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What are international human rights?

'Human rights' is a term which describes the rights recognised as inherent in each and every one of us by virtue of our common humanity and innate dignity as human beings. They are the rights that must be respected if we are each to fulfil our potential as human beings. They are not luxuries - they are the basic and minimum necessities for living together in human society.

They are different in some respects from legal rights and moral rights - but only to the extent that some governments will recognise different and greater rights from time to time for citizens or particular classes of people in the pursuit of policy agendas. Governments are, of course, entitled to do that - provided they don't infringe our fundamental human rights in the process.

The point to recognise is the overlap among different kinds of rights - many human rights are identical to legal rights in Australian law and we would generally agree that they reflect our shared values and sense of morality at the same time.

Where do human rights come from?

Human rights are often described as 'inherent' in the sense that everyone has rights simply because of being alive. They are not granted by anyone. They are not imposed - either by governments or by the United Nations.

Without formal recognition, however, we know that human rights have frequently been ignored and violated at the whim of more powerful individuals and organisations as well as by governments of all kinds.

The United Nations was established in 1945 and immediately identified listing human rights as one of its main tasks. That first list was agreed to in the Universal Declaration of Human Rights of 1948.

The next task was to get all countries - through their governments - to give a formal agreement to the list. In human rights treaties developed since 1948, countries from all corners of the globe have adopted these internationally recognised rights as their own. In doing so, they have accepted an obligation to respect and protect - and never to violate - the human rights of everyone within their borders.

Does the UN protect human rights?

The UN has some mechanisms to protect human rights. However, the principal mechanism for the protection of human rights is individual national governments. The human rights they must protect are those they have agreed. International treaties operate like contracts. Governments participate in drafting them and have a choice whether or not to sign and ratify them (this is called 'becoming a party'). In fact, Australia has been a major player in the development of human rights treaties.

Some of the major human rights treaties undertaken by Australia are:

(Note: * indicates treaties which a within the jurisdiction of the Human Rights and Equal Opportunity Commission)

Are there different kinds of human rights?

It is useful to consider the categories of human rights, even though it is often and rightly declared that human rights are indivisible - that is, they are equal in value and cannot be played off against each other. At the same time, individual rights often come into competition and there is frequently a need for balancing and compromise to ensure sufficient room for the enjoyment of all rights by everyone at all times.

The following categories are reflected in the International Covenant on Civil and Political Rights.

Absolute rights

Some human rights are absolute - there is never any justification for violating them. These rights prohibit officials and others from committing genocide, slavery, summary executions, torture and racial discrimination. Also absolute are the personal freedoms of thought, conscience, religion and belief.

Non-discrimination

It is a fundamental principle that all human rights must be accessible by everyone without discrimination of any kind, including discrimination because of race, sex, disability, religion, language, political opinion or other status. The principle of the equality of men and women is one of the founding rules of the community of nations in the modern age - as is the rejection of race discrimination.

The principle of non-discrimination is an absolute right in the sense that it can never be acceptable to deny rights to a group in society on the ground of their status.

Derogable rights

Most other rights can be restricted during a period of public emergency 'which threatens the life of the nation'. Usually it will only be a state of war which amounts to such a threat. Even during such periods, only those restrictions which are strictly necessary will be permitted.

Fundamental freedoms

Fundamental freedoms are of two kinds. There are freedoms which relate to physical liberty: the freedom from detention, the right to privacy. These can be lawfully breached by the government - usually by the police - but the breaches must be authorised by law and must not be arbitrary in practice.

An arbitrary act is any act which violates justice, reason or legislation, or is done according to someone's will or discretion; or which is capricious, despotic, imperious, tyrannical or uncontrolled (Marc Bossuyt, Guide to the Travaux Preparatoires of the International Covenant on Civil and Political Rights (Martinus Nijhoff, 1987), page 201 [tense altered].)

Therefore, the correct way to describe these freedoms is that they guarantee freedom from arbitrary deprivation of liberty and so on.

The second kind of fundamental freedoms are the freedoms of individual action: the freedom to practice your religion, the freedom of speech, the freedom of association and the freedom of peaceful assembly. Because all of these actions can impact on public order, the rights of others and potentially on national security, the government is authorised to regulate them if necessary. Thus these freedoms are not absolute.

Implicit in the international vision of human rights is an emphasis on democracy as the only system of government in which all rights can be fully protected. Civil and political rights include the individual's right of full participation in public debate and activism and in the political process which is essential to an effective and robust democracy. They also include the right of citizens to vote in secret ballots at genuine periodic elections by universal and equal suffrage and to compete for positions in the public service.

Living standards

The Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights both recognise a number of rights which promote a minimum standard of living for everyone. They include the rights to education, work, health care and to a social security safety net.

Labour rights

The International Labour Organization has worked to promote trade unions as a way of protecting workers' conditions including safe working conditions. Australia is a party to many ILO conventions including the convention on freedom of association. The ILO has interpreted freedom of association to include the right to join a trade union of one's choice, the right to bargain collectively and the right to strike.

What about special rights for some groups?

Some particularly vulnerable groups have attracted particular attention from UN member countries and have been singled out for explicit protection. They include children and prisoners.

Children's rights

Children are entitled to enjoy all the human rights of adults with the exception of citizenship rights (if countries decide not to extend the vote to under-18s). In addition, they are entitled to special protection from abuse, neglect and exploitation. Particular international standards deal with child labour, international abduction of children, every child's right to a family, identity, name and nationality, and the obligation of the government to step in if the family cannot meet the child's needs.

The rights of parents and extended family members are recognised - in most cases the best interests of children are served by maintaining real contact with both parents and parents have both a right and a responsibility to guide their children in the exercise of their rights.

Prisoners' rights

Another group whose basic rights are protected is made up of prisoners, people accused of crimes and other people in detention (for example, asylum seekers).

International treaties set out a list of basic procedural - due process - rights which must apply in every criminal trial. These are familiar to Australia's inherited common law system and most are well recognised here. They include the right to silence, to be considered innocent until proven guilty, to be tried by a competent and independent tribunal in public, the right to an interpreter and to legal assistance.

All prisoners and detainees are entitled to be treated with humanity and with respect for their inherent dignity as human beings.

What are the government's rights and obligations?

Under international treaties governments voluntarily undertake to limit their actions in the interests of the human rights of citizens - and of everyone else coming within the country's borders.

Specifically, the Australian government has undertaken to

Australia, like other countries which have adopted human rights treaties, must report on the enjoyment of human rights in Australia to each human rights treaty committee once in about every 5 years or so. These committees have been set up by the contracting governments to assist them with compliance and to monitor progress in the enjoyment of human rights throughout the world.

Last updated 2 December 2001.