Reading 11: Our rights matter

Introduction

Right Here, Right Now, Our Rights Matter. (2013 theme for National Aboriginal and Islander Children's Day)

From the beginnings of negotiations to establish the UN, Australia participated in international efforts to promote human rights (Fleay 2010). It was, however, after the Whitlam Labor government came to office in the 1970s that Australia signed the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified or acceded to a range of other international instruments, and enshrined some of these obligations in Australian law (Fleay 2010).

Marcia Langton (2012) argues that Aboriginal people now have many more legal rights and more ability to enjoy these rights than 50 years previously. She includes among those rights land rights and cultural heritage protection. Nonetheless, Australia's Indigenous human rights record is patchy and the previous long standing lack of commitment to the Declaration on the Rights of Indigenous Peoples is illustrative of this.

Indigenous peoples throughout the globe assert their rights in many ways and in a range of forums, including at the United Nations (UN). At the domestic level, the language of rights is barely evident in policy formulation or practice standards of organisations, including those in the human services arena. A human rights discourse also lags in Australian social work. However, in recent years, inspired by the work of Australian human rights social work academic Jim Ife, endeavours of redress have followed.

Donnelly (2007, p 306) is optimistic about the future of human rights despite their limitations in solving the world's problems. He believes that 'For the foreseeable future, human rights will remain a vital element in national, international and transnational struggles for social justice and human dignity' (Donnelly 2007). For Ife, human rights can provide social workers with a moral basis for their practice (Ife 2012, p 1). He speaks of loosening human rights from the shackles of Western modernism and reconstructing them in more dynamic, inclusive and cross-cultural ways (Ife 2012, p 8). Human rights social work academic, Elisabeth Reichert, urges us not to think about human rights as a panacea for social problems and reminds us that they raise questions about definition, application and enforcement, offering challenges to social work students, educators and professionals (Reichert 2011).

There are inherent difficulties in recasting social work theory and practice within a human rights framework. A vigorous shift from 'needs' to 'rights' is required and this change must be clearly expressed in policy and practice. Organisations are often change resistant to advocacy from below, and such repositioning is a complex and long-term undertaking. The AASW Code of Ethics (2010) expresses commitment to human rights, but simultaneously refers to human needs and human rights.

Human rights are only minimally defined in social work documents so it is confusing for practitioners to see how this perspective can be incorporated in their practice. It is important however, not to see human rights as separate from the range of theoretical perspectives from which social work draws but integrated for advancement of human rights. Cemlyn (2008) suggests that a human rights vision builds upon other emancipatory theories, particularly minority group rights.

As discussed in more detail below, one of the key areas of different conceptions of rights is the contest between collective rights advocated by Indigenous peoples and the doctrine of individual rights that pervades Western thought and the neoliberal discourse. Collective rights emphasise the value of protecting Indigenous cultures and existence, and reject the validity of the thrust towards equality premised upon assimilation and integration. There is much work to be done to marry the divergent views and to recognise their interconnectedness, whereby individual wellbeing is likely to flow from recognition and implementation of measures that support collective rights.

Social Work with Indigenous Communities
A Human Rights Approach
Second Edition
Linda Briskman
Federation Press 2014

International Human Rights

The human rights sphere of influence Human rights are often attributed to the enlightenment as a modernist concept. Yet human rights, although not named as such, have been present in all religions and cultures, and tenets that are codified today have a long tradition. Formally, before World War Two, there was little international usage of the language of human rights, although international movements in the 19th and 20th century sought to abolish slavery, ensure that medical support was available to those injured in war and to protect the rights of workers and minorities (Fleay 2010).

It was after the War that the idea of human rights as a concept developed as a response to atrocities committed. The establishment of the UN in the immediate post-war period was not without controversy and governments sought to ensure that its mandate would not limit the decision-making capacities of sovereign governments (Fleay 2010), a stance that helps explain why Australia resists UN criticism, including of the treatment of Indigenous peoples, as an infringement on national sovereignty.

The 1948 Universal Declaration of Human Rights (UDHR) was a significant achievement and a precursor to the development of other UN instruments that impact on Indigenous peoples. Although not legally binding, its articles were seen as providing universal constructs for all of humankind. As well as informing themselves of the tenets of the UDHR to foreground practice, social workers can familiarise themselves with constructions of human rights including what are known as the three generations of rights: civil and political; economic, social and cultural; and collective.

Civil and political rights

Known otherwise as first generation rights, these relate to freedoms seen as essential in democratic societies such as the right to free speech, freedom of assembly, the right to vote, freedom of religion and the right to a fair trial and equality before the law (He 2012, p 44). They also include such rights as to be treated with dignity, the right to public safety and freedom from discrimination and intimidation. They are rights to be protected. Although these rights are now enshrined in law and normatively for all citizens they are not always evident in practice, as discussed in Chapters 8 and 9.

Civil and political rights are best known in international law for their inclusion in Articles 2-21 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) 1966.

Economic, social and cultural rights

These second generation rights are the rights of the individual or group to receive social provision or services to achieve full potential as human beings. They include rights to housing, health, an adequate wage, employment, food and education. Unlike first generation rights, they require a more active role for the State. Rather than merely protecting rights, the State is required to take a role through various forms of social provision (He 2012, p 46). These rights are often a major concern for people in developing countries who live below the poverty line as well as Indigenous peoples in settler societies such as Australia.

Second generation rights are enshrined in Articles 22-27 of the UDHR and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Collective rights

Third generation rights are perhaps the hardest to implement. They have only been recently recognised and hence their codification in treaties and conventions is at a preliminary stage (Didi 2012). They are those rights which are defined at a collective level, that belong to a community, population, society or nation, including the right to economic development, the right to live in a cohesive and harmonious society and environmental rights (He 2012, p 47). This generation of rights is germane to Indigenous peoples as a challenge to colonialism and Western paradigms. Collective rights have at their heart the right of self-determination for those at the receiving end of colonisation. They have less traction in the public domain as they are perceived as oppositional to rights that are privileged by the dominant society, particularly first generation rights.

Social Work with Indigenous Communities
A Human Rights Approach
Second Edition
Linda Briskman
Federation Press 2014