For over 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 since the Vienna Declaration.
Rights in the ICCPR: relationship between human rights and rule of law principles
The ICCPR covers a number of different rights including the inherent right to life (Article 6), freedom from torture, or cruel, inhuman, or degrading treatment or punishment (Article 7), the right to liberty of movement, freedom and choice of residence (Article 12) and the right to privacy (Article 17).
Looking beyond the framework of the ICCPR however, it must be understood that human rights cannot be protected in any country without a strong rule of law and the opposite is also true. There can be no rule of law within societies if human rights are not protected.
In Australia, there is no single document within which all human rights can be found. The rights that correspond with international treaties such as the ICCPR are drawn from different sources. These include various international treaties, the Australian Constitution, the common law and statute law of the Commonwealth, states and territories and importantly, rule of law principles.
The following ICCPR rights are drawn from rule of law principles which recognise the inherent value of each individual: (NB: Our emphasis added):
The right to liberty. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as established by law.
All persons shall be equal before the courts and tribunals and shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal.
Where charged with a criminal offence, the right to be presumed innocent until proven guilty according to law (14.2), to be tried without undue delay (14.3(c)) and not to be compelled to testify (14.3(g)).
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law at the time when it was committed.
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
UN Human Rights Committee
The ICCPR establishes the UN Human Rights Committee, which is the body tasked with reviewing countries’ compliance with their obligations under the treaty.
The Committee is 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 the correct procedure is complied with. However, decisions by the Committee are non-binding and while Australia has signed the treaty and has agreed to act in the spirit of it, the treaty is not directly binding, meaning Australia can theoretically 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 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.
Additional case studies can be found at: https://humanrights.gov.au/our-work/education/human-rights-explained-case-studies-complaints-about-australia-human-rights
Australia’s work with the UN over the years
The Universal Periodic Review (UPR) is a review that is conducted every five years of UN member states. Australia appeared before the UN Human Rights Council in Geneva on 20 January 2021. The UPR review of Australia’s human rights obligations in 2021 highlighted deficiencies surrounding its treatment of asylum seekers, refugees and indigenous people. Australia’s national laws, policies and strategies in those areas need to be investigated and reviewed and where necessary, revised.
Notwithstanding, Australia has a longstanding tradition of upholding and maintaining human rights laws, policies and strategies and rule of law principles. Australia was one of the founding members of the United Nations (UN) in 1945 and has been actively engaged in the organisation since its inception. On 16 October 2017, the United Nations General Assembly elected 15 new members to the UN Human Rights Council, including Australia for the first time.
While there is always going to be room for improvement, Australia currently ranks reasonably well on an international scale. The World Justice Project Rule of Law Index for example ranked Australia as 11th in the world and 2nd in the East Asia and Pacific region
Relationship between ICCPR, human rights and the Australian Constitution
The Australian Constitution provides a framework within which Australians are guaranteed certain fundamental rights and freedoms and importantly, a system in which Parliament can make laws to uphold and protect human rights.
Australia’s system of government and longstanding tradition of advocating for and protecting human rights and rule of law principles is reflected in the Australian Constitution.
The Constitution protects human rights in two significant ways:
- it creates a robust system of checks and balances through which human rights are protected, including the separation of powers and the division of powers
- it is the source of some specific human rights.
Any attempts to erode concepts such as equality before the law, judicial independence, presumption of innocence, access to justice or freedom of speech must be taken seriously.
Human rights by their very nature are universal, indivisible, interdependent and interrelated, which means that any breaches of rule of law principles are bound to have adverse effects upon other human rights.
The ICCPR is an internationally significant treaty and countries such as Australia should take it into consideration when seeking to protect the human rights of its citizens. The rights and obligations set out in international treaties such as the ICCPR are most often incorporated into Australian law in some way. Parliament passes legislation that mirrors the words of international treaties and/or can amend existing laws and in doing so, can create enforceable obligations.
The ICCPR continues to promulgate the enjoyment of civil and political rights internationally, but it also serves as an influential guide for every Australian citizen.
Beyond the particular wording of the ICCPR, it is important for every Australian to be aware of human rights principles and to seek to uphold and protect them in their day to day life. Human rights are recognised and protected in Australia through federal and state laws, policies and procedures and the overarching framework of the Constitution. In addition, non-government organisations (NGOs) often play an important role in advocating, analysing and reporting on human rights worldwide and advocating for government action where areas for improvement are identified.
It is our job as Australians to encourage those who represent us in Parliament to make laws that are consistent with human rights and the rule of law. Human rights are the cornerstone of our democratic society and recognise the inherent value of each and every Australian citizen.