S1 Intro to Human Rights Flashcards
what are some forms of Human Rights?
- Legislation, Racial Discrimination Act 1975 (cth)
- Common Law, Torts
- Constitutional Protection, Commonwealth Constitution 1901
- treaties and convention at the international level
Categories of Human Rights?
1th generation - civil and political rights
eg; fair trial, free from torture
2nd generation - economic, social and cultural rights
eg; housing, health, education, food, water
3rd generation - communal rights
such as right to healthy and safe environment
the difference between 1th and 2nd generation?
- ICCPR (1th) rights are presumed to be effective immediately
- ICESCR (2nd) rights are to be ‘progressively realised’ within ‘available resources’
is the Economic, social and Cultural Rights (ESCR) justiciable?
some says NO, due to these rights being ‘positive rights’ which requires the states to do something to enforce them.
Enforcement of ECSR involves ‘policy’
forms of international law?
1 Treaties and convention
2 Customary International Law
bi-laternal treaty?
between two parties
multilateral treaty?
between many parties
eg; ICCPR and ICESCR
is UDHR a treaty?
No, but have many affects on customary law
John Howard’s quote in regards to state sovereignty?
“we will decide who comes to this country and the circumstances in which they come”.
what is the role of accountability in the bill of rights?
While states have their sovereignty, the UN shifted towards holding countries accountable through the bill of rights.
How are treaties made?
1 Negotiation and Drafting
2 Signed by the official representative of a state
3 Ratification (executive act by Governor- General on advice of federal government )
ratification?
After a state has ratified a treaty, it is bound to follow the treaty under international law
And Failure to comply will have consequences under international law - (states usually make sure that their domestic law complies with the treaty before ratifying it)
what type of legal system Australia has?
Dualis
what does a Dualist system means ?
ratification of a treaty has no direct affect on domestic law.
- rights in the treaty cannot be raised as individual rights in a domestic court
- state is not directly accountable to its citizens for violations of treaty obligations
How does a Treaty come to life under Australian Constitutional system?
Executive enters treaties
Parliament decides if treaties become part of domestic law
Type of systems of government ?
- Dualist - ratification of a treaty has no direct affect on domestic law unless transformed into policies by parliament
- Monist - treaties automatically becomes part of the law
which countries have dualist system?
Countries with Common Law Foundation such as UK, Canada and New Zealand
which countries have monist system?
Civil law countries - European countries have monist system
list of case illustrate Dualist System in Australia;
- Koowarta v Bjelke Peterson 1982
- Al- Kateb v Godwin 2004
- Tonnen v Australia 1994
what was the High court’s decision in Koowarta v Bjelke-Petersen?
The QLD law was invalid cause it has to comply with the CTH law.
QLD argues that property is state matter and not CTH.
However, CTH did have power due to entering into the International Convention on the Elimination of all forms of Racial Discrimination (ICERD)
Koowarta v Bjelke-Petersen 1982 - about?
government refused to grant land interest to Aboriginals
Al-Kateb v Godwin - about?
Whether Australia has the right to detain Refugees indefinitely
indefinitely ?
for an unlimited or unspecified period of time
court decision on Al-Kateb v Godwin 2004?
Government has power to detain refugees under the ‘aliens’ power in constitution
Although, this is unlawful under international law (eg; ART 9(1) of ICCPR - prohibition on Arbitrary detention).
However, international law cannot rule over domestic law due to state sovereignty
Toonen v Australia 1994 - about?
Tasmanian law prohibited Gay Sex
Toonen argues that this law breaches his right to privacy and freedom from discrimination on ground of Sex (protected by ICCPR)
Court decision on Toonen v Australia 1994?
HRC asked Australia to repeal the act as it goes against international law.
Tasmania refused to change the law because international committee can’t order state to change its law.
Cth enacted the Human Rights (Sexual Conduct) Act 1994 (cth), which overrode v invalidated the Tasmanian law
what is the relationship between human rights and democracy?
Democracy gives right to the people to have their say in the way the country should run and govern. This right is practices through the representatives of people in the parliament.
Human rights protects the rights of all people, including the minorities whose voice is not heard in a democracy country.
Concept of constitutionalism?
limits on governmental power Protection of minorities & vulnerable/disadvantaged groups This is a major aspect of human rights Protection of people who may be unable to protect their own interests e.g. Refugees,
Arbitrary (Government)?
based on random choice instead of any reason behind
Can Parliament be trusted as the ultimate protector of rights?
Parliament members are chosen by the people for a maximum term of 4 years.
However, Australian Parliament seems to not only fail to implement its international obligations, but also to pass laws positively violating human rights e.g. treatment of refugees, NT Intervention
Therefore, international laws are necessary in keeping Australia in check and balance
Basis of human rights;
• HRs are ‘fundamental’- they have priority in
relation to other interests;
• HRs are ‘universal’- they apply to all people at
all times;
• HRs are ‘inherent’- they cannot be taken or
given away (inalienable)
Human dignity is the most widely accepted
justification for human rights - means;
• The essential worth of each human being
• This is reflected in the Preamble to the UDHR
which commences:
‘Whereas recognition of the inherent dignity
and of the equal and inalienable rights of all
members of the human family is the
foundation of freedom, justice and peace in
the world …’
when did UN get established?
in 1945 in direct response to the atrocities of WWII
why did UN got established?
- To perevent WWIII
- to hold states accountable for protecting the rights of everyone and especially the rights of the minority
When did UNDR got adopted?
adopted by the UN General Assembly on 10 December
1948 (Human Rights Day)
• The UDHR lists 30 substantive rights – both civil and political, & economic,
social & cultural rights
• UDHR was based on the principle of ‘universalism’ and not linked to either capitalist/Western values, or socialist values
is UDHR directly binding?
UDHR is not directly legally binding, but may have legal effect as either:
• Statement of customary international
law; or
• Authoritative interpretation of the UN Charter
The 2 treaties which followed the UDHR;
1- Civil & political rights eg. Right to life, freedom from
torture, fair trial, etc
2- Social, cultural & economic rights eg. Health, education,
housing, food, water, etc
