Human rights considerations and compliance are critical components of good public policy. At every point in planning social and economic policy, or in developing new legislation, guidance can be found in the primary principles of respect for the rule of law and observance of human rights.
The human rights instruments crafted by the UN Commission on Human Rights in the post-war years (the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’)) provide a solid basis of values and ideals on which to build a just society. They reflect the ideas underlying the UN Charter itself – a commitment to the peaceful resolution of disputes, to the economic and social progress of all and to the observance of human rights.
The foundation principle of human rights is that each individual person is equal in dignity and rights, regardless of race, religion, sex, age, nationality or other distinction. Respect for this principle requires each one of us to accept our common humanity and to act accordingly. It is also fundamental to the obligations of governments in their social and economic planning and in their international relations.
The human rights instruments emphasise the rights of individuals, but they go far beyond this. To fulfil the obligation to ensure that each person may enjoy rights on the basis of equality, laws, policies and programs must be developed which deliver these rights to all. The rights proclaimed are in fact a basis for the development of legal, social and economic policy. For example, if an individual is tortured or subjected to inhumane treatment, this is a violation of his/her rights and a remedy is required. But in most such cases, the violation is the outcome of a system failure. To ensure effectively the right of every individual to freedom from torture, the state must not only legislate to outlaw torture and to provide remedies; it must also set up a proper system to supervise places of detention and confinement, ensure adequate training and attitudes of those in power, and develop accessible mechanisms for recourse and redress. Abu Ghraib, Guantanamo Bay and the Australian immigration detention centres are all examples of systems failure, allowing a culture to develop that accepts torture and inhumane treatment and failing to provide proper supervision or recourse for the individual.
Similarly, in the field of economic, social and cultural rights, to deliver to each person the highest possible standard of living and the highest attainable standard of health requires the planning and implementation of programs based on the principle of equal enjoyment of these rights.
Human rights principles do not provide immediate answers to every difficult issue of social justice, such as the boundary between what should be provided for every member of the community and what people should be encouraged to provide for themselves, or how to ensure equal access to the minimum public standards which human rights instruments require. Nor can human rights principles resolve the problem of balancing economic development with environmental sustainability or to the social accountability of corporations (areas now under scrutiny). Nevertheless, human rights are much more than a 'mantra', or a collection of general principles. A considerable body of jurisprudence has been developed, including the work of the UN treaty monitoring committees, which monitor compliance with the Covenants. This work is the result of studying the application of rights in many diverse countries and in the determination of individual complaints, and it adds considerable depth to the interpretation of each right.
My argument is that in all areas of social or economic planning, the relevant human rights principles should be expressed as a part of the goals to be achieved, and the in-depth analysis of those rights should educate policy decisions.
If the principles of human rights were incorporated into our laws, the success or failure of governments to meet the standards which are mandated by the Covenants could be tested in the courts. The absence of those principles in our laws can have adverse effects. It means, for example, that we cannot challenge laws providing for indefinite detention, whether directed against 'unlawful non-citizens' or persons suspected of having information ASIO wants.
Recent events in Australia show just how dangerous it can be to leave decisions about liberty to the bureaucracy and the executive, without independent court scrutiny. A person charged with the most serious crime cannot be detained without proper justification before an independent court. But no such justification need be established when 'unlawful non-citizens' are detained by decision of the DIMIA bureaucracy. There is no independent supervision of the detention. Australia was told that this was a violation of rights by the Human Rights Committee in 1996, but it ploughed on regardless, until now we are shamed by the outcomes. In the name of fighting terrorism, ever increasing inroads are made into our long standing liberties.
Respect for the rule of law and effective implementation of human rights, by governments and by all citizens, would be a major contribution to a fair and just society.
Elizabeth Evatt is a former member of the UN Human Rights Committee, was Chief Judge of the Family Court of Australia from 1976 to 1988 and President of the Australian Law Reform Commission from 1988 to 1993. This article first appeared in the online magazine New Matilda.com