Formal statements of human rights: UDHR, ICCPR, ICESCR and the core treaties: HSC Legal Studies

What this dot point is asking

The syllabus names three "formal statements of human rights": the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. You need to examine major human rights documents and explain their contribution to the development of human rights. Examiners expect precise knowledge of what each document contains, whether it is binding, how it is monitored and how it has influenced law, especially in Australia.

These documents are also your evidence base for the rest of the topic. Every extended response on promoting and enforcing human rights or on a contemporary issue should cite the relevant article.

The answer

The Universal Declaration of Human Rights (1948)

The UDHR was drafted by the UN Commission on Human Rights, chaired by Eleanor Roosevelt, and adopted by the General Assembly on 10 December 1948 (now Human Rights Day). Its 30 articles cover:

• Civil and political rights: life, liberty and security (article 3), freedom from slavery (article 4) and torture (article 5), equality before the law (article 7), fair trial (articles 10 and 11), privacy (article 12), asylum (article 14), thought, conscience and religion (article 18), expression (article 19), assembly (article 20) and participation in government (article 21).
• Economic, social and cultural rights: social security (article 22), work and fair pay and trade unions (article 23), rest and leisure (article 24), an adequate standard of living including housing and health care (article 25), and education (article 26).

Legal status. The UDHR is a General Assembly resolution, so it is not binding as a treaty. However, many of its provisions are now regarded as customary international law, it is cited in national constitutions and court decisions, and it is the standard against which every UN member is assessed in the Universal Periodic Review of the Human Rights Council.

The International Covenant on Civil and Political Rights (1966)

The ICCPR turns the UDHR's civil and political rights into binding obligations. It was adopted in 1966, entered into force in 1976 and was ratified by Australia in 1980.

• Key rights: self-determination (article 1), life (article 6), freedom from torture (article 7), from slavery (article 8), and from arbitrary detention (article 9), humane treatment in detention (article 10), fair trial and presumption of innocence (article 14), privacy (article 17), thought and religion (article 18), expression (article 19), assembly (article 21), association (article 22), participation (article 25), equality (article 26) and minority rights to culture (article 27).
• Obligation: immediate. States must respect and ensure the rights and provide effective remedies (article 2).
• Derogation: in a public emergency some rights can be suspended, but non-derogable rights, such as life and freedom from torture and slavery, cannot (article 4).
• Monitoring: the Human Rights Committee, 18 independent experts, reviews state reports and issues "views" on individual complaints under the First Optional Protocol, which Australia accepted in 1991. The Second Optional Protocol (abolition of the death penalty) was ratified by Australia in 1990.

Australian example. In Toonen v Australia (1994), the Human Rights Committee found that Tasmania's criminal laws against sex between men violated the right to privacy (article 17). The Commonwealth passed the Human Rights (Sexual Conduct) Act 1994 and Tasmania repealed the laws in 1997, showing how the complaint mechanism can drive domestic reform even though views are not legally binding.

The International Covenant on Economic, Social and Cultural Rights (1966)

The ICESCR binds states to economic, social and cultural rights. Australia ratified it in 1975.

• Key rights: self-determination (article 1), non-discrimination (article 2(2)), equal rights of men and women (article 3), work (article 6), just and favourable conditions including fair wages and safe work (article 7), trade unions and the right to strike (article 8), social security (article 9), protection of the family (article 10), an adequate standard of living including food, clothing and housing (article 11), health (article 12), education (articles 13 and 14) and cultural life (article 15).
• Obligation: progressive realisation to the maximum of available resources (article 2(1)), recognising that rights such as housing and health cost money. States must still meet minimum core obligations and must not discriminate.
• Monitoring: the Committee on Economic, Social and Cultural Rights reviews state reports. An Optional Protocol (2008) allows individual complaints, but Australia has not ratified it.

Declarations versus treaties

Declarations often come first and later become treaties or customary law. This pattern (declaration, then treaty, then domestic legislation) is the clearest way to explain how human rights have "developed" through formal statements.

Other core treaties Australia has ratified

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires every new federal bill to be accompanied by a statement of compatibility with seven core treaties (ICCPR, ICESCR, CERD, CEDAW, CAT, CRC and CRPD), which the Parliamentary Joint Committee on Human Rights examines.

How the documents contribute to the development of human rights

1. Setting universal standards. For the first time, rights were stated as belonging to everyone rather than to citizens of particular states.
2. Moving from principle to obligation. The UDHR's principles became binding through the covenants and specialised treaties.
3. Creating monitoring and complaint mechanisms. Treaty bodies, individual complaints and the Universal Periodic Review expose violations and pressure states.
4. Driving domestic law reform. In Australia, CERD produced the Racial Discrimination Act; CEDAW, the Sex Discrimination Act; Toonen, decriminalisation in Tasmania.
5. Providing a shared language. NGOs, media and courts use treaty articles to frame advocacy and arguments.

How Australia incorporates the instruments

Australia is a dualist state: ratifying a treaty binds Australia internationally but does not change domestic law until Parliament legislates. The Commonwealth relies mainly on the external affairs power (s 51(xxix) of the Constitution); in Koowarta v Bjelke-Petersen (1982) the High Court upheld the Racial Discrimination Act on this basis, and in Commonwealth v Tasmania (1983) (the Tasmanian Dam case) it confirmed the power supports laws implementing treaty obligations.

Unincorporated treaties can still influence the law. Courts prefer interpretations of ambiguous statutes that are consistent with Australia's obligations, and in Dietrich v The Queen (1992) the High Court referred to article 14 of the ICCPR while confirming it was not directly enforceable. In Minister for Immigration and Ethnic Affairs v Teoh (1995) the High Court suggested ratification could create a legitimate expectation that decision makers would act consistently with a treaty, but later decisions have largely confined that idea.

Limits of the formal statements

• Declarations are not binding, and treaties bind only states that ratify them.
• Reservations let states limit their obligations.
• No direct enforcement: treaty body views are recommendations. Australia has not implemented many Human Rights Committee views about immigration detention.
• State sovereignty decides whether rights are incorporated. In October 2022 the UN Subcommittee on Prevention of Torture suspended its visit to Australia after being refused access to some places of detention, despite Australia having ratified the Optional Protocol to the Convention against Torture in 2017.
• Progressive realisation allows states to delay economic and social rights by pointing to limited resources.

In one sentence

The UDHR set a universal standard of rights in 1948, the ICCPR and ICESCR made those rights binding in 1966, and specialised treaties extended protection to particular groups, contributing to the development of human rights by setting standards, creating monitoring and driving domestic law reform, although Australia's dualist system means they only bind domestically once legislated.

Try this

Q1. Outline the difference between a declaration and a treaty, using an example of each. (3 marks)

• What the marker wants. Binding force, how each is made, and one accurate example of each.

Q2. Explain how the ICCPR has influenced human rights in Australia. (5 marks)

• What the marker wants. Ratification and optional protocol, Toonen and its consequences, the Parliamentary Scrutiny Act, and a limit (not directly enforceable).

Q3. Assess the contribution of formal statements of human rights to the protection of economic, social and cultural rights. (7 marks)

• What the marker wants. UDHR articles 22 to 26, ICESCR content and progressive realisation, the complaints protocol Australia has not ratified, and a judgement.