Monash University Law Research Series
Last Updated: 1 June 2011
Human Rights and Social
the Convention on the Rights of Persons with Disabilities and the quiet revolution in international law
On the 60th anniversary of the Universal Declaration of Human Rights (UDHR) the
Commonwealth Attorney-General announced a national
concerning the need for better human rights protection in Australia and the
viability of a federal human rights
charter. Whether or not the anticipated
charter includes social, economic and cultural rights is directly relevant to
of social justice in Australia. This paper argues that the legislative
acknowledgment of civil and political rights alone will not
the human rights problems that are experienced in Australia. The reluctance to
include economic, social and cultural
rights in human rights legislation stems
from the historical construction of an artificial distinction between civil and
rights, and economic social and cultural rights. This distinction was
articulated and embedded in law with the translation of the
UDHR into binding
international law. It has been accepted and replicated in judicial
consideration of the application of human rights
legislation at the domestic
level. The distinction between the two forms of rights underpins a general
ambivalence about the capacity
of human rights legislation to deliver social
justice and echoes a critical tradition in legal philosophy that cautions
reification of law. Coming into force early in the 21st century, the
Convention of the Rights of Persons with Disabilities (CRPD)
effort of the international community to recognize and eschew the burden of the
false dichotomy between civil and
political and economic, social and cultural
rights. Acknowledging the indivisible, interdependent and indissociable nature
rights in Australia is a crucial step toward achieving human rights
based social justice.
On the 60th anniversary of the Universal Declaration of Human Rights (UDHR) the Commonwealth Attorney-General announced a national public consultation about the need for better human rights protection in Australia. The National Human Rights Consultation Report (the Report) was delivered to the Federal Attorney-General on 30th September 2009. The Report recommends that Australia adopt a federal Human Rights Act  based on the ‘dialogue’ model. As was widely anticipated, the Report supports a legislative model similar to the model adopted in the Australian Capital Territory and Victoria. The model emphasises civil and political rights. The Report leaves open the question of the inclusion of economic social and cultural rights. It recommends that ‘if economic and social rights are listed’ the rights should not be justiciable. Rather, complaints regarding violation of economic social and cultural rights should be heard by the Australian Human Rights Commission.  Furthermore, the Report recommends that if economic and social rights are listed, priority should be given to the right to an adequate standard of living, including adequate food, clothing and housing, the right to the enjoyment of the highest attainable standard of physical and mental health, and the right to education. This tentative engagement with economic social and cultural rights marks a shift in Australian human rights debate.
The hesitation to include economic social and cultural rights in Australian legislation reflects the idea that to do so infringes the doctrine of parliamentary sovereignty and the separation of powers and encourage ‘judicial activism’. While this argument has been cogently challenged, arguments that emphasize the dangers of implementing social, economic and cultural rights, also fail to take account of the quiet revolution that has occurred in international law concerning the recognition of the indissociable, indivisible and interdependent nature of all human rights. The Convention on the Rights of Persons with Disabilities (CRPD), which entered into force internationally on 3 May 2008, embraces the notion that human rights are interconnected, socially embedded processes. This article traces the development of the emerging rapprochement in international law between civil and political and economic, social and cultural rights. It argues that the ‘quiet revolution’ in international law obligesAustralia to include full recognition of economic, social and cultural rights in a federal Human Rights Act.
Social justice and the critique of rights
Persistent ambivalence about the social justice capacity of human rights law stems from the critiques of rights that exploded in the 19th century. Although usually understood as unrelated perspectives, Bentham’s distinction between the ‘nonsense’ of declared or ‘rhetorical rights’ and the rights that flow from the substantive duties that are embedded in legal systems correlates with Marx’s theory of alienation and his analysis of the ephemeral nature of legal rights that fail to take account of material economic conditions. Both these analyses have continued to influence critical debate about international human rights law and its translation into domestic law throughout the 20th century. They are embedded in the various critiques of rights associated with ‘critical realism’, legal sociology and the emergence of the law and society movement. Following the accelerating introduction of rights based legislation and the amplified attention given to rights based rhetoric and practice that characterised the second half of the 20th century, by the close of the century critical literature was dominated by a sense of the irrelevance of law. Human rights law was seen, at best, as a clumsy vehicle for the achievement of social change, and at worst a damaging cultural facade. In this vein, Costas Douzinas announced the end of the age of rights.
In the 21st century, a closer and more detailed analysis of the translation of the abstract principles of human rights into the content of domestic law has developed. Meckled-Garcia and Cali, for example, trace the impoverished translation of human rights principle into law. They note the way in which legal practices and accepted rules of law stultify or nullify legislative provisions that are intended to give effect to human rights. From this point of view, the structures of both international and domestic law are identified as barriers to achieving social justice through human rights based legal change. Of course, strong support for human rights based law reform has existed in tandem with the various rights critiques. Notwithstanding that support, critical engagement with the law as a barrier to social change is important because it provides impetus for a reappraisal of human rights law as a tool for social justice.
Human rights and social justice
In 1948 the Universal Declaration of Human Rights (UDHR) expressed the aspirations of a fledgling human rights movement. The UDHR was adopted as a non-binding statement. It includes both civil and political rights and economic, social and cultural rights in an integrated account of human dignity. Almost 20 years later, the two foundation Covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), translated UDHR principles into binding international law. The ICCPR and the ICESCR divide the UDHR principles into two sets of rights. This strategic division resolved a pointed debate within the United Nations. Some nations agued for exclusion of economic, social and cultural rights from a binding covenant because they were not immediately realizable, could not be ascribed through legislation and required expenditure by States. Rather, they could only be guaranteed by sound national policy and achieved progressively when necessary resources were available. This rhetorical compromise allowed less economically robust member States to pursue economic, social and culture rights according to the principle of ‘progressive realization’ as set out in Article 2 of the ICESCR. It also accommodated an ideological divide over the primacy of civil and political rights as the emblem of democratic freedom, and the importance accorded to the provision of economic, social and cultural infrastructure for the well being of people in socialist systems. In developed western nations, the conceptual division of rights coincided with the demise of welfare liberalism and the post-war ascendency of neoliberal economic theory and practice. Progressive development in the west was to be legitimately achieved with the assistance of market forces.
The division of rights between the ICCPR and the ICESCR crystallized in law a perception of the difference between the two categories of rights. Civil and political rights were understood as concrete rights. They were characterized as clearly definable, immutable and capable of immediate application. They were seen as essential elements of democratic governance and the rule of law. They were negative rights that legitimately constrained the state. Their justiciability was unquestioned. In contrast, economic, social, and cultural rights were characterized as positive, aspirational rights. They were seen as quasi-rights that required positive action on the part of the state. They required expenditure and the development of policy. They were not fixed because their content was subject to modification or amendment according to cultural and practical circumstances and available resources. They were malleable, discretionary and non-justiciable. The underlying message was that the realization of economic, social and cultural rights ultimately endangered, rather than strengthened the state. The clear distinction between two, and the consequent deference toward civil and political rights was strategically disguised by neoliberalism. In theory, social and cultural needs could be included in the dynamics of market-driven demand. In practice, these areas of social life lack the defined economic markers that drive the creation of capitalist markets.
The conceptual division between civil and political rights and economic, social and cultural rights fed into the bourgeoning dominance of global neoliberalism. Global neoliberalism has emerged as the key regulatory force in the second half of the 20th century. On the global stage, the division between the two categories of rights preconfigured and reinforced the reliance upon neoliberal economics in international institutions such as the International Monetary Fund (IMF) and the World Bank (WB) and was accordingly exported to nations seeking assistance from these international organizations.
At the domestic level, neoliberalism also works to undermine the implementation of human rights. For example, neoliberalism encourages a valorisation of isolated, individual autonomous ‘choice’. The model of bare choice encourages the idea that individual rights in law should privilege isolated self-directed decision-making, rather than decisions that are embedded in personal, community and social contexts. Its corollary is the notion that the consequences of ‘choice’ are the sole responsibility of the decision-maker. Furthermore, neoliberalism subsumes ideas about the social realm and its impact on human experience within the notions of risk assessment and risk management. This is illustrated, for example, in accounts of ‘managerialism’ as the regulatory expression of neoliberal philosophy at the domestic, micro-political level.
The myth of the division between civil and political rights and economic, social and cultural rights was exploded by the ground-breaking work of Nobel Laureate Amartya Sen. Sen demonstrated the essential interrelationship between civil and political rights and economic, social and cultural rights in his comparative study of famines. Sen’s insights are complemented by feminist analyses that highlight the gendered nature of the constructed contrast between the two categories of rights and the realms of public and private life. Feminist accounts query the assumption that public, political rights, which are traditionally exercised by men, should be regarded as naturally defendable in the courts, whereas rights associated with the work of women in the home, in subsistence economies, in health care and in the education of the family, were not. Thornton, for example, has illustrated the gendered dissonance in law surrounding the public and private divide. Charlesworth and Chinkin illustrate similar limitations in the structures and rationales of international law.
The quiet revolution
The theoretical critique of law and the legalization of human rights has both informed and been influenced by the experience of people who remain subject to human rights abuse despite changes in the law. This has lead to a quiet revolution in international law, evidenced by the international community revising its approach to developing the content of international human rights instruments. In particular, it has worked toward articulating human rights approaches that respect the perspectives, experiences and aspirations of people who are subject to abuse. Two key processes underpin this quiet revolution. The first is recognition that reconciliation of the two categories of rights is an essential precondition for the realization of socially embedded human rights. The United Nations World Conference on Human Rights in Vienna in 1993 adopted the Vienna Declaration and Program of Action,  which specifically recognizes human rights as universal, indivisible, interdependent and interrelated. Article 5 of the Vienna Declaration reads as follows
5. All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
The second process involved reform of the United Nations system to enable the active participation of non-government organizations in the formal deliberations of the United Nations.
The Convention on the Rights of Persons with Disabilities
The CRPD is the first international convention to be drafted following the adoption of the Vienna Declaration and Program of Action, and with the collective and collaborative action from people with disability. The views and aspirations of disability organisations involved in the drafting of the CRPD are therefore reflected in the traveaux preparatoire and carry interpretive weight. This shifts the focus toward the subjective experience of human rights violation.
The reconciliation of the two categories of rights is expressed in the structure and content of the CRPD and its adoption of the social model of disability. The social model of disability emphasizes the responsibility of society to dismantle the physical and attitudinal barriers that exclude and stigmatize people on the basis of their physical or mental condition. The CRPD seeks to limit mechanisms that replicate and reinforce the social exclusion and marginalization of people with disabilities. To achieve this it sets out the foundation human rights of non-discrimination, equality and social participation as entitlements that must be constructed in the social fabric. For example, Articles 1 to 7 set out the general principles that establish people with disability are the subject of rights. Articles 8 and 9 seek to raise awareness, foster respect, combat stereotypes, prejudices and harmful practices, including the exclusion of people with disabilities from physical environments and essential services. Articles 11 to 17 reflect the priority given to physical and mental safety and well-being as a precondition for social inclusion. Articles 18 to 30 recognise the barriers to effective social participation as the interplay between the embodied experience of disability and the disabling effects of active and passive discrimination. Although the CRPD does not purport to create new rights, its critical contribution to the human rights landscape is a new articulation of how the rights are conceived, expressed and realised. This requires an astute examination of legal frameworks with a view to the realisation of integrated ICCPR and ESCR rights.
The CRPD in Australia
In Australia, debate about the implementation of the Convention the Rights of Persons with Disabilities (CRPD) remains enmeshed in the traditional separation of negative (civil and political) and positive (economic, social and cultural) rights. In the context of mental health care, this is reflected in a preoccupation with the question of involuntary detention and treatment, at the expense of discussion about the positive obligations imposed by the CRPD.
Australia signed the CRPD on 30 March 2007 and ratified on 17 July 2008. It entered into force in Australia on 16 August 2008. Australia also acceded to the CRPD Optional Protocol on 21 August 2009. The Optional Protocol allows the Committee on the Rights of Persons with Disabilities to receive communications from or on behalf of individuals or groups of individuals who claim to be victims of a violation by that State Party of the provisions of the CRPD. On ratification, Australia lodged an interpretive declaration. The first two paragraphs of the declaration are relevant to this discussion and read as follows:
Australia recognizes that persons with disability enjoy legal capacity on
an equal basis with others in all aspects of life. Australia
understanding that the Convention allows for fully supported or substituted
decision-making arrangements, which provide
for decisions to be made on behalf
of a person, only where such arrangements are necessary, as a last resort and
subject to safeguards;
Australia recognizes that every person with disability has a right to respect for his or her physical and mental integrity on an equal basis with others. Australia further declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards; 
The Joint Standing Committee on Treaties (JSCOT) conducts public consultation and makes recommendations to the Federal Government regarding the incorporation of treaties. In its Report on the CRPD, the JSCOT explains the declaration as an attempt to clarify Australia’s position in relation to substituted decision-making and compulsory treatment.  JSCOT notes that while different views were expressed in relation to substituted decision-making and compulsory treatment, the majority of disability organisations supported a declaration that would clarify Australia’s understanding of its ability to continue existing practices related to substituted decision-making and compulsory treatment.
The declaration indicates that both substituted decision-making and compulsory treatment will only be accepted as last resorts and with appropriate safeguards. There is sufficient evidence from inquiries into the current provision of mental health services in Australia to suggest that, in practice, the provision of mental health services often fails to conform with Australia’s declared understanding of the CPRD. The material also suggests that the content and operation of human rights safeguards is inadequate. These deficiencies can be are illustrated by a brief discussion of the scope of Articles 12, 17 and 25. In sum, the quiet revolution requires an assessment of the practical application of the relevant legal frameworks that is informed by the perspectives of people whose rights are infringed.
The effect of Articles 12, 17 & 25
For example, Articles 12, with Article 5 and 13, encompass the right to non-discrimination and equal protection and benefit of the law. The CRPD enshrines a presumption of capacity for all persons with disability, and imposes obligations to provide the support which may be necessary to exercise capacity. The strong emphasis in the CRPD on participation suggests that the obligation to include people with mental illness in decision-making may require processes that provide a higher standard than is currently provided to other people. Substituted decision-making may be acceptable provided it is activated only after the possibilities for self-directed decision-making are exhausted. Article 12(3) requires that substituted decision-making processes
“.....respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body.”
“ shall be proportional to the degree to which such measures affect the person's rights and interests.”
In all Australian jurisdictions, treating mental health practitioners are legislatively empowered to make decisions about compulsory treatment. The decisions that a person with mental illness may make about their own future care when they have capacity, or decisions made by an appointed representative, are overridden by compulsory powers. While it may be argued that the authority given to treating practitioners facilitates prompt treatment, human rights principles require that health interventions taken without the consent of the person or contrary to their expressed preferences are strictly justified, subject to real safeguards, and demonstrably proportionate to the risk that is being averted. Any accompanying restrictions on rights must also be proportionate. This suggests that it is necessary to closely examine current practice in order to ascertain whether the exercises of power are appropriate.
The right to respect for physical and mental integrity in Article 17 must also be evaluated through the lens of the quiet revolution.  Article 17 is linked in the structure of the CRPD to the prohibition against torture, inhumane and degrading treatment and the right to protection from exploitation, violence and abuse. Tina Minkowitz argues that this position, coupled with the full weight of international human rights law, invests Article 17 with the force of a prohibition against all involuntary treatment. Bernadette McSherry suggests that Article 17 is more correctly viewed as a limitation on practices of restraint and seclusion, and as providing protection from both unbeneficial treatment and overly intrusive treatment. Both writers imply that Article 17 requires, at least, an evaluation of the ‘taken for granted’ practices in mental health care that may infringe Article 17, including non-therapeutic practices that are imposed for administrative purposes, convenience or as punishment.
The interpretation of Article 12 and Article17 as requiring a critical evaluation of current practice is reinforced by the content of Article 25 on the right to health. Article 25 requires that people with disability are provided with adequate, appropriate and accessible services, guided by the overarching principles of non-discrimination and the obligation to elicit free and informed consent. Article 25 also emphasises the importance of providing health professionals with human rights training and developing human rights based professional ethics. Giving appropriate weight to Article 25, in particular, illuminates the social dimensions of the human rights framework in the CRPD.
Together Articles 12, 17 and 25 illustrate the shifts in debate engendered by the quiet revolution. In contrast, the Australian declaration emphasises the continuation of existing practices. It represents a missed opportunity to evaluate mental health care from a contemporary human rights perspective. The commitment to international human rights norms also requires the development of appropriate legislative frameworks to support good practice. This will be facilitated by the formal recognition of human rights in Australian law, particularly the inclusive recognition of economic social and cultural rights. New regional human rights instruments provide templates for an inclusive iteration of human rights. For example, both the Constitution of the Republic of South Africa (1996)and the Charter of Fundamental Rights of the European Union (2000) adopt an integrated approach and could provide templates for Australian federal legislation. The federal Charter could usefully draw on these examples.
The Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities bracket a period in which the social justice principles were subsumed within a false division between civil and political and economic, social and cultural rights. The revitalised social justice agenda in human rights law recognises the indivisible, interdependent and interrelated nature of all human rights. The real challenge is to recognise the full implications of the quiet revolution. With or without a comprehensive federal Act, engagement with the CRPD will develop a deeper a human rights sensibility in Australia.
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 This paper
refers to Substituted Decision Making as the process whereby decisions are made
on behalf of people who are considered
not capable of being able to make
 This paper refers to Compulsory Treatment as treatment of mental illness that is conducted without consent, or contrary to the wishes of the person receiving treatment.
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