“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
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:
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.
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.
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
3.1 The Magna Carta (1215)
o Drafted as a means of resolving a power struggle between King John of England and
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
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:
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
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
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
o Slavery is also banned under Article 4 of the Universal Declaration of Human
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.
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
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
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.
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
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
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
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.
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
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
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
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.
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
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
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.
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.
The Stockholm Declaration (1972) and the Rio Declaration (1992) were important
international environmental agreements that moved the world towards a more sustainable
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
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
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
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.
1. Common and Statute 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
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.
o There is a growing body of statute law in Australia that deals with the protection of
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
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.
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
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
It would help Australia meet its It would be very expensive, given the
international obligations amount of litigation that would be
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
In the case of Yanner v. Eaton  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
400,00 children in India
Between 200,000 and 850,000 children in Thailand are involved in child
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.
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.
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
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.
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