Part 2 Section D: International laws and guidelines
International law is the law that governs the relationships between different countries.
International treaties (sometimes called 'conventions' or 'covenants') are part of international law. Treaties are agreements between many different countries setting out general principles about a particular subject such as human rights. There are a number of international treaties about human rights. For more about some of the main human rights treaties that are particularly relevant to people with mental illness, click here.
Most, but not all, of these are treaties developed by the United Nations. International treaties apply to all of the countries that have ‘ratified’ or ‘acceded’ to them (which results in a country being formally bound by the treaty).
International declarations are statements of principles or standards in international law that are persuasive (in the sense that they carry ethical force) but they are not legally binding. There are several international declarations about human rights and standards of care that are relevant to people with mental illness. For more about these declarations, click here . There are also a range of international documents that set out standards and principles relevant to people with mental health illness.
Human rights treaties sometimes have 'optional protocols' linked to them that either deal in more detail with a specific issue covered in the treaty, or with monitoring of the treaty, and/or with how individuals can complain if they believe their rights set out in the treaty have been breached.
After the government of a country has signed a treaty, it also has to be ratified or acceded to by the government of the country to give it full force. In Australia, it is the Commonwealth Government that decides whether or not to ratify a treaty. There is a Joint Standing Committee on Treaties of the Commonwealth Parliament that advises the Commonwealth Government on whether a treaty should be ratified or not.This only occurs after consultation with State and Territory Governments.
Even if a treaty is ratified, there is often little an individual can do to enforce the terms of a treaty if the terms of the treaty, such as particular individual human rights, are not then included in the laws made by parliaments in Australia. However, some treaties have complaints mechanisms that individuals can use, after they have tried legal options available under their country's laws.
As well as the range of international documents that may be relevant to the rights and needs of people with mental illness, there are also some bodies and officials who have particular responsibilities:
- The United Nations Special Rapporteur on Disability is appointed because of his or her specialist expertise in matter concerning disability. The Rapporteur reports to the United Nations on key issues affecting people with disability.is appointed because of his or her specialist expertise in disability. The Rapporteur reports to the United Nations on key issues affecting people with disability.
- The United Nations Committee on the Rights of Persons with Disabilities is the international committee of experts appointed under the Convention on the Rights of Persons with Disabilities (CRPD) to monitor implementation of the CRPD at the international level. It receives and reviews periodic reports from countries who are parties to the CRPD about their work to implement and uphold this treaty. The Committee also has the power to investigate complaints that allege that countries that are parties both to the CRPD and its Optional Protocol have violated the rights of an individual where there is no reasonably available domestic remedy for the alleged violation.
The Universal Declaration of Human Rights was first adopted by the United Nations General Assembly in 1948. (The General Assembly is like the Parliament of the United Nations). The Declaration was the first comprehensive international statement of human rights principles. It has 30 articles.
The contents of the articles in the Universal Declaration of Human Rights have been elaborated and expanded in later treaties and protocols on human rights.
Following is a summary of the rights set out in the Universal Declaration of Human Rights:
- Article 1 Right to equality
- Article 2 Freedom from discrimination
- Article 3 Right to life, liberty, personal security
- Article 4 Freedom from slavery
- Article 5 Freedom from torture and degrading treatment
- Article 6 Right to recognition as a person before the law
- Article 7 Right to equality before the Law
- Article 8 Right to remedy by competent tribunal
- Article 9 Freedom from arbitrary arrest and exile
- Article 10 Right to fair public hearing
- Article 11 Right to be considered innocent until proven guilty
- Article 12 Freedom from interference with privacy, family, home and correspondence
- Article 13 Right to free movement in and out of the country
- Article 14 Right to asylum in other countries from persecution
- Article 15 Right to a nationality and the freedom to change it
- Article 16 Right to marriage and family
- Article 17 Right to own property
- Article 18 Freedom of belief and religion
- Article 19 Freedom of opinion and information
- Article 20 Right of peaceful assembly and association
- Article 21 Right to participate in government and in free elections
- Article 22 Right to social security
- Article 23 Right to desirable work and to join trade unions
- Article 24 Right to rest and leisure
- Article 25 Right to adequate living standard
- Article 26 Right to education
- Article 27 Right to participate in the cultural life of community
- Article 28 Right to a social order that articulates this document
- Article 29 Community duties essential to free and full development
- Article 30 Freedom from state or personal interference in the above rights
There are various forms of recognition of human rights by the United Nations and other international organisations. These include treaties, declarations, action plans, ‘rules,’ ‘principles’ and guidance notes. These different forms of recognition have different legal significance. Treaties (which are usually called ‘conventions’ or ‘covenants’ are the most legally important forms of recognition of human rights because they are legally binding on those countries that agree to be bound by them. Other forms of recognition of human rights are usually ‘non-binding,’ but they are ‘persuasive’ in that their intention is to influence the practice of human rights within the international community.
The United Nations has, to date, adopted ten ‘core’ human rights treaties, which are binding upon those countries that agree to be bound by the treaties.
There are also a number of specialist human rights treaties that consider aspects of human rights that affect particular population groups. The following are the key specialist human rights treaties:
- Convention relating to the Status of Refugees (1951)
- International Convention on the Elimination of all Forms of Racial Discrimination (1966)
- Convention on the Elimination of all Forms of Discrimination against Women (1979)
- Convention on the Rights of the Child (1989)
- Convention on the Rights of Persons with Disabilities (2007)
The next page has more information about the International Covenant on Economic Social and Cultural Rights and the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities.
2D.2.1: International Covenant on Civil and Political Rights (ICCPR) and the Second Optional Protocol and the International Covenant on Economic, Social and Cultural Rights (ICESCR)
The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are the two main international treaties that expand in detail on the principles in the Universal Declaration of Human Rights and set them out in a legally binding agreement between countries. Both are treaties developed by the United Nations.Together with the Universal Declaration of Human Rights, these treaties are sometimes referred to as the ‘International Bill of Rights.’
The Second Optional Protocol to the ICCPR enables individuals to make a complaint to a United Nations committee if they believe one or more of their rights set out in the ICCPR have been violated, in circumstances where there is no reasonably available domestic remedy for this violation.
Australia has ratified (become a party and accepted obligations) both the ICCPR and ICESCR and the Optional Protocol to the ICCPR. Australia has not, with minor exceptions, incorporated the rights contained in the ICCPR and the ICESCR into domestic law (that is, laws made by the parliaments of the Commonwealth, states or territories).
Article 12 of the ICESCR recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The Convention on the Rights of Persons with Disabilities (CRPD) was developed by the United Nations. Australia ratified this treaty in 2008 and has also ratified its Optional Protocol. The purpose of the CRPD is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms for all people with disability, and to promote respect for their inherent dignity.
The CRPD does not define ‘disability’ or ‘persons with disability’ but in Article 1 it is made clear that the class of persons to whom it applies includes persons with long-term impairments. This certainly includes people with mental health conditions.
The Optional Protocol to the CRPD allows an individual to make a complaint to the United Nations Committee on the Rights of Persons with Disabilities if they believe one or more of their rights set out in the CRPD have been violated, where there is no reasonably available domestic remedy for that violation.
The CRPD comprises 50 articles, 20 of which articulate specific human rights as they relate to the needs and concerns of persons with disability. Among these rights are some that have particular significance to the specific forms of human rights violation disproportionately experienced by persons with mental health conditions. These include the right to equal recognition before the law (Article 12), which recognises and protects the right of persons with disability to exercise legal capacity, protecting the integrity of the person (Article 17) which seeks to protect persons with disability from unwanted, non-consensual interference with their person, and living independently and being included in the community (Article 19) which recognises the right of persons with disability to live in the community with support and prohibits institutionalisation. The right to Health (Article 25) and the right to Habilitation and Rehabiliation (Article 26) also contain elements that have specific significance for persons with mental health conditions in that they both stipulate that health care and rehabilitation must be provided on a voluntary basis, and seek to protect persons from involuntary treatment. Additionally, the right to Habilitation and Rehabilitation recognises and protects the rights of persons with disability to receive rehabilitation in the community in a manner which supports inclusion rather than segregation from community life.
The Convention on the Rights of the Child (CROC) 1is a United Nations treaty, which was ratified by Australia in 1990. It recognises the rights of children and that children need special care and protection. It applies to children and young people with mental health conditions on the same basis as it applies to other children and young people. Article 23 also provides that children and young people with disability (including those with mental health conditions) are entitled to enjoy a “full and decent life” and that they and their families are entitled to receive the support and assistance they require to enable this to occur.
International standards and guidelines are all general statements of principle meant to guide governments and service providers. They are not binding or enforceable in any way if they are not followed.
The following international documents set out a range of standards and guidelines that are particularly relevant to people with mental illness:
- United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care
- United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities
- United Nations Basic Principles for the Treatment of Prisoners
- United Nations Standard Minimum Rules for the Treatment of Prisoners
- United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
- United Nations World Program of Action Concerning Disabled Persons
- World Health Organisation Mental Health Care Law: Ten Basic Principles (1996)