Australia And Human Rights: An Overview (4th Edition)

common law principles of due process and the writ of habeas corpus1. Such ideas wereeventually given clear expression in the 1689 Bill of Rights, with which the Englishphilosopher Locke was closely associated.It was the second half of the eighteenth century – in particular the Age of Enlightenment– that saw major developments in the commitment of European societies to the conceptof human rights. Building on political concepts such as the ‘law of nations’ propoundedby the Dutch jurist Grotius to demonstrate the secularisation of natural law, the ‘socialcontract’ of Rousseau and Montesquieu’s concept of the separation of powers, as well asthe writings of Locke, proponents of the theory of the rights of man fought to have thesephilosophical ideas protected in their societies.In the late 1700s, this movement had revolutionary consequences for both the Frenchmonarchy and the British colonies of North America. The philosophical debates about therights of man led to the promulgation of rules that were incorporated into the constituentdocuments of the newly emerged revolutionary States. In the American Declaration ofIndependence of 1776 one finds the famous lines:we take these truths to be self-evident, that all men are created equal, and thatthey are endowed by their Creator with certain unalienable Rights, that amongthese are Life, Liberty and the pursuit of Happiness.Article 1 of France’s 1789 Declaration of the Rights of Man and the Citizen echoes thesesentiments when it states that:all men are born and remain free and equal in their rights.Both the American and French declarations represent important steps in the evolution ofhuman rights. They reflect a systematic attempt to enshrine human rights as fundamentaland guiding principles for newly emerged nations. Inspired largely by individuals’struggles against arbitrary rule, the declarations sought to offer citizens ‘fundamentalfreedoms’ – basic guarantees against the arbitrary exercise of power by their State.These notions of the rights of man were far from universal: they applied only to thecitizens of States willing to proclaim and observe them, and even then excluded groupssuch as slaves, prisoners of war and stateless people. The principal tenet of international1Writs of habeas corpus are used to review the legality of a person’s arrest, imprisonment or detention.11

relations – national sovereignty – reigned supreme, as did the related assumption thatStates could treat their citizens as they wished, without interference.With the establishment of the League of Nations after the First World War, human rightswere further developed in the international sphere. While human rights were notexpressly mentioned in the Covenant of the League of Nations, the organisation soughtto protect the rights of two particular groups, namely minorities and inhabitants of thecolonies of the defeated powers. To be admitted to the league, states with ethnicminorities had to enter into minority protection treaties or similar guarantees,enforceable by other members. Similarly, the need to protect the inhabitants of coloniesled to the creation of the League’s mandate system, which was guided by the principlethat ‘the wellbeing and development of such peoples form a sacred trust of civilization’.(Australia was one of the League members to be granted mandates over the formerGerman colonies of New Guinea and Nauru).The League was also active in the protection of workers’ rights, with the goal of ‘fair andhumane conditions of labour for men, women and children’ expressly mentioned in theLeague’s Covenant. This objective was put into practice through the creation of theInternational Labour Organization (ILO) in 1919. The ILO has since been instrumental inpromoting and monitoring compliance with international labour standards (the work ofthe ILO is discussed further in Chapter 4).The horrors of the Second World War led to the birth of the modern human rightssystem, which ensured that human rights were a cornerstone of the new post-warinternational order. President Roosevelt’s proclamation in 1941 of the Four Freedoms(freedom of speech and expression, freedom of belief, freedom from fear, and freedomfrom want) as a universally applicable set of standards provided important groundworkfor this system.But it was the establishment of the United Nations in 1945, and the provisions of itsfounding document, the Charter of the United Nations, which ushered in a new period ofinternational concern for, and commitment to, human rights. In the second preambularparagraph of the UN Charter, this commitment is reflected in Members’ determination:to reaffirm faith in fundamental human rights, in the dignity and worth of thehuman person, in the equal rights of men and women and of nations large andsmall 12

In its emphasis on the universal rights of all people the UN Charter represented a majorshift from the League. The purposes of the United Nations articulated in article 1 of theUN Charter include:1(2) To develop friendly relations among nations based on respect for theprinciple of equal rights and self-determination of peoples, and to take otherappropriate measures to strengthen universal peace.1(3) To achieve international co-operation in solving international problems of aneconomic, social, cultural, or humanitarian character, and in promoting andencouraging respect for human rights and for fundamental freedoms for allwithout distinction as to race, sex, language or religion.The notion that universal human rights exist as a matter of international law, to beobserved by all governments, had far-reaching implications. States could no longer hidebehind the defence that the abuse of human rights was an internal affair, since humanrights were now firmly established as a matter of legitimate international concern.A fundamental element of the post-war human rights regime is the Universal Declarationof Human Rights (UDHR), adopted on 10 December 1948 (later designated as ‘HumanRights Day’). Although not a legally binding treaty, the UDHR establishes aninternationally recognised set of standards applicable to all persons without qualification.It is unique in that is represents a worldwide charter of rights, proclaiming universal andfundamental freedoms which transcend national, religious, cultural and ideologicalfactors. In this respect, it remains the most fundamental expression of internationalhuman rights standards.The UDHR provided the foundation for the International Covenant on Civil and PoliticalRights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights(ICESCR), as well as the subsequent development of other international human rightsstandards (see Chapter 3 for details on the main international human rights instruments).The role of the United Nations in the promotion and protection of human rights has beensignificant. The UN has been instrumental in the promotion of human rights through itsrole in the drafting of human rights instruments, its focus on human rights situationsthroughout the world, and the provision of capacity building and development programswhich support human rights.13

Some parameters of contemporary human rights practiceFirst, second and third generation human rightsThe rights proclaimed by the UDHR are often divided into two categories: civil andpolitical rights (articles 3 to 21) and economic, social and cultural rights (articles 22 to28). This distinction is reflected in the existence of two separate covenants, the ICCPRand the ICESCR.Civil and political rights are the basic rights from which the philosophy of human rightsdeveloped, namely the protection of the individual from the arbitrary exercise of powerby the State. These rights are sometimes referred to as ‘first generation rights’. Civiland political rights contain both ‘negative’ and ‘positive’ obligations. Negativeobligations require States to refrain from certain acts against the individual, with theresult that the individual has the freedom to pursue, within acceptable limits, theirinalienable human rights. To safeguard civil and political rights, States are also obliged toundertake many ‘positive’ acts, such as training police and judiciaries, or establishingappropriate organisations to support the achievement of human rights.The class of civil rights, set out in articles 3 to 18 of the UDHR, includes ‘physicalintegrity rights’ such as the right to life and the protection against torture, and ‘dueprocess rights’ such as the right to a fair trial, the presumption of innocence, and theright to legal representation.Political rights, enumerated in articles 19 to 21 of the UDHR, include freedom ofexpression, freedom of association and assembly, and the right to vote in free andgenuine elections by secret ballot.Economic, social and cultural rights are those rights concerned with the material,social and cultural welfare of persons. These rights are described as ‘positive’ or‘distributive’ rights, since States must act to ensure or enable the provision of socialgoods and services – such as housing, clothing, food, education and social security – forthese rights to be realised and enjoyed. Economic, social and cultural rights aresometimes called ‘second generation’ rights.In recent years, there have been various proponents of a ‘third generation’ of humanrights referred to as ‘group’ or ‘solidarity’ rights. Examples include the right to peace andthe right to the enjoyment of a healthy environment. There is no consensus amongstStates if these rights have any status in international law and Australia does not recognisesuch rights to be part of the current international human rights regime.14

The universality and indivisibility of human rightsFrom the time of the UN Charter, there has been debate about the universality andindivisibility of human rights. Views differ about the relevance of cultural, religious,economic and other factors to the practical observance of human rights.Australia considers all human rights to be universal. The UN Charter expresslyrecognises that human rights are universal in application and the UDHR is premised onthis same view (see in particular article 2), as are the later Covenants.At the first UN International Conference on Human Rights held in Tehran in 1968, morethan eighty-five countries accepted the view that:The Universal Declaration of Human Rights states a common understanding ofthe peoples of the world concerning the inalienable and inviolable rights of allmembers of the human family and constitutes an obligation for the members ofthe international community (Proclamation of Tehran, paragraph 2).A reaffirmation of the universality of human rights was made at the 1993 Vienna WorldConference on Human Rights, from which the Vienna Declaration and Program ofAction, adopted by consensus of the 171 States in attendance, confirmed:the solemn commitment of all States to fulfil their obligations to promoteuniversal respect for, and observance and protection of, all human rights andfundamental freedoms for all in accordance with the Charter, other instrumentsrelating to human rights, and international law. The universal nature of theserights and freedoms is beyond doubt (paragraph 1).Australia also considers human rights to be interrelated, interdependent and indivisible.That is, there is no hierarchy or priority of the rights enshrined in the UDHR, nor arethere preconditions imposed on the enjoyment of some of these rights. To quote againfrom the Vienna Declaration:All human rights are universal, indivisible and interdependent and interrelated.The international community must treat human rights globally in a fair and equalmanner, on the same footing, and with the same emphasis. While the significanceof national and regional particularities and various historical, cultural andreligious backgrounds must be borne in mind, it is the duty of States, regardless oftheir political, economic and cultural systems, to promote and protect all humanrights and fundamental freedoms (paragraph 5).15

Human rights and national sovereigntyThe international legal system is underpinned by the concept of State sovereignty andthe related prohibition against interference in the domestic affairs of States recognised inarticle 2(7) of the UN Charter. There is an inherent tension between these concepts andthe recognition by the international community that human rights, as inherent,inalienable and universal rights, are the concern of all.State practice in the post-war period makes clear that human rights are accepted as aninternational issue. Their promotion and protection are legitimate subjects for scrutinyand criticism by the international community. Indeed, articles 55 and 56 of the UNCharter – which require the UN to promote universal respect for, and observance of,human rights and fundamental freedoms, and for Member States to support this purpose– strengthen this position.It is increasingly rare to find States rejecting human rights representat

The Human Rights Manual provides information to the public on human rights issues and their contemporary legal framework. It also assists government officials to gain a firm grounding in human rights issues as they seek to protect and advance human rights around the world. Julie Bishop December 2017