Today marks the 40th anniversary of the International Covenant on Civil and Political Rights (ICCPR) coming into force.
For the last four decades, the ICCPR, together with the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR), have formed the so-called “International Bill of Human Rights”, setting out those rights and freedoms declared to be enjoyed by all human beings around the world.
Positive and negative rights
Civil and political rights, such as those protected by the ICCPR, are often referred to as ‘first generation’ or ‘negative’ rights. Many people consider that these rights revolve around a ‘negative’ view of freedom, meaning that they concern a person being free from something. In particular, they focus on freedom from State interference with a person’s life.
This is in contrast to economic, social, and cultural rights, which are often referred to as ‘second generation’ or ‘positive’ rights. These are considered to be focused on making a person free to do something. Many people argue that these ‘positive’ rights are characterised by the fact that the State is required to take positive action to protect them. A popular example is the right to education, which may require the State to provide free public education to its population.
However, this simple distinction has been criticised. It has been pointed out that ‘negative’ rights may also require positive action on the part of a State to protect them. For example, a common example of a ‘negative’ right is the right to a fair trial. Such a right may not be protected without substantial State investment in the court system, including building courtrooms, paying judges’ salaries, organising court registries, funding legal aid programs, and so on.
The distinction between civil and political rights on the one hand, and economic, social, and cultural rights on the other, has also been criticised. In particular, the 1993 Vienna Declaration denied that there was a qualitative difference between the two generations of rights, saying instead that:
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
The phrase “indivisible, interdependent, and interrelated” has become an important description of the relationship between different human rights in the decades since the Vienna Declaration.
Rights in the ICCPR
The ICCPR covers a number of different rights. Amongst its most famous protections are:
- the right to life in Article 6;
- the freedom from torture, or cruel, inhuman, or degrading treatment or punishment in Article 7;
- the right to liberty and security in Article 9;
- the right to a fair trial in Article 14;
- the right to privacy in Article 17;
- the freedom of thought, conscience, and religion in Article 18;
- the freedom of expression in Article 19;
- the rights to assembly and association in Articles 21 and 22; and
- the right to equal protection of the law in Article 26.
The ICCPR also establishes the Human Rights Committee, which is the body tasked with reviewing countries’ compliance with their obligations under the treaty.
The Committee is also responsible for hearing complaints made by individuals about breaches of their ICCPR rights. However, this complaint mechanism requires the relevant country to have also ratified the Optional Protocol to the ICCPR. If the country has not ratified this Optional Protocol, then the Human Rights Committee does not have jurisdiction to hear a complaint from an individual in that country.
Australia has ratified the Optional Protocol, meaning that Australians can make complaints to the Human Rights Committee about breaches of their ICCPR rights, provided that the correct procedure is complied with. However, decisions by the Committee and non-binding, and a country can simply refuse to follow the Committee’s recommendations.
Famous Australian cases that have gone before the Committee include:
- The 1992 Toonen case, where a Tasmanian man complained that Tasmanian law interfered with his right to privacy by criminalising homosexual sex. The Committee upheld the man’s complaint, but the Tasmanian government refused to change the law. As a result, the Commonwealth government changed the federal law in an attempt to ban laws of the sort in Tasmania. In 1997, the Tasmanian government finally changed its laws.
- the 1993 A case, where a Cambodian asylum seeker alleged that the Australian government had breached his right to liberty by arbitrarily detaining him for four years. The Committee upheld the man’s complaint, but the Australian government rejected the Committee’s findings, and refused to compensate the man and his family. The family were eventually found to be genuine refugees, and were granted visas.
The ICCPR and the rule of law
Despite obvious differences between the Human Rights Committee’s non-binding complaints mechanism, and the binding force of an Australian court ruling, the ICCPR has still been a powerful force for upholding and improving the rule of law.
Its protection of key rights, like the right to a fair trial and the equal protection of the laws, and the freedoms of speech, assembly, and association, give it a persuasive influence on countries around the world to protect and defend key rule of law principles.
— William Shrubb
The International Bill of Rights, Australian Human Rights Commission
Rights and Freedoms: Right by Right, Australian Human Rights Commission