By Margaret Bedggood
The emphasis in this blog has previously been on human rights rather than on the duties which are the inevitable and natural corollary of rights. Indeed, when human rights advocates speak of “human rights” they are using shorthand for “human rights and duties in a web of community and concern”. “Human rights” as such would not make much sense or have little effect, except as a utopian ideal, otherwise.
In legal terms what distinguishes a right from a mere claim or need is that some other person or entity is then charged with a duty, or obligation, to address that right. The 1948 Universal Declaration of Human Rights (UDHR) itself, in Article 29(1), states:
Everyone has duties to the community in which alone the free and full development of his personality is possible.
We have a recent example of this ‘duty’ in practice here in Aotearoa New Zealand, during the first Covid lock-down and since: the members of our community, the government encouraged and in some cases required the “team of 5 million” to be team players: to stay home, to wear masks, to contact trace, to get vaccinated, in the interests of the team as a whole.
The very fact that everyone has rights means that we all have obligations to take account of other people’s rights.
Moreover, the international human rights system is designed to sheet home to member states obligations to promote and protect human rights. Thus, New Zealand, which has agreed to be bound by the two international human rights Covenants, has thereby assumed obligations in relation to the rights listed in both Covenants. Such obligations are generally categorised at three ‘levels’ for a state: to respect, that is, not to breach these rights itself; to protect, that is, not to allow breaches by third parties; and to fulfil, that is, to act directly itself when that is necessary.
A recent example is the Prime Minister’s frequently repeated assertion, in the face of health experts’ anxious recommendations that the borders be tightened, that all New Zealand citizens and permanent residents have a right to return here and that the Government has an obligation or duty to protect that right. This ‘right to return’ is protected internationally by Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR):
No one shall be arbitrarily deprived of the right to enter his own country.
The New Zealand Bill of Rights Act 1990 (NZBORA) incorporates into domestic law most of the rights listed in the ICCPR. Article 12(4) is reflected in section 18(2), where, however, it is, notably, limited to New Zealand citizens:
Every New Zealand citizen has the right to enter New Zealand.
This right to return can be suspended, but only in exceptional emergency circumstances and for a brief period. This is set out in Article 4 of the ICCPR:
1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
Importantly, Article 12 is not included in the list of those rights which cannot be ‘derogated’ (i.e. exempted). However, such derogation must not involve discrimination on a list of grounds.
Section 5 of the NZBORA is a more general limitation clause:
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
And indeed recently the Government chose to impose such a limitation, closing the border for the first time to a group of New Zealanders, those coming home from India. But this was, and had to be, only a temporary measure and, as such, did not render these New Zealanders stateless, often the real and unacceptable result of any permanent exclusion.
Concerns were immediately raised that this was a discriminatory measure. Any such basis for the decision would be clearly in breach of the ICCPR and arguably could not be ‘reasonably justified’ here, especially if an interpretation of the NZBORA is strengthened by recourse to the ICCPR.
The Government has now altered its position, imposing restrictions on those coming from a range of ‘red zone’ countries, while allowing New Zealand citizens to return, but not permanent residents, following section 18(2) of the NZBORA, and lessening, if not entirely removing, any suggestion of discrimination in its policy and practice.
This example illustrates clearly two factors which human rights advocates must always take into account. Firstly, there are very few rights which are absolute – freedom from torture or slavery are examples. In almost all situations a balance will be required between competing rights. It may be a balance between the application of different rights themselves, as between the right to free speech and the protection against hate speech; it may be between the rights of individuals; between the rights of an individual and a group of which that individual is a member; between different groups; between the rights of individuals or groups and the rights of a community as a whole (the ‘common good’), as in our current example.
The second obvious limitation, again nicely illustrated here, is that the achieving of successful human rights outcomes is always only one factor in the political landscape. In this case the Government has employed a human rights framework and respected its obligations under human rights law. But the human rights advocate should be wary of expecting too much in the political context: it is not often that the ‘political will’ is as closely aligned with a human rights approach as has been the case here.
NOTE: The Human Rights Foundation’s blog presents a human rights perspective on current issues. Through it, we aim to highlight human rights in general, as they provide: (1) a set of agreed international standards, under which governments, including ours, have obligations to their peoples; (2) information on policies and practices which can be useful models for adapting to local conditions.