2.1.

3 – International Bill of Rights (UDHR, ICCPR, ICESCR)

Background:
The atrocities from WWI and WWII were the catalyst that
has in recent years seen human rights formally
recognised by the international community. WWII led to
the establishment of the United Nations in 1945, which
is a crucial forum for the discussion and agreement of not
only human rights but many other issues of world-wide
concern. Human rights was one of the first to be placed
on the agenda of the UN General Assembly.

Indeed, one of the purposes of the UN, as set out in Article 1(3) of the UN Charter, is:
“to achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and encouraging respect
for human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion”

After the end of World War 2, a series of conventions and declarations began to articulate universal
human rights.

● A convention (sometimes called a covenant) is a binding treaty, coming into force upon ratification
by a certain number of States. Article 26 of the Vienna Convention on the Law of Treaties provides
that: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good
faith’.
● A declaration is not legally binding but carries moral weight because it is a statement of guidelines
or aspirations adopted by the international community.

The major formal statements of human rights are collectively known as the “International Bill of Rights”,
which is comprised of:

1. Universal Declaration of Human Rights (1948) (UDHR)

2. International Covenant on Civil 3. International Covenant on Economic,

and Political Rights (1966) (ICCPR) Social and Cultural Rights (1966) (ICESCR) 1.

First Optional Protocol to the ICCPR Optional Protocol to the ICESCR

Second Optional Protocol to the ICCPR

Universal Declaration of Human Rights (“UDHR”)

In 1948 the United Nations General Assembly adopted the UDHR. This was the first time that countries
agreed on a comprehensive statement of inalienable human rights. The UDHR is soft law, meaning
officially non-binding but influential, rather than containing enforceable hard law obligations. In other words,
the UDHR is an ideal standard held in common by nations across the world, but bears no force of law. In
hindsight, this was arguably a good decision because it meant that the maximum number of countries were
willing to sign it.

The Declaration has had a profound influence on the development of international human rights law. On
the same day that it adopted the UDHR, the United Nations General Assembly asked its Commission on
Human Rights to draft a covenant on human rights, which could become a binding treaty. It soon became
clear that there were clear differences of ideology and principle between the two major world powers who
were locked the beginnings of a Cold War at the time – the USA representing the capitalist West, and the
USSR representing the communist East. Therefore, after six years of drafting and debate, in 1952 the
General Assembly requested that the Commission on Human Rights draft two covenants rather than one.
The covenants, International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights were opened for signature in 1966 and entered into force in 1976.

Purposes of the UDHR:

● To give effect to the UN’s purpose of ‘reaffirm faith in
fundamental human rights, in the dignity and worth of the
human person’ by formulating a list of universally accepted
human rights. (This was needed because the UN Charter did
not define what these human rights were.)
● To educate students, public institutions, governments,
citizens globally about what human rights are. Once
formulated, the UDHR was publicized, disseminated,
displayed, read in schools and other educational institutions
● To lay the groundwork for future binding human rights
covenants (e.g. ICCPR, ICESCR, other Conventions). As
‘soft law’, the UDHR formed an agreed foundation from which
to garner support for future ‘hard law’ agreements.

2. International Covenant on Civil and Political Rights 1966 (“ICCPR”)

Civil and political rights include the right to freedom of conscience and religion, the right to be free from
torture, and the right to a fair trial. Most of these rights are not absolute. Instead they are subject to
reasonable limitations which are created for a legitimate purpose. For example, freedom of expression (art
19) is limited in various ways for the respect of the rights and reputations of others (which is why we have
defamation laws, hate speech laws, safe access zones outside abortion clinics) or for the protection of
national security or public order (which is why you can’t yell ‘Bomb’ at an airport). Only a handful of rights,
such as the right not to be held in slavery and the right to be free from torture, are absolute.

Generally (but not always), rights under the ICCPR can be phrased as ‘negative rights’ or ‘hands-off rights’,
because the Government must keep their hands-off to avoid violating them. Examples include:
● freedom of assembly (i.e. government must keep their hands off your group gatherings)
● freedom of association (i.e. government can’t tell you who you can and can’t associate with)
● freedom of expression (i.e. government can’t limit your speech unless there’s a legitimate reason)
● freedom of religion (i.e. government can’t impose a religion, or introduce laws which discriminate on
grounds of religion)
● freedom from discrimination on grounds of race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth status etc (i.e. this is why Rosa Parks’ and Martin
Luther King Jr’s fight against government-sponsored segregation was part of what is known as the
civil rights movement)
● freedom of privacy (i.e. government would be overstepping your right to privacy if they made
homosexual acts a crime)

Australia agreed to be bound by the ICCPR on 13 August 1980, subject to certain reservations. Article 2(2)
of the ICCPR requires Australia to take all necessary legislative and other measures to give effect to the
rights in the Convention. Australia’s compliance with the ICCPR is monitored domestically by the Australian
Human Rights Commission and internationally by the Human Rights Committee.
The ICCPR has two Optional Protocols. An ‘optional protocol’ supplements the original convention with
additional obligations.

First Optional Protocol to the International Covenant on Civil

and Political Rights

On 25 September 1991, Australia agreed to be bound by

the First Optional Protocol to the ICCPR. This means the
United Nations Human Rights Committee can hear
complaints from individuals who allege that the
Australian Government has violated their rights under
the ICCPR. While the findings of the Human Rights
Committee are not enforceable, they carry great moral and political weight for state parties.

Later in the course, we will explore a case study of a Tasmanian man who used this ability in 1991 to
complain about Tasmanian criminal laws which made homosexual intercourse a criminal offence. The
Human Rights Committee ultimately agreed that because of Tasmania’s law, Australia was in breach of the
obligations under the ICCPR (specifically the right to privacy). In response to the Committee’s decision, the
Commonwealth Government passed a law overriding Tasmania’s criminalization of homosexual sex.

Second Optional Protocol to the International

Covenant on Civil and Political Rights

On 2 October 1990, Australia agreed to be

bound by the Second Optional Protocol to the
ICCPR. The purpose of this protocol is for
States to eliminate the death penalty.

3. International Covenant on Economic, Social and Cultural Rights 1966 (“ICESCR”)

Economic, social and cultural rights include the right to an adequate standard of living, the right to
education, the right to fair wages and the right to safe working conditions. Article 2(1) of the ICESCR
requires States to take steps, including legislative measures, to achieve the ‘progressive realisation’ of
ICESCR rights. This requires that States only demonstrate in good faith the fulfilment of the rights over time
within their capacities. For example, it is assumed that where States have inadequate resources to ensure
free education is provided, they will work towards achieving this goal. Because these rights require the
government to do something, they can
be termed as ‘hand s-on rights’. The
United Nations Committee on Economic
Social and Cultural Rights (the CESCR)
monitors compliance with the ICESCR
and provides guidance on how countries
should interpret the ICESCR.

On 10 December 1975, Australia agreed to

be bound by the ICESCR. The ICESCR
does not, however, form part of
Australia’s domestic law

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR)
is an international treaty that allows victims of violation of economic, social and cultural rights, to
present complaints at the international level. When people cannot access justice in the courts of their
country for violations of economic, social and cultural rights (ESCR), they can bring a complaint to the UN
Committee on Economic, Social and Cultural Rights (CESCR). However, their country must first
become a party to the OP-ICESCR treaty through ratification or accession.
The OP-ICESCR is also a powerful tool for advocacy. All States parties to the International Covenant on
Economic, Social and Cultural Rights (ICESCR) have the obligation to respect, protect and fulfill ESCR.
The OP-ICESCR reinforces that all rights violations must have a remedy, foremost in their own country, but
at the international level if necessary. The OP-ICESCR gives advocates a tool to push for improvements in
their own judiciary system, as well as for laws and policies that secure and advance ESCR. The
recommendations of the Committee on ESCR in emerging cases can be utilized to help interpret human
rights obligations.

Other major human rights treaties

There have been numerous other human rights treaties developed since 1948, including:
- Convention Relating to the Status of Refugees (1951)
- Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW)
- Convention against Torture and Other Cruel, Inhuman Degrading Treatment or Punishment (1984)
(CAT)
- Convention on the Rights of the Child (1989) (CRC)
- Convention on the Rights of Persons with Disabilities 2006 (CPRD)
- International Convention for the Protection of All Persons from Enforced Disappearance (2006)

Revision Questions
1. Why do you think a formal statement of human rights was needed?
2. Distinguish between ‘soft law’ and ‘hard law’.
3. Explain why the UDHR was established as a declaration rather than a binding treaty.
4. Explain why the ICCPR and ICESCR were required.
5. List three rights protected by the ICCPR.
6. List three rights protected by the ICESCR.
7. Why are civil and political rights sometimes referred to as ‘hands-off’ or ‘negative’ rights?
8. Why are economic, social and cultural rights sometimes referred to as ‘hands-on’ or ‘positive’ rights?