Human rights: a few legalistic, pandemic and political related thoughts

Note: this is my opinion, but I do not have legal qualifications, and thus this does not constitute legal advice. If you wish to take legal action on any matter, you must seek competent legal advice for your jurisdiction. 

One of the most important and powerful documents in modern human rights history is the Universal Declaration of Human Rights (UDHR), dating from 1948, which elucidates the important principles that are held to by people across the world (UNESCO survey prior to formulating the UDHR).

However, the Declaration is not a binding legal document - it is a vitally important expression of norms, and thus has a bearing on decision making / reasoning in legal matters, but no-one can be sued for, say, breaching Article 2 of the UDHR, which states:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

However, legal action can be taken on the basis of Articles 2 and 3 of the International Covenant on Civil and Political Rights, which state:

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

The "twin covenants", the aforementioned International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, social, and Cultural Rights (ICESCR), were developed (too slowly, thanks to the ideologically driven Cold War - they were opened for signature in 1966, after nearly three decades of wrangling, and took a decade each to collect enough signatures to come into force) to develop a legally binding form of the principles set out in the UDHR.

(As a digression, my path to this included reading NSW State Library this page on treaty making, part of a "Hot Topic" page on human rights, which is very well written and well worth a read. The following from the next section is a sad indictment on Australia: "The rights protected under the International Covenant on Civil and Political Rights (ICCPR) are, in almost every country in the world, implemented by a domestic guarantee of rights, often called a ‘bill of rights’. Many such guarantees of rights, most notably in the constitution of South Africa, cover not only civil and political rights, but also the economic and social rights recognised in the International Covenant on Economic, Social and Cultural Rights (ICESCR). At the Federal level, Australia remains the only democracy in the world not to have passed a law directly implementing the ICCPR.")

Thus, when activists say "this is contrary to the UDHR", they are

(a) correct,
(b) possibly going to be more effective if they refer to the corresponding Article(s) in the twin covenants. 

To help this, since I cannot find it on the Heavenly Place of Ideas, Formulations, Half-Baked Ideas, Trivia and Trivialities (HPIFHBITT - why yes, now that you mention it, I haven't had enough sleep and have had too much coffee, as is common when I get excited by an idea - or have too much work for too long) that is also known as "the Internet", I've decided to start putting together exactly such a simple tabulation (as with so many of my projects, family and work have priority, so don't hold your breath while waiting for it - SIGH roll on retirement).

Of course, the first thing to do here is to re-read the UDHR and twin covenants (what? You haven't? What about the UN Charter - no? The 1791 French Constitution? The 1777 Constitution of Vermont, which banned slavery? The Paris Pact [also known as the Kellogg-Briand pact] of 1928 banning war? Oh . . . ), which I am finding easier now that I have worked out how to send copies of my copies of those inestimably important documents (only one of which, strangely, is available for purchase online) to my infernal but incredibly convenient and useful and makes-books-affordable-again-but-I-wish-all-books-were-formatted-for-searches (my spellchecker thinks the preceding hyphenation is not a word - hah!) e-book reader thingy.

In the course of doing this, I came across a few articles which are relevant to our current pandemic lockdown.

Let's begin with Article 6:

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 

That's intended to - quite rightly - ban the death penalty, but it is a useful introduction to the concept that people have a right to life - thus, in my proposed tabulation,I would link Article 3 of the UDHR to Article 6 of the ICCPR.

Now, Article 22, which includes an exception to freedom of association for the protection of public health. The value of lockdowns and quarantine to control disease outbreaks has been known for centuries, if not millennia, and is undertaken to protect the right to life.

Article 22

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. 

Next, Sections 3 of both Articles 18, and 19, but of which state that control of information for the sake of public health - and thus says that the right to life outweighs any rights to express wrong opinions that the irresponsible if not downright murderous purveyors of myths, "falsehoods", and lies want to spread for the purpose of puffing up their own shallow, superficial and fragile ego:

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals. 

If we now move on to the ICESCR, note Sections 1 and 2(c) of Article 12:

Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

Every single person who whinges or whines about losing their rights as a result of measures to contain the pandemic is:

(a) wrong;
(b) grossly irresponsible to the extent of being morally guilty of attempted murder, in my opinion; and
(c) an IPOC.

Have a nice day.



PS - I was pleased to re-read the following in Article 10 of the ICCPR, which Australia has ratified: 

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.