LAW 1508 Lecture Notes - Lecture 10: United Nations Convention Against Torture, International Covenant On Civil And Political Rights, Henry J
23 May 2018
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THEO‘Y
Two justifications of HR
• Inherent to being human: inalienable, possess by
virtue of humanity
• Social good, rights that a person must be able to
enjoy and exercise, if he is to live as he was born.
imperative for a civilised society Gerhardy v Brown
(1985) 159 CLR 70, 125-6 (Brennan J).
REASONS for HR
• Inherent / Inalienable Rights
iheet dignity and eual and inalienable
rights of all members of the human family
digity and worth of the human person
• Pragmatic Benefits
foudatio of freedom, justice and peace in
the world
poote the development of friendly
relations between nations
poote social progress and better standards
of life in larger freedom
prevent people being copelled … as a last
resort, to rebellion against tyranny and
oppression
• Historical Reasons
disegad ad cotept fo hua ights hae
resulted in barbarous acts which have outraged the
conscience of mankind
INT protections.
UN Charter
Recognises, but does not list, rights nor establish
institutions to implement them.
Purpose
• Preamble: reaffirm faith in fundamental human
rights. Equal rights
• Art 1(3): encourage respect for human rights
Specific provision
• Art 55: the Uited Natios shall poote …
universal respect for; and observance of, human
rights and fundamental freedoms for all
Regional Forums
Development 1 (non-binding)
Universal Declaration of Human Rights (Adopted by GA
Res 217A(III), 10 December 1948)
• Non-binding resolution. Statement of intent
• Now mostly custom.
• Moral and political influence. (Henry J Steiner and
Philip Alston)
• the accepted ad authoitatie stateet of
hua ights fo the hole old (Peter Bailey)
• Created a universally agreed understanding of
what human rights are.
• Common standard of achievement- Are individual
couties actually achieig hat theye supposes
to?
Development 2: 1st Generation Rights (ICCPR) BINDING
• 1980: Aust.
Obligations:
• Art 2(1)- to respect and ensure to all individuals
within its territory and subject to its jurisdiction
the rights recognised in the ICCPR
• Art 2(2)- where necessary, alter domestic law
Nature:
• Immediate obligations on states
• Enforceable in court
Development 3: 2nd Generation Rights (ICSECR)
BINDING
• 1976: Aust.
Obligations:
• Art 2(1)- to take steps to the maximum of its
available resources, with a view of achieving
progressively in the full realisation of the rights in
the ICSECR
Nature:
• Less defined, aspiration, complex, difficult to
determine a breach and harder to enforce
Development 4: 3rd Generation Rights. Several treaties
Mirror ICCPR and ICSER
• International Convention on the Elimination of All
Forms of Racial Discrimination (CERD)
• Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)
• Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
(CAT)
• Convention on the Rights of the Child (CRoC)
• International Convention on the Protection of the
Rights of All Migrant Workers and Members of
Their Families
Australia not a party
• Convention on the Rights of Persons with
Disabilities (CRPD)
Obligations of states
Respect (state themselves)
• Avoid interference with rights by the State
Protect (state stopping others)
• Prevent interference with rights by third parties
Fulfil
• state to actively ensure enjoyment of rights by all
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Inherent to being human: inalienable, possess by virtue of humanity. Social good, rights that a person must be able to enjoy and exercise, if he is to live as he was born. imperative for a civilised society gerhardy v brown (1985) 159 clr 70, 125-6 (brennan j). Prevent people being (cid:858)co(cid:373)pelled as a last resort, to rebellion against tyranny and oppression(cid:859: historical reasons (cid:858)dis(cid:396)ega(cid:396)d a(cid:374)d co(cid:374)te(cid:373)pt fo(cid:396) hu(cid:373)a(cid:374) (cid:396)ights ha(cid:448)e resulted in barbarous acts which have outraged the conscience of mankind(cid:859) Recognises, but does not list, rights nor establish institutions to implement them. Purpose: preamble: reaffirm faith in fundamental human rights. Equal rights: art 1(3): encourage respect for human rights. Specific provision: art 55: the u(cid:374)ited natio(cid:374)s shall p(cid:396)o(cid:373)ote universal respect for; and observance of, human rights and fundamental freedoms for all. Universal declaration of human rights (adopted by ga. Res 217a(iii), 10 december 1948: non-binding resolution.
