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THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS

Definition of Human Rights


human rights fundamental rights that every human being is entitled to;
universally recognisable interests, powers, liberties and entitlements associated
with human dignity and freedom
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Universal Declaration of Human Rights (UDHR): declaration of rights


adopted by the UN in 1948 representing the first universal acceptance of
the idea of human rights and becoming the reference point of all
subsequent human rights treaties
formed basis for laws, constitutions and international treaties
refers to basic human rights and freedoms that are believed to belong to
all human beings
differ from ordinary rights under domestic law in that they are considered
to be:
universal: enjoyed by all individuals regardless of gender, race or
state
inalienable: people cannot agree to give up human rights and they
cannot be taken away
inherent: human rights are the birthright of all humans and
enjoyed by all people regardless of their humanity
indivisible: all rights are equally important
collection of fundamental standards for the treatment of individuals in a
fair, just and free society
protect individuals from injustice and allow people to achieve their full
potential in society and prevent discrimination against groups of people
because of their physical characteristics or beliefs
evolved to be essential for justice
central to the operation of law in modern democratic societies and integral
part of the international legal system
can be broken into 3 categories:
first generation (civil + political):
right to freedom of speech
second generation (economic + social)
right to education
third generation (group - collective)
right to self-determination
not yet fully accepted in international law have not been
adequately acknowledged

Developing Recognition of Human Rights


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principles of international human rights law have their roots in ancient


societies and religions
human rights have originated in many different societies and development
occurred through moral and religious codes and through legal frameworks
Confucian: individuals in society are dependent on each other and
encouraged to show respect to all

Buddhist: value of compassion and focused on human rights


Magna Carta (1215): granted certain rights to the English nobility by the
King
rules were about operation of feudal English society
influenced the development of rights in common law
established right of free men not to be imprisoned/punished except
in accordance with the law
Petition of Right (1628): assertion of limitations on Kings power
prohibition of arbitrary arrest/imprisonment and interference with
property rights
English Bill of rights (1689): included individual rights such as a
prohibition on cruel and unusual punishment
Congress of Vienna (1815): first recorded formal recognitions in
modern Europe of the right to an identity
protection of minorities became a condition of membership of the League
of Nations and minority rights were thus guaranteed by the treaties which
saw the establishment of trust territories
American Declaration of Independence (1776): declared that men
are created equal and have certain unalienable rights
French Declaration on the Rights of Man and Citizen (1789):
resembles modern bill of rights including freedom of expression and
presumption of innocence
derived from natural law (certain laws come from an unchanging
natural body of moral principles as the basis for all human conduct and
so have validity everywhere) and positivism (theory that laws are valid
simply because they are enacted by authority or from existing decisions
and that moral and ideal considerations do not apply)
laws used in the Australian legal system are positive laws but many
have a basis in natural law
catalyst for recognition for many of the rights was the horrors of WWI and
WWII

abolition of slavery:
slavery type of forced labour where a person is considered to be the legal
property of another
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way to fill certain roles in society for little cost since wages do not have to
be paid
treated as objects, rather than subjects, of the law
Iceland abolished slavery in 1117
abolitionism: worldwide political movement that sought to abolish
slavery
political movement against slavery in the 18th century
Europeans began to conquer the New World and their empires expanded
required more resources to grow and support their new colonies
during colonial times slave labour was sought from new
populations/ races within new territories, particularly from trade
posts in Africa

12 million Africans were shipped from Africa to America during the


period, often under appalling conditions of slavery.
rationalist thinkers began to criticise slavery as violating the rights of man
evangelical religions began to criticise it as unchristian
slavery ruled illegal in common law of England in 1772 in case of R v
Knowles (1772)
did not affect slavery elsewhere in the British Empire
William Wilberforce continued campaigning for anti-slavery and exerted
pressure on the British Government to end the trade in slaves in its
overseas territories
slavery officially ended in the British Empire with the passing of the Slave
Trade Act 1807 (UK)
importation of slaves to the colonies was officially ended
Britain slavery was ruled as illegal in the common law case of Somersett
(1792)
decision did not affect slavery elsewhere within the British Empire
where the practice continued
slavery itself was abolished in Slavery Abolition Act 1833 (UK)
all US slaves were freed by the end of the American Civil War in 1865
end of the war in 1865 saw the freeing of all slaves and slavery was
abolished by the addition of the Thirteenth Amendment to the US
constitution
General Act of Brussels first ever major collaboration of international
states to abolish slavery and was aimed mainly at the slave trade in
European protectorates in Africa
League of Nations Slavery comprehensive international convention on
abolishing slavery worldwide passed in 1926 after WW1
under Article 4 of the Universal Declaration of Human Rights it was stated
that slavery was prohibited
illegal slavery still occurs today with an estimated 27 million people
enslaved worldwide
modern forms of slavery:
human trafficking
child labour
sexual slavery
forced labour
Slavery and Sexual Servitude Act 1999 (Cth) was enacted to address the
problem of sex slavery within Australia
Wei Tang Case: charged with slavery
power to make each woman an object of purchase, the capacity to
use the women in a substantially unrestricted manner for the
duration of their contracts
power to control and restrict their movements
power to use their services without commensurate compensation

trade unionism and labour rights:


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conventional labour was the only legal means of securing large groups of
workers
employment law is a relatively recent development

rights to minimum wage, safe working conditions or paid holidays


were not recognised in older legal systems
regulation of workplace in early Europe based on status
legislative regulation of labour and wages are implement but generally
designed to compel labourers into work more than to protect them
labour law as protection for workers with demands for better conditions
and the right to organise arose with the Industrial Revolution
major changes in the fields of manufacture, agriculture and
transport redefined society and acted as the catalyst for changes to
labour laws
trade unions emerged during Industrial Revolution in response to:
appalling conditions
lack of safety
low wages
long working hours
laws were created to criminalised workers involvement in trade unions
Trade union Congress set up in 1868
British parliament pressured to pass the Trade Unions Act 1871 (UK) which
secured the legal status of trade unions
trade unions have played integral role in securing rights for workers in the
UK
ensure fair wages and conditions were maintained
establishment of minimum wages and working conditions, equal
pay, long service leave etc.
series of legislation passed in late 19th century aimed at improving safety
and working conditions in primary industries
International Labour Organisation (ILO): international agency of the
UN created with the aim of improving conditions for workers around the
world

universal suffrage:
suffrage legal right to vote in a democratic election
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universal suffrage is a relatively new concept where historically universal


suffrage is a relatively new concept
restricted to certain classes by status, gender, race etc.
originally only a limited number of men were allowed to vote such as
those from wealthier backgrounds
extended to whole adult male population in the Representation of the
People Act 1918 (UK)
1893: New Zealand became the first country in the world to permit women
an equal right to vote
South Australia followed in 1894, with the Australian Commonwealth
allowing womens suffrage in 1902
Under the 1th Amendment all adult males were able to vote in US
southern states put obstacles in the way of African Americans such
as poll-taxes and literacy tests commonly known as the Jim Crow
Laws
Civil Rights (Voting Rights) Act 1965 removed obstacles

government and discriminatory measures adopted by the states


indigenous peoples were effectively denied the right to vote
1967: constitutional referendum finally gave indigenous Australians equal
status as citizens including the right to be counted in the Australian
census
right to vote was recognised as a universal human right in Article 21 of the
Universal Declaration of Human Rights
currently 46% of worlds countries are classified as freely democratic
countries where democratic elections exist, questions are raised as
to the legitimacy of those elections e.g. Putin elections

collective human rights:


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collective rights refers to the creation of rights which may be claimed by


a group as opposed to an individual
growing awareness that to make human rights applicable across cultures
there is a need to recognise that some people exercise rights in a group
context
collective rights include:
right to peace
right to clean environment
right to self-determination
particularly important for indigenous groups
in 2007 the UN adopted the United Nations Declaration on Indigenous
People
collective human rights are afforded to human beings communally (in
conjunction with another as a group- a people, or a minority)

self-determination:
self determination a people of a territory or national grouping have the right to
determine their own political status; the group has the right to choose how it will
be governed without undue influence from another country
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became increasingly important after world colonisation by European


powers in areas such as the Americas, Africa, Asia, the Middle East and
Oceania
rise of the right to self-determination began with the 1776 US Declaration
of Independence against British colonial rule
right to self-determination was also fought for in Europe during the French
revolution of 1789-1799
after WWII first universal recognition of the right to self determination
came under Article 1 (2) of the UN Charter
Article 1 (2) calls for respect of the principle of self-determination
further strengthened by Article 15 of the UDHR which states that
everyone has a right to nationality and no-one should be arbitrarily
deprived of this right to change nationality
the International Covenant on Social, Economic and Cultural Rights
adopted by the UN in 1966 and in force in 1976 includes selfdetermination as a primary right where all people have the right to self-

determination by virtue of that right they freely determine their political


status and freely pursue their economic, social and cultural development
article has been taken to mean that a majority of people has a right
to self-determination
self-determination does not refer to jeopardising the territorial integrity of
a state
Chapter 13 of the UN Charter provided for a Trusteeship Council for the
United Nations to provide international supervision for the transition on
trust territories to self-government after the end of WWII
colonial powers were encouraged to oversee the independence of their
territories in the best interests of those people.
between 1960- and 1993, 53 territories became self
governing independent states
Article 1(3) on International Convent on Economic, Cultural and Social
Rights grants peoples of dependent territories (non-self governing and
trust territories) the right to freely decide their international status
article is now almost obsolete due to the fact that most colonial
peoples have achieved independence
the collective right to self determination refers to the rights of indigenous
peoples, in particular, to be allowed certain forms of sovereignty
which may include the right to control certain parts of land and
utilise certain laws
concessions made to self-determination in their being able to
manage internal affairs but there is more reluctance to afford them
broader sovereignty
2007: the UN adopted the Declaration of the Rights of Indigenous Peoples
non-binding but hoped to forge the way to greater recognition of
indigenous rights
Australia endorsed it in 2009
indigenous people have been regularly excluded from the democratic
process, forcibly assimilated economically exploited or generally
oppressed

universal education:
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all humans have a right to an education


currently some type of education is compulsory for children in almost all
countries
contrasts to past where only the wealthy or powerful were able to
gain an education
development and spread of writing systems, it became possible for ideas
and information to be accurately passed over on over time
push for universal education began in 19 th century
exception was Aztec tribe in 14th or 16th century was one of the first
communities in the world to have compulsory education for nearly
all education
church was generally the first to take on the role as educator for all in
Europe
e.g. Scotland (1561): Church of Scotland put forward the principle of
a school teacher for every parish and free education for the poor

19th century: English churches began giving free education on Sundays


mid 1800s: increasing demands of industrialisation, growing
competiveness between countries and widening suffrage required a
literate and educated population
European governments began providing funding for schools and over time
administered them
1870: British Parliament passed the Education Act 1870 UK)
education made compulsory for all British children from 5 10 and
raised to 12 years in 1889
1880: all children under age of 15 required to attend school
Public Instruction Act 1880 (NSW)led to government taking control of all
Church run schools making education free, secular and compulsory
at the end of WWII free and compulsory education had spread throughout
developed nations and regarded as a basic human right
right to free education for all human begins was included under Article 26
of the UDHR
states childrens elementary education should be compulsory and
made widely available

environmental rights:
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existing agreed rights cannot be fully realised without the right to a


healthy, safe and adequate environment
relates to future generations
African Charter on Human and Peoples Rights came into force in 1981
includes right to a satisfactory environment under Article 23
American Convention on Human Rights
contains explicit right to a healthy environment and the obligation
on all state parties to protect, preserve and improve the
environment
numerous treaties that attempt to deal universally with specific
environmental threats
e.g. Kyoto Protocol (1997)
represents attempts by the international community to deal with
environmental problems such as global warming
main problems in achieving progress is failure of all states to commit to
measures for the benefit of the global community

peace rights:
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1919: countries that emerged victorious from the WWI held a peace
conference at Versailles, France
Paris Peace Conference
parties of the conference achieved the treaties that officially ended
the WWI i.e. Treaty of Versailles
established for the first time in history a world body with the
primary aim of preventing war ( League of Nations)

main purpose of the League of Nations is to promote international cooperation and to achieve international peace and security
failed and WWII broke out due to failure of Treaty of Versailles
failed to achieve the membership of the US
UN formed after the WWII
UN Charter was signed on the 26th of June 1945
explicitly made peace the primary purpose of the UN
Article 1 (1) of the Charter makes the maintenance of peace its primary
purpose
gives UN power to make measures to prevent and remove threats to
peace
effectively outlawed war
declare the right of every state and individuals within those states
to live in peace
until recently war was generally seen as a legal and legitimate means of
solving disputes and determining political and economic control over
territories and populations
1984: UN General Assembly adopted a Declaration on the Right of Peoples
to Peace
proclaimed all people have a sacred right to peace and that
promoting and implementing the right to peace is a fundamental
obligation of states and that government policies should be directed
towards:
elimination of the threat of war
renunciation of use of force in international relations
settlement of international disputes by peaceful means on
the basis of the UN charter
although treaties and international bodies have been established, war has
still broken out
Korean War
Iraq War
right of peace is balanced against the right of self-defence
Article 51 of the UN Charter declares that the states have an inherent right
of individual/collective self-defence if an armed attack occurs against them
Article 39 of the UN Security Council can authorise actions to maintain or
restore peace
establishment of ICC has jurisdiction for trials against war crimes

Formal Statements of Human Rights


Universal Declaration of Human Rights (UDHR):
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1941: protection of four freedoms


freedom of speech
freedom of conscience
freedom from fear
freedom from want
formation of UN accentuated importance of human rights
promotion of universal respect for and observance of human rights
and freedoms for all
UDHR was adopted in 1948

includes 30 different articles covering rights


adopted as a declaration
soft law: international statements such as declarations that do not
necessarily create legal obligations upon nation-states but do create
pressure to act in accordance with them
become international customary law (actions and concepts that
have developed over time to the extent they are accepted by the
international community and have become law)
foundation of 8 core human rights treaties
hard law: conventions and treaties that under international law create
legally binding obligations on their members
NGOs play important role in advocating, analysing and reporting on
human rights worldwide and shaming governments into action

International Bill of Rights:


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formation of a binding treaty of rights would oblige nation-states to


guarantee human rights in their domestic legislation
the International Covenant on Civil and Political Rights: binding
international treaty creating obligations on states to respect civil and
political rights of individuals
came into force in 1976 when it was finally ratified (process of a
country formally approving a treaty)
creates obligation on state parties to respect civil and political rights
of individuals
right to life
equality between men and women
right to freedom of movement
right to a fair trial
right to be presumed innocent until proven guilty
freedom of thought
right to marry whoever they wish
monitoring and periodic reporting arrangements for member states
monitored by Human Rights Committee (separate body to Human
Rights Council) which reports on compliance by member states and
investigates violations
165 state parties ratified
notable exceptions include China
US ratified but added many reservations (state sovereignty)
the International Covenant on Economic, Social and Cultural Rights:
binding international treaty creating obligations on states to respect
economic, social and cultural rights of individuals
created obligations on state parties to work towards granting
economic, social and cultural rights to individuals
includes labour rights
right to just conditions and fair wages at work
right to join trade unions
right to an adequate standard of living
right to adequate food, clothing, housing and health care

monitored by the UN Committee on Economic, social and Cultural


Rights
160 state parties ratified
US signed but never ratified

PROMOTING AND ENFORCING HUMAN RIGHTS


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effectiveness of recognition depends on the will of the community to


implement them and the mechanisms in place to ensure they are
respected, promoted and enforced

Human Rights in the International Community


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idea of universal rights has gained importance in the international


community
despite formal recognition and the development of binding treaties,
progress has been gradual in securing governments respect for
human rights and universal conformance with the treaties
many states lack the resources, structures or political will to enforce those
rights
promotion and enforcement of human rights commands a great deal of
attention from both governments and citizens but also from the
international community including:
numerous branches of the UN
international courts, tribunals and other authorities
inter-governmental organisations (IGOs)
non-government organisations (NGOs)
media groups

state sovereignty:
state sovereignty ultimate law-making power of a state over its territory and
population including independence and freedom from external interference
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central to international law and to the capacity of the world to enforce


other states compliance with recognised human rights
state: independent country; internationally recognised entity possessing
the characteristics required for statehood
only entities in international law capable of exercising full political
capacity
nation: people that share common heritage, language or culture and
sometimes a common race
recognition as a state requires a number of factors outlined in Article 1 of
the Montevideo Convention on the Rights and Duties of States 1933
including:
defined territory
permanent population
effective government
capacity to enter into international relations
state must also be recognised by a sufficient number of other states so
that it can exercise its full international political and legal capacity

unrecognised states or people may be unable to claim protections under


the international human rights regime if they live in a territory of an
unrecognised state or if they form part of another state with which
relations have broken down
e.g. Taiwanese parliament ratified both ICCPR and ICESCR into
domestic law however as an unrecognised state without UN
membership, Taiwan does not have access to the international
human rights framework
sovereignty of states is one of the most essential components of the
international system
source of states legal and political power to make laws over its
own population and enforce those laws
issue in human rights as in strictest sense it means no foreign state
or law can interfere in another states domestic jurisdiction except
with consent
limited under international law by certain duties owed to the
international community without these limitation, international
anarchy would result
not all governments equally accept the idea that their own people
have certain rights; countries without democratic processes may
rely on sovereignty as a rationale to justify mistreatment of their
own citizens
used as a shield by states against outside interference in their own
affairs
agreements by nature are consensual so do not infringe on sovereignty
but put responsibility on sovereign state to uphold their commitments or
face agreed consequences

role of the UN:


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responsibility for almost every aspect of international affairs


has 5 principal organs under the UN Charter (not including the
Trusteeship Council)
trusteeship council: inactive since 1994 but originally responsible
for overseeing transition of UN trust territories after decolonisation
UNs power to intervene within an state restricted by the UN Charter
3 pillars of responsibility:
states have a responsibility to protect their populations from these
crimes
the international community is responsible for assisting states to
build capacity to protect their populations before such crises or
conflicts break out

when a state has manifestly failed to protect its citizens and where
peaceful means are inadequate, the international community must
take action to prevent harm
UN are there to keep an eye on governments; Sri Lankan government
wanted UN out (acts as watchdog) to reduce accountability; good at
promoting and monitoring human rights abuses however fails in
enforcement
General Assembly: consisting of representatives from all member states
with equal voting power
forum for international discussions, deliberations, declarations and
recommendations
UNHRC reports directly to the General Assembly
Security Council: maintenance of international peace and security
exercises its power through legally binding resolutions and can
authorise military actions, sanctions or peacekeeping operations
5 permanent members with power to veto decisions and 10 nonpermanent members with two-year terms
power to intervene in the most serious of human rights abuses by
states
sending UN peace-keeping troops in troubled regions requires the
consent of the state or states involved and will fail if the state
refuses intervention
UN Charter allows members to take military/non-military actions to
restore international peace or security provides power to intervene
without a states consent
criticised for reluctance to use its intervention powers to prevent
mass atrocities or intervene where serious abuses are occurring
Economic and Social Council: 54 rotating members meeting annually to
assist in promoting international economic and social cooperation and
development
various committees and acts as the central forum for discussion of
economic, social, environmental and humanitarian issues
Secretariat: main administrative body of the UN with over 40, 000 staff
working worldwide
provides various information, studies, tasks and facilities needed by
the UN including the Office of the High Commissioner for
Human Rights
International Court of Justice: principal judicial organ of the UN
has jurisdiction under the UN Charter to settle international disputes
submitted to it by member states
provide advisory opinions when requested on matters of
international law
rarely relate to issues of human rights
Office of High Commission of Human Rights: administrative agency
under the UN Secretariat that works to promote and protect the human
rights contained in the UDHR and international law
advancing universal ratification and implementation of the UDHR
and human rights standards and treaties

promoting universal enjoyment of human rights and international


cooperation, including education, information and technical
assistance, taking preventative action and responding to serious
human rights violations
providing support and information for other UN human rights bodies
and treaty monitoring bodies
Human Rights Council: contains representatives of member states
47 member seats are rotated on 3 year terms
address human rights violations worldwide and make
recommendations and works closely with OHCHR to perform its
duties
replaced Commission on Human rights
adopted a series of specific measures that aim to increase its power
to address human rights abuses including:
complaints procedure allowing individual people to bring
issues to the Councils attention where they have been a
victim of human rights abuse in a state
compulsory periodic reviews of the human rights situation in
all 192 member states
criticised for acting in accordance to political considerations
Millennium Development Goals: all member states of the UN at the
time agreed to a declaration at the end of a conference on world poverty
outlined 8 ambitious goals that all member states pledged to try to
reach by 2015 e.g. eradicating extreme poverty and hunger,
achieve universal primary education, promote gender equality and
empower women and combat HIV/AIDs, malaria and other diseases
etc.
provided significant funding, resources and an important focus for
states, UN agencies and various organisations to eradicate some of
the most serious problems

intergovernmental organisations:
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international institution comprised of various member rates


created by agreement between states
international treaty that acts as a charter outlining the
organisations purpose and operation
generally permanent and meet regularly and have international legal
personality and so can enter into enforceable agreements and are subject
to international law
first worldwide IGOs include:
International telegraphic Union in 1865
Universal Postal Union in 1874
powerful IGOs included:
WTO
IMF
INTERPOL
Commonwealth of Nations: made up of 54 members that aims include
promotion of democracy, rule of law, human rights, individual liberty and
good governance

African Union: aims include achieving peace and security in Africa and
promoting democratic institutions, good governance and human rights
Organsization of American States: oversees regional human rights

courts, tribunals and independent authorities:


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International Court of Justice (ICJ): two roles to hear and judge


disputes between states and to issue advisory opinion on matters of
international law
issued some important judgements and opinions that carry the
weight of international law and act as significant guides to future
actions e.g. Legal Consequences of the Construction of a wall in the
Occupied Palestinian Territory
requires consent of state parties to hear matters and so has very
little jurisdiction can consent to compulsory jurisdiction of the
court but most states have some form of reservation limiting the
courts power
unable to hear cases brought by individual people/private
organisations
little power of enforcement as it is restricted by the states
compliance
Security Council members are able to veto any enforcement action
International Criminal Court (ICC) and Ad Hoc Tribunals: established
in 2002 to prosecute international crime
preceded by various tribunals that had been established by the UN
Security Council to deal with specific historical events involving
serious international crime (ad hoc tribunals)
not a court of human rights violations but prosecutes and hears
matters of the most serious international crimes these acts
constitute serious human rights abuse
jurisdiction to hear crimes of aggression
able to prosecute individual people rather than states which makes
it a powerful institution for combating individuals who seek to use
state sovereignty as a defence for their abuses
European Court of Human Rights (ECHR)
set up in 1959 to apply and protect human rights of the citizens of
Europe
considers cases brought by individuals as well as organisations and
state, against all countries bound by the European Convention on
Human Rights (ECHR) landmark human rights treaty drawn up
following WWII
extremely influential human rights body and compliance has
crucially been incorporated into the treaties of the European Union

authorities established by treaties:


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the International Bill of Rights has established particular authorities to


hear matters of compliance by member states with the treaties

Human Rights Committee: assesses member state compliance with the


ICCPR and can hear petitions raised by the states about each others
compliance
First Optional Protocol to the ICCPR gives the Committee jurisdiction
to hear personal complaints brought by individuals of member
states about human rights violations in their own country
citizens can complain directly to the Committee providing they have
first attempted to resolve the matter with human rights bodies in
their own country/region
decisions are not enforceable but are highly influential
releases periodic reports to each member state including
recommendations to address the issues evident
strong persuasive power of HRC is evident in case Toonen V
Australia illustrates power of human rights laws to effect local
change; revolved around a complaint by Toonen that existing
Tasmanian laws which criminalised consensual sex between adult
males which was protected under the UDHR and Article 17 of the
ICCPR (claimed discrimination on the basis of sexual activity and
orientation)

non-government organisations (NGOs):


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organisations created by people that are independent and without


representation of any government
include private voluntary organisations, citizen associations and civil
society organisation
NGOs collaborate on a daily basis on human rights and humanitarian work
with various government and intergovernmental organisations and
specialised UN agencies
NGOs engaged in human rights play an indispensable role in informing the
global community, governments and the UN of human rights violations
and progress
ensure greater government compliance by investigating, researching,
documenting and publicising cases of human rights violations
process of naming and shaming can have a profound effect on
government behaviour
some NGOs work directly with violators/victims, providing evidence to
international courts, or encouraging other states or the UN to place
diplomatic pressure or take action on violating states
International Committee of the Red Cross: missions are strictly
concerned with international humanitarian law (body of international
law developed from the Geneva and Hague conventions that deals with
conduct of states and individuals during armed conflict; also known as the
law of armed conflict)
protect life and dignity of the victims of international and internal
armed conflicts
since 1990 has been allowed observer status at the UN General
Assembly
works closely with the Red Cross

the media:
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naming and shaming governments and human rights violators by exposing


instances of human rights abuses and helping to bring about change
investigating and reporting on human rights issues can influence public
opinion and government action
role of a free and impartial media and peoples right to information is
recognised as a human right
media freedom is severely restricted in many countries as it is often
unsafe for reporters to undertake their work

Human Rights in Australian Law


incorporation into human rights into domestic law:
-

signing a treaty means the country will have to act in the spirit of the
treaty but it is not directly binding (ratification)
treaty will on be binding on citizens if introduced under domestic
law
monist system: legal system that deems treaties enforceable in
domestic law as soon as they have been signed
words of treaty automatically become law in the country as if it was
an act of parliament
dualist system: legal system that does not deem treaties enforceable
domestically but requires incorporation into domestic law, usually by
passing similar legislation

the Australian constitution:


-

plays two important roles in protecting human rights for Australians:


lays down the system of Australian government through which
human rights are recognised including the separation of powers
and division of powers
source of some specific human rights, including express rights and
implied rights
separation of powers:
prevention of one person/group from gaining total power by dividing
power between the executive, the legislature and the judiciary
executive: government including ministers and agencies
legislature: elected law-makers in parliament
judiciary: courts that interpret and apply the law
independence of the judiciary is fundamental in upholding the rule
of law, ensuring that all people, including the government, are
equally subject to the same law
ensures rights and liberties are protected from the risk of abuses of
power that could come with a politicised judiciary
enables judiciary to strike down any legislation deemed
incompatible with the provisions of the Australian Constitution and
the rights and limitations it contains
division of powers:

arrangement for how the powers between the federal and state
government are divided
heads of power: areas that the Commonwealth can legislate on
residual powers: powers not listed in the Constitution for the
Commonwealth to legislate on, that are deemed to remain the
power of the states
external affairs power in s51 (xxix) gives Commonwealth authority
to legislate on external affairs which includes Australias treaty
obligations
express and implied rights:
express rights rights that are expressly included in a document
e.g. freedom of religion, right to vote, right to a trial by jury or right
to just terms
implied rights rights that can be implied through the text,
structure or purpose of a document e.g. Lange v Australian
Broadcasting Corporation (1997) held that the Constitution contains
an implied right to freedom of political communication (a type of
freedom of speech)
finding implied rights by judiciary has often been
controversial and the ability of the Constitution to act as a
protector of human rights is very limited (most Australian
human rights are found in other sources of law)

common law:
-

body of law passed down by judgements of the courts


many Australian statutes are silent on many aspects of the law and it is
the common law that holds and defines these rights and obligations
fundamental rights protected by the common law are the presumption of
innocence and the burden of proof, and right to fair trial
does not offer absolute protection of human rights as they are not fixed
can be removed by any act of parliament e.g. strict anti-terrorism
laws passed by Commonwealth government in the aftermath of the
9/11 attacks and Bali bombings were widely criticised as removing
long standing criminal law rights for certain people
cannot be relied upon to develop new rights as judgements will only define
those rights on a case- by-case basis
ABC v Lenah Games Meats Pty Ltd (2001): High Court suggested the
possibility of a tort for invasion of privacy

statute law:
-

adopted in response to establishment and ratification of international


treaties protecting rights; some also established independently by
state/federal parliaments
e.g. Racial discrimination Act 1975,Sex Discrimination Act 1984, Australia
Human Rights Commission Act 1986

courts and tribunals:

role in applying and enforcing human rights laws


occasionally have role in interpreting and developing human rights law

Australian Human Rights Commission:


-

previously known as HREOC, established under the Human Rights


Commission Act 1986 to deal mainly with alleged violations of Australias
anti-discrimination legislation
receives and investigates complaints into discrimination and breaches of
human rights
promote public awareness about human rights and provide legal advice
conduct public inquiries into human rights issues and issue
recommendations
give advice and make submissions to parliament and governments on
development of laws, policies and programs consistent with human rights
1997: conducted an inquiry into the separation of indigenous children from
their families

High Court of Australia:


-

has power to set binding precedents on other courts or to overturn state of


Commonwealth legislation
e.g. decriminalisation of homosexuality
methods of interpretation involving human rights have been particularly
influential
international law can influence decisions e.g. Mabo v Queensland (1992)
Justice Brennan: international law was a legitimate and important
influence on the common law, especially when international law
declares the existence of universal human rights and that a
common law doctrine founded on unjust discrimination in the
enjoyment of civil and political rights demands reconsideration
important step in human rights recognition, opening up numerous
international human rights documents to domestic consideration
judges are able to be influenced by international standards with the
potential to apply those standards in the absence of conforming legislation
passed by parliaments
courts power to declare legislation inconsistent/invalid and upholds rights
of the Constitution and to continue to develop common law makes it one
of the most important protector of human rights in Australia

non-government organisations:
-

vital role in researching and reporting on human rights issues, making


submissions to state and Commonwealth parliaments or law reform bodies
on human rights inquiries or working in the field of human rights with
victims of rights violations
protect individuals rights
shapes public and political opinion and exposes violations of human rights
by governments and individuals

media:
-

naming and shaming of governments and human rights violators by


exposing instances of human rights abuses and helping bring about
change
significant influence on public opinion and government action
disseminate information and the right of the public to receive information
are not enshrined in law
freedom of political communication is protected by the Constitution
ABC and SBS play important role in investigating and reporting on human
rights on both a regional and worldwide basis

charter of rights for Australia:


-

piecemeal operation
rights are able to be overturned by the simple passing of a statue of
parliament
bill/charter of rights aims to restrict the power of future parliaments to
reduce/infringe rights
criticised for conferring too much power on the judiciary
rights given constitutional force as provisions; ensures fundamental status
in legislation
without charter, lacks full force of constitutional provisions
allows potential for future flexibility while still declaring protection of
the wide range of rights and giving judiciary the power to declare
any inconsistent legislation incompatible
legislative bill of rights: passed as ordinary acts of parliament and requires
courts to interpret acts to be consistent with the Bill of Rights
do not empower courts to overrule parliaments laws
does not impinge on parliamentary sovereignty to the degree that
entrenched Charters of Rights
used in UK and NZ
April 2010: Australian government rejected the key recommendation of
the National Human Rights Consultation Committee report to implement a
legislative Charter of Human rights
instead adopted human rights framework such as education
initiatives and enhanced parliamentary processes
only Western democracy without comprehensive legal protection of
human rights
2 June 2010:, the Attorney-General introduced the Human Rights
(Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary
Scrutiny) (Consequential Provisions) Bill 2010 in the House of
Representatives
The Bills comprise key elements of the Governments new Human
Rights Framework and have been referred by the Senate to the
Legal and Constitutional Affairs Legislation Committee for inquiry
and report
Human Rights (Parliamentary Scrutiny) Bill 2010 establishes a Joint
Parliamentary Committee on Human Rights, to be comprised of five
members of the House of Representatives and five Senators, with two
primary functions:
examine Bills, legislative instruments and existing Acts for
compatibility with human rights and to report to both Houses of
Parliament on that issue; and
inquire into any matter relating to human rights which is referred
to it by the Attorney-General, and to report to both Houses of
Parliament on that matter
each new Bill introduced to parliament be accompanied by a
Statement of Compatibility which includes an assessment of
whether the Bill is compatible with human rights

Bob Carr: give too much power to judges who will want to rewrite
societys rules
National Human Rights Consultation: chief issues examined was whether
Australia should have a Bill of Rights (entrenched in a constitutional
setting) or a Federal Human Rights Act (enshrining rights in legislation)

Arguments for a Charter of Rights


recognise and protect universal rights,
including many that are not protected
by law
protect the rights of minorities,
possibly including the rights of noncitizens
would bring Australia into line with
other western nations; improving
Australias international standing in
relation to human rights
extremely high community support:
inquiry (National Human Rights
Consultation) sparked nationwide
debate on adoption of a charter
87.4% were in favour

redressing inadequacy of existing


human rights protections
improving quality and accountability of
government
without the checks and balances of a
national human rights law, freedoms
can be ignored and taken away too
easily
ensuring that basic freedoms and
human dignity are taken into
account at the earliest stages of
the development of law and policy;
charter would not transfer
sovereignty from parliament to the
courts, but heighten human rights
concerns within the political
process

Arguments Against a Charter of


Rights
rights are adequately protected by
statute law, common law and the
constitution
undemocratic as it would give
unelected judges too much power over
important social issues
undermining tradition of parliamentary
sovereignty including transferring
legislative power to unelected judges
restrict rights, to define a right is to
limit it
bill of rights, or a charter, will lay out
abstractions like the right to life, or
privacy, or property, and thus enable
judges to determine - after deliciously
drawn-out litigation - what these mean
excessive and costly litigation; major
economic cost
democratic processes and institutions
offer better protection of rights
do not protect essential freedoms - all
they do is present the very real risk of
having judges imposing personal
opinions as law
failure to consider the need to balance
rights and responsibilities; inherently
privilege the protection of abstract
rights above the need to strike a
balance with other concerns

CONTEMPORARY HUMAN RIGHTS ISSUES: HUMAN TRAFFICKING AND SLAVERY


Contemporary Slavery
contemporary slavery form of forced/bonded labour with or without pay, under
threat of violence
-

ILO estimates at least 12.3 million adults and children in forced/bonded


labour or commercial sexual servitude; as many 27 million people or more
may currently be enslaved around the world
contemporary slavery can take a number of forms:
forced labour: work performed under the threat of a penalty or
harm which the person has not voluntarily submitted to (hardship,
detention, violence, death) e.g. domestic workers, workers in
sweatshops etc.
debt bondage: situation where a person is forced to repay a loan
with labour instead of money; occurs where the proper value of
labour is not applied towards repayment of the debt or the type or
duration of services are not properly limited extremely high rates
of interest leading to dept trap
sexual slavery: repeated violation of sexual abuse/forcing victim
to provide sexual services; can take the forms of forced prostitution,
single owner sexual slavery etc.
other situations that result in conditions of slavery:
child soldier: person under the age of 18 who participates, directly
or indirectly, in armed conflict as a part of an armed force of group
forced marriage: marriage in which one or both parties is married
against his/her will, often on promise of payment of money or goods
to the family

Human Trafficking and Slavery


human trafficking commercial trade or trafficking in human beings for the
purposes of some form of slavery, usually recruiting, transporting, or obtaining a
person by force, coercion or deceptive means
differs from people smuggling (illegal transportation of people
across borders, where people voluntarily pay a fee to the smuggler,
usually free to continue on their own after arrival in hope of starting
a new life in the destination)
Trafficking in Persons places the number of people trafficked across
international borders at between 700 000 to 4 million
report helps expose continuing deficiencies of efforts
approximately 80 percent of the victims believed to be female, up to 50
percent children and the majority destined for commercial sexual
exploitation.
2.4 million in forced labour as a result of human trafficking with 43% being
victims of forced commercial sexual exploitation
Australian Centre for the Study of Sexual Assault (ACSSA) released a
report that concluded that there are at least 1,000 adult women in

Australia in any one year who have been brought here to work as
prostitutes and most have their passports removed and are subjected to
violence and rape
women brought to Australia under the pretence of other jobs and being
forced to into prostitution to pay off contracts
International Labour Organisation has pointed out that forced labour
represents a severe violation of human rights and a restriction of human
freedom
Article 6 of 1979 Convention on the Elimination of all Forms of
Discrimination Against Women requires:
all parties shall take appropriate legislative measures to suppress all
forms of traffic in women and exploitation and prostitution of
women.
1990 Convention on the Rights of the Child requires signatories to:
prevent the abduction, sale or trafficking of children (Article 35) and
to protect children from economic exploitation (Article 32) and from
sexual exploitation and abuse (Article 34)

Legal Responses
-

Slavery and Sexual Servitude Act 1999 (Cth) enacted to address the
problem of sex slavery within Australia
first prosecutions brought under the Act brought against Daniel
Sweeseang Kwok in June 2003
had created the offences of slavery, sexual servitude and deceptive
recruiting, but failed to include trafficking in persons
issue of human trafficking first entered into the mainstream of Australian
public debate in 2001 with the death of Puangthong Simaplee in Villawood
Detention Centre on 26 September 2001
case was a turning point in Australias attitude to sex slavery
March 2003, the Deputy State Coroner suggested noted the lack of
understanding about human trafficking and highlighted failures in the
Australian legal system to provide justice for victims
law reform:
death of Simaplee combined with the formation of the Protocol to
Prevent and Punish Trafficking in Persons Especially women and
Children (The Trafficking Protocol) provided a compelling case for
law reform
Australia ratified the United Nations Convention Against Transnational Organised Crime which in 2004 and further ratified the
Trafficking Protocol in September 2005.
led to the passage of the Criminal Code Amendment
(Trafficking in Persons Offences) Act 2005 (Cth)
act was passed after a long period of review and consultation
including deliberations by the Senate Legal and
Constitutional Legislation Committee and the Australian
Crime Commission Report
Government further refined these measures and added more
specific human trafficking offences to the Federal Criminal Code in

the Criminal Code Amendment (Trafficking in Persons) Act 2005


(Cth)
current provisions are found under divisions 270 and 271 of the
Criminal Code Act 1995 (Cth) and include severe penalties of up to
25 years imprisonment for some offences
Division 270: contains prohibitions on the deceptive recruiting
of a person for sexual servitude
Division 271- makes it an offence to traffic in persons or in
children, whether internationally or domestically; also
contains offences relating to debt bondage of persons, forced
labour and trade in human organs
November 2010: the government released a discussion paper on
the criminal justice response to people trafficking and slavery, and
reparations and vulnerable witness protections
called for the definitions of exploitation and threat under
the Criminal Code to be broadened
suggested that the use of threats should capture the more
subtle forms of coercion such as abuse of power or a position
of vulnerability.
government responded with the Crimes Legislation Amendment
(Slavery, Slavery Like Conditions and People Trafficking) Bill 2012
(Cth) which broadened the definitions of sexual servitude and
coercion
of June 2011, there had been 13 successful convictions for human
trafficking related offences and 184 women have been rescued
new definition of slavery in the Act:
the condition of a person over whom any or all of the powers
attaching to the right of ownership are exercised, including where
such a condition results from a debt or contract made by the
person (changing understanding)
statutory definition of slavery was considered and interpreted by the High
Court of Australia in the 2008 case of R v Tang
commodification of the victims and exercise over control of
movement which extended well beyond the most exploitative
employment circumstances, as well as the absence or extreme
inadequacy of payment for services.
critical powers she exercised were the power to make each woman
an object of purchase, the capacity to use the women in a
substantially unrestricted manner for the duration of their contracts,
the power to control and restrict their movements, and the power to
use their services without commensurate compensation
2008 the Federal government also introduces new measures under the
Commonwealth Anti-Trafficking Strategy:
increased specialist training and funding for the AFP to detect and
investigate trafficking operations
National Policing Strategy to combat policing to combat trafficking
in women for sexual servitude
victim support measures and special visa arrangements to support
victims of trafficking (non-legal)

Communication Awareness Strategy providing information about


trafficking and the help available
June 2002, AFP and its Indonesian counterparts signed a memorandum of
understanding to combat transnational crimes such as trafficking in
women and children for prostitution, drug trafficking, terrorism, and
money laundering (regional response)
July 2004: the Indonesian police chief and his Australian counterpart
inaugurated the Crime Coordination Centre in Indonesia; Aus
government donated $7million
Australia spent $A 1.3 million on human rights programs in China during
the 2002/03 financial year
money was spent on training programs to combat trafficking in
women and children, as well as on programs targeting rights for
women, children, and minorities; legal reform; and justice
administration
Australian Human Rights and Equal Opportunity Commission facilitated
the 2324 October 2003 Stop the Traffic 2 conference with the National
Human Rights Commission of India and the Human Rights Commission of
Malaysia
conference focused on women trafficked to Australia for prostitution
and other women experiencing abuse within the sex industry
November 2003, it was announced that Australia would proceed
with the stationing of an immigration official in Thailand as part of a
strategy to combat trafficking to Australia.
Australian government has committed $A 24 million over 6 years to
counter smuggling of persons, trafficking in women, and related
transnational crime in the AsiaPacific region.
March 2004, the Australian government announced funding of $A 200,000
to help India, Nepal, and Sri Lanka stamp out forced prostitution
money is to be used for awareness raising, improving regional
police and judicial understanding of trafficking, and assisting
prosecution officers in those countries to prosecute incidents of
trafficking
Asia Regional Trafficking in Persons (ARTIP) Project worked from 20062011 to strengthen the criminal justice system response to trafficking and
improve cross-border cooperation in South East Asia through capacity
building in for law enforcement officers, prosecutors and judges

Non Legal Means


-

2008: Australian Government announced funding of $250, 000 to each of


(provided in recognition of the vital role NGOS play in identifying and
supporting people who have been trafficked, as well as raising community
awareness of all forms of trafficking in Australia):
Project Respect
Anti-Slavery Australia
Scarlett Alliance
Australian Catholic Religious Against Trafficking in Humans

2010 Roundtable further funding for the four NGOs was announced to the
total value of $1.4 million ($350,000 each) to support their work from
2011-2014
Anti-Slavery Australia, a specialist legal and policy centre focused
on slavery, trafficking and extreme labour exploitation, is using
these funds to raise awareness of all forms of labour trafficking and
to provide trafficked people with information about their rights
under Australian law
Project Respect is a non-profit, feminist community-based organisation
that aims to empower and support women in the sex industry including
women trafficked to Australia; help prevent the exploitation and
enslavement of women, by the industry through:
empowerment
education
advocacy
activism
Scarlet Alliance, Australian Sex Workers Association, through objectives,
policies and programs, aims to achieve equality, social, legal, political,
cultural and economic justice for past and present workers in the sex
industry, in order for sex workers to be self-determining agents, building
their own alliances and choosing where and how they work
media plays a role informing the public about the existence and nature of
modern slavery
SBS documentary Trafficked watched by over 500, 000 views and
acted as a catalyst for victims of trafficking to lodge compensation
claims
Australian universities crucial in researching and reporting on trends in
human trafficking in Australia
UTS Anti-Slavery Project dedicated to elimination of modern slavery
in all its forms through collaboration with government agencies and
community groups
University of Queenslands Human Trafficking Working Group
established in 2008
international level the UN, ILO and various NGOs are involved in combating
slavery and human trafficking
UN established Global Initiative to Fight Human Trafficking with the
aim of mobilising non-state actors to help ride the world of human
trafficking
ILO: implement and reporting on workers rights 2001 established
Special Action Programme on Forced Labour to attempt to raise
global awareness of forced labour
NGOs report on and expose abuses by researching and informing the
public and governments on incidents and patterns of abuse or by working
to combat incidences of human trafficking
Anti-Slavery International: draws attention to continuing problem of
slavery worldwide and campaign for recognition and action in
countries most affected

Effectiveness of Legal Responses

main factors contributing to the risk of people trafficking and slavery and
difficulty in preventing:
limited resources and effectiveness of developing states to combat
forms of exploitation and transnational crime
socio-political and economic factors that underpin the movement of
people form on place to another
concern has been that focus on human trafficking as a criminal justice
issue may result in the victim being viewed primarily as a prosecution
witness
People Trafficking Visa Framework (the Visa Framework) developed in
Australia in 2003 only provided protection to those women willing to assist
in criminal prosecutions
UN recommended Principles and Guidelines on Human Rights and
Trafficking states that protection and care shall not be conditional
upon the capacity or willingness of the trafficked person to
cooperate in legal proceedings
Australian Government Anti-People Trafficking Strategy implemented
changes to the visa processes in July 2009
Support Program is now available to all victims of trafficking with a
valid Australian visa, whether or not they are assisting the police
with a criminal prosecution; step towards a more victim-centred
approach to the issue of human trafficking and sex-slavery
difficulties for victims have been addressed somewhat by the Support for
Victims of People Trafficking Program (the Support Program) administered
by the Department of Families, Housing, Community Services and
Indigenous Affairs
March 2009 this has been contracted to the Australian Red Cross for
delivery and their case managers help clients access support
services such as accommodation, medical treatment and
counselling (importance of non-legal means) "
SBS documentary Trafficked: 2007 - Ning became the first slave in history
to win victim of crime compensation when she was awarded $50,000 by
the Attorney General's Department of NSW for the multiple child rapes
committed against her in 1995

Effectiveness of Non-Legal Measures


-

Project Respect have been extremely critical of the reluctance of


Australian Federal Police to prosecute
response has been to deport women, while few prosecutions have
been brought against traffickers themselves - Noi Simaplee case is
a clear example of the consequences of treating trafficked women
as illegal immigrants
improving attitude to prosecutions
raises public awareness of issue
Kathleen Maltzahn (Project Respect) claims significant improvements
have occurred in the way the Australian Federal Police responds to
trafficking in persons

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