THE NATURE AND DEVELOPMENT OF HUMAN RIGHTSTopic two of the Legal Studies Syllabus

PRINCIPAL FOCUS In this chapter students

investigate the notion of human rights and assess the extent to which legal systems embody such human rights and promote them in practiceTHEMES AND CHALLENGES

• The changing understanding of the relationship between state sovereignty and human rights• Issues of compliance and non-compliance in relation to human rights• The development of human rights as a reflection of changing values and ethical standards• The role of law reform in protecting human rights• The effectiveness of legal and non-legal measures in protecting human rights

What is the definition of human rights? The notion of human rights

transcends culture, ethnicity, religious orientation and even nationality. Human rights are not granted to citizens by governments, nor can they be taken away. All people are entitled to them simply because they are human beings..

Human Rights In recent times the most

significant international agreement pertaining to human rights is the UDHR of 1948. It is a declaration, not a treaty, which means it is part of international customary (or ‘soft’) law.

State sovereignty

is that each state has the right to control it’s own people and territory.

A state must haveA defined territoryA permanent populationA governmentThe ability to enter into relations with other states.This concept is related to the right to self-determination (see later)

Natural law often compared to positive law. Natural law is based on the

concept that positive (man made or written law) is answerable to a higher power of natural law which is created by logic (or religious belief). It is based in the roman concept of Jus gentium. Usually they overlap, although not always (e.g. apartheid in south Africa). Concepts of natural law are generally accepted and upheld by the international community (customary international law) and the UN.

E.g. the Nuremberg trials in Germany after ww2 An international Instrument is a legal agreement such as a

treaty of a protocol that binds nations to certain behaviors.

HISTORICAL DOCUMENTS RELATING TO HUMAN RIGHTS

In Europe, the process of granting human rights was very gradual and initially only protected upper class society.

1215 The Magna Carter – Limited the power of the King, and enshrined certain human rights (e.g. right to fair trial). Transfer of power to the parliament.

1679 Habeas Corpus Act (UK) 1688 English Bill of Rights – forbade the king from

passing laws without the consent of parliament, and also granted the right of free speech within parliament.

HISTORICAL DOCUMENTS RELATING TO HUMAN RIGHTS

1776 US Dec. of Ind. – Concept of natural law and equality 1789 US constitution – Separation of powers doctrine 1791 US Bill of Rights – Entrenched many basic human

rights and became a global reference point. 1789 French Const. And Declaration on the rights of

man – Although it was short lived due to the reign of Napoleon Bonaparte, it was distributed throughout Europe and became a reference point. Included rights such as right to democracy, liberty and property, equality before the law and freedom of action, religion and expression

HISTORICAL DOCUMENTS RELATING TO HUMAN RIGHTS

1919 The treaty of Versailles – Only based in and applied to European nations. Right to peace and self-determination after the atrocities of WW1

1948 UDHR – Was influenced by both NGO’s and government, and included more than 30 articles describing the basic human rights that should be afforded to all people. However, is a declaration and therefore only part of international customary law.

1948 Genocide Convention – Moved to make genocide a crime. 1966 Twin Convents – Moved to make UDHR into hard law, but

failed to gain support from the USA or USSR because they only supported civil and political, and social, cultural and economic rights respectively. (Capitalism v. Communism)

HISTORICAL DOCUMENTS RELATING TO HUMAN RIGHTS

Therefore the twin convents were made into two separate convents. 1976 International convent on civil and political rights (ICCPR)

Related to the treatment of the individual as both an individual and a s a member of wider society, and aimed to protect people from oppressive governments. Includes – freedom of movement, thought, conscience, speech, religion, and marriage. Rights of children, right to vote and right to cultural differences and freedom

The ICCPR also established the International Human Rights Committee which now also has jurisdiction in respect to issues related to ICESCR and CEDAW

Other instruments pertaining to civil and political rights include: CEDAW (Women) ICERD (Racial) CPPCG (To avoid genocide) CROC (Children) CTOCIDTP (Torture)

HISTORICAL DOCUMENTS RELATING TO HUMAN RIGHTS

1976 International Convent of Economic, Social and Cultural Rights (ICESCR) Attempted to ensure that everyone is provided with what the need

to maintain human dignity. Requires signatory nations to ‘take steps.. with a view to achieving progressively the full realization of the rights recognized” in the convent.

Includes rights such as equal pay for equal work, to work and freely choose work, form and join trade unions, strike, receive social security (including special assistance to the family), an adequate standard of living, highest attainable standard of physical and mental health, education, participate in cultural life, enjoy scientific freedom.

SLAVERY Widely used in Europe throughout the middle ages British Emancipation Act 1833 outlawed slavery, therefore is became

unacceptable throughout Europe African Slave Trade was one of the main reasons for the US civil war,

and was therefore outlawed in the bill of rights 1890 General Act of Brussels signed by European nations was the first

international instrument outlawing slavery Slavery Convention 1926 , but signatories only had to end slavery ASAP Supplementary Convention of The Abolishment of Slavery 1956 ICCPR provides for the abolishment of slavery, and the UDHR also

places slavery as unacceptable in international customary law.

TRADE UNIONISM Emerged in the 19th century as a result of the

industrial revolution Originally seen as radicals (e.g. Tolpuddle martyrs) UK Trade Unions Act 1871 ILO formed after WW1 – Still exists today and is

primarily concerned with workers rights and condition around the world.

Rights protected under ICESCR and UDHR

UNIVERSAL SUFFRAGE Refers or the right of all people in a particular jurisdiction

to vote as a part of a democracy. Historically only wealthy men could vote, then all men, and eventually all women (In some societies). Suffrage was gained for women in SA in 1894 (1st in the world) and federally in 1902. However, in many places universal suffrage does not exist for cultural or religious reasons.

Universal suffrage can be related to human rights, in that it is based on the concept that all people are equal, and have an equal right to take part in their society.

UNIVERSAL EDUCATION Refers to the concept that all people around

the world have the right to education. In Australia education is compulsory from 6-15. UDHR mentions the right to education, as does ICESCR, however, in many countries around the world education is only available to those of high socio-economic status.