HUMAN RIGHTS

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					Human Rights




                                        HUMAN RIGHTS
                   “The basic rights and freedoms to which all humans are entitled, often held to
                    include the right to life and liberty, freedom of thought and expression, and
                                               equality before the law.”

          THE NATURE AND DEVELOPMENT OF CONCEPTS OF HUMAN RIGHTS

          1. State Sovereignty

          o    The fundamental principle of international law is the concept of state sovereignty.
               This recognizes that nations have the right to govern themselves and to determine
               their own destiny.
          o    Other nations or organizations have no right to interfere in the internal affairs of
               another nation, yet, this also means that human rights abuses in a country can go
               unchecked.
          o    This was evident in the treatment of the Jews in 1930s Germany and many
               Indigenous peoples around the world today.

          Historically, there have been two types of state sovereignty:

          Hobbesian Sovereignty

           o   Established by English philosopher, Thomas Hobbes
           o   Proclaimed that in order to survive, society must have a strong, absolute leader to
               make and enforce laws.

          Popular Sovereignty

          o    Contended that sovereignty always resides with the people, who may delegate it to,
               or revoke it from, their appointed leaders.
          o    In other words: Parliament.

          2.   ‘Natural Law’ Doctrine

          o    Law that derives from a higher power or ideals; law which is above the State.
          o    Thomas Aquinas proposed that laws derived from the law of God as discerned
               through the Bible could be termed as “natural laws.”
          o    Presented a danger to the concept of sovereignty because it suggested that there was
               an authority higher than the sovereign.
          o    The fundamental human rights that exist today bear a strong relationship to the
               principles of natural law.

                      Leaders of a nation are not absolute. Governments are considered to be
               answerable to a higher authority; that of the international community and its
               representative; the United Nations.


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                        Where citizens were once protected from the abuses of their rulers by the
                 law of God, they are now protected by international law and universal human rights
                        Citizens can complain above their national governments to organizations
                 such as the United Nations about their government‟s abuse of human rights.

          3.      Historic Constitutional Documents

          Some very important historic documents have been prepared to preserve basic human
          rights.

          3.1 The Magna Carta (1215)

          o      Drafted as a means of resolving a power struggle between King John of England and
                 his nobles.
          o      Important because the document provided some protection from the absolute
                 tyranny of the King, by limiting his powers. These limits included:

                        No interference in the Church
                        No right to introduce taxes without consulting the Parliament.
                        No right to imprison a free man without trial

           o Article 61 established a council of 25 barons, who could sieze power from the King if
             he broke any of the clauses and did not correct the mistake.

          3.2 The English Bill of Rights (1688)

           o Ensured that parliament could function and make laws without royal interference.
           o The documents included clauses relating to parliamentary power, including powers of
             taxation, parliamentary freedom of speech and control of the army
           o It brought an important and permanent transfer of power from the monarchy to the
             Parliament
           o Sought to limit the powers of the monarch and clarify the law so that civil war and
             unrest were not repeated.

           3.3 The Declaration of Independence of the United States of America (1776)

               o Was essentially a declaration of war against the repression of the English, who were
                 seen by the Americans as an oppressive, occupying force.
               o The central theme of the declaration was the concept that every person has the right
                 to live their own life and to be free fro the oppression of others.

          3.4 United States Bill of Rights

           o Consists of the first 10 amendments to the Constitution of the USA
           o Contains a number of rights including:




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                      Article one – basic rights including those of freedom of speech
                      Article two – the right to bear arms
                      Article six – the right to a speedy and public trial by jury.

          3.5 The Universal Declaration of Human Rights

          o    Established in 1984
          o    Is the most comprehensive, historic document covering human rights. Among its 30
               articles are listed the rights to:

                      Life, liberty and security of person
                      Equality before the law
                      Education and work

          4.   Movement for Slavery Abolition

          Slavery refers to where an individual has no personal rights, is bought and sold and is
          frequently exposed to physical, emotional and sexual abuse.

          Britain and other colonial powers took slavery for granted, until ideas of natural justice
          and political liberty began to influence British thinking and begun a campaign against
          slavery.

          o    This eventually led to the British government passing the Emancipation Act 1833,
               which abolished slavery throughout British colonies.
          o    Slave ownership was one of the fundamental arguments of the American Civil War.
               In 1863, Abraham Lincoln declared that all slaves were to be considered free
          o    The 13th Amendment of the United States Constitution formally outlawed slavery in
               1865
          o    Revelations of slavery in Ethopian and parts of Arabia lef to the appointment of the
               Temporary Anti-Slavery Commission, which recommended the creation of a treaty
               against slavery. The Slavery Convention of 1926 was negotiated, by signatories
               were only required to end slavery “as soon as possible.”
          o    A new supplementary Convention on the Abolition of Slavery came into being in
               1956. It identified colonialism and apartheid as forms of collective slavery and thus,
               ensured the cooperation of African states and the Soviet Union in its
               implementation.
          o    Slavery is also banned under Article 4 of the Universal Declaration of Human
               Rights
          o    Despite this, slavery still exists in Africa and the Middle East, as well as in the West,
               where it exists in the form of prostitution, child sex slavery and child labour.

          5.   Trade Unionism

          o    Trade unions were declared a right under the 1948 United Nations Declaration of
               Human Rights because they protect workers against abuse by employers.



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          o    They were first formed to counter the appalling working conditions facing workers
               after the Industrial Revolution in Britian.
          o    By 1820, it was recognized that workers organizations should be given some status.
               Nonetheless, trade unions were still seen as revolutionary‟s intent on overthrowing
               social order.
          o    Was not until 1871 that unions were legalized in Britain.
          o       Situation was much the same in Australia, with unionists being imprisoned in
               QLD in 1891.
          o    The Conciliation and Arbitration Act 1904 (Cth) encouraged the growth of unions.
          o    Union movement in Australia and abroad played a very important role in
               establishing that employers owed a responsibility to their employees.
          o    The union movement also led to the establishment of powerful political entities such
               as the Australian Labor Party.

          6.     Universal Suffrage

          This refers to the right to vote and take part in the election process.

          o    In the 19th century, only males with property could vote.
          o    This was later extended to include all men
          o    By 1890s, there were women‟s suffrage societies in all Australian colonies, with the
               sole aim of giving women the right to vote.
          o    South Australia was the first jurisdiction to grant women the right to vote in 1894
          o    Voting rights for the Federal Parliament were women in 1902, while Victoria was
               the last Australian jurisdiction to grant universal suffrage in 1988.
          o    British women were not entitled to vote until 1928.
          o    Removed political distinction between genders and was a major step in recognizing
               universal human rights.
          o    Right to vote is now protected under the Universal Declaration of Human Rights.
          o    Indigenous Australians were not given the right to vote until 1967.

          7.     Universal Education

          The right of all to a basic education

           o   Few people, apart from the wealthy, could read or write before the 19th century.
           o   However, by the mid 1800s, there was a growing demand for people with more
               education, skills and training to meet the requirements of the improved technology
               and commerce in the workplace.
           o   Influenced many aspects of life. The inequalities of the system became more and
               more apparent.
           o   Australian colonies passed various Acts in the 1870s that made education,
               especially basic literary and numerous, free and compulsory for all.
           o   Today, education is a basic right; protected under the United Nationsl Declaration
               of Human Rights.




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           o   Despite this however, many children of the world, particularly those of 3rd world
               nations, do not receive an education and instead, are required to work in order to
               support their family.
          Distinguishing Between Moral, Customary and Legal Rights

          Moral Rights

          o    Rre those which a particular group believe to be right and just
          o    Often moral rights are reflected in the laws and are derived largely from religious
               beliefs
          o    This includes for example, the prohibition of murder
          o    Others vary with the culture and religion of the area, such as the prohibition of
               alcohol.
          o    What a person perceives as their moral rights may conflict with others in society or
               the laws of that society. For example, an individual who is opposed to war may hold
               that it is their moral right to refuse to fight.

          Customary Rights

          o    Are those rights that are deemed to exist as they have been practiced for long
               persons of time and are accepted by a group.
          o    In general, the broad customary rights of a society are reflected in the legal rights of
               the society. The common law right of quiet enjoyment of property is but one
               example.

          Legal Rights

          o    Those afforded to people by the legal system
          o    Legal rights in Australia are derived from common law and statute law
          o    People with legal rights usually need to have legal standing to take an action to
               court.

          Differences Between Domestic and International Rights

          o    Domestic rights are those established under domestic law, that is, the law of the
               country in which you reside.
          o    These rights apply to all people within the jurisdiction in which they are made.
          o    For example, specific legal rights granted under NSW legislation apply only in that
               State
          o    International rights are universal. They apply equally to all human beings, regardless
               of where they live. No government has the right to grant or remove these rights.

          o    Both domestic and international laws preserve people‟s dignity.




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          IDENTIFYING THE TYPES OF INTERNATIONAL RIGHTS

          Civil and Political Rights

          o    Relate to the treatment of the individual as both an individual and as a member of a
               wider society.
          o    Their main function is to protect people from the actions of oppressive governments.
          o    The principal instrument is the International Covenant on Civil and Political Rights,
               which was adopted in 1966 and came into force in 1976.
          o    In it, all parties agree to respect all individual rights established under the Covenant,
               including the rights to life and freedom of expression.
          o    One of the important functions of the Covenant was the establishment of the
               International Human Rights Committee. Its role is to monitor the implementation of
               human rights policies throughout the world.

          Economic, Social and Cultural Rights

          o    The International Covenant on Economic, Social and Cultural Rights was drawn up
               by the United Nations and came into force in 1976.
          o    The function of the Covenant is to ensure that everyone is provided with everything
               they need in order to maintain human dignity.
          o    The Covenant protects the right of all people to:

                        Equal pay for equal work
                        Work and to freely choose work
                        Strike
                        Education

          Over the last 20 to 30 years there has been an increased awareness of the rights of groups
          to their own cultural and social organisation. This has been reflected domestically by the
          adoption of the concept of multiculturalism in Australia. This recognises the rights of
          individuals, within a social group, to practise their own culture. For example, recognition
          is given to Muslim practices in Australia, with the courts upholding freedom of religion,
          equating mosques and churches in the Land and Environment Court.

          Environmental Rights

          This refers to the right to a healthy environment, but also relates to the protection of the
          rights of future generations to enjoy the same level of environmental quality as the
          present generations enjoy.




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          The Stockholm Declaration (1972) and the Rio Declaration (1992) were important
          international environmental agreements that moved the world towards a more sustainable
          future.


          Peace Rights

          o    Peace, as a human right, was first recognized in 1920, with the establishment of the
               League of Nations
          o    Although it was a failure, its aim of achieving peace has been upheld by the United
               Nations.
          o    In 1984 for example, a non-binding resolution of the United Nations General
               Assembly asserted the rights of people to peace.
          o    In Australia, one of the main elements of common law is the “peaceful and quiet
               enjoyment of property.”
          o    Common law has always upheld this principle.
          o    Even in the enforcement of law, the police have as their first objective a duty to
               maintain the peace. This was reflected in the waterfront dispute in 1998. The law
               was being broken, but to arrest possibly thousands of people would not have
               maintained the peace.

          Collective Rights to Self-Determination

          Collective Rights are those that are received by people as members of a group, as distinct
          from their rights as individuals. The right to peace and environmental rights can be
          considered to be collective because they affect large groups of people rather than
          individuals.

          The collective right to self-determination has been defined by the United Nations as the
          right of people, especially Indigenous people, to have at least partial sovereignty over
          their land.

          Throughout the 20th century, with old empires collapsing, individuals fought for the self-
          determination for their people. Ho Chi Minh fought for the freedom of Vietnam from
          France and later from the USA. Nelson Mandella also fought against the apartheid regime
          in South Africa.

          The Recognition of Human Rights under Australian Law

          o    Unlike most countries, Australia does not have a Bill of Rights that outlines the
               rights to which citizens are entitled.
          o    The Australian Constitution contains only a few references to the rights of
               Australians including for example, freedom of religion and the right to vote.
          o    Traditionally there has been a reliance on common law to protect individual and
               collective rights, but there is also an increasing body of statute law.




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          1.   Common and Statute Law

          Common Law

          o    Common law rights are not covered explicitly, but rather, implicitly, by judge‟s
               decisions. The presumption of innocence is an important common law right.
          o    Common law, though, is by its nature unplanned and is a response to a problem.
               Unlike statute law, it is reactive, so in many cases statute law is enacted to confirm
               these rights.
          o    An example of this is the Mabo decision, which gave Aboriginals and TSI‟s a right
               to apply for native title to their land.
          o    In order to clarify and solidify this right, the Native Title Act 1993 (Cth) was passed.
          o    The most serious limitation on the capacity of common law to protect human rights
               is that it may at any time, be reversed by legislation. Parliament has the right to
               override any common-law rights.

          Statute Law

          o    There is a growing body of statute law in Australia that deals with the protection of
               human rights.
          o    This has largely been the result of an increasing volume of international law; when
               Australia enters into an international agreement, domestic law is modified by statute,
               to embody the principles of the agreement.
          o    The recognition of human rights can now be seen in a range of Australian statute
               law. One good example refers to anti-discrimination laws, which uphold citizens
               right to protection from prejudice, in the areas of employment and access to shelter,
               goods and services and education.

          2.     Evolving Human Rights

          In response to the growing international awareness of human rights, Australia has
          changed its own human rights laws and policies and is involved in the protection of
          human rights overseas.

          o    In 1988 for example, Australia took part in a conference of judges from the British
               Commonwealth.
          o    It was convened in Bangalore, India and its principles included the belief that
               fundamental human rights and freedoms are intrinsic in all persons; they should be
               expressed in constitutions and legal systems throughout the world.




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          Australia has signed 1700 treaties, covering a wide range of issues. These treaties have
          been ratified by Australia:

           o The International Covenant on Civil and Political Rights
           o The International Covenant on Economic, Social and Cultural Rights
           o The Universal Declaration on Human Rights
           Australia clearly recognizes the inherent nature of human rights, but does not have its
           own Bill of Rights. A number of attempts have been made to introduce a Bill of Rights.

           o    One in 1942 and another in 1983, when the Australian Human Rights Bill was
                drafted.
           o    Both were eventually withdrawn, yet generated national debate regarding what a
                Bill of Rights for Australia should contain and whether Australia really needs one,
                or whether the current mixture of limited constitutional rights and more extensive
                common and statute law rights is sufficient.

          ARGUMENTS FOR                                 ARGUMENTS AGAINST
          Australian law affords inadequate             Rights are already well protected in
          protection of rights                          Australia
          It would help to empower powerless            The judiciary would become politicized
          Australians
          It would help Australia meet its              It would be very expensive, given the
          international obligations                     amount of litigation that would be
                                                        generated

          3.     Recognition and Enforcement of Rights

          Human rights in Australia are recognized in a range of new common and statute laws,
          even without an Australian Bill of Rights. This can be seen in the growing recognition of
          the customary rights of indigenous Australians and a willingness of the courts to enforce
          them.

          In the case of Yanner v. Eaton [1999] the High Court agreed with Mr. Yanner that he had
          a customary right to hunt crocodiles. This customary right overrode Queensland
          legislation requiring a license to hunt crocodiles.

          Contemporary Struggles for Human Rights

          Child Sex Tourism

          o    Henious violation of the UN Convention of the Rights of the Child, especially
               Articles 1,11,21,32,33,34,35 and 36.
          o    In 1994, ECPAT (End Child Prostitution, Child Pornography and the Trafficking of
               Children for Sexual Exploitation) asserted that:

                      500,000 children in Brazil


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                      400,00 children in India
                      Between 200,000 and 850,000 children in Thailand are involved in child
               sex tourism.

          This most egregious example of human rights violations is merely proliferating with
          cheap airlines, the opening of countries which were once closed because of war or
          politics and the advent of the Internet to promote child sex tourism.

          Poor countries often turn a blind eye to this sexual exploitation in pursuit of the income
          they gain and so desperately need, from such tourism.

          Tibet and China

          In Tibet, which was annexed by China in 1951, freedom to practice religion is restricted
          and the people have great restrictions on their freedom of movement and cultural rights.
          In China itself, the rights of women are degraded by the „one child‟ policy.

          The Americas

          o    Human rights are also breached in the Americas. The environmental and cultural
               rights of the indigenous populations of Brazil are disregarded by large mining,
               logging and pastoral companies, which are gradually destroying the rainforest that is
               their tradition home.

          o    Within the United States, several state jurisdictions subject children who commit
               crimes to trial as adults and even to execution. This undermines the fundamental
               principles of the Convention on the Rights of the Child (an agreement that the USA
               has refused to sign.)

          The Changing Understanding of Human Rights

          o    Some have argued that the spread of an acceptance of universal human rights places
               in jeopardy, the traditional cultural values of a nation.
          o    This argument has been used by the governments of Singapore and Malaysia to
               justify allowing only limited democratic rule.
          o    Such arguments were seen as valid in the past; however, the understanding of the
               true nature of human rights is beginning to change.
          o    Human rights are no longer seen as a means of imposing external cultural or even
               political values; instead, they have begun to be recognized as expressions of respect
               for the human dignity and the right to live in equality.




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          The Effectiveness of Legal Measures, both Domestically and Internationally in
          Addressing Human Rights Issues

          Conceptualizing domestic violence as a human rights issue has only been a very recent
          development.

          The 1993 Declaration on the Elimination of Violence against Women was the first
          international humans rights instrument to exclusively and explicitly address the issue of
          violence against women. It affirmed that the act violates, impairs or nullifies women‟s
          human rights and their exercise of fundamental freedoms.

          Although this Declaration generated a more profound awareness of domestic violence on
          a global scale and strongly encouraged governments to eradicate it within their respective
          countries, it, like all other pieces of international law, is fundamentally flawed because it
          is not enforceable. Many signatory nations have continued to ignore the plight of women
          in their country. The Pakistani government, for example, signed and ratified the
          Declaration, yet have taken no meaningful steps to address domestic violence in Pakistan
          and which is particularly evident in the form of “honor killings.:

          According to Amnesty International, police in Pakistan continue to fail to press charges
          against known perpetrators of domestic violence and judges continue to pass light
          judgements on such perpetrators.

          The declaration is clearly ineffective because it fails to facilitate change in the countries
          which need it most. It is effective only in nations including Australia, where measures to
          eradicate domestic violence are already clearly evident and highly effective.

          Apprehended Violence Order

          The AVO was introduced under the Crimes Act 1900 (NSW) and experienced an
          alteration under the Crimes Domestic Violence Amendment Act 1993 (NSW). It‟s
          primary aim is to stop the perpetrator from inflicting violence or fear of violence onto
          his/her victim. An AVO can be obtained by anyone over the age of sixteen if they can
          prove, on the balance of probabilities, that they reasonably apprehend violence. AVO‟s
          restrict the perpetrator from entering the victims home of place of work, or even from
          being within a certain distance from the person holding the AVO.

          The effectiveness of AVO‟S in protecting victims of domestic violence was revealed in a
          report produced by the Bureau of Crime Statistics and Research (BOSCAR) in 1997.
          Their evaluation found that for the vast majority of protected persons, obtaining an AVO
          led to a reduction or cessation of the abusive behaviour. For many subjects, those results
          were sustained over a period of six months after the AVO was attained. Over 90% of the
          subject stated that the AVO had produced a number of benefits including the reduction of
          elimination of abuse as well as a greater sense of safety.




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          There is also recognition of the legal system that some groups of women subjected to
          violence many experience special difficulties. For example, since the fear of deportation
          can play a role in keeping a woman in a violent marriage, immigration law has been
          examined and changed in 1991. this was done to ameliorate the plight of women who
          migrated to Australia as the fiancé or spouse of an Australian citizen who then abused
          them. They are now considered as eligible to apply for perminant residency if they can
          show a restraining order or a Family Court injunction, showing the guilt of the sponsor
          for assault.




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