Human Rights Flashcards
1
Q
Slavery (1st Generation)
A
- Slavery was centuries old and accepted by all societies
- English merchants made huge fortunes on the backs of African slaves they sold in the Americas.
- The fight to send slavery was based on the notion that it was morally wrong to by, sell or own another human being.
- Abolition of Slavery Act 1807
- Slavery Convention 1926
- UDHR article 4
- ICCPR article 8
- Commonwealth Criminal Code 1995 and 2013 amendments (s 270)
- Modern Slavery Act 2018 Cth.
- Contemporary issue - approx, 50 million slaves in the world in 2024, 1 in 4 are Children, 71% are women and girls, 122,000 identified in the UK as potential victims (Anti-Slavery Org). Approx, 41,000 slaves in Australia 2024 (Global Slavery Index / Walk Free).
1
Q
Environmental Rights (3rd Gen)
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- Environmental rights refer to the right of a people to enjoy a clean and safe environment over time. They are a reflection of changing societal and ethical standards as initially they were not explicit rights but protected through the right to self-determination.
- Stockholm Declaration (1972) - The first major agreement to recognise the responsibility to protect the environment. (however, did not outline mechanisms by which this can be done until Rio).
- UN Framework Convention on Climate Change (UNFCCC), 1992. Ratified by 197 countries, including the United States, the landmark accord was the first global treaty to explicitly address climate change.
- Kyoto Protocol 1997 (192 parties to the protocol) was adopted in 2005.
Paris Agreement 2015 (Legally binding) - 195 parties agreed - Rio Declaration 2012 promotes ESD principles
- Climate Change Act 2023 (Net zero by 2050).
- Contemporary issue: Australia called out for lack of action at COP27 and
Masig Island Case. - The Kyoto Protocol required only developed countries to reduce emissions, while the Paris Agreement recognised that climate change is a shared problem and called on all countries to set emissions targets.
- Impeded upon other rights
- ARTICLE 25 UDHR (soft law)
2
Q
Trade Unionism (2nd Gen)
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- Refers to workers’ rights and the right to join and form a trade union. The first demonstration of Labour rights was seen during the Peasants
- Revolt in the 14th century and the Industrial Revolution in the 18th century (demanded better conditions).
- Gained universal recognition in 1948 → Article 23 of the UDHR (soft law)
- 2nd Generation - Article 8 and 22 of ICESCR 1977 (Hard Law).
- Recognised in Australia through Fairwork Act 2009 - the principle commonwealth legislation that deals with labour and trade union rights.
- This then led to the Work Health and Safety Act (2011) NSW - which provides a means of redress to protect workers against harm.
- Still developing as in Bangladesh workers’ rights are still denied in large clothing factories + still not recognised in China and Saudi Arabia
3
Q
Universal Suffrage (1st gen)
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- Universal suffrage refers to the right of all adults to vote in government elections so they can be involved in how they are governed.
- At the beginning of the 19th century, only privileged white males could vote (no women or indigenous and racial minorities could vote.
- During the 20th century, the right to vote was extended to women and minorities, becoming a feature of democratic societies. E.g. Australia had a constitutional referendum in 1962 and indigenous people gained the right to vote.
- Suffrage became universally recognised in 1948 through Article 21 of the UDHR.
- 1966: Article 25 (also 1 is self-determination) of ICCPR (Hard law)
Australian constitution (express right) - Section 41 gives the express right to vote - Still developing in Afghanistan
4
Q
Peace Rights (3rd generation)
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- Peace rights refer to The right of citizens to expect their government to do all in its power to maintain peace and work towards the elimination of war.
- First seen in 1864 through the Geneva Convention and its protocol that regulates the rules of war and seeks to reduce hostility and protect peace during a period of conflict.
Peace rights were impeded during the World Wars → In response UN was created in 1945 with the primary focus of ensuring peace. - 1948 Article 3 UDHR - Everyone has the right to life, liberty and security of person.
- Article 28 UDHR - Everyone is entitled to a social and international order in which rights and freedoms can be fully realised.
- ICCPR Article 6 - Right to life (if breached impedes upon peace rights).
- Today, not always upheld despite the existence of international law, e.g. Russia and Ukraine (Russia security council member).
“Russia’s illegal military actions grossly violate international law and the principles of the United Nations Charter and undermine European and global security and stability.” - ‘EU statement regarding Russia’s unprovoked and unjustified military aggression against Ukraine’, ceas.europe.eu, 28/2/2022
5
Q
Self Determination (Third Gen)
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- Self-determination refers to the right of all individuals to freely determine their political status and pursue their economic, social and cultural development without outside interference.
- First seen in the U.S. Declaration of Independence and the French Revolution where citizens determined who governed them (independence of nations).
- Response to end of WW2 and collapse of colonial powers → Un Charter Article 1 (1945)
- ICCPR Article 1
- Article 1 of the ICESCR
- Mabo No 2 (1992) - Indigenous self-determination right to cultural land (Native Title).
- Recent: United Nations Declaration on the Rights of Indigenous Peoples (2007)
- Ongoing: Gaza
6
Q
Universal Education (2nd Gen)
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- Universal education refers to all human beings right to education.
- During the 19th century, the Industrial Revolution led to improved access to basic education to enhance the skills of workers.
- In the late 20th century, the international community responded by including the right to elementary education in the UDHR (1948, Article 26).
- Further developed in New South Wales through the Education Act 1990 which requires students to remain in school until they are 17 years old.
- Contemporary issue: Impact of Covid - education made inaccessible
7
Q
UDHR (1948)
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- Set a precedent through its 30 articles (universal understanding of human rights).
- Soft law with no legal mechanism for enforceability
- Is an expression of Human Rights
Important statement about, and recognition of, the notion of universal human rights - Eleanor Roosevelt called it the manga Carter of our time.
- Every right has been codified into hard law through the twin covenants
8
Q
ICCPR (1996)
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- Hard law: Codified the rights in the UDHR into hard law
- 176 parties (universally recognised)
Periodic reporting arrangements for its member states to ensure that human rights are being consistently upheld. - First Optional Protocol (PROVIDES MECHANISM OF REDRESS):
- Establishes an individual complaints mechanism (allowing people to complain to the human rights committee - example of REDRESS).
- Second Optional Protocol: abolishes the death penalty.
- ICCPR CASE: Toonen V Australia (1991)
- Nicholas Toonen, a homosexual man from Tasmania, sent a communication to the Human Rights Committee as at the time it was criminalised and he argued this violated his right to privacy under Article 17 of the ICCPR.
- The Human Rights Committee agreed that because of Tasmanian law, Australia was in breach of obligations under the treaty. In response, the Commonwealth Government passed the Human Rights (Sexual Conduct) Act 1994, overriding Tasmania’s state laws that criminalise homosexual sex.
9
Q
ICESCR (1976)
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- 171 parties - 2nd Generation Rights
Hard law (codifies the rights in UDHR into hard law by providing legally binding mechanisms of enforcement). - It contains monitoring and periodic reporting arrangements (every 5 years) for member states.
- Optional Protocol to the ICESCR was adopted by the UN General Assembly on the 10th December on the 10th December 2008. This established a complaint and inquiry mechanism for the ICESCR. (Australia has not ratified - only 26 nations have
Some countries, eg. the USA and South Africa have signed but not ratified and Myanmar and Malaysia have neither ratified nor signed.
10
Q
ICJ (1921)
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- Through its interpretation of international treaties, the ICJ contributes to the development an clarity of human rights standards, guiding state practices, and ensuring consistency in the application of these norms.
- The ICJ can also give advisory opinions.
- Established in 1921 under the ICJ Statute
- The ICJ has previously held that they will prosecute under the Geneva Convention - states must work to prevent genocide and the right to life and liberty
- Gambia V Myanmar (2020)
- Gambia in its application to the ICJ, alleges that Myanmar’s actions violated various provisions of the Genocide Convention. The ICJ previously confirmed that all member states of the convetion have a duty to prevent and punish genocide
- On 23 January, 2020, the ICJ imposed provisional measures directing Myanmar to prevent all genocidal acts against the Rohingya, to ensure that the military and other security forces do not commit acts of genocide and take steps to preserve evidence related to the case
- The court ordered Myanmar to report on its implementation and compliance of provisional measures within four months and every six months thereafter
- The ICJ’s provisional measures orders are legally binding on the parties to the case. Despite this - persecution continues.
- Australia’s and others have imposed economic sanctions on Myanmar by virtue of their obligations under the ICJ
- Under article 41(2) of the ICJ Statute, the court’s order for provisional measures is automatically sent to the UN security council
- The Rohingya’s invocation of R2P to the Security Council has been rejected by China via their veto powers - thus the only thing that can be done as of now is economic sanctions
- ICJ has the power to refer to the security council however this is limited by their VETO powers - judicial organ of the UN
11
Q
Administrative Appeals Tribunal
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- The Administrative Appeals Tribunal (AAT) in Australia plays a crucial role in protecting human rights through several mechanisms:
- Review of Decisions: The AAT reviews decisions made by government agencies, ensuring that individuals have recourse if their rights have been infringed. This includes decisions related to immigration, social security, and various other areas affecting personal rights.
- Accessibility: The AAT is designed to be more accessible than traditional courts. Its procedures are generally less formal, allowing individuals, including those without legal representation, to present their cases effectively.
- Bioloela Family went to AAT after unsuccessful tenure with Home Affairs Minister
12
Q
Australian Human Rights Commission
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- advocates for human rights to be considered in law and policy, provides advice, reviews laws, and makes submissions to parliamentary inquiries
- 2023 submission to the Attorney General’s Department Targeted Review of Divisions 270 and 271 was successful as the AG is currently reviewing this legislation in 2024
- ## promotes and raises awareness of human rights through education and training, events and discussion, media outreach e.g publication “What businesses need to know about Modern Slavery Review”
13
Q
Reasons for a Charter of Rights
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- Enhanced Protection of Rights: A Charter of Rights can offer explicit and consistent protections, preventing governments from easily infringing upon individual rights. It gives people a clear, legally enforceable reference for their rights.
- Clear Legal Standards: By setting out specific rights, a charter provides clear guidance for courts, lawmakers, and public officials, fostering consistency in the protection of civil liberties and human rights.
- Government Accountability: A charter ensures that governments are accountable to the people for respecting rights, as the judiciary can review and limit government actions that may infringe on protected rights.
- Empowerment of Citizens: Knowing and understanding rights can empower individuals to assert them. A charter provides an accessible, transparent statement of rights, raising public awareness and promoting a culture of rights.
- Alignment with International Standards: Many democracies have charters or bills of rights, and adopting one can help align a country’s legal framework with international human rights norms and standards, strengthening its position in the global community.
- Protection for Minority Rights: A charter can be particularly beneficial in safeguarding the rights of minorities and marginalized groups, whose rights may be more vulnerable to neglect or infringement in a purely majoritarian system.
14
Q
Reasons Against a Charter of Rights
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- Judicial Overreach: Critics argue that a charter can shift power from elected representatives to unelected judges, who may interpret rights in ways that reflect their own values rather than those of the public or legislature.
- Rigid Legal Constraints: Codifying rights can make them difficult to adapt or amend in response to changing social values or needs, potentially making the system inflexible and less responsive to new challenges.
- Potential for Rights Conflicts: Rights can sometimes conflict with each other (e.g., free speech vs. protection against hate speech). A charter can complicate these conflicts, forcing courts to make difficult value judgments on sensitive issues.
- Already Existing Protections: Opponents may argue that sufficient protections for rights already exist in the constitution, statutes, and common law, making a charter redundant and potentially overlapping with existing legal frameworks.
- Risk of Litigation: A charter could lead to an increase in litigation as individuals and groups seek to enforce newly codified rights. This could place strain on the judiciary and lead to lengthy, expensive court battles.
- Potential Politicization of the Judiciary: By entrusting judges with significant interpretive power over fundamental rights, a charter could politicize judicial appointments and court decisions, as different political factions vie to influence rights interpretation
