chapter 7 the nature and development of human...

Chapter 7The nature and development of human rights

Chapter objectivesIn this chapter, students will:• define the concept of human rights• explain the origins of the modern concept of human rights• describe the achievements of the various movements for human rights• identify the various types of human rights that have developed over the last two centuries• locate the details of key human rights treaties• discuss the significance of the Universal Declaration of Human Rights (UDHR) for the postwar

development of international human rights law• communicate the main features of the UDHR, the International Covenant on Civil and Political Rights

(ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)• evaluate the effectiveness of the International Bill of Rights.

Key terms/vocabularyabolitionismcollective rightdebt slaveryFour Freedomshard lawhuman rightshuman traf� ckinginalienable rightIndustrial RevolutionInternational Bill of RightsInternational Covenant on Civil and Political Rights

(ICCPR)International Covenant on Economic, Social and

Cultural Rights (ICESCR)international customary lawInternational Labour Organization (ILO)labour rights

Magna Cartanatural lawnon-government organisations (NGOs)positivism ratify (rati� cation)right to peaceself-determinationslaverysoft lawsuffragesuffragettetrade uniontransatlantic slave tradeUniversal Declaration of Human Rights (UDHR)universal educationuniversal suffrage

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© Milgate et al. 2016 Cambridge University Press

Relevant law

IMPORTANT LEGISLATIONMagna Carta (1215)Constitution of the United States of America 1787

(US)Bill of Rights 1789 (US)Slave Trade Act 1807 (Great Britain)Slavery Abolition Act 1833 (Great Britain)Education Act 1870 (UK)Trade Unions Act 1871 (UK)Public Instruction Act 1880 (NSW)General Act of Brussels (1890)Representation of the People Act 1918 (UK)Treaty of Versailles (1919)Slavery Convention (1926)Charter of the United Nations (1945)

Universal Declaration of Human Rights (1948)International Covenant on Civil and Political Rights

(1966)International Covenant on Economic, Social and

Cultural Rights (1966)Stockholm Declaration (1972)African Charter on Human and Peoples’ Rights

(1981)Declaration on the Right of Peoples to Peace (1984)American Convention on Human Rights (1988)Rio Declaration (1992)Kyoto Protocol (1997)United Nations Declaration of the Rights of

Indigenous Peoples (2007)

SIGNIFICANT CASESR v Knowles; ex parte Somersett (1772) 20 State

Tr 1United States v Libellants and Claimants of the

Schooner Amistad 40 U.S. (15 Pet.) 518 (1841)

Legal oddityTowards the end of the 19th century, women in democratic countries began campaigning for the right to vote. In 1908 over 300 000 people took part in a march through London. To further draw attention to their cause, some women began committing acts of civil disobedience, such as chaining themselves to railings, smashing windows and even detonating bombs. More than one thousand women were sent to prison for public order offences, and many went on hunger strikes while imprisoned. In response, the British Government passed the Prisoners (Temporary Discharge for Ill Health) Act 1913, (also known as the Cat and Mouse Act), which meant that women whose health deteriorated due to hunger striking would be released from prison, but readmitted later to finish their sentence. This way, the government could not be blamed if the women died, and it also meant the released women would be too weak and ill to engage in further activities.



7.1 The definition of ‘human rights’

The Preamble to the Universal Declaration of

Human Rights (UDHR), adopted by the General Assembly of the United Nations (UN) in 1948, sets out the fundamental purpose for recognising human

rights. It states that ‘recognition of the inherent dignity of and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.

Universal Declaration of Human Rights (UDHR) a declaration of rights adopted by the UN in 1948; the first universal acceptance of the idea of human rights and the reference point of all subsequent human rights treaties. In 1948 the UDHR was hailed as being ‘a Magna Carta for all humanity.’

human rights in a general sense, basic rights and freedoms believed to belong to all human beings

inalienable right a right that cannot be taken away

The precise nature of human rights is not fixed, however, and is often the subject of debate. In a general sense, human rights refer to fundamental rights and freedoms that are believed to belong to all human beings. As stated in the UDHR, these rights differ from ordinary rights under domestic law in that they are considered to be universal, inalienable and inherent in all people. The UDHR is

the international declaration of these rights that has formed the basis for laws, constitutions, international treaties and ongoing international debate on human rights. It arose out of World War II and is the first internationally asserted declaration of human rights.

Human rights are a collection of fundamental standards, decided upon by the international community, for the treatment of individuals. They aim to protect individuals from injustice, allow people to achieve their full potential in society, and prevent discrimination against groups of people because of their physical characteristics or beliefs. Countries around the world are seen to have a moral and legal obligation to respect and uphold these rights.

The generic term ‘human rights’ is relatively new and has only come into use since the late 19th century. But the rights themselves have developed gradually over many centuries. They relate to theories of the law itself, such as ‘divine will’, natural

law and positivism. Historical sources include:• the laws of ancient civilisations in

Mesopotamia, Ancient Rome and India• philosophers and religious scholars• historical events/documents• major conflicts.

Today, the term is used in many different contexts and human rights have evolved into an essential ingredient of justice, occupying an important place in law, society and international relations.

natural law the theory that certain laws come from an unchanging ‘natural’ body of moral principles that are the basis for all human conduct, and so have validity everywhere

positivism the theory that laws are valid simply because they are enacted by authority or from existing decisions, and that moral considerations do not apply

Magna Carta a document signed in 1215 which recognised the principle that everyone, including the king, was subject to the law; 2015 was this historic document’s 800th anniversary

However, human rights continue to be violated in many countries around the world. This can make human rights a perplexing concept. It may seem odd to read about the various treaties and laws that protect human rights, while knowing that these same rights are often ignored or suppressed. Despite this, the concept of human rights is central

Figure 7.1 The Magna Carta was signed by King John in 1215. It has since been seen hailed as a symbol of the rule of law.

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to the operation of law in modern democratic societies and is an integral part of the international legal system.

7.2 The abolition of slavery

Universal Declaration of Human Rights – abolition of slaveryArticle 4No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Slavery is a type of forced labour in which a person is considered to be the legal property of another. For

most of human history, slavery was taken for granted and was considered integral to society and the economy. Slavery predates recorded history – it was common in antiquity and continued worldwide in various forms throughout the Middle Ages. Slavery was practised legally in many parts of the world until the 20th century.

In the ancient Mediterranean, the most common forms of slavery included debt slavery (being forced to pay a loan with labour rather than money), slavery as a punishment for crime, or prisoners of war committed to slavery. Children could be born into slavery and spend their entire lives as slaves, possibly paying off debts that were incurred generations earlier.

slavery a type of forced labour in which a person is considered to be the legal property of another

debt slavery slavery in order to pay off a loan with forced labour rather than money

Types of slavery differed around the world, but slavery was usually used as a way to fill certain roles in society for little or no cost, without needing to pay wages. Slaves were forced to carry out menial or labour-intensive jobs, in return receiving food and accommodation, in places where the structure of the modern welfare state did not exist. Some slaves were well educated and highly valued in their households, and occasionally could be awarded freedom (as freedmen). But in many instances slaves were mistreated and brutalised, and had no real legal rights and no means of escape. Laws generally treated slaves as objects, rather than as subjects of the law.

Moves to abolish slavery and slave trading in European cities and states began as early as the 12th century. Iceland, for example, officially abolished slavery in 1117. Although slavery of European citizens gradually became uncommon, slavery was still widely practised on the fringes of Europe and elsewhere in the world. As Europeans began to conquer the New World and their empires expanded, they required more and more resources to grow and support their new colonies. Slave labour was sought from newly discovered populations or races. European empires supported the use of slaves from new territories, but particularly from trade posts in Africa. Although the Roman Catholic Church prohibited the export

Figure 7.2 Many basic human rights are still violated, such as the right to seek asylum from persecution as stated in art 14 of the UDHR.

Review 7.1

1 How do human rights differ from ordinary rights under domestic law?

2 Identify five rights in the UDHR which are particularly relevant to Australia at this time.

3 Explain why respect for human rights is essential for the maintenance of a healthy democracy.

CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS

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of Christian slaves, it legitimised the use of non-Christian slaves in overseas territories.

Known as the transatlantic slave trade, this operated from the 17th century to the early 19th century – European ships would trade products for slaves in West Africa, where slavery was still widely practised, and carry the slaves to the New World colonies to grow and manufacture cash crops such as sugar. The profits would be returned to the European powers, and the trade cycle would continue. An estimated 12 million Africans were shipped from Africa to the Americas during this period, into often appalling conditions of slavery.

transatlantic slave trade the trading of African people by Europeans, who transported them as slaves from Africa to the colonies of the New World

However, as the horrors of the slave trade became known in Europe, a political movement aimed at abolishing it began. Known as abolitionism, the movement began in the 18th century and gradually grew. Rationalist thinkers began to criticise slavery as violating the rights of man, and evangelical Christians began to criticise it as ‘unchristian’. In Britain, slavery was ruled illegal in the common law of England in a 1772 judgement by the Court of King’s Bench in the case of Somersett (R v Knowles; ex parte Somersett (1772) 20 State Tr 1, which arose during a period when many African, Indian and East Asian slaves were being brought to England to work as servants. The judge, Lord Mansfield, held that slavery was no longer legal in England – but this did not affect slavery elsewhere in the British Empire.

abolitionism a worldwide political movement that sought to abolish slavery

Anti-slavery campaigns continued in Britain, led in particular by British politician and campaigner William Wilberforce, and exerted pressure on the British Government to end the trade in slaves in its overseas territories. Although fiercely opposed by those with interests in the trade, importation of slaves to the colonies was officially ended in the British Empire with the passing of the Slave Trade Act 1807 (UK). The United States followed in 1808.

However, it was not until the Slavery Abolition Act 1833 (UK) that slavery itself was abolished, and all

remaining slaves in the British Empire were freed the following year. Most European countries ceased exporting slaves in the following decades. Many countries in Latin America abolished it during the wars of independence from Spain (1810–22).

Following the 1776 US Declaration of Independence, the northern states began to abolish slavery. Although the declaration stated that ‘all men are created equal’, slavery continued in the southern states, where it was still a powerful social and economic institution, particularly in the agricultural industry. The US abolitionist movement campaigned vigorously against slavery and it became one of the main causes of the American Civil War (1861–65). By the start of that war, the slave population had grown to over four million. The then newly elected US president, Abraham Lincoln, was an abolitionist who, the southern states believed, threatened their way of life. All US slaves were freed by the end of the war in 1865, and slavery was abolished by the addition of the Thirteenth Amendment to the Constitution of the United States of America 1787 (US).

Figure 7.3 A postage stamp from the United Kingdom commemorating William Wilberforce (1759–1833) and his campaign against slavery, which led to its abolition in 1807




The abolitionist movement continued in the rest of the world, but by this stage there was agreement among many countries that slavery was no longer acceptable. In 1890, European countries met in Brussels, Belgium to sign the General Act of the Brussel’s Conference relating to the African Slave Trade. This was the first ever major collaboration of international states to abolish slavery and was aimed mainly at the slave trade in European protectorates in Africa. The next significant attempt was the Slavery Convention, a comprehensive international convention on abolishing slavery worldwide, passed in 1926 after the end of World War I by the League of Nations, the precursor to the UN.

After the end of World War II, the member states of the UN made a clear statement that slavery was prohibited, under art 4 of the UDHR. In some parts of Africa, Asia and the Islamic world, slavery persisted as a legal institution further into the 20th century,

Figure 7.4 A major cause of the American Civil War (1861–65) was the increasing difference in views on human rights issues between the slave-holding southern states and the non-slave-holding northern states.

In Court

The Amistad case 1841: United States v Libellants and Claimants of the Schooner Amistad 40 U.S. (15 Pet.) 518 (1841)This case was fought in the northeastern US state of Connecticut. The central issue was the fate of a group of slaves who mutinied on the ship La Amistad against slave-traders who had kidnapped them from Africa in order to sell them in the southern United States. The US Supreme Court was given the task of deciding whether the Africans should be freed or sent back into slavery. John Quincy Adams, former US President, acted as the slaves’ defence lawyer and argued for their freedom. The 1997 film by Steven Spielberg, Amistad, details the legal case.

Figure 7.5 Memorial to the Amistad case, set up in New Haven in 1992

Research 7.1

Read the above ‘In Court’ box, and either view the film Amistad or refer to http://cambridge.edu.au/redirect/?id=6254 and http://cambridge.edu.au/redirect/?id=6255 to complete the following tasks.1 What legal principles were contested in this case?2 In what court was this case finally decided and what was the outcome of this case?


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http://cambridge.edu.au/redirect/?id=6254



and later treaties addressed issues of ongoing slavery in more detail.

The last state to officially abolish slavery was Mauritania (West Africa) in 1981. However, despite centuries of anti-slavery efforts, slavery still occurs today, with an estimated 27 million people enslaved worldwide. Human trafficking, child labour, sexual slavery and forced labour are still serious issues around the world and new measures have begun to be taken to try to combat these forms of slavery. Slavery still exists, but its forms have changed. The issue of human trafficking is discussed in more detail in Chapter 9.

human trafficking the commercial trade or trafficking in human beings for the purpose of some form of slavery; usually recruiting, transporting or obtaining a person by force, coercion or deceptive means

7.3 Trade unionism and labour rights

Universal Declaration of Human Rights – labour and trade union rightsArticle 23(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.(2) Everyone, without any discrimination, has the right to equal pay for equal work.(3) Everyone who works has the right to just and favourable remuneration, ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.Article 24Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

As discussed, slavery was an institution of forced labour, where slaves were considered legal property of the owner (master), without legal rights of their own. As the world progressed and forced labour was made illegal, conventional labour was the only legal means of securing large groups of workers.

Employment law as we know it today is a relatively recent development. Rights to a minimum wage, safe working conditions or paid holidays were not recognised in older legal systems. Although much of the work carried out in ancient times was done by slaves, non-slave labour groups also existed. For example, recent archaeological evidence suggests that the Egyptian pyramids were not, as previously thought, constructed by slaves, but by craftsmen and farm hands who were given food and accommodation for three-month periods and possibly a small wage. In Rome, the purchase of slaves was probably the cheapest means of securing labour, but hired labour was also frequently used.

In early Europe, regulation of the workplace was more generally based on status. Some groups of labourers and craftsmen formed associations based on their trades, known as craft guilds. Serfs, who were agricultural labourers tied to the land, were the lowest but largest social class and in many ways resembled slaves. As serfdom diminished in England, there was some form of legislative regulation of labour and wages, but these laws were generally designed to compel labourers into work rather than to protect them.

In Europe, labour law as protection for workers, including demands for better conditions and the right to organise, arose with the Industrial Revolution and the introduction of mechanised manufacture. The Industrial Revolution, which occurred during the 18th and 19th centuries, began in the United Kingdom and spread to Europe, America, Australia and most of the rest of the world. Major changes in the fields of manufacture, agriculture and transport

Review 7.2

1 Describe the transatlantic slave trade.2 What was abolitionism and what impact

did it have on slavery?3 How was slavery progressively outlawed

from the mid-19th century?




redefined society and acted as the catalyst for changes to labour laws.

Industrial Revolution the rapid development of industry in the 18th and 19th centuries, characterised by changes in manufacturing, agriculture and transport

Trade unions first emerged during the Industrial Revolution in response to the appalling conditions, lack of safety, low wages and long working hours in the factories of the new industrial cities. Large numbers of employees in industry, particularly manufacturing, began to demand better working conditions and wages, while employers tended to deny improvements and keep wages low to decrease costs. It was only through action by all the workers in a factory that employers could be forced to improve conditions for workers. If all the workers went on strike, the employer would have to listen to their demands – they could not sack their entire workforce. For this reason, employers also sought to deny employees any right to organise.

trade union an organisation of workers created to preserve and further their rights and interests

The earliest trade unionists faced difficult conditions. Laws were created to criminalise workers’ involvement in trade unions and heavy penalties were applied. For example, in 1834 a group of farm labourers in Tolpuddle, England, formed a society to campaign for higher wages. Six of the leaders

were arrested and sentenced to transportation to Australia for seven years. They became known as the ‘Tolpuddle martyrs’. After many similar struggles, the first Trades Union Congress took place in 1868. By the time of the second congress, in 1869, the 40 representatives who attended represented over a quarter of a million workers in the United Kingdom.

Finally, the British Parliament passed – under pressure – the Trade Unions Act 1871 (UK), which secured the legal status of trade unions. Since then, trade unions have played an integral role in securing rights for workers in the United Kingdom. Similarly, in Australia the union movement developed from the 19th century. Due to harsh tactics employed by governments and employers to break large-scale strikes in the 1890s, the unions in Australia joined together to form their own political party, the Australian Labor Party (ALP).

Trade unions worked to ensure that fair wages and conditions were maintained, and many working conditions taken for granted today in industrialised countries came about due to union action (for example, minimum wages and working conditions, equal pay, long service leave, paid public holidays, maternity leave, annual leave, occupational health and safety laws, and workers’ compensation). A series of laws was passed in the late 19th century aimed at improving safety and working conditions in many of the prime industries, such as mining and textiles.

Late in the 19th century, associations of workers began to link up with similar organisations in other countries to protect workers’ rights internationally. The First International (1864–76) and the Second International (1889–1916) were gatherings of representatives of unions and political parties from around the world to urge improved conditions for workers.

In 1919, following the end of World War I, a group of pioneering scholars, social policy experts and politicians succeeded in creating the International

Labour Organization (ILO) to discuss social reforms and put them into practice. It was formed as an agency of the League of Nations, with its office in Geneva, Switzerland. The organisation’s aim was to improve conditions for workers around the world, and over time it has been responsible for many conventions on working conditions and rights. In addition to slavery, this was one of the few areas

Figure 7.6 Trade unions first emerged during the Industrial Revolution. Now they are an important feature of a democratic society.


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in which the League of Nations promoted modern human rights. After the League of Nations was disbanded, the ILO became an agency of the UN, and it continues its work today.

International Labour Organization (ILO) an international agency of the UN, created with the aim of improving conditions for workers around the world

Labour rights were finally enshrined in the UDHR under arts 23 and 24. Later treaties, such as the International Covenant on Economic, Social

and Cultural Rights (ICESCR) (1966), as well as the ongoing work of the ILO, have further defined those rights and sought to implement them around the world.

labour rights rights at work, including rights to safe working conditions, minimum wages, paid leave or to join a trade union

International Covenant on Economic, Social and Cultural Rights (ICESCR) the binding international treaty creating obligations on states to respect the economic, social and cultural rights of individuals

7.4 Universal suffrage

Universal Declaration of Human Rights – universal su�rageArticle 21.(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.(2) Everyone has the right of equal access to public service in his country.

(3) e will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal surage and shall be held by secret vote or by equivalent free voting procedures.

The theory of democracy, that the authority of government should be based on the will of the people as expressed through genuine periodic elections, is not a new concept; it can be traced back to ancient times. However, even where democracies have existed throughout history, the right to vote, known as suffrage, was usually restricted (for example, by status, gender, race, age, beliefs or nationality). The concept of universal suffrage is only a recent development in the world, but where it has been achieved, it is now considered an essential human right.

suffrage the legal right to vote in a democratic election

universal suffrage the right of all citizens to vote in political elections, regardless of status, gender, race or creed

The first modern countries to achieve democracy allowed only a limited number of men to vote, usually only those men with higher status – those who owned large amounts of property or came from certain backgrounds. 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.

Demands for suffrage for all males began in world democracies in the 19th century. For example, in the United Kingdom, rights for male voters were only gradually extended – to males who rented land of a certain value (1832), to all male householders (1867) and to males in the countryside (1884). However, this still represented only about 60% of the adult male population. It was not until the Representation of the People Act 1918 (UK) that the vote was extended to the whole adult male population.

Among democratic countries, pressure grew to extend voting rights to women. Women who campaigned for the right to vote were known as suffragettes. They waged a long and difficult campaign for the right to vote in democracies dominated by male interests. The right to vote

Review 7.3

1 Describe the reasons for the emergence of trade unions.

2 How did trade union movement give birth to the Australia Labor Party?

3 Outline the key rights and conditions that were due to the trade unions’ campaigns in the past.




regardless of gender was an important symbol of the struggle of women for equality in general. In 1893, New Zealand became the first country in the world to give women an equal right to vote. The Australian state of South Australia followed in 1894, with the Australian Commonwealth granting women’s suffrage in 1902. It was not until 1918, after the end of World War I, that the United Kingdom gave women a limited right to vote; this was not made equal with men’s rights until 1928. The United States passed the Nineteenth Amendment, allowing women to vote, in 1920.

suffragette a supporter of women’s right to vote (or women’s suffrage); the term was first used in Britain at the end of the 19th century

Apart from status and gender, race was another issue that conflicted with rights to vote. For example, in the Americas, social stigma was strongly attached to certain races, particularly native Americans and the African-American populations. In 1870 in the

United States, following the American Civil War, the right to vote was extended by the Fifteenth Amendment to all adult males, regardless of ‘race, color or previous condition of servitude’. In New Zealand, Maori voters were not expressly excluded from voting, but a requirement of property ownership effectively excluded them. In 1867, this requirement was removed, extending the vote across the male population. This legislation also established Maori representation in the lower house of parliament.

In Australia, Indigenous peoples had the right to vote since the time of Federation in 1901, if their state of residence granted them that right, and some South Australian Aboriginal men and women voted for the first Commonwealth Parliament. However, due to later interpretations by the government and discriminatory measures adopted by the states, Indigenous peoples were effectively denied the right to vote until 1962. In that year, the Commonwealth legislated to ensure that Indigenous peoples had the right to vote regardless of their state voting rights although, unlike other Australians, voting was not compulsory for them. A 1967 constitutional referendum finally gave Indigenous Australians the right to be counted in the Australian Census. The constitutional amendment became a symbol of public recognition of the rights of Indigenous Australians.

The right to vote was recognised as a universal human right in art 21 of the UDHR. By 2015, 89 countries, representing 46% of the world’s total population, were classified as democratic. However, 51 countries, representing 26% of the world’s population, were still classified as ‘not free’. The remaining 55 countries were ‘partly free’. The 1990s was a time of optimism about the spread of democracy. After the initial optimism of the Arab Spring in 2012, the tide may be turning against democracy with increased violence and chaos in various regions around the world, notably the Middle East.

Figure 7.7 Delegates to the April 1915 Womens’ Congress at The Hague. A key point that came out of this congress was that giving all women the vote in all countries would help prevent future wars.

Legal Links

Freedom House is an independent organisation established in 1941 to encourage democratic freedom around the world. The Freedom House website at http://cambridge.edu.au/redirect/?id=6256 has up-to-date statistics on the state of freedom in every country.


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7.5 Universal education

Universal Declaration of Human Rights – universal educationArticle 26(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Universal education is the idea that all human beings have a right to an education. This concept has only achieved wide acceptance in relatively recent history. Although today some type of education is compulsory for children in almost all countries, in early civilisations formal education was generally 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.

universal education free and compulsory education for all children

With the development and spread of writing systems, it became possible for ideas and information to be accurately passed on over time and space, and

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Figure 7.8 Growth of democracy since 1900

Review 7.4

1 Explain the importance of universal suffrage to a healthy democracy.2 Identify three major advances in the campaign for universal suffrage.3 Assess the extent to which the principle of the right to vote has been accepted by nations in the

world today.




writing became associated with law, commerce, religion and civil administration. But until recent times, illiteracy was still the norm in most of the world and formal schooling was only available to a select few. The push for universal education within individual countries did not really begin until the 19th century. There were some exceptions. For example, one Aztec tribe was one of the first communities in the world to have compulsory education for nearly all children, regardless of gender or rank – in the 14th to 16th centuries.

In Europe, the church was generally the first to take on the role as educator for all, and it was only much later superseded by the state. For example, in Scotland in 1561, the Church of Scotland put forward the principle of free education for the poor and a school teacher for every parish. In Norway in the 16th century, cathedral schools were turned into Latin schools (what we would call grammar schools) and made mandatory for every market town – later, in 1736, training in reading was made compulsory for all children. In England in the 19th century, churches began giving free education on Sundays, originally called ‘Sunday schools’. They were designed to teach students reading, writing and arithmetic. By the mid-1800s in Europe, the increasing demands of industrialisation, competition between countries and widening suffrage required a literate and educated population. European governments began providing funding for schools, and over time governments also administered these schools. In 1870, the British Parliament passed the Education Act 1870 (UK), and in 1880 education was made compulsory for all British children from the age of five to the age of 10; this was extended to 12 years in 1889. In France, by 1880 all children under the age of 15 were required to attend school, with free and secular public instruction.

Similarly, laws were passed in the Australian states to make education free and compulsory at primary level. In New South Wales, the Public Instruction Act 1880 (NSW) led to government taking control of all the church-run schools, except those run by the Catholic Church, and making education free, secular and compulsory. The first government school for Indigenous Australians was also created, but fewer than 200 out of 1500 eligible children were being taught. These schools were later merged into the general public system. Today, it is compulsory for all Australians to attend school from at least

the ages of six to 15; there are variations from state to state. From 2010, the school leaving age in New South Wales was raised to 17 years. The Australian population now has a 99% literacy rate.

By the 20th century and the end of World War II, free and compulsory education had spread throughout developed countries and was regarded as not only a desirable goal for all governments to pursue but also a basic human right. The UN made education a major priority of its economic and social development programs, and the right to free education for all human beings was included under art 26 of the UDHR, which goes on to state that children’s elementary (primary) education should be compulsory and be made widely available.

Although free and compulsory education is now available in almost all countries, there are still many children who for numerous reasons cannot access education. In 2001, all member states of the UN agreed to a series of Millennium Development Goals, which aimed to improve economic and social conditions in the poorest countries of the world. The second goal was for children everywhere to be able to complete a full course of primary schooling. By the end of 2015, the target date for achieving this goal, enrolment in primary education in developing regions had reached 91%.

Figure 7.9 The second Millenium Development Goal was for children everywhere to be able to complete a full course of primary schooling.


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7.6 Self-determination

Charter of the United Nations – self-determinationArticle 1 �e purposes of the United Nations are …(2) To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

International Covenant on Economic, Social and Cultural RightsAll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

The rights discussed so far have been rights of the individual, such as the right of an individual to join a trade union or the right to universal education. However, the right to self-determination differs from individual rights – it is a collective right, a right of a group or a people. The collective right to self-determination means that people of a territory or national grouping have the right to determine their own political status: the group has the right to choose how it will be governed without undue influence from another country.

self-determination the right of people to determine how they will be governed, or their political status based on territory or national grouping

collective right a right belonging to a group or a people, as opposed to an individual right

Political self-determination is something that has been fought for throughout history by peoples against various powers and regimes. It is closely related to democratic rights in that it involves the consent of the people as the basis for a sovereign state. Self-determination as a right became particularly important after world colonisation by European powers, where people around the world were placed under direct control of imperial powers, rarely if ever with their interests in mind. Over the centuries, bloody conflicts arose in Africa, the Americas, Asia, the Middle East and Oceania against colonial rule. Europe itself experienced constant conflict between groups wishing to exercise self-determination and ever-changing imperial powers.

The rise of self-determination as a right began perhaps most clearly with the 1776 US Declaration of Independence against British colonial rule. The right of self-determination was also fought for in Europe during the French Revolution of 1789–99, and in Latin America in the various wars of independence from the 18th century onwards against European colonial rule. However, it was World Wars I and II that truly began the push for international recognition of the right as a path to peace.

The 1919 establishment of the League of Nations was a consolidation of many of the new states that arose following World War I, but it lacked the membership of the United States. It was the establishment of the Charter of the United Nations (UN Charter) in 1945, following the atrocities of World War II, that led to the first universal recognition of the right to self-determination. Article 1(2) of the UN Charter calls for respect for the principle of self-determination, and is further strengthened by art 15 of the UDHR, which states that:

1. Everyone has a right to a nationality.

2. No one shall be arbitrarily deprived of his

nationality nor denied the right to change his

nationality.

The International Covenant on Social, Economic and Cultural Rights (ICSECR), adopted by the UN in 1966 and in force since 1976, includes self-determination as its primary right, under art 1(1).

Self-determination of peoples was one of the conditions the United States imposed on the Allied

Review 7.5

1 Describe what education was like in ancient societies.

2 Explain how universal education evolved in Europe.

3 How does the UN view education?




forces before entering World War II. Chapter 13 of the UN Charter later provided for a Trusteeship Council of the UN to provide international supervision for the transition of ‘trust’ territories to self-government after the end of World War II. The last trust territory was Palau, which achieved independence in 1994. Colonial powers were encouraged to oversee the independence of their territories in the best interests of the territories’ peoples. Between 1960 and 1993, 53 territories became self-governing independent states. The most recent country to be granted independence was South Sudan, which achieved UN membership in July 2011. It is a member of the UN, the African Union and the Intergovernmental Authority on Development. There are still many groups in the world claiming a desire to self-govern, and it is likely that more independent territories will be recognised in future years.

A more recent issue of self-determination is that of indigenous peoples. There are over 5000 indigenous peoples recognised in the world, made up of over 300 million people in more than 70 countries. In many countries, indigenous people have been regularly excluded from the democratic process, forcefully assimilated, economically exploited or generally oppressed. In 2007, the UN adopted the Declaration of the Rights of Indigenous Peoples. This declaration took over 20 years to complete and, as with the UDHR, it is a declaration non-binding on member states. Only four states rejected the declaration, of which Australia was one; however, a number of others abstained from voting. The Howard Coalition government, at the time, stated its reason for rejection as ‘there should only be one law for all Australians’. However, in April 2009, the Rudd Labor government formally endorsed the declaration on behalf of Australia.

East Timor exerted its right to self-determination when in 1999 the East Timorese people voted on whether they should be independent of Indonesia. The majority voted for independence and Timor-Leste was recognised a nation state by the UN in 2002. However, there are many groups in the world today who would like to exercise their right to self-determination but have failed to do so, such as the Palestinians, the Kurds and the people of Irian Jaya.

There is every indication that the declaration will be a significant stepping stone to greater awareness

and protection of the world’s indigenous peoples. As we know, the UDHR itself was only a declaration but, as we have learnt, it became the foundation for all international human rights law.

Figure 7.10 The people of East Timor exercised their right to self-determination in 1999 and East Timor became Timor-Leste in 2002.

Review 7.6

1 Explain the right to self-determination.2 Identify the milestones in the gradual

recognition of the right to self-determination.

3 Identify three groups in the world today who desire self-determination but have failed to achieve it.


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7.7 Environmental rights

African Charter on Human and People’s Rights – environmental rightsArticle 23All peoples shall have the right to a general satisfactory environment favourable to their development.

Second Protocol to the American Convention on Human RightsArticle 11 Right to a Healthy Environment(1) Everyone shall have the right to live in a healthy environment and to have access to basic public services.(2) e States Parties shall promote the protection, preservation, and improvement of the environment.

More recent discussions of human rights have been focused on the possibility of universally recognised environmental rights. Environmental rights are unlike individual rights, or even collective rights, but are argued to relate to many existing agreed rights. For example, the rights to life, health or property are already contained in human rights declarations, treaties and many other international agreements. Supporters of environmental rights argue that these rights cannot be fully realised without the right to a healthy, safe and adequate environment. This right

is said to relate not only to current generations but also to future generations.

Environmental rights have been recognised in some international agreements. For example, the African Charter on Human and Peoples’ Rights, which came into force in 1981 and has been adopted by 53 African states, includes the right to a satisfactory environment under art 23. Similarly, the American Convention on Human Rights, under the Organization of American States, includes in its second Protocol, which opened for signature in 1988, the explicit right to a healthy environment and the obligation of all state parties to protect, preserve and improve the environment.

Although there has been no universal recognition of environmental rights, there have been numerous treaties that attempt to deal universally with specific environmental threats. For example, the Stockholm Declaration (1972), the Rio Declaration (1992) and the Kyoto Protocol (1997) are all attempts by the international community to deal with environmental problems, such as global warming, the spread of epidemics, marine pollution, the depletion of the ozone layer and atmospheric pollution.

Again, one of the main problems in achieving progress in this area is the failure of all states to commit to measures to benefit the global community when they may seem to be to the short-term disadvantage of their national interest. This is particularly true of countries who rely heavily on environmentally damaging practices to support their economy. Yet failure to achieve global consensus on environmental issues could see dramatic deterioration in the rights and living standards of millions of people globally. The UN Climate Change Conference in December 2015 produced the Paris Agreement, a plan to stabilise global warming below 2°C above pre-industrial levels.

Another area in which environmental rights are being dealt with under international law is in the International Criminal Court (ICC). There are many examples in history where peoples’ environmental rights have been violated (for instance, with unscrupulous national leaders destroying the natural environment to achieve strategic goals in wartime). Australian lawyer Steven Freeland argues in his recent book, Addressing the Intentional Destruction of the Environment during Warfare, that the intentional destruction of the environment in wartime should be

Figure 7.11 Changes to our planet due to global warming will have impacts on the rights of the most vulnerable people first.




treated as an international crime and should be dealt with under the Rome Statute of the ICC.

7.8 Peace rights

Charter of the United Nations – peace and securityArticle 1 e purposes of the United Nations are:(1) To maintain international peace and security, and to that end: to take eective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace …

In 1919, the countries that emerged victorious from World War I held a peace conference at Versailles, France. This became known as the Paris Peace Conference. The parties to the conference produced the treaties that officially ended World War I, including the Treaty of Versailles, but also established for the first time in history a world body with the primary aim of preventing war: the League of Nations. The main purpose of the League of Nations was expressed in the first line of the Covenant of the League of Nations: ‘to promote international co-operation and to achieve international peace and security’.

Despite some successes, the League of Nations was unable to stop the military aggression of those major powers – Germany, Italy and Japan – and World War II broke out in 1939. In the aftermath of World War II, the UN was formed, with the United States leading the other Allied forces in joining. The Charter of the United Nations, signed on 26 June 1945, explicitly made maintaining peace the primary purpose of the UN, in art 1(1). The first line of the charter states its purpose as ‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind’. Article 1(1) of the charter also, most importantly, gives the UN the power to take measures to prevent and remove threats to peace.

These statements, in possibly the most significant agreement in history, effectively outlaw war, except in specific circumstances. They can be taken to declare the right of every state, and individuals within those states, to live in peace. Until the 20th century, there was no concept of a right to

peace in international law. In fact, for all of human history until recently, war was generally seen as a legal and legitimate means of solving disputes and determining political and economic control over territories and populations.

right to peace the right of citizens to expect their government to do all in its power to maintain peace and work towards the elimination of war

On 12 November 1984, the UN General Assembly adopted Resolution 39/11 titled the Declaration on the Right of Peoples to Peace with 92 votes in favour, none against, and 34 abstentions. Although as a declaration it is non-binding, it proclaimed that all ‘peoples of our planet have a sacred right to peace’.It also declared that promoting and implementing the right to peace is a fundamental obligation of states, and that government policies should be:

directed towards:

• elimination of the threat of war, particularly

nuclear war

• renunciation of the use of force in international

relations

• the settlement of international disputes by

peaceful means on the basis of the UN Charter.

Review 7.7

1 Explain how environmental rights are linked to other human rights.

2 Identify international measures that have been taken to protect environmental rights.

3 Describe how the ICC might become involved in enforcing environmental rights in the future.


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The establishment of the right of peace, plus an international body to oversee it, and international means to enforce it, is a worthy objective. Though the idea of a right to peace may seem extremely difficult to promote or enforce, there are many nation states in favour of giving greater clarity to this right under international law. Also, there is a continuing campaign, spearheaded by academics, lawyers and non-government organisations (NGOs), for acceptance of this right as an international norm. In 2013, the Human Rights Council passed Resolution 23/16 in support of the 1984 General Assembly resolution, with 30 votes to nine and eight abstentions. So it is apparent that, unlike the UDHR, the 1984 Declaration on the Right of Peoples to Peace does not have near-unanimous support. Nevertheless, there is a determination on the part of the proponents of peace rights to pursue their full acceptance as a norm under international law. In 2015, a Working Group was established by the Human Rights Council and tasked with finding a non-binding statement reflecting the international community’s consensus what a ‘right to peace’ implies.

non-government organisation (NGO) an independent non-profit group that often plays an important role in advocating, analysing and reporting on human rights worldwide

Despite the fact that the UN bodies are at a stalemate regarding the right to peace, civil society has taken up the cause. The theme of the International Day of Peace on 21 September 2014 was a commitment to reaffirming the 1984 Declaration on the Right of Peoples to Peace. Peace groups around the world looked back to this important resolution on this significant international day.

In international law, the right of peace is balanced against the right of self-defence. Article 51 of the UN Charter declares that states have a fundamental right to collective or individual self-defence if there is an armed attack against them, and under art 39 the UN Security Council can authorise actions to maintain or restore peace. Many wars have been considered legal on this basis. This right is often abused: the 2003 invasion of Iraq by the United States, the United Kingdom and allies was claimed by the parties to be legal under a resolution made by the Security Council under art 39 (Resolution 1441),

for example, yet the intention of that resolution and the legality of the invasion are still in dispute.

The right of peace, especially the Declaration on the Right of Peoples to Peace, makes it clear that peace for all people should be the paramount consideration. Legal or illegal, a war has tragic and catastrophic effects on individuals and communities. Where a state commences an illegal war, it is considered a breach of the peace, or a ‘war of aggression’. Where any war, legal or illegal, is conducted, all parties must comply with the various laws of war that aim to minimise the effect of war on peace and the community. The ICC, established in 2002, has jurisdiction to try individual people for war crimes and other crimes against the international community. Since a definition of the crime of ‘aggression’ was added to the Rome Statute after a review conference in Kapala, Uganda in 2010, it has become theoretically possible to hold individuals to account for acts of aggression. For more on the ICC, see Chapter 6.

Figure 7.12 Dr Zeny Edwards (fourth from the left), UN International Day of Peace Director, with some volunteers from the 2015 Day of Peace team in Sydney

Review 7.8

1 Explain the reasoning behind the right to peace.

2 List the rights contained in the Declaration on the Right of Peoples to Peace (1984). What is the status of this UN declaration?

3 Identify a legal mechanism designed to deal with violations of the right to peace.




chapter 7 the nature and development of human...

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