Examine the formal statements of human rights, including the Universal Declaration of Human Rights, the International Covenants of 1966, and other key UN instruments

What this dot point is asking

NESA wants you to know the names, dates and content of the key international human rights instruments, the difference between a declaration and a treaty, and how Australia incorporates international obligations into domestic law. Expect a Section III 5-7 mark short answer or stimulus question.

The answer

The International Bill of Human Rights

The three foundational documents are collectively called the International Bill of Human Rights.

1. Universal Declaration of Human Rights 1948 (UDHR)

Proclaimed by the UN General Assembly on 10 December 1948. 30 articles covering civil, political, economic, social and cultural rights. Not a treaty, but many of its provisions are now considered customary international law and therefore binding on all states.

2. International Covenant on Civil and Political Rights 1966 (ICCPR)

Adopted 1966, entered into force 1976. Sets out civil and political rights (life, liberty, fair trial, freedom of expression, freedom of religion, prohibition on torture). Establishes the Human Rights Committee. Australia ratified the ICCPR in 1980. The First Optional Protocol allows individual communications to the Human Rights Committee; Australia acceded in 1991.

3. International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)

Adopted 1966, entered into force 1976. Sets out economic, social and cultural rights (work, social security, health, education, cultural life). Australia ratified the ICESCR in 1975.

Other key UN human rights treaties

• Convention on the Prevention and Punishment of the Crime of Genocide 1948. Australia ratified 1949.
• Geneva Conventions 1949 and Additional Protocols 1977. International humanitarian law in armed conflict. Australia ratified the Conventions in 1958.
• Convention Relating to the Status of Refugees 1951 and its 1967 Protocol. Australia ratified the Convention in 1954 and the Protocol in 1973.
• Convention on the Elimination of All Forms of Racial Discrimination 1965 (CERD). Australia ratified 1975; gives rise to the Racial Discrimination Act 1975 (Cth).
• Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW). Australia ratified 1983; gives rise to the Sex Discrimination Act 1984 (Cth).
• Convention Against Torture 1984. Australia ratified 1989. The Optional Protocol to the Convention Against Torture (OPCAT) was ratified by Australia in 2017.
• Convention on the Rights of the Child 1989. Australia ratified 1990.
• Convention on the Rights of Persons with Disabilities 2006. Australia ratified 2008; gives rise to the Disability Discrimination Act 1992 (Cth) as amended.
• United Nations Declaration on the Rights of Indigenous Peoples 2007. Australia endorsed in 2009.

Declarations vs treaties

A declaration (e.g. UDHR) is a non-binding statement of principle adopted by a UN body. It can become binding over time through customary international law.

A treaty (variously named covenant, convention, protocol) is a binding agreement between states under article 26 of the Vienna Convention on the Law of Treaties 1969 ("pacta sunt servanda"). States must comply once they ratify.

How Australia incorporates international obligations

Australia uses a dualist system. International treaties do not automatically have domestic legal effect. The Commonwealth Parliament must pass legislation to incorporate treaty obligations into Australian law. Examples:

• The Racial Discrimination Act 1975 (Cth) implements CERD.
• The Sex Discrimination Act 1984 (Cth) implements CEDAW.
• The Human Rights (Sexual Conduct) Act 1994 (Cth) was enacted in response to Toonen v Australia (1994) UN Human Rights Committee Communication No. 488/1992.

The High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 held that ratification of a treaty creates a legitimate expectation that government decision-makers will act consistently with it, though this principle has since been narrowed.

Australia's reservations and limitations

Australia entered reservations to several treaties, including a reservation to ICCPR article 20 (prohibition on propaganda for war and incitement to hatred), expressing concern that it would unduly restrict freedom of expression. Australia is also one of the few liberal democracies without a national bill of rights; rights are protected in patches by:

• the Constitution of the Commonwealth of Australia (express rights such as s 41, s 80, s 116, s 117);
• the implied freedom of political communication;
• statute (anti-discrimination Acts, the Privacy Act 1988 (Cth));
• the common law;
• state and territory human rights Acts: the Charter of Human Rights and Responsibilities Act 2006 (Vic), the Human Rights Act 2004 (ACT), the Human Rights Act 2019 (Qld).