Chapter 2: The international human rights framework
Te whare tika tangata o te ao

1. Introduction – Timatatanga

What are human rights?

Human rights are said to be inherent, inalienable and universal. They are inherent, in that they belong to everyone because of their common humanity. They are inalienable, in that people cannot give them up or be deprived of them by governments. They are universal, in that they apply regardless of distinctions such as race, sex, language or religion. Human rights govern how individual human beings live in society and with each other, as well as their relationship with the State and the obligations that the State has towards them. Human rights aim to recognise and protect the dignity of all human beings whatever their status or condition in life (Ministry of Foreign Affairs & Trade (MFAT), 2003).

Most of the world’s major philosophies, religions and cultures have recognised similar concepts in one form or another for centuries, but it took the atrocities that occurred during World War II to galvanise the international community into developing common standards and processes for the protection of human rights. In 1945 the United Nations developed a Charter based on the precedents included in the Nuremburg Judgement (Steiner & Alston, 2000). The Charter’s primary purpose was to establish a system for ensuring global peace and security that included ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’ (Article1, para.3). Although the Charter did not specifically refer to it, the idea of promulgating a Bill of Rights was considered inherent in the document and provided the impetus for the Universal Declaration of Human Rights (‘the Declaration’).

The Universal Declaration of Human Rights

The Declaration, which extended earlier initiatives such as those of the International Labour Organisation (ILO), [2] marks the beginning of the transformation of human rights from moral or philosophical imperatives into rights that are legally recognised on an international and, increasingly, national level (Mulgan, 1994). New Zealand played a significant role in the debate that led to the adoption of the Declaration by a Resolution of the General Assembly of the United Nations on 10 December 1948 (MFAT, 2003).

The Declaration consists of a preamble and 30 articles. It has been described as a statement of principles that provide ‘a common standard of achievement for all peoples and all nations’ (Eleanor Roosevelt, 1948). Today, many of the rights elaborated in the Declaration over half a century ago are regarded as having achieved the status of customary international law (MFAT, 2003).

The Declaration not only creates duties for States, but makes it clear that individuals too, have responsibilities. In international human rights standards (International Council on Human Rights Policy, 1999), we find three kinds of duties that apply to individuals:

• the duty of individuals vested with State authority to respect, promote and protect human rights
• the duty of individuals to exercise their rights responsibly
• more general duties of individuals to others and their community.

Article 29 specifically states that ‘everyone has duties to the community in which alone the free and full development of his personality is possible.’

The rights in the Declaration fall roughly into two categories. The first consists of civil and political rights, such as freedom of opinion and expression and the right to justice. These are often recognised by States in Constitutions or laws such as Bills of Rights. The second comprises economic, cultural and social rights, such as the right to work, or to ‘a reasonable standard of living’.

2. International treaties – Ngā whakaritenga taumata o te ao

In order to give the standards in the Declaration legal force, two major covenants were developed in the years following its adoption. One deals with civil and political rights – the International Covenant on Civil and Political Rights (ICCPR) – and the other with economic, social and cultural rights – the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both were adopted by a special resolution of the UN General Assembly in 1966 and came into effect when the necessary number of countries had ratified them in 1976. The two covenants and the Declaration are often referred to as the International Bill of Rights.

The concepts in the Declaration have been further refined in a series of specialist treaties or conventions that address matters of concern to particular groups such as women and children. As with the two major covenants, these conventions are binding on the States that ratify them. The other major treaties are the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (UNCROC). Some of these instruments are supplemented by Optional Protocols that allow individuals to take complaints to the relevant UN body after they have exhausted their domestic remedies.

As well as the covenants and conventions, there are a large number of United Nations resolutions or declarations that, while not binding in the same way as treaties, nevertheless establish standards of behaviour and practice with which States are expected to comply. Such resolutions can acquire significant status as a result of their moral force and specific application. This is particularly the case with instruments that relate to groups who are not the subject of a specific convention. For example, there is as yet no convention dealing with the rights of disabled people. Resolutions such as the Standard Rules for the Equalisation of Opportunities for Persons with Disabilities and the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care are therefore extremely important in establishing standards of care and promoting equality of opportunity.

The process of ratification

International instruments are developed by a process of negotiation among United Nations member States to produce a set of standards acceptable to all of them. Individual States then decide whether to accede to, or ratify, a treaty.

Ratification is acceptance by a State that it will be bound by the terms of a treaty and will guarantee their implementation to its people. In ratifying an instrument a State recognises the international law and accepts an obligation to respect, protect, promote and fulfil the rights in a treaty. The duty to respect a right requires the State to refrain from carrying out any actions which violate it. The duty to protect requires action by the State to prevent violation by others. The duty to promote means a State should raise awareness of the right. The duty to fulfil requires the State to take steps to ensure the full realisation of the right.

States approach ratification differently. Some ratify with the intention of working towards implementing the objectives and standards of the documents. Others, including New Zealand, ratify only when their laws substantially comply with the instrument.

In New Zealand, the power to enter into a treaty traditionally rested exclusively with the Executive, on behalf of the Crown, but now increasingly involves Parliament. Treaties are tabled in Parliament before ratification or accession. Parliament then refers them to a Select Committee for further consideration (MFAT, 2003). The fact that there is so little knowledge about the purpose and content of most treaties may be attributable to the lack of public involvement in the process.

Many countries, however, will not feel able to bring their domestic legislation into line with all the articles in a particular convention or covenant. Rather than allowing this to prevent ratification of the instrument in its entirety, a State can register a unilateral reservation ‘…whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State’ (Vienna Convention on the Law of Treaties, 1969).

A reservation cannot be registered against an essential (or non-derogable) provision of a treaty, since this would defeat the purpose of ratifying it in the first place (OHCHR, 1994). Countries such as New Zealand, which postpone ratification until their domestic legislation is principally compliant with the treaty in question, tend to seek few reservations.

International accountability and reporting procedures

National sovereignty is now no longer perceived to be entirely unfettered: a State’s treatment of its citizens has become the subject of legitimate enquiry and, increasingly, justifiable intervention by the international community (MFAT, 2003). One means by which this is achieved is through the reporting procedures provided for in some human rights treaties.

These treaties do not include machinery for enforcement by way of penalties. Instead, the treaties generally provide for international review and reports by a United Nations committee of experts. A State’s non-compliance with its international commitments can thus attract the censure of the United Nations. The committee’s reports also provide a measure of how well a country is observing its international obligations.

The ICCPR, in particular, guarantees in Article 3(a) that a person is entitled to an effective remedy for a violation of the rights and freedoms in the ICCPR. An Optional Protocol to ICCPR allows individuals to complain directly to the UN Human Rights Committee about a rights violation if they have exhausted all their domestic options for remedy. The ICESCR, however, does not have a provision like Article 3(a), although procedures (such as taking cases to the courts and the State’s reporting procedure) have been developed to address violations of social and economic rights in many countries.

The International Covenant on Civil and Political Rights

Civil and political rights are considered to be absolute and to take effect as soon as a State ratifies the Covenant. The rights apply equally and without discrimination. The obligations to ensure equality and non-discrimination are described as non-derogable. That is, once a State ratifies the covenant it cannot deviate from them under any circumstances.

The obligations under the ICCPR can be limited in two ways only:

• Article 4 permits temporary derogation in situations of public emergency that threaten the life of the nation. Such limitations are permitted only ‘to the extent strictly required by the exigencies of the situation’. For example, in some closely defined circumstances Article 9, relating to arrest and detention, may not apply.
• Some of the articles include limitation clauses. For example, Article 19 (which relates to freedom of expression) allows legal restrictions if they are to protect the rights or reputations of others, in situations of public emergency, and if they are prescribed by law.

The International Covenant on Economic Social and Cultural Rights

The covenant is divided into five parts. Part I (like Part I of the ICCPR) recognises the right of peoples to self-determination; Part II defines the nature of States’ obligations; Part III lists the substantive rights (which essentially fall into three groups: the right to work in just and favourable conditions; the right to social protection, to an adequate standard of living and to the highest attainable standards of physical and mental health; and the right to education and to enjoyment of the benefits of cultural freedom and scientific progress); Part IV deals with international implementation; and Part V contains the typical final provisions of a human rights treaty.

The differences between the ICESCR and the ICCPR can be seen most clearly in Part II, which outlines the obligations of ratifying States. Article 2, in particular, sets out the extent of commitment expected. Thus Article 2(2) – as with the ICCPR – requires the rights in the covenant to be provided equally and on a non-discriminatory basis, while Article 2(3) permits developing countries to determine the extent of their commitment to providing economic rights to non-citizens.

Article 2(1), however, contains two significant qualifications. These are the concept of progressive realisation and the recognition of finite resources. Given the potential cost, compliance with the substantive rights is expected to happen incrementally or, to use the language of the Covenant, ‘progressively’, depending on the resources available and the competing claims and priorities on those resources (Alston & Quinn, 1987). To avoid this being used as reason for non-compliance, States must demonstrate that they have made every effort to use the resources at their disposal to satisfy at least the minimum or core obligations as a matter of priority. What a State cannot do is commit itself to the covenant and then indefinitely delay taking any steps towards meeting the commitments it has assumed.

The complexity of the economic and social rights can make it difficult to determine whether a State is meeting even its minimum commitments. For example, the right to health is not limited simply to appropriate healthcare but also covers the underlying determinants of health such as safe working conditions and adequate food and shelter (Hunt, Osami, & Nowak, 2004). The Economic and Social Council (ECOSOC), which is responsible for monitoring the ICESCR, has endeavoured to ensure a core minimum standard under each right by requiring that States establish indicators (yardsticks) and benchmarks (targets) against which their performance can be measured (Steiner & Alston, 2000).

How the core contents of different rights are assessed will vary. The right to education identifies availability, accessibility, acceptability and adaptability as central to realising the right (see further Chapter 15: The right to education). The right to health also stresses availability, accessibility and acceptability, but the quality of the services provided, rather than their adaptability, is considered more applicable in that context (Jayawickrama, 2002).

The relationship between civil and political rights and economic, social and cultural rights

The 1993 Vienna World Conference reaffirmed that human rights are indivisible and interrelated. In other words, no right is superior to another and different rights should not be considered in isolation, since the enjoyment of one will often depend on the realisation of another.

Originally it was intended that a single treaty would address both social and economic, and civil and political rights. Two separate treaties were eventually developed, because:

• civil and political rights were considered to be enforceable, or justiciable, while economic, social and cultural rights were not
• civil and political rights were thought to be immediately applicable, while social and economic rights could only be implemented progressively
• generally speaking, civil and political rights were considered to be rights of the individual ‘against’ the State (that is, against unlawful and unjust action of the State) while social and economic rights were rights that the State would have to take positive action to promote (United Nations, 1955).

But while these differences may have seemed relevant in the 1950s, the distinctions between the two types of rights have become increasingly blurred. The most significant differences that now remain relate to how compliance with the relevant international instruments is determined.

Justiciability

There are other means of evaluating a State’s performance apart from monitoring compliance against established benchmarks. Accountability mechanisms have been in place in New Zealand for some time, and New Zealand has a history of developing and extending these. For example, the Office of the Ombudsman was established in New Zealand by the Parliamentary Commissioner (Ombudsman) Act 1962. The Ombudsman’s principal function is to enquire into complaints about administrative decisions of government departments. In 1982, the Office’s jurisdiction was extended so that it could also deal with complaints about requests for official information under the Official Information Act 1982.

Another way of evaluating a State’s performance is through court cases. The concept of ‘justiciability’ refers to the ability of the courts to provide a remedy for aggrieved individuals claiming a violation of their economic and social rights (Steiner & Alston, 2000). Traditionally, judges have been ambivalent about adjudicating in relation to such rights because it can involve allocation of resources, which is considered to be a function more properly belonging to the executive arm of government.

For example, in Lawson v Housing New Zealand [3] the complainant, in the absence of any right to housing in New Zealand, sought judicial review of a government policy to increase the rent of state housing to market levels. She claimed that she was unable to meet the rent and, as a consequence, would be forced to leave her home. This amounted to her being deprived of affordable shelter and was a breach of the right to an adequate standard of living and, therefore, Article 1 of ICESCR. Williams J in the High Court held that the matter involved:

Strong policy considerations and was [therefore] not amenable to judicial review … the issue of compliance with international treaties was determined by international forums, not by the Court.

The result might have been different had there been a clear and unambiguous direction from Parliament, as in South Africa. The Constitution of South Africa specifically refers to social and economic rights. The developing jurisprudence of the South African Constitutional Court suggests that, in that country at least, the Court considers that the doctrine of the separation of powers does not impede its ability to make decisions that require the Government to adopt policies that are consistent with its obligations under the Constitution.[4]

Difficulties with the judiciary’s historic reluctance to intervene in what is seen as the domain of the executive and the State reporting procedure (which is complex and does not result in a legally binding outcome) have led to a re-evaluation of how best to promote compliance with the ICESCR. For some years now, the UN has been considering the development of an optional protocol to ICECSR (Craven, 1995). Optional Protocols already exist for a variety of international instruments, but the complexities of the social and economic rights, and the potential economic implications if a State is found to have abdicated its responsibilities in relation to such rights, have hampered the development of an optional protocol for ICESCR.

Despite the fact that there has been a lengthy resistance to the idea of an optional protocol, decisions such as the Treatment Action Campaign case have led the UN independent expert to conclude that the rights guaranteed under ICESCR are ‘essentially justiciable’ (Kotrane, 2003). This trend, together with increasing public pressure, particularly from civil society, to hold governments accountable for their international commitments (Leckie, 1980) means that it is now probably only a matter of time before an optional protocol to ICESCR is introduced.

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