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Human rights - Promoting and enforcing human rights Flashcards

1
Q

what does signing a treaty mean

A

signing a treaty indicates a states agreement to the principles of the treaty - however it is NOT binding

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2
Q

define ratified

A

sign, or give formal consent

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3
Q

define monlist system

A

a legal system where a treaty becomes law as soon as its ratified by a country

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4
Q

define dualist system

A

a legal system that does not deem treaties enforceable
domestically until and unless they are incorporated into
domestic law, usually by passing similar legislation

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5
Q

what is the impact of state sovereignty on enforcing HR

A

MAJOR issue in HR as it means that no foreign state or law can interfere in another states domestic jurisdiction unless it has the consent of that state - states can choose not to acknowledge certain human rights

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6
Q

define state sovereignty

A

refers to the ultimate law making power of a state - its independence and freedom from external interference in its affairs

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7
Q

what are the 2 main roles of the constitution in protecting HR in australia

A
  • lays down the system of government through which HR are recognised including the SOP and the DOP and the role of the high court
  • source of some specific HR rights (express and implied)
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8
Q

what is the SOP and how does it protect HR

A

refers to how power is separated between the three branches of government
- legislature (law making) - education act 1990 (nsw)
- executive (enforces laws) - police arresting wei tang for hts
- judiciary (interpreting laws) - ACT v Cth –> interpreted the right of political communication

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9
Q

what is the DOP and how does it protect HR

A

refers to the division of power between the states and the commonwealth
- exclusive
–> s51 - external affairs power - gives the Cth power to legislate on external affairs - make make laws to uphold international treaties
- concurrent
- residual

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10
Q

how does the HCA protect HR

A

interpretation and application of the constitution
- implied rights eg. act v cth –> freedom of political communication
- original and appellate jurisdiction eg. R v Tang - upheld the decision that wei tang was guilty of HTS under the 1995 Criminal code act

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11
Q

what are express rights

A

rights that are written
eg. s80. right to trial by jury (for indictable federal offences)
s116. freedom of religion

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12
Q

what are implied rights

A

rights that are implied through the constitution - interpreted by the HCA
eg. freedom of political communication

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13
Q

pros of the constitution in protecting HR

A
  • has SOME rights included
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14
Q

cons of the constitution in protecting HR

A
  • remedies available when a constitutional right is breached are limited if you can’t reach the high court
  • the constitution wasn’t created to protect rights
  • most people are unaware of their constitutional rights
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15
Q

how does statute law protect HR with example

A

they protect HR through the passing of parliament made laws that uphold international treaties on HR
MAIN way of protecting rights in aus
eg. fairwork act 2009 (cth) - provides labour rights and upholds a.23,4 of the udhr

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16
Q

what limits the effectiveness of statute law in protecting HR

A

statutes aren’t fixed –> can be taken away by an act of parliament

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17
Q

how does common law protect HR

A
  • uphold the rule of law –> ensures equality under the law –> everyone has the right to a fair trial
  • sets precedent
  • TALK about the high court
    –> original and appelate jursidiction
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18
Q

what limits the effectiveness of common law in protecting HR

A
  • doesn’t offer absolute protection because common law rights aren’t fixed –> parliament act can over ride common law
  • can’t develop new rights as judgements will only define rights on a case by case basis
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19
Q

how do courts and tribunals protect HR?

A

applying and enforcing HR as well as interpreting and developing HR laws
- high court
- ncat
- AHRC

20
Q

what is the role of the high court in protecting HR

A
  • has the power to set binding precedents and to overturn state or cth legislation where it conflicts with the constitution
  • orginal jurisdiction - constitutional cases eg. deitrich v the queen
  • appelate jurisdiction - eg. r v wei tang
  • interprets the implied rights in the constitution - implied rights
21
Q

what is the AHRC

A

an independent national body established under the Australian human rights commission act 1986
- had an important influence on australia’s laws eg. 1997 bringing them home report resulted in an apology to indigenous victims separated from their families from Kevin Rudd PM

22
Q

what is the role of the AHRC

A

→ receiving complaints into breaches of HR
→ promotes public awareness about HR and provides legal advice
→ conducts public enquiries into human rights
→ gives advice and makes submissions to parliament and govts on the development of laws, policies and programs consistent with HR

23
Q

what is the role of NGOS in protecting HR

A
  • Research and report on HR issues
    -Makes submissions to state and cth parliament or law reform bodies on HR
  • Works in the field of HR with victims
  • Shapes public and political opinion and exposes violations of human rights
24
Q

how are NGOS limited in protecting HR

A

non legal - not enforceable
rely on donations for funding

25
what is the role of media in protecting HR
- Impact public opinion and government action - Reports on both HR issues in australia and internationally
26
how is the media limited in protecting HR
- not enforceable
27
what are the arguments for introducing a charter of rights in aus
- High community support - Redeeming shortcomings of existing HR protections - Protects marginalised and disadvantaged - Improving the quality and accountability of the govt - Bringing australia into line with other democracies - international goodwill
28
what are the arguments against introducing a charter of rights in aus
- The adequacy of current HR protections in australia - Undermining a tradition of parliamentary sovereignty, including transferring legislative power to unelect judges - No better hr protection is guaranteed - Democratic processes and institutions offer better protection of rights - Major economic cost
29
what is the role of the UN in protecting HR
it plays a crucial role in defining, promoting and protecting HR - helps maintain the agreed global standards, identify violations, pursue remedies and encourage improvement
30
what are the main UN bodies
UN general assembly UN security council Economic and social council UN secretariat International court of justice
31
how does the UNSC protect HR
- has power to to maintain international peace or security - can authorise military actions, sanctions or peacekeeping operations - has veto powers (con?)
32
what is the OHCHR and its role in protecting HR
office of the high commissioner for human rights (administrative agency under the UN secretariat) - offers its support and expertise to the various HR monitoring bodies and systems within the UN - overseas the HR council
33
how does the ICJ protect HR
has the jurisdiction to settle disputes submitted to it by member states and provide advice on matters of international law submitted to it by international organisations and the UNGA
34
what is the UN HR council and its role in protecting HR
united nations human rights council (subsidiary of the UNGA) - responsible fpr the promotion and protection of HR globally - chief purpose = examine situations in which HR violations are occurring and make recommendations back to the UNGA - can request the UNSC take action to stop violations
35
what are the pros and cons of the UN in protecting HR
pros - highly effective in facilitating the protection of HRS eg. facilitation of the UDHR, ICCPR and the ICESCR - powers of enforcement in limited circumstances and this has assisted with the protection of peace rights cons - limited limitation of effectiveness is the structure and the operations of the UN - all countries are in the GA but it has limited power - not all countries are part of the UNSC or the UNHR council - the UNSC permanent members have the right to veto any solutions - only 1/5 has to veto for a fail
36
how do IGOS protect HR
IGOS = a group of members working together on issues of mutual self interest - often the interest is HR they can establish rules, norms, and standards that member states can adopt to regulate their behaviour and promote cooperation UN is the most significant IGO EU is also an IGO NATO - peace and security
37
how do court and tribunals protect HR
international courts and tribunals protect HR by establishing specific courts/ tribunals for certain issues? (complete bullshit)
38
how do NGOS protect HR internationally
NGO = an organisation that works independent of any govt - promotes HR and helps ensure better govt compliance by investigating, researching, documenting, and publishing cases of HR violations eg. amnesty international -> campaigns internationally to prevent the violation of peoples HR
39
how does the media protect HR internationally
investigates, reports and exposes cases of HR violations which can have a significant impact on public opinion and prompt govt action
40
how are HR incorporated into domestic law
- rights guaranteed under the constitution eg. right to vote + freedom of religion - federal and state laws - common law eg. mabo decision - courts and tribunals - publicity and pressure from NGOS and the media
41
what are the cons of NGOS and media in protecting HR
they are only promotional and NOT enforceable they rely on funding for operations
42
what are the cons of IGOS in the protection of HR internationally
the cost and time involved in setting up the IGO
43
what are the cons of courts and tribunals in protecting HR
44
what is the international criminal court and its role in protecting HR
ICC - hears cases relating to CAH, war crimes, genocide and crimes of aggression - has the power to prosecute individuals rather than states - founded under the rome statute 1998 - 9 convictions
45
cons of the the ICC
- difficult to locate and extradite individuals - limited resources available - time and cost in investigating cases

HSC legal studies (12 decks)

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