and tribunals in Aus case)
right to legal representation
High Court found that the Australian Constitution entitles a defendant to not be tried unfairly.
established the precedent that where through no fault of their own an indigent (poor) defendant is facing serious criminal charges and is unrepresented, then the case should be stayed (i.e., delayed) until legal representation is available.
media in australia role
naming and shaming of government misdeeds
publicising human rights violations
exposing instances of human rights abuse and helping bring about change
media in Australia example
no express general right to freedom of the press in Australia –
2019 Australian Federal Police raids on the home of journalist Annika Smethurst and the Sydney offices of the ABC investigating the sources used in media stories
statute law examples
Sex Discrimination Act 1984 (Cwlth)
Racial Discrimination Act 1975 (Cwlth)
charter of right definition
a comprehensive document setting out human rights which may be constitutional or statutory
aim of charter of rights in australia
to restrict the power of future parliaments to reduce or infringe on certain rights
A Charter of Rights could protect human rights in Australia by enabling the existing rights (i.e. constitutional, statute and common law) to be consolidated into one document
arguments for a charter of rights
Redress the inadequacy of existing human rights protections
Protects the marginalised and disadvantaged
Common law does not adequately protect human rights
arguments against a charter of rights
Excessive and costly litigation
The adequacy of current human rights protections in Australia
Unnecessarily legalised human rights
