HUMAN RIGHTS IN THE 21ST CENTURY—REFLECTIONS ON THE 70TH ANNIVERSARY OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
Australian Council for International Development National Conference
Human Rights in the 21st Century—People. Planet. Peace.
30 October 2018
Emeritus Professor Rosalind Croucher AM
President, Australian Human Rights Commission*
[Professor Croucher spoke to this paper]
Thank you, Dr Peter McKenzie, for your warm welcome to country. In response, I begin my presentation by acknowledging the traditional custodians of this land, and pay my respect to the elders, past and present, and emerging community leaders of the Gadigal peoples of the Eora nation and acknowledge Indigenous guests attending today.
It is a pleasure to be here today. Thank you Ms Susan Pascoe AM, ACFID President for the invitation to speak. I spent seven very happy years at UNSW on the staff of the Law Faculty, and also completed my PhD here, so it is lovely to be back on this campus.
The conference theme is aspirational and practical, with its focus on ‘people, planet, peace’. I would like to focus on the ‘people’ part, especially.
At the heart of human rights and the treaties that Australia and the nations of the world committed to, is dignity and respect for individuals. Nation states play their part. As do national human rights institutions, like the Australian Human Rights Commission, and civil society organisations. (I am very pleased to note that representatives of the parliament and the Department of Foreign Affairs and Trade join us today.) Working well, we are in a harmonious partnership, supporting and, at times, pushing, even goading, each other along.
The Australian Council for International Development (ACFID)—and each of your member organisations—exemplifies the best of the Australian spirit: getting in there to make a difference where it is most needed.
You have a vital role to play in the promotion and protection of human rights, particularly in the Asia-Pacific region, but also in conflict zones and some of the more troubled areas of the globe.
The work you do is important and necessary. You are the public face of the Australian community giving back to the world.
So I am deeply honoured to be delivering this opening address for your national conference, especially in the year of the 70th birthday of the Universal Declaration of Human Rights. Using this as a point of reflection I will endeavour to set the scene for your important conference.
A year of anniversaries
This is a year of significant anniversaries in the human rights firmament. In addition to the birthday of the UDHR:
• the 25th anniversary of the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993
• the 25th anniversary of the Principles relating to the Status of National Institutions Paris Principles, adopted by the UN General Assembly on 20 December 1993
• the marking of Australia’s first year on the UN Human Rights Council.
I will say something about each of these anniversaries in turn—and their continuing importance today.
Universal Declaration of Human Rights
First, the grand old lady of the human rights world: the Universal Declaration of Human Rights. I deliberately, if somewhat cheekily, have used the phrase ‘grand old lady’ as a deferential nod to one of its driving forces, Eleanor Roosevelt: who devoted herself to the negotiations of the Declaration. Today I would like to ‘channel’ Mrs Roosevelt. She was a remarkable lady indeed—and the Chair of the United Nations Commission on Human Rights, given the task of framing an ‘international bill of human rights’. It was accomplished in three stages: the Universal Declaration, in 1948, followed some time later, after the interruptions of the Cold War, by the two binding covenants—the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESR)—which, together with the UDHR, would be known as the ‘International Bill of Human Rights’.
The story of the making of the UDHR is a fascinating one. I will share but a snippet today. It was a considerable achievement to bring together the different philosophical traditions of the members of the Commission on Human Rights into a final draft—and one that was acceptable to the General Assembly. The 18 members of the Commission were ‘a remarkable group of people with strong convictions and strong personalities’, including ‘some of the most able and colorful public figures of their time’, such as:
• Charles Malik, the Commission’s Lebanese rapporteur, a philosophy professor-turned-diplomat, and the chief spokesman for the Arab League during the Palestine crisis
• Professor René Cassin, a law professor and ardent Zionist, who had lost 29 relatives in concentration camps and served as Charles de Gaulle’s wartime legal adviser
• Peng-chun Chang, the Commission’s vice-Chairman, a Chinese philosopher, diplomat and playwright, who contributed a Confucian sensibility to the drafting
• Mrs Hansa Mehta, a veteran of India’s struggle for independence and a tireless advocate for women’s equality, and
• Alexei Pavlov, nephew of the famed conditioned-reflex scientist, a powerful orator who, we now know, was under instructions from Moscow to obstruct and delay proceedings.
Mrs Roosevelt and a smaller drafting committee broke the back of the initial task. Hers was a key role. Reflecting now on the group and how she did it, I can only conclude that she was a marvellous chair—and it is a fine art. But it was not all discipline. It also involved building respectful relationships. Immediately after the conclusion of the first session, she invited the drafting group to her apartment on the weekend for afternoon tea and, as they ‘settled down over the teacups’, a heated philosophical discussion got underway. Dr Chang asserted the importance of basing the Declaration on more than Western ideas. Dr Malik ‘expounded at some length the philosophy of Thomas Aquinas’. After a time, she said
"I could not follow them, so lofty had the conversation become, so I simply filled the teacups again and sat back to be entertained by the talk of these learned gentlemen!"
The Declaration—a universal language of human rights—was passed by the General Assembly on 10 December 1948, in Paris.
On 16 December 1966, the two Covenants and an Optional Protocol were adopted by the General Assembly. The combination of rights guaranteed in the two covenants ‘represent the most authoritative universal minimum standard of present international human rights law’.
Perhaps no other document in history has so beautifully encapsulated the aspiration of what we can all achieve as human beings as has the UDHR. Let me quote a paragraph from the preamble and the famous first Article:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world …
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 brotherhood.
We would do well in the twenty first century faithfully to implement the Declaration—in intent and spirit. Fundamentally, it is grounded in dignity and respect—which I have described as the ‘active voice’ of dignity.
Australia, as many of you will know, played a critical role in the development of the UDHR. Most well known is the role of Doc Evatt as the President of the General Assembly at the time that the Declaration was overwhelmingly supported by the nations of the world.
We earned ourselves a reputation as an international good citizen for our commitment to human rights and multilateralism.
We should not forget this.
It is something we should reflect on as we celebrate the 70th anniversary of the UDHR. How significant our expressions of support for multilateral solutions can be in a world that is often fractured and is increasingly tribal in its politics.
Just as we played an important role in the UDHR, we played an equally important one at the Vienna World Conference on Human Rights 25 years ago in June this year.
Vienna Declaration and Programme of Action
The Vienna Conference and its Programme of Action focused on turning the commitments of the UDHR into action. Its preamble ‘recalled’ (in UN language of such documents):
the determination expressed in the Preamble of the Charter of the United Nations to save succeeding generations from the scourge of war, to establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained, to promote social progress and better standards of life in larger freedom, to practice tolerance and good neighbourliness, and to employ international machinery for the promotion of the economic and social advancement of all peoples.
This is enduring and timeless language.
It led to the creation of the position of the High Commissioner for Human Rights, providing the machinery for the UN to engage more robustly in human rights matters. It highlighted the importance of gender equality and the problem of violence against women, which led, two years later, to a landmark conference in Beijing, and platform of action.
The Vienna Conference was also the springboard for the recognition of the rights of Indigenous peoples. It led to the establishment of the International Decade for the World’s Indigenous People. The decade would see major advances, including the establishment of the Permanent Forum on Indigenous Issues and a Special Rapporteur. But it would take a further three years to achieve its major goal—the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007.
That adoption was historic—with an extraordinary vote of 144 countries for, 11 abstaining and four against. Australia, curiously, was one of the four against, although it reversed this position in 2009. We can compare this to the vote on the UDHR to know how significant such an overwhelmingly positive vote it was.
The Vienna Conference was also critical in the promotion of the rights of children—with a goal of universal ratification of the Convention on the Rights of the Child by 1995 being among the outcomes of the conference. Today it is the most ratified of all human rights treaties—with just two countries yet to adopt it (Somalia and the USA).
There are two particular contributions that Australia made at this conference that should be acknowledged.
First, Australia was a critical supporter of the important role of national human rights institutions to promote and protect human rights at the domestic level and, in particular, as stated in the Vienna Declaration, ‘in their advisory capacity to the competent authorities, their role in remedying human rights violations, in the dissemination of human rights information, and education in human rights’.
The Declaration also encouraged the establishment and strengthening of national institutions that complied with what are known as the ‘Paris Principles’—again, in UN style, referencing the place where they were formulated. A workshop in Paris in 1991 had defined what a robust, genuine national human rights institution would look like. These principles were adopted by the UN General Assembly in 1993 and are also celebrating their 25th anniversary.
Australia has, over the past 25 years, been one of the key champions of NHRIs globally. This commitment has been unwavering, regardless of what political party is in power. It has been a key feature of development and diplomacy efforts; and technical cooperation to establish NHRIs has received significant support over this period. For 20 years, the Commission has been supported in Human Rights Dialogues with China, for example.
It is indeed a ‘signature’ policy of Australia: one of five pillars of our recent bid for election to the UN Human Rights Council, representing ‘areas where Australia can advance human rights in practical, sensible ways that will have far-reaching systemic effects over time’.
In its Note verbale to the UN General Assembly, Australia said:
Independent national human rights institutions and a strong and robust civil society play a crucial role in preserving and advancing human rights. Australia is a strong advocate for strengthening the capacity of national human rights institutions to promote and protect human rights.
Here the Australian Government acknowledged to the world the important role that bodies like the Australian Human Rights Commission—and you as civil society organisations—play in promoting, protecting, and, indeed, advancing human rights.
This commitment of the Australian governments leads to one of the more unusual dynamics in the relationship between the Australian Human Rights Commission and the government of the day. For the Commission is critical to the good reputation of Australia in the UN system, and is constantly referred to by the government in international processes, like treaty reporting moments, as a marker of the health of our democratic traditions. This is even at times when domestically our ‘plain speaking’ may be less welcomed.
These are what I have dubbed the ‘blowtorch’ moments. In a speech I gave in October last year at the International Bar Association conference in Sydney, I coined this expression. I said this:
Having a ‘Devil’s Advocate’ for human rights is a healthy, indeed necessary, thing in the context of the promotion and protection of those rights. Even if it means we should expect criticism—for calling out Government against the commitments made to the international community in signing up to the international treaties that set the benchmark for human rights. Even if it means that Government sees us more of the Devil’s Blowtorch than the Devil’s Advocate.
So let’s now fast forward to 2018, bypassing a range of other significant moments: the creation of the Millennium Development Goals in 2000 and, building on these, the Sustainable Development Goals that came into effect in January 2016, with the commitment of ‘leaving no-one behind’.
How are we now placed?
There are many ways in which Australia continues to be a valuable contributor in multilateral efforts and in UN processes. We have shown that when we step up and are actively engaged in the UN. We add value: whether as one of the last chairs of the UN Commission on Human Rights before it became the Human Rights Council; as a temporary member of the UN Security Council; in peacekeeping efforts within our region—remembered each year at a ceremony on 24 October, United Nations Day, for those who have fallen in such service; and in contributing to seminal reforms such as the creation of the International Criminal Court and the adoption of the Rome Statute, which established it.
The pity is that we only step up sporadically. It has been, for example, nearly 10 years before we have nominated to be on the UN Human Rights Council; and we have extremely low representation of Australians as independent experts within the UN—as treaty body members or special procedure mandate holders. Some exceptions include the election of Rosemary Kayess to the Committee on the Convention of Persons with Disabilities—a Committee formerly chaired by Emeritus Professor Ron McCallum; and Liz Broderick, former Sex Discrimination Commissioner, as a member of the Working Group on the issue of discrimination against women in law and in practice.
My hope is that our membership on the UN Human Rights Council will reinvigorate our engagement at the highest levels; and validate the proposition that our participation enhances our best interests as a nation as well as those of our region.
Other things on the radar for us in the 21st century?
First, the entire Commonwealth of Nations has moved forward by introducing comprehensive human rights protections in legislation: commonly referred to as a Charter of Rights or a Human Rights Act. We stand alone in the Commonwealth for not having introduced such protection. Whether we introduce one; what it would look like; and what role the Australian Human Rights Commission will play, are all key questions.
A Human Rights Act builds a dialogue model for the protection of human rights. It requires parliaments to grapple with the issue of protection of human rights: and particularly to identify where the parliament intends to deviate from such protection or breach the human rights of people or a sub-group in the community. Where such an intention exists, they then require a process of justification to ensure that breaches of rights are as narrowly framed as are strictly necessary. Human Rights Acts do not trump the will of Parliament—they require a dialogue and a consideration of human rights.
While we don’t have a Human Rights Act, there is a need to produce ‘compatibility statements’ with human rights, required since 2011 and the establishment of the Parliamentary Joint Committee on Human Rights (PJCHR).
Second, and related to this, we have an incomplete framework for protecting human rights in Australia. It is instructive to point out here the role that the Commission has in this regard.
Australia’s ratification of the ICCPR on 13 August 1980 provided the catalyst to the passage of the legislation that established the first iteration of the Commission in 1981—as the ‘Human Rights Commission’. The functions of the new Commission included machinery for complaints of breaches of human rights by or on behalf of the Commonwealth. ‘Human rights’ were defined as meaning the rights and freedoms recognised in the ICCPR, declared by the three listed Declarations—the Declaration on the Rights of the Child (1959); the Declaration on the Rights of Mentally Retarded Persons (1971); and the Declaration on the Rights of Disabled Persons (1975)—or ‘declared by any relevant international instrument’.
With the sunsetting of the first Commission, the new Human Rights and Equal Opportunity Commission, or HREOC as it was known, was established. It was renamed as the ‘Australian Human Rights Commission’ in 2008. Part of the architectural design of this second iteration of the Commission was an accompanying Australian Bill of Rights Act. The functions that the 1981 Commission had in relation to the ICCPR and other international instruments were to be continued by HREOC, but with the Australian Bill of Rights Act, the functions were to be exercised under that Act rather than the Covenant. The Bill was passed in the House of Representatives, but did not survive the Senate. So the functions under the ICCPR for Australia continued to sit with the Australian Human Rights Commission—even without a formal enactment of the covenant as a ‘Bill of Rights Act’. But the human rights complaints mechanisms are rather invisible—at least in the eyes of the public.
If I look at the legislation that guides the operation of the Australian Human Rights Commission for example, it is riddled with holes and rabbit warrens. There is a distinct lack of protection for some issues. Freedom of religion is one such example that is receiving much attention at the moment. There is some protection in relation to discrimination on the ground of religion in the context of employment, but it is limited, based on the International Labour Organisation Convention, ILO 111, which has been part of the Commission’s complaint-handling structure since 1986.
There is also inconsistency between the meaning of discrimination in the four federal discrimination laws and extremely complex differences in legal standards, which frankly can only be explained by the different point in time at which each piece of legislation was introduced.
In other areas, such as complaints brought under the AHRC Act, referencing the ICCPR in particular as well as ILO 111 discrimination, there is an unsatisfactory process whereby complaints can be conciliated, but if they are not resolved then the complainant has no legal access to the courts. Such complaints have no pathway to eventual judicial consideration, enforceable orders and binding precedent—only unenforceable recommendations contained in a report to the Attorney-General, after the matter was unable to be resolved through conciliation. Although additional powers were given to the Commission in 1986, to include a power to recommend compensation, the recommendations remained unenforceable.
The analogy I would use is that the legal framework under which the Commission operates is like a house that has had several rooms added over a 30 year period without any thought as to the overall design or architecture of the place.
So there is much that can be done to improve the effectiveness of the domestic human rights architecture.
In the final moments of my presentation, I would like to return to the UDHR.
Article 1 reminds us that, beneath our clothes, despite our geographic location or where we are born, we are all born free and equal in dignity and rights.
The Declaration also concludes, in article 29, with the corollary of this: that everyone is also responsible for human rights.
How do we enliven this idea that human rights are everyone’s responsibility? To me it is about increasing the ‘rights-mindedness’ of people across the nation, across generations, and across all aspects of government. Or in terms of the Australian Human Rights Commission’s motif, making human rights about ‘everyone, everywhere, everyday’, not just for government to deal with, or that is solely a matter for legal processes.
My hope is that government, civil society, NGOs, the Commission will all work together to articulate what needs to be done and to commit to partnership to achieve it.
In closing, I return to my ‘channelling’ of Eleanor Roosevelt. In her private sphere, the world of her own conscience, so prized by Dr Chang, and as a woman of faith she prayed daily. I would like to share that prayer with you—it speaks of spiritual connection wherever you draw your strength.
Our Father, who has set a restlessness in our hearts and made us all seekers after that which we can never fully find, forbid us to be satisfied with what we make of life.
Draw us from base content and set our eyes on far off goals. Keep us at tasks too hard for us that we may be driven to Thee for strength.
Deliver us from fretfulness and self-pitying; make us sure of the good we cannot see and of the hidden good in the world.
Open our eyes to simple beauty all around us and our hearts to the loveliness men hide from us because we do not try to understand them.
Save us from ourselves and show us a vision of the world made new.
Thank you for allowing me the honour of presenting the address today. Like Mrs Roosevelt, we should continue, both as the NHRI, and as civil society, to set our eyes on far off goals and help foster a vision of a ‘world made new’.