Human rights

What are human rights?

Human rights are the basic, universal freedoms and entitlements inherent to all human beings. Every person has human rights, simply by virtue of being human, and all human beings are entitled to enjoy and exercise their human rights equally and without distinction.

Human rights are inalienable, which means that a person cannot be deprived of their rights. Human rights can be violated, but this does not mean that they are “taken away”. Every human being has the same human rights – it is only the level of rights recognition that varies.

Human rights are indivisible, interdependent and interrelated. They complement and reinforce each other. Because of this, the enjoyment of any individual human rights is dependent on the enjoyment of all other human rights. For example, the right to privacy cannot be fully enjoyed unless the right to adequate housing is also protected; and protecting the rights to health and food helps to ensure that the right to life can also be enjoyed.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is the foundation of international human rights law. Proclaimed by the United Nations General Assembly in 1948, it was the first universal statement of the fundamental human rights to which all human beings are entitled.

The UDHR is not a legally-binding treaty – states cannot sign on to the UDHR and it cannot be enforced. Rather, it is an aspirational statement which aims to set “a common standard of achievement for all peoples and all nations.” Indeed, despite the fact that the UDHR is not legally enforceable, it a highly influential document and is widely regarded as the standard by which compliance with human rights principles should be measured. 

The rights outlined in the UDHR are given legal enforceability through the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These instruments elaborate on the principles outlined in the UDHR and contain further guidance for standards of implementation. The two Covenants and the UDHR are often collectively referred to as the International Bill of Rights.

The UDHR acknowledges the right to seek asylum as a fundamental human right. Article 14 of the UDHR states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

The text of the UDHR can be read here: www.un.org/en/documents/udhr

Core international human rights instruments

There are nine core international human rights instruments. These are:

• International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
• International Covenant on Civil and Political Rights (ICCPR)
• International Covenant on Economic, Social and Cultural Rights (ICESCR)
• Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
• Convention on the Rights of the Child (CRC or CROC)
• International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
• International Convention for the Protection of All Persons from Enforced Disappearance
• Convention on the Rights of Persons with Disabilities 

Each of the nine core treaties is overseen by a committee of experts which monitors the implementation of the treaty. States parties are required to submit periodic reports to the committees detailing their progress in implementing the treaty. The committees also hear and assess individual complaints.

Some of the treaties are supplemented with Optional Protocols (OPs) which deal with specific human rights issues. For example, the ICCPR has an OP on the abolition of the death penalty. Some treaties also have OPs which allow individuals to issue complaints to the monitoring committee if they feel their state has failed to uphold its obligations under the treaty.

Australia is party to seven of the nine core international human rights instruments and the OPs on the ICCPR, CEDAW and CROC. Australia is not currently party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, or the International Convention for the Protection of All Persons from Enforced Disappearance.

The text of the core international human rights instruments can be read here: www2.ohchr.org/english/law/index.htm

Committing to a human rights treaty

There a number of in the process of committing to a human rights treaty. First, a state will sign the treaty. Signing a treaty does not confer any legal obligations on a state, rather it signifies that the state agrees with the principles outlined in the treaty and is willing to take steps towards being bound by it in the future. The next stage is ratification, when the state agrees to be legally bound by the terms of a treaty. They are then referred to as a “state party” to the treaty and have a legal obligation to respect and uphold its provisions. States can also agree to be bound by the terms of a treaty immediately, without having first signed it. This is called accession.

States can also become parties to international treaties by succession. When one state replaces (or “succeeds”) another in the responsibility for the international relations of a territory, the new state can agree to be bound by any multilateral treaty which was ratified by the state it replaces.  For example, following the break up of Yugoslavia, which was a state party to the Refugee Convention, the former Yugoslav states all agreed to become parties to the Convention by succession.

States are permitted to make reservations against a treaty’s provisions, which allow states to qualify or limit their obligations under the treaty. States do not have a legal obligation to uphold provisions against which they have declared a reservation, even if they have ratified the treaty.

States may also withdraw from a treaty (denunciation), however this is very rare.