This section introduces some key human rights concepts that it will be helpful to understand. This information is taken from the background paper that was prepared for the consultations undertaken by the Taskforce in January 2008 to discuss the impact in Australia of ratification of the United Nations Convention on the Rights of Persons with Disabilities.
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Types of rights
The CRPD is primarily comprised of two different types of rights: civil and political rights, and economic, social and cultural rights. Ultimately, these rights are sourced, respectively, from the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Broadly speaking, articles 10 to 23 and article 29 of the CRPD are based in civil and political rights and articles 24 to 28 and article 30 are based in economic, social and cultural rights. However, the CRPD blends and develops these rights in new ways.
Civil and political rights are sometimes called ‘negative rights’ because they protect against interference with the liberty of the individual. For example, traditionally, the right to life has been expressed principally as an obligation on nations not to arbitrarily deprive a person of life, and to prevent others from doing so. On the other hand, social, economic and cultural rights are sometimes called ‘positive obligations’ because they require nations to take active steps to avoid the violation of a human right. For example, the right to health requires nations to take action to ensure access to the highest attainable physical and mental health.
Standards of compliance
Civil and political rights, and economic, social and cultural rights are, traditionally, subject to different standards of compliance. Civil and political rights are immediately realisable, which means that nations have an immediate obligation to respect, protect and fulfil these rights for all persons. Economic, social and cultural rights are subject to progressive realisation. The standard of progressive realisation does not require a nation to fully comply with the requirements of the right, provided it is working towards the realisation of this right as expeditiously and effectively as possible, using the maximum resources at its disposal. However, nations still have an obligation to satisfy ‘minimum essential levels’ of the right, and to avoid deliberately regressive measures.
Levels of obligation
In international law, nations have three levels of obligation in relation to human rights. First, nations must respect human rights. They must not violate or otherwise interfere with the exercise or realisation of a human right. Nations must also eliminate laws, policies and practices that are contrary to human rights. Second, nations must protect human rights. They must prevent non-state actors, such as individuals, private enterprises and social institutions from violating or otherwise interfering with the exercise or realisation of a human right. Third, nations must fulfil human rights. They must take positive action to ensure that all persons can exercise and realise their human rights. This includes the adoption of laws and policies that promote and protect human rights, the development of social institutions, programs and other measures to implement these rights, and the allocation of the resources necessary for these measures to be effective.
Human rights are universal, inherent, inalienable, indivisible, inter-related and interdependent
In international law, human rights are understood as being ‘universal’, ‘inherent’, ‘inalienable’, ‘indivisible’ and ‘inter-related’. Human rights are universal in the sense that they apply equally and without discrimination to every person, regardless of their personal characteristics, such as race, colour, sex, ethnic or social origin, religion, language, nationality, age, sexual orientation, disability or other status. Human rights are inherent in the sense that they are intrinsic to each person. They are inalienable in the sense that they can neither be given nor taken away. Of course, this does not mean that human rights cannot be violated. However, such violations do not strip the person of the right. Human rights are indivisible in the sense that each human right is of equal status and cannot be entirely separated or prioritised conceptually or practically from other human rights. They are interrelated in the sense that they do not exist or function isolation from one another, and they are interdependent in the sense that the realisation any one human right will depend on the realisation of other rights.