Human Rights Explained: Fact sheet 5:The International Bill of Rights
Human Rights Explained
Fact sheet 5:The International Bill of Rights
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Download PDFAfter the end of World War II a series of conventions and declarations began
to articulate universal human rights.
A convention (sometimes called a covenant) is a binding treaty, coming into
force upon ratification by a certain number of States. Article 26 of the Vienna Convention on the Law of Treaties provides that: ‘Every treaty
in force is binding upon the parties to it and must be performed by them in good
faith’.
A declaration is not legally binding but carries moral
weight because it is adopted by the international community.
The United Nations was established, partly to continue the work of the
dissolved League of Nations, in response to proposals for the creation of a new
world body to monitor relations between States.
The United Nations is an international organisation representing the body of
States, established according to the United Nations Charter in
1945.1 One of the purposes of the
United Nations is to promote and encourage respect for human rights through
international co-operation.
There are currently one hundred and ninety two
member States. Each has one vote in the United Nation’s parliament, the
General Assembly [http://www.un.org/ga/].
What is known as the International Bill of Human Rights is made up of:
- Universal Declaration of Human Rights (1948)
- International Covenant on Civil and Political Rights (1966)
- International Covenant on Economic, Social and Cultural Rights
(1966) - Optional Protocol to the International Covenant on Civil and Political
Rights - Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights
Universal Declaration of Human Rights (UDHR)
In 1948 the United Nations General Assembly adopted the UDHR. This was the
first time that countries agreed on a comprehensive statement of inalienable
human rights. The UDHR is not a treaty, so it does not directly create legal
obligations for States. The Declaration has however, had a profound influence on
the development of international human rights law. It is argued that because
States have constantly invoked the Declaration over more than 50 years, it has
become binding as a part of customary international
law.2
On the same day that it adopted the UDHR, the United Nations General Assembly
asked its Commission on Human Rights to draft a covenant on human rights, which
could become a binding treaty. After six years of drafting and debate, in 1952
the General Assembly requested that the Commission on Human Rights draft two
covenants rather than one. The covenants, International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights were opened for signature in 1966 and entered into force in
1976.
For the rules on treaties coming into force go to: http://untreaty.un.org/ola-internet/Assistance/handbook_eng/chapter4.htm
International Covenant on Civil and Political Rights 1966
(ICCPR)
Civil and political rights include the right to freedom of
conscience and religion, the right to be free from torture, and the right to a
fair trial.
Most of these rights are not absolute. Instead they are subject to reasonable
limitations which are created for a legitimate purpose. For example, it may be
legitimate to limit a right in order to protect national security, public order
or the general welfare of a democratic society.
Some rights, such as the right not to be held in slavery and the right to be
free from torture are absolute. Article 4 of the ICCPR identifies absolute (or
non-derogable) rights which can not be infringed in any circumstances.
Australia agreed to be bound by the ICCPR on 13 August 1980, subject to
certain reservations.3 Article 2(2)
of the ICCPR requires Australia to take all necessary legislative and other
measures to give effect to the rights in the Convention. The ICCPR is scheduled
to the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act),
and the Australian Human Rights Commission is responsible for monitoring
Australia’s compliance with the ICCPR. 4
The ICCPR has two Optional
Protocols. An optional protocol supplements the original convention with
additional obligations.
Optional Protocol to the International Covenant on Civil and Political
Rights 1966
On 25 September 1991, Australia agreed to be bound by the
First Optional Protocol to the ICCPR. This means the United Nations Human Rights
Committee can hear complaints from individuals who allege that the Australian
Government has violated their rights under the ICCPR. However, the findings of
the Human Rights Committee are not enforceable. For examples refer to the case
studies.
Second Optional Protocol to the International Covenant on Civil and
Political Rights
On 2 October 1990, Australia agreed to be bound by
the Second Optional Protocol to the ICCPR. The purpose of this protocol is for
States to eliminate the death penalty.
International Covenant on Economic, Social and Cultural Rights 1966
(ICESCR)
Economic, social and cultural rights include the right to an
adequate standard of living, the right to education, the right to fair wages and
the right to safe working conditions.
Article 2(1) of the ICESCR requires States to take steps, including
legislative measures, to achieve the ‘progressive realisation’ of
ICESCR rights. This requires that States only demonstrate in good faith the
fulfilment of the rights over time within their capacities. For example, it is
assumed that where States have inadequate resources to ensure free education is
provided, they will work towards achieving this goal.
The United Nations Committee on Economic Social and Cultural Rights (the
CESCR) monitors compliance with the ICESCR and provides guidance on how
countries should interpret the
ICESCR.5
An increasing number of
countries, across all continents and legal systems, have incorporated judicial
review of economic, social and cultural rights. These include South Africa,
Finland, Argentina, Mauritius, Canada, Latvia, France, India, Bangladesh,
Nigeria, and most countries in Central and Eastern Europe.
On 10 December 1975, Australia agreed to be bound by the ICESCR. The ICESCR
does not, however, form part of Australia’s domestic law and is not
scheduled to, or declared under, the AHRC Act. However, the AHRC Act does give
the Aboriginal and Torres Strait Islander Social Justice Commissioner specific
statutory functions in relating to protecting and promoting the human rights of
Aboriginal persons and Torres Strait
Islanders.6 In the performance of
these functions the Social Justice Commissioner must have regard to a number of
international declarations and conventions, including the
ICESCR.7
Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights
This Optional Protocol was adopted by the United Nations General Assembly on
10 December 2008. It will be open for signature for State Parties to the ICESCR
from 24 September 2009.
There have been numerous other human rights treaties developed since 1966. A
list of the major human rights treaties is available at the Office of the High
Commissioner for Human Rights website [http://www.ohchr.org/EN].
[1] Article 1,
United Nations Charter available at
http://www.un.org/aboutun/charter/index.html.
[2] Henry J Steiner
and Philip Alston, International Human Rights in Context: Law, Politics,
Morals, (2nd ed), Oxford University Press, Oxford,
2000.
[3]For a list of Australia’s reservations, see http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html
[4]Since 1986, the Commission has had the powers to investigate
alleged violations of the ICCPR, although it has no power of penalty or
enforcement. The Commission also has other powers to monitor Australia’s
compliance with the ICCPR, including the power to examine whether federal
legislation complies with Australia’s obligations under the ICCPR. See Australian Human Rights Commission Act 1986 (Cth), s 11(1)(e) and s
11(1)(f).
[5] Committee for ESCR General Comment No. 03: The
Nature of States Parties Obligations, U.N. Doc HRI\GEN\1\Rev.1 at 45 (1994),
available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument
[6]Australian Human
Rights Commission Act 1986 (Cth) s46C(1).
[7]Australian Human
Rights Commission Act 1986 (Cth) s 46C(4)(a).
