Developing Recognition of Human Rights (HSC SSCE Legal Studies): Revision Notes

Developing Recognition of Human Rights

Introduction

The term "human rights" represents a relatively recent historical development. The recognition that certain rights apply universally to all people—regardless of country or legal system—has taken centuries to achieve. While the concept seems natural today, it required extensive historical struggles and movements to gain acceptance.

Human rights theories draw from various historical sources, including:

• Ancient civilisations (Mesopotamia, Rome, India)
• Religious scholars and teachings
• Philosophers from Ancient China and Greece through to modern times
• Historical events (e.g. US Declaration of Independence)
• Major conflicts, particularly World Wars I and II

Historically, theories of universal laws relied on different reasoning:

• Divine will: rights based on religious authority
• Natural law: rights based on a higher moral order or shared human dignity
• Positivism: rights exist because they have been enacted by appropriate authorities

Individual rights developed through independent historical movements rather than as a coordinated effort. Each right has its own unique development story.

The abolition of slavery

Historical context of slavery

Slavery is a form of forced labour where a person becomes the legal property of another. For most of human history, slavery was accepted as integral to society and the economy.

Key characteristics:

• Slavery predates recorded history
• Common in antiquity and throughout the Middle Ages
• Practised legally in many regions until the $20^{\text{th}}$ century
• Laws generally treated slaves as objects rather than legal subjects

Forms of ancient slavery

In the ancient Mediterranean world, common forms included:

• Debt slavery: forced labour to repay loans rather than monetary payment
• Punishment for crime
• Prisoners of war enslaved
• Children born into slavery (potentially paying debts incurred generations earlier)

Slavery varied globally but generally served to fill societal roles at minimal cost without paying wages. While some slaves were well-educated and valued (occasionally gaining freedom as "freedmen"), many suffered mistreatment and brutalisation with no legal rights or means of escape.

The transatlantic slave trade

As European empires expanded into the "New World," demand for labour increased dramatically. The transatlantic slave trade operated from the $17^{\text{th}}$ to early $19^{\text{th}}$ centuries.

The trade cycle:

1. European ships traded products for slaves in West Africa
2. Slaves were transported to New World colonies
3. Slaves worked to grow and manufacture cash crops (e.g. sugar)
4. Profits returned to European powers

Early moves to abolish slavery:

• Some European cities abolished slavery as early as the $12^{\text{th}}$ century (Iceland: $1117$)
• However, European empires supported slavery in overseas territories
• The Roman Catholic Church prohibited export of Christian slaves but legitimised use of non-Christian slaves

The abolitionist movement

Abolitionism was a worldwide political movement seeking to abolish slavery. Beginning in the $18^{\text{th}}$ century, it gradually gained momentum as:

• Rationalist thinkers criticised slavery as violating "the rights of man"
• Evangelical religions condemned it as "unchristian"

Key legal developments in Britain

Slave Trade Act 1807 (UK): Following campaigns led by William Wilberforce, Britain officially ended the importation of slaves to its colonies. The United States followed in $1808$.

Slavery Abolition Act 1833 (UK): Abolished slavery itself throughout the British Empire. All remaining slaves were freed in $1834$.

Abolition in the United States

The US Declaration of Independence ($1776$) stated "all men are created equal," yet slavery continued in southern states where it was a powerful social and economic institution.

The American Civil War (1861–1865): Slavery became one of the main causes of conflict. President Abraham Lincoln, an abolitionist, was seen as threatening the southern way of life.

Thirteenth Amendment ($1865$): Abolished slavery throughout the United States following the Civil War, freeing over 4 million slaves.

International abolition efforts

General Act of Brussels ($1890$): The first major international collaboration to abolish slavery, primarily targeting the slave trade in European protectorates in Africa.

League of Nations Slavery Convention ($1926$): A comprehensive international treaty on abolishing slavery worldwide, passed after World War I.

Universal Declaration of Human Rights ($1948$): Article 4 clearly prohibited slavery.

Last legal abolition: Mauritania (West Africa) officially abolished slavery in $1981$.

Contemporary slavery issues

Current challenges include:

• Estimated 27 million people enslaved worldwide
• Human trafficking: illegal movement of people across borders by force, coercion or deception
• Child labour, sexual slavery, and forced labour remain serious global issues

Trade unionism and labour rights

Historical context of employment

As slavery became illegal, conventional labour became the only legal means of securing workers. However, employment law as we understand it today is relatively recent.

Pre-industrial labour

• Ancient Egypt: Evidence suggests pyramids were built by paid craftsmen and farm hands, not slaves
• Ancient Rome: Both slave and hired labour existed
• Medieval Europe: Labour regulation based on status
• Craft guilds: Associations of labourers and craftsmen based on their trades
• Serfs: Agricultural labourers tied to the land, resembling slaves in many ways

The Industrial Revolution

The Industrial Revolution ($18^{\text{th}}$–$19^{\text{th}}$ centuries) began in the UK and spread globally, bringing:

• Mechanised manufacture
• Major changes in agriculture and transport
• New industrial cities with factories

Development of trade unions

Trade unions are organised associations of workers formed to protect and further their rights and interests.

Why unions emerged

Workers realised that:

• Individual employees had no power against employers
• Collective action (e.g. strikes) could force employers to improve conditions
• If all workers struck, employers couldn't simply replace their entire workforce

Employers therefore sought to deny employees any right to organised labour.

Early struggles

Early trade unionists faced criminalisation and severe penalties.

Legal recognition

First Trades Union Congress ($1868$): By $1869$, 40 representatives represented over 250,000 workers in the UK.

Trade Unions Act 1871 (UK): Secured the legal status of trade unions after parliamentary pressure.

Australia: Due to harsh tactics against strikes in the $1890$s, Australian unions formed their own political party—the Australian Labor Party (ALP).

Labour rights achievements

Through union action, workers achieved many rights now taken for granted:

• Minimum wages and working conditions
• Equal pay
• Long service leave
• Paid public holidays
• Maternity leave
• Annual leave
• Occupational health and safety laws
• Workers' compensation

Late $19^{\text{th}}$ century legislation improved safety and conditions in key industries like mining and textiles.

International labour rights

First International (1864–1876) and Second International (1889–1916): Periodic gatherings of union representatives and political parties from around the world to promote improved workers' conditions.

International Labour Organization (ILO) ($1919$): Created following World War I as an agency of the League of Nations, based in Geneva. Its aims:

• Improve conditions for workers worldwide
• Develop conventions on working conditions and rights
• Became a UN agency after the League of Nations disbanded
• Continues its work today

Labour rights in international law

Universal Declaration of Human Rights:

• Article 23: Right to work, free choice of employment, just and favourable conditions, protection against unemployment, equal pay for equal work, just remuneration, and the right to form and join trade unions
• Article 24: Right to rest and leisure, reasonable working hours, and periodic paid holidays

International Covenant on Economic, Social and Cultural Rights (ICESCR) ($1966$): Further defined and sought to implement labour rights globally.

Universal suffrage

Definition and importance

Suffrage is the legal right to vote in democratic elections. Universal suffrage means this right extends to all citizens regardless of status, gender, race or creed.

Historical development of democracy

Democracy requires:

• Authority of government based on the will of the people
• Genuine periodic elections
• Constant checks and balances to remain free and healthy

Where democracy exists today, it has often been achieved through:

• Prolonged or bloody civil wars
• International intervention or assistance
• Independence from countries that themselves achieved democracy through such processes

Extension of male suffrage

Early democracies restricted voting to:

• Men only
• Those with higher status
• Property owners
• Certain backgrounds

United Kingdom progression

• $1832$: Vote extended to males renting land of certain value
• $1867$: All male householders
• $1884$: Males in the countryside (still only approximately $60\%$ of adult males)
• Representation of the People Act 1918 (UK): Extended vote to whole adult male population

Women's suffrage

Suffragettes were campaigners for women's right to vote, waging a long and difficult campaign in male-dominated democracies. The right to vote symbolised women's broader struggle for equality.

International timeline

• $1893$: New Zealand—first country to permit women equal voting rights
• $1894$: South Australia
• $1902$: Australian Commonwealth
• $1918$: UK—limited women's voting rights (after World War I)
• $1920$: US—$19^{\text{th}}$ Amendment
• $1928$: UK—women's rights made equal with men's

Racial barriers to suffrage

Race represented another barrier to voting rights, particularly in the Americas where social stigma attached to Native Americans and African-Americans.

United States

$15^{\text{th}}$ Amendment ($1870$): Following the American Civil War, extended voting rights to all adult males regardless of race, colour, or previous servitude.

New Zealand

Initially, property ownership requirements effectively excluded Māori voters. In $1867$, this requirement was removed, extending the vote across the male population and establishing Māori representation in parliament's lower house.

Australia

• Federation ($1901$): Indigenous peoples could vote if their state granted that right
• Some South Australian Aboriginal men and women voted for the first Commonwealth Parliament
• Later government interpretations and discriminatory state measures effectively denied Indigenous peoples the vote until $1962$
• $1962$: Commonwealth legislation ensured Indigenous peoples had the right to vote regardless of state laws (though not compulsory unlike other Australians)
• Constitutional referendum ($1967$): Gave Indigenous Australians equal status as citizens, including being counted in the census

Democracy in the modern world

Universal Declaration of Human Rights—Article 21: Recognises the right to vote as a universal human right, stating:

• Everyone has the right to participate in government
• The will of the people shall be the basis of government authority
• Elections must be periodic, genuine, universal, equal, and by secret vote

Growth of democracy

• $1900$: 10 democracies worldwide
• $1920$: 20 democracies
• $1939$: Declined to 12 (due to Nazism and fascism: authoritarian systems opposed to democracy)
• $1960$: 25 democracies
• $1980$: 30 democracies
• $1990$: 60 democracies
• $2000$: 75 democracies
• $2010$: 89 countries ($46\%$ of world population) classified as freely democratic; 47 countries ($34\%$ of population) still "not free"

Universal education

Historical context

Universal education means all human beings have a right to education. This concept only achieved wide acceptance relatively recently.

In early civilisations:

• Education was associated with wealth, power, or specific trades/religions
• Most people received informal education from families and communities
• Skills were learned through daily work or vocation

Development of writing and literacy

Writing systems allowed ideas and information to be passed across time and space, becoming associated with:

• Law
• Commerce
• Religion
• Civil administration

The church as educator

In Europe, the church initially took on the educational role, later superseded by the state.

Examples:

• Scotland ($1561$): Church of Scotland proposed a school teacher for every parish and free education for the poor
• Norway ($16^{\text{th}}$ century): Cathedral schools became Latin schools, mandatory for every market town; by $1736$, reading training was compulsory for all children
• England ($19^{\text{th}}$ century): Churches began "Sunday schools" providing free education in reading, writing, and arithmetic

State-provided education

By the mid-$1800$s in Europe, several factors drove government involvement in education:

• Increasing industrialisation demands
• Growing competition between countries
• Widening suffrage requiring literate populations
• Governments began funding and later administering schools

Key legislation

Britain:

• Education Act 1870 (UK): Established state involvement
• $1880$: Education made compulsory for children aged 5–10
• $1889$: Age raised to 12

France:

• $1880$: All children under 15 required to attend school, with free and secular public instruction

Australia:

• Public Instruction Act 1880 (NSW): Government took control of Church-run schools (except Catholic), making education free, secular, and compulsory
• First government school for Indigenous Australians created (fewer than 200 of 1500 eligible children attended initially)
• These schools later merged into the general public system

Current situation:

• Compulsory school attendance: ages 6–15 (varies by state)
• NSW ($2010$): School leaving age raised to 17
• Australian literacy rate: $99\%$

International recognition

By the $20^{\text{th}}$ century and World War II's end, free and compulsory education had:

• Spread throughout developed nations
• Become regarded as a desirable goal for all governments
• Been recognised as a basic human right

United Nations priorities: Education became a major focus of UN economic and social development programs.

Universal Declaration of Human Rights—Article 26:

• Everyone has right to education
• Education shall be free, at least at elementary and fundamental stages
• Elementary education shall be compulsory
• Technical and professional education made generally available
• Higher education equally accessible based on merit
• Education directed to full development of human personality
• Parents have prior right to choose children's education

Millennium Development Goals

$2001$: All UN member states agreed to improve social and economic conditions in the world's poorest countries.

Goal 2: All children worldwide will have minimum education up to end of primary level by $2015$.

Self-determination

Defining collective rights

Unlike individual rights (e.g. joining a trade union, receiving education), self-determination is a collective right—a right belonging to a group or people rather than individuals.

Historical struggles

Political self-determination has been fought for throughout history by peoples against various powers and regimes. It relates closely to democratic rights, involving consent of the people as the basis for sovereign states.

Self-determination became particularly important after European colonisation, where:

• People worldwide were placed under direct imperial control
• Colonial powers rarely considered the interests of colonised peoples
• Bloody conflicts arose globally against colonial rule (Africa, Americas, Asia, Middle East, Oceania)
• Europe itself experienced constant conflicts between groups seeking self-determination against imperial powers

Key historical moments

Early movements

• US Declaration of Independence ($1776$): Against British colonial rule
• French Revolution ($1789$–$1799$): Fought for self-determination rights in Europe
• Latin American independence wars ($18^{\text{th}}$ century onwards): Against European colonial rule

World Wars as catalysts

World Wars I and II pushed for international recognition of self-determination as a path to peace.

League of Nations ($1919$): Consolidated many new states following World War I but lacked US membership.

UN Charter ($1945$): Following World War II atrocities, established the first universal recognition of self-determination.

International legal recognition

UN Charter—Article $1(2)$: Calls for respect for the principle of equal rights and self-determination of peoples.

Universal Declaration of Human Rights—Article 15: Everyone has right to nationality; no one should be arbitrarily deprived of nationality or right to change it.

International Covenant on Economic, Social and Cultural Rights ($1966$, in force $1976$)—Article $1(1)$: Includes self-determination as its primary right, stating all peoples have the right to freely determine their political status and pursue their economic, social, and cultural development.

Decolonisation

Self-determination was one condition the US imposed on Allied forces before entering World War II.

UN Charter—Chapter 13: Provided for a Trusteeship Council to provide international supervision for transition of "trust territories" to self-government.

• Last trust territory: Palau (achieved independence $1994$)
• $1960$–$1993$: 53 territories became self-governing independent states
• Most recent UN member: Montenegro ($2006$)

Indigenous peoples' self-determination

Over 5000 different indigenous peoples exist worldwide, comprising over 300 million people in more than 70 countries.

Indigenous peoples have often been:

• Excluded from democratic processes
• Forcefully assimilated
• Economically exploited
• Generally oppressed

Declaration of the Rights of Indigenous Peoples ($2007$): After over 20 years of development, the UN adopted this non-binding declaration.

The Declaration is likely a significant stepping stone toward greater awareness and protection of the world's indigenous peoples, similar to how the UDHR became the foundation for international human rights law.

Environmental rights

Nature of environmental rights

Unlike individual or collective rights, environmental rights are argued to relate to many existing agreed rights. Supporters argue that rights to life, health, or property cannot be fully realised without the right to a healthy, safe, and adequate environment.

Regional recognition

African Charter on Human and Peoples' Rights ($1981$)

Article 23: All peoples have the right to a satisfactory environment favourable to their development. Adopted by 53 African states.

American Convention on Human Rights

Second Protocol ($1988$)—Article 11: Includes explicit right to healthy environment and obligation on state parties to protect, preserve, and improve the environment.

International environmental treaties

While no universal recognition of environmental rights exists, numerous treaties attempt to deal universally with specific environmental threats:

• Stockholm Declaration ($1972$)
• Rio Declaration ($1992$)
• Kyoto Protocol ($1997$)

These represent attempts to address:

• Global warming
• Spread of epidemics
• Marine pollution
• Ozone layer depletion
• Atmospheric pollution

Challenges

Peace rights

Historical context

For all human history until recently, war was generally seen as a legal and legitimate means of:

• Solving disputes
• Determining political control
• Determining economic control over territories and populations

League of Nations

Paris Peace Conference ($1919$): Following World War I, victorious countries met at Versailles, France.

Covenant of the League of Nations: First line stated purpose "to promote international co-operation and to achieve international peace and security."

The League ultimately failed, and World War II broke out, due largely to:

• Failure of the Treaty of Versailles
• Failure to achieve US membership

United Nations establishment

UN Charter (signed 26 June $1945$): After World War II, with US leading Allied Forces, explicitly made peace the primary UN purpose.

First line: Purpose "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind."

Article $1(1)$: Makes maintenance of peace primary purpose and gives power to take measures to prevent and remove threats to peace.

Declaration on the Right of Peoples to Peace ($1984$)

The UN General Assembly adopted this non-binding declaration, proclaiming all "peoples of our planet have a sacred right to peace."

State obligations: Promoting and implementing the right to peace is fundamental, with government policies directed toward:

• Elimination of threat of war, particularly nuclear war
• Renunciation of use of force in international relations
• Settlement of international disputes by peaceful means based on UN Charter

Balance with self-defence

In international law, the right to peace is balanced against the right of self-defence.

UN Charter—Article 51: States have inherent right of individual or collective self-defence if armed attack occurs.

UN Charter—Article 39: UN Security Council can authorise actions to maintain or restore peace if necessary.

Many wars have been considered legal on this basis.

Continuing conflicts

Despite these advances, war has not been eliminated. Major wars since UN Charter signing include:

• Korean War ($1950+$)
• Vietnam War ($1959$–$1975$)
• Iran–Iraq War ($1980$–$1988$)
• Persian Gulf War ($1990$–$1991$)
• Yugoslav Wars ($1991$–$1995$)

Ongoing conflicts (at publication time):

• Somali Civil War (since $1986$)
• War in Afghanistan (since $2001$)
• Iraq War (since $2003$)

Laws of war

Where states commence illegal wars, it's considered a breach of peace or "war of aggression." Where any war (legal or illegal) is conducted, all parties must comply with laws of war aiming to minimise effects on peace and community.

International Criminal Court (ICC, established $2002$): Has jurisdiction to try individuals for:

• Wars of aggression
• War crimes
• Other crimes against the international community

Although states are still discussing the definition of war of aggression, many prosecutions have been made for various war crimes.

Remember!