C hapter 7 The nature and development of human rights

1. Chapter 7The nature and development of human rights

2. In this chapter, you will be introduced to the concept of human rights. You will study the international development of some specific human rights, like the right to liberty, right to education or the right to peace. You will then look at some of the formal statements of human rights in the international community, including the Universal Declaration of Human Rights.

3. The definition of ‘human rights’ The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations in 1948. It lays out the fundamental purpose of human rights, stating that: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

4. The definition of ‘human rights’ • In the general sense, human rights refer to a collection of basic rights and freedoms believed to belong justifiably to all human beings. • They are considered to be universal, inalienable (cannot be taken away) and inherent in all people.

5. The definition of ‘human rights’ • Human rights relate to the treatment of individuals in a fair, just and free society, and aim to: • protect individuals from injustice • allow people to achieve their full potential in society • prevent discrimination against groups of people because of their physical characteristics or beliefs.

6. Developing recognition of human rights • Theories of universal laws can be traced back to various historical sources. • The theories drew upon a range of different reasoning, such as: • ‘divine will’, usually relating to religious laws and principles • natural law based on a higher order or shared ideas of individual worth and morality • ‘positivism’, which simply assumes that laws are what we make them: laws exist once they are created by an appropriate authority. • Most recognised human rights, however, have arisen from independent historical movements that have fought hard to change a particular injustice in the law and society.

7. Developing recognition of human rights The development of the following types of human rights are considered in this chapter: • the abolition of slavery • the campaign for universal suffrage • the trade union movement and labour rights • the campaign for universal education • the right of a group to self-determination • emerging environmental rights • the attempt to establish a right to peace.

8. The abolition of slavery • Historically, slavery was a form of forced labour where the slave was treated as legal property of another. • Slavery was a common practice in different societies around the world throughout history. • In many instances, slaves were mistreated and brutalised, with no real legal rights and no means of escape. • Laws generally treated slaves as objects, rather than subjects of the law.

9. The abolition of slavery • European colonisation of the Americas relied on and dramatically increased slavery, particularly during the transatlantic slave trade of the 17th to 19th Centuries. • Attempts to abolish slavery began as early as the 12th Century in Iceland, but the movement known as abolitionism grew from the 18th Century onwards. • Slavery was ruled illegal in Britain in the 1772 judgment by the Court of King’s Bench in the case of Somersett, but this did not affect the law elsewhere.

10. Abolitionist campaigns saw differing success around the world: • in Britain, particularly by politician and campaigner William Wilberforce, the British Parliament was eventually persuaded to abolish slavery in its overseas territories in 1807-1833 • in Latin America, many countries abolished slavery during the wars of independence in 1810-1822 • in the US, slaves were eventually freed by 1865 after the end of the US Civil War.

11. Eventually, international agreements were established to end the practice worldwide, including: • the 1890 General Act of Brussels • the 1926 League of Nations Slavery Convention • the 1948 Universal Declaration of Human Rights.

12. The abolition of slavery • Article 4 of the UDHR states that: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” • The last state to officially abolish slavery was Mauritania in 1981, but illegal slavery continues worldwide in the form of human trafficking, forced labour, child labour and sex slavery. • International efforts are still focused on ending all forms of slavery.

13. Trade unionism and labour rights • Employment law is a relatively recent development – rights to a minimum wage, safe working conditions or paid holidays were not recognised in older legal systems. • The Industrial Revolution during the 18th to 19th Centuries began in the UK and spread to Europe, America, Australia and the rest of the world. • Major changes in the fields of manufacture, agriculture and transport redefined society and acted as the catalyst for changes to labour laws.

14. Trade unionism and labour rights • Trade unions emerged during the Industrial Revolution in response to appalling conditions, low wages and long working hours in the factories of new industrial cities. • Large groups of employees began to demand better working conditions and wages, while employers would tend to deny improvements and keep wages low to decrease costs. • The earliest trade unionists faced difficult conditions – laws were created to criminalise workers’ involvement in trade unions and heavy penalties were applied.

15. Trade unionism and labour rights • Eventually, the British Parliament was pressured to pass the Trade Unions Act 1871 (UK), which secured the legal status of trade unions. • In Australia, the emerging labour rights movement eventually led to the formation of the Australian Labor Party in 1891. • Trade unions have played an integral role in securing rights for workers, and some achievements include minimum wages and working conditions, equal pay, long service leave, paid public holidays, maternity leave, annual leave, occupational health and safety laws or workers compensation.

16. Trade unionism and labour rights The UDHR (Articles 23 and 24) recognises certain labour rights as basic human rights, including: • the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment • the right to equal pay for equal work • the right to just and favourable remuneration • the right to form and join trade unions • the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

17. Universal suffrage • Although the theory of democracy can be traced back to ancient times, the right to vote (suffrage) has historically been restricted to the more advantaged groups in society, usually powerful and wealthy male land owners. • This was usually due to a mistrust or suspicion of the general population, or an assumption that they could not understand the affairs of government.

18. Universal suffrage • Demands for suffrage for all males began in the 19th Century – for example, in the UK it was gradually extended to 60 per cent of the male population by 1884, and eventually to all adult males by 1918.

19. Women’s suffrage developed separately among democratic countries, through campaigners known as the ‘suffragettes’. Universal suffrage

20. Universal suffrage • The 1948 UDHR recognised the universal right to suffrage in Article 21. • However, universal suffrage for all parts of the community was still not achieved. • For example, in Australia, Indigenous Australians did not obtain equal suffrage in all jurisdictions until 1965 when Queensland became the final state to extend the right.

21. Universal suffrage • Universal suffrage is not restricted by race, gender, belief, sexual orientation, wealth, or social status. • However, it is still restricted by age, citizenship and in some places criminal convictions or mental capacity. • Today, there are 89 countries, representing 45 per cent of the world’s population that are recognised as freely democratic.

22. Universal education • Universal education refers to the right of all human beings to an education. • Historically, in most societies, education was associated with wealth and power or with certain trades, beliefs or religions. • Most people would have received informal education from their families and community, with other skills learnt directly through their daily work or vocation.

23. Universal education • By the 19th Century, education for the poor in many European countries was only provided by local churches. • However, with the demands of industrialisation, competitiveness between countries, and the gradual extension of the right to vote, governments recognised a growing need to provide for education of their populations. • Governments began to fund and administer schools for the public, and in 1880 in the UK, education was made compulsory for all children aged between five and ten, whereas in France all children under 15 were provided free compulsory education.

24. Universal education • In NSW, the Public Instruction Act 1880 (NSW) led to government taking control of non-Catholic Church-run schools, and making education free, secular and compulsory. • Aboriginal schools were also created, but later merged with public schools. • Today, all Australians must attend school from at least the ages of 6 to 15, depending on the state – in NSW the school leaving age is 17 years. • The Australian population now has a 99 per cent literacy rate.

25. Universal education • The right to free elementary education is recognised in Article 26 of the UDHR. • Worldwide, most countries provide access to free children’s education but there are many areas where children still cannot or do not access it.

26. One of the main aims of the UN Millenium Development Goals is for all children in the world will have a minimum education up to the end of primary level by 2015. Universal education

27. Self-determination • The right to self-determination refers to the collective right of a people of a territory or national grouping to determine their own political status. • It has been fought for throughout history by peoples against various powers and regimes, often through brutal wars and conflicts. • It is closely related to democratic rights in that it involves the consent of the people as the basis for a sovereign state.

28. Self-determination • Self-determination as a right has been linked to the US Declaration of Independence from Britain in 1776, as well as the French Revolution or the Latin American wars of independence. • The First and Second World Wars and the collapse of colonial powers led to the recognition of self-determination as a critical right. • The right was enshrined in Article 1(2) of the 1945 UN Charter, and later in the International Covenant on Social, Economic and Cultural Rights.

29. Self-determination • Gradually, former colonial territories around the world became self-governing independent states. • The most recent territory granted independence was the Balkan state of Montenegro in 2006. • More recently, the issue of self-determination of indigenous peoples has received international focus. • In 2007, the UN formally adopted the non-binding Declaration of the Rights of Indigenous Peoples, which addresses the right of self-determination.

30. Environmental rights • Environmental rights are unlike ordinary rights, but can relate to many existing agreed rights, like the rights to life, health or property. • However, supporters argue the need for a separate right to a healthy, safe and adequate environment. • Environmental rights have been recognised in some human rights instruments, for example: • the African Charter on Human and Peoples’ Rights • the American Convention on Human Rights.

31. Environmental rights • There has been no universal recognition of environmental rights, but many international agreements have been reached to deal with specific environmental threats, for example: • the Stockholm Declaration (1972) • the Rio Declaration (1992) • the Kyoto Protocol (1997). • One of the major issues for achieving international consensus on environmental rights is the failure of many states to commit to measures that they judge against the short-term national interest, even if the measures are for the benefit of the global community.

32. Peace rights • The United Nations was formed in the aftermath the Second World War, as the Allied Forces and leaders of the world came to terms with the atrocities of war. • The United Nations Charter was signed on 26 June 1945 and, in Article 1(1), explicitly made the maintenance of peace its primary purpose. • The Charter effectively outlawed war except in specific circumstances, and recognised a right of every state to live in peace.

33. Peace rights • In 1984, the UN General Assembly adopted the Declaration on the Right of Peoples to Peace, which proclaimed that “all peoples of our planet have a sacred right to peace.” • Despite the international establishment of a right of peace, an international body to oversee it, and international means to enforce it, war has still not been eliminated and conflicts around the world continue. • In international law, the right of peace is balanced against the right of self-defence and this has been relied on by countries in the past to justify wars.

34. Peace rights • War crimes can be prosecuted under international law, and individuals have recently been pursued by the International Criminal Court (ICC). • The ICC has also been given jurisdiction to prosecute individuals for crimes of aggression (illegal war) but the international community is still negotiating a definition – once agreement is reached, the ICC could provide an additional international protection of the right to peace.

35. Formal statements of human rights • The UN was established at the end of the Second World War with a sense of shared purpose for the international community. • It gave the international community a voice and crucial forum for discussion and making international agreements and law. • Almost immediately, formal recognition of human rights was placed on the international agenda.

36. Universal Declaration of Human Rights • Article 2(2) of the UN Charter created an obligation for the promotion of “universal respect for, and observance of, human rights and fundamental freedoms for all.” • The UN Charter did not define what those rights were and work began on creating a formal statement. • A UN Commission on Human Rights, chaired by US First Lady and UN Delegate Eleanor Roosevelt, with broad global representation, referred to historic documents containing rights as well as worldwide political, philosophical and religious movements in determining its contents.

37. Universal Declaration of Human Rights • The Universal Declaration of Human Rights (UDHR) was adopted on 10 December 1948. • It contains 30 different articles covering rights such as the right to life, liberty, security, thought, religion, education, and labour rights. • It was adopted as a declaration, rather than a fully binding treaty – this ‘soft law’ approach means that it is highly influential but does not contain ‘hard law’ obligations.

38. Universal Declaration of Human Rights • The soft law approach allowed the maximum number of countries to sign up to the statement. • On-going abuses of the declared rights still occur in some countries, but the UDHR allows NGOs, governments and individuals to point out failings and draw them to the attention of the international community. • The UDHR is arguably now part of international customary law, and has become the foundation for a number of later human rights treaties, many of which contain binding obligations.

39. International Covenant on Civil and Political Rights (ICCPR) • The ICCPR was approved in 1966 and came into force for member states in 1976. • It creates obligation to respect civil and political rights of individuals, including: • gender equality, right to life and freedom of movement • right to a fair trial and to be presumed innocent until proven guilty • freedom of thought, conscience, speech, religion and assembly • freedom from torture and slavery • right to vote and receive equal protection under law.

40. ICCPR • The ICCPR is also monitored by the Human Rights Committee, which reports on compliance by member states and investigates violations. • It has been widely ratified (165 state members in 2010). • Notable exceptions include China, Pakistan and Cuba. • Some countries, including Burma, Malaysia or Singapore have neither signed nor ratified the treaty.

41. International Covenant on Economic, Social and Cultural Rights (ICESCR) • The ICESCR also came into force in 1976. • It obliges state parties to work towards granting economic, social and cultural rights to individuals. • It includes: • labour rights, such as the right to just conditions and fair wages • rights to an adequate standard of living, including the right to adequate food, clothing, housing and health care • rights to education, stating that primary education should be compulsory and free for all.

42. International Covenant on Economic, Social and Cultural Rights (ICESCR) • The ICESCR is monitored by the UN Committee on Economic, Social and Cultural Rights. • It has been widely ratified (160 member states in 2010). • The US signed it in 1979 but has never ratified it. • Other countries that have neither signed nor ratified the ICESCR include Burma, Malaysia and Saudi Arabia.