Chapter 2: The international human rights framework
whare tika tangata o te ao
All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
(Article 1, Universal Declaration of Human Rights) 
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 RightsTop
The Declaration, which extended earlier initiatives such as those of the International
Labour Organisation (ILO), 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
- 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
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
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 ratificationTop
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,
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 proceduresTop
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 RightsTop
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
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
the extent strictly required by the exigencies of the situation’. For
example, in some closely defined circumstances Article 9, relating to arrest
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 RightsTop
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
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,
The relationship between civil and political rights and economic, social and
cultural rights Top
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
- 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
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.
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 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.
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.