An important source of international human rights law is generated by the United Nations system. The UN adopts a large number of declarations, resolutions and other statements that are not treaties: they do not have parties to them, they are not ratified, and their legal effect is less certain. However, as they are products of the UN system, they are considered to be highly influential, and there is an argument that compliance is a necessary consequence of membership of the UN.
Universal Declaration of Human Rights
The most fundamental document on human rights, the Universal Declaration of Human Rights (UDHR), is a product of the UN system. The UDHR was adopted unanimously by the General Assembly of the UN in 1948. It is not a binding treaty that states ratify or accede to. Rather, it is a declaration of ‘a common standard of achievement for all peoples and nations, to the end that every individual and every organ of society ... shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.’
Since the UDHR in 1948 there have been many declarations on human rights adopted by the United Nations’ General Assembly, including those dealing with the rights of children (1959), of people with disabilities (1975), of ethnic and cultural minorities (1993); the right to development (1986), violence against women (1993), and with indigenous peoples (2007). To understand the UN machinery of human rights, it is useful to be aware of at least these recent significant declarations made as a result of processes organised under the auspices of the UN.
These are the:
- Vienna Declaration and Programme of Action– this declaration was adopted in Vienna, Austria during the World Conference on Human Rights in June 1993. The Vienna Declaration put ‘beyond question’ the universality of human rights standards, and laid the protection and promotion of human rights as the ‘first responsibility’ of governments. The Conference also declared all human rights to be ‘universal, indivisible and interdependent and interrelated’. This is a reference to the argument about whether or not civil and political rights should come before economic, social and cultural rights. The declaration says that they cannot be separated.
- Beijing Declaration and Platform for Action – this declaration and its accompanying Platform for Action were adopted in 1995 by the Fourth World Conference on Women. The Beijing Declaration reaffirmed the fundamental principal that the rights of women and girls are an ‘inalienable, integral and indivisible part of human rights’. The Platform for Action calls on states to take action to address areas of critical concern, including for example, violence against women.
- Durban Declaration and Programme of Action – this declaration was adopted in Durban, South Africa in September 2001 by the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance. The Declaration deals comprehensively with the phenomenon of racism, its victims, and strategies both to prevent racism and to protect victims from its impacts. It translates those objectives into a call upon states to take action to implement measures to eradicate racism.
- United Nations Declaration on the Rights of Indigenous Peoples – this declaration was adopted by the UN General Assembly in September 2007. Its adoption marked the end of a long and contentious process that began in the mid-1980s. Its adoption was frustrated by the persistent unwillingness of some countries, including the United States of America and Australia, to acknowledge indigenous peoples’ rights to self-determination. It was finally passed in September 2007 but Australia, together with Canada, New Zealand and the United States of America, voted against the adoption of the declaration. The declaration sets out the individual and collective rights of indigenous peoples, emphasising self-determination and non-discrimination.
As well as declarations, there are also UN statements of lesser status, called principles or guidelines. In recent years, for example, the UN Commission on Human Rights (now the Human Rights Council) and the General Assembly have adopted principles dealing with the rights of the mentally ill and of older people. There are also resolutions of the General Assembly, of the UN Commission on Human Rights (now the Human Rights Council), the Economic & Social Council and of other UN bodies on particular human rights country situations and thematic issues.
International Bill of Rights
The most important human rights treaties are the International Covenant on Civil and Political Rights (ICCPR), the First Optional Protocol of the ICCPR, and the International Covenant on Economic, Social and Cultural Rights (ICESCR): along with the UDHR they form what is generally recognised as the ‘International Bill of Rights’. These treaties are supplemented by many others, each of which deal with a particular subject such as racial discrimination, children’s rights, and migrant workers and their families for instance.
Universal Declaration of Human Rights
The UN Charter did not define the term ‘human rights’: it is the Universal Declaration of Human Rights (UDRH) which sets out a catalogue of fundamental human rights including:
- the right to be free from torture (Article 5);
- the right to be free from discrimination (Article 7);
- the right to freedom of thought, conscience and religion (Article 18);
- the right to work (Article 23); and
- the right to education (Article 26).
Although the UDHR was not intended to be a formally binding instrument, it is regarded by many commentators as an authoritative interpretation of the human rights provisions of the UN Charter.
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (1966) (ICCPR) is a treaty which binds the nations who ratify or accede to it. It is monitored by the Human Rights Committee (HRC), and protects rights such as:
- the right to life (Article 6);
- the right to liberty and security of person (Article 9);
- the right to equality before the law (Article 14);
- the right to peaceful assembly and freedom of association (Articles 21 & 22);
- the right to political participation (Article 25); and
- the right of minorities to protect their language and culture (Article 27).
In mid-2013, 167 countries had ratified or acceded to the ICCPR. Australia became a party to the ICCPR in 1980.
International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) is a treaty which binds the nations which ratify or accede to it. It is monitored by the Committee on Economic, Social and Cultural Rights (CESCR), and covers rights such as:
- the right to work (Article 6);
- the right to form trade unions (Article 8);
- the right to social security (Article 9); and
- the right to an adequate standard of living, including adequate food, nutrition, shelter, clothing, education and health services (Article 11).
In mid-2013, 160 nations had ratified or acceded to the ICESCR. Australia became a party to the ICESCR in 1976.
International Bill of Rights as customary law
There is much debate about whether the UDHR can now be considered part of international customary law, and whether it has passed beyond being simply an expression of opinion from the General Assembly to being binding on all nations.
The UDHR was one of the earliest pronouncements of the General Assembly. It was made within the context of the UN Charter itself, which includes a commitment from members to promote human rights. It describes itself as ‘a common standard of achievement for all peoples and all nations’ and in this way proclaims its universality.
In the Vienna Declaration on Human Rightsadopted by the 1993 World Conference on Human Rights, it was said that all nations were obliged to comply with the commitment to the Universal Declaration. Most commentators agree that the UDHR is part of international customary law that binds all nations, whether or not they are a party to any of the human rights treaties.
Treaties form a common basis for negotiations between nations. It is more difficult working with those that are outside the treaty system. However, if the UDHR has become part of customary international law binding all nations, it becomes the basis of mutual obligations between states, and nations can be held accountable for their compliance or non-compliance with it regardless of whether individual states have ratified or acceded to the relevant treaties.
There are strong arguments that both the ICCPR and the ICESCR are now also part of customary law, although there is no agreement on this among commentators. Nevertheless, human rights obligations expressed in international instruments are progressively finding their way into the domestic or common law of nations.
Other international human rights treaties
While the UDHR, the ICCPR and ICESCR deal with human rights generally, a variety of other instruments dealing with specific areas of human rights have been adopted by the UN.
These include the:
- Convention on Prevention and Punishment of the Crime of Genocide (1948);
- Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1965);
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1980);
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1984);
- Convention on the Rights of the Child (CROC) (1989);
- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) (1990);
- Convention on the Rights of Persons with Disabilities (2006); and
- International Convention for the Protection of All Persons from Enforced Disappearance (2006).
For a more complete list see Major human rights treaties.
Each of the human rights treaties is monitored by UN Committees of the same name. Some human rights instruments have been adopted and are administered by specialist UN agencies such as the International Labour Organisation(ILO), and the United Nations Economic, Social and Cultural Organisation(UNESCO).
The ILO, for example, administers over 150 current conventions, from Freedom of Association (1948) to Occupational Health and Safety (1991) and Maternity Protection (2000). UNESCO conventions include: Copyright (1952), Natural Heritage (1972), and Technical and Vocational Education (1989).