← Unit 4: Human rights in legal contexts

QLDLegal StudiesSyllabus dot point

How did the modern human rights framework develop, and what are its key instruments?

the historical development of human rights, the Universal Declaration of Human Rights 1948, and the two International Covenants of 1966

A focused QCE Unit 4 answer to the development of modern human rights. Covers the UDHR 1948, the ICCPR and ICESCR 1966, the historic milestones (Magna Carta, US Bill of Rights, French Declaration), and Australia's ratifications.

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What this dot point is asking

QCAA wants you to know the historical milestones, the key instruments and the dates of their adoption. Expect a 3-5 mark short response in the EA or as background in an IA3.

The answer

Historic milestones

Modern human rights drew on philosophical and legal traditions across centuries:

  • Magna Carta 1215. Limits on monarchical authority, including the principle that no free person be imprisoned except by lawful judgement of peers.
  • Habeas Corpus Act 1679 (UK). Codified the right to challenge unlawful detention.
  • Bill of Rights 1689 (UK). Limits on royal power, including freedom of speech in Parliament.
  • United States Declaration of Independence 1776. "All men are created equal, that they are endowed by their Creator with certain unalienable Rights".
  • French Declaration of the Rights of Man and of the Citizen 1789. Article 1: "Men are born and remain free and equal in rights".
  • United States Bill of Rights 1791 (the first 10 amendments to the US Constitution).
  • Slavery Abolition Act 1833 (UK).

The League of Nations and the inter-war period

The Covenant of the League of Nations 1919 was the first effort at multilateral peace and security. It failed to prevent the Second World War. The International Labour Organization, founded in 1919 and later a UN specialised agency, developed international labour standards.

Post-World War II

The Charter of the United Nations 1945 (in force 24 October 1945) was the founding document of the UN. Article 1 lists the maintenance of international peace and security and the development of friendly relations between nations among its purposes. Article 55 commits members to the promotion of universal respect for human rights.

The atrocities of the Second World War, particularly the Holocaust, drove the codification of human rights in a single declaration.

The Universal Declaration of Human Rights 1948

The UDHR was proclaimed by the UN General Assembly on 10 December 1948 (Resolution 217 A (III)). 48 states voted in favour; none against; 8 abstained.

The UDHR has 30 articles covering:

  • civil and political rights (life, liberty, security; equality before the law; fair trial; freedom of expression, religion, assembly, movement);
  • economic, social and cultural rights (work, social security, education, health, cultural life).

The UDHR is a declaration, not a treaty. It does not bind states as treaty law. However, many of its provisions are now widely accepted as customary international law and therefore binding on all states.

The two 1966 Covenants

To translate the UDHR into binding treaty law, the UN General Assembly adopted two covenants in 1966 (both in force 1976).

International Covenant on Civil and Political Rights 1966 (ICCPR). Civil and political rights: life (article 6), prohibition on torture (article 7), liberty and security (article 9), fair trial (article 14), freedom of expression (article 19), peaceful assembly (article 21), participation in public affairs (article 25), prohibition on discrimination (article 26).

The First Optional Protocol allows individual communications to the Human Rights Committee. Australia ratified the ICCPR in 1980 and acceded to the First Optional Protocol in 1991. The Second Optional Protocol aims at the abolition of the death penalty; Australia ratified in 1990.

International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR). Economic, social and cultural rights: work (article 6), just conditions of work (article 7), social security (article 9), family life (article 10), adequate standard of living (article 11), health (article 12), education (article 13), cultural life (article 15).

Australia ratified the ICESCR in 1975.

The two Covenants and the UDHR are collectively called the International Bill of Human Rights.

Other key UN human rights treaties

  • Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Australia ratified 1949);
  • Convention Relating to the Status of Refugees 1951 and the 1967 Protocol;
  • Convention on the Elimination of All Forms of Racial Discrimination 1965 (Australia ratified 1975);
  • Convention on the Elimination of All Forms of Discrimination Against Women 1979 (Australia ratified 1983);
  • Convention Against Torture 1984 (Australia ratified 1989);
  • Convention on the Rights of the Child 1989 (Australia ratified 1990);
  • Convention on the Rights of Persons with Disabilities 2006 (Australia ratified 2008);
  • United Nations Declaration on the Rights of Indigenous Peoples 2007 (Australia endorsed 2009).

Dualism in Australian law

Australia operates a dualist system. International treaties do not automatically bind Australian domestic law. The Commonwealth Parliament must legislate to incorporate treaty obligations. Examples:

  • the Racial Discrimination Act 1975 (Cth) implements CERD;
  • the Sex Discrimination Act 1984 (Cth) implements CEDAW;
  • the Disability Discrimination Act 1992 (Cth) (in part) implements the CRPD;
  • 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.

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