Dunston, Roger --- "Delivering on the Promise of Human Rights - Where Are We and Where Do We Need to Be?" [1997] AUJlHRights 13; (1997) 4(1) Australian Journal of Human Rights 5

[1] Roger Dunston, Director of Social Work Services at Royal North Shore Hospital, Sydney. Undertaking doctorate research in Human Rights and Public Policy in the Department of Social Work, Social Policy and Sociology, Faculty of Arts, Sydney University.

[2] This schism between promise and reality is one of the most well developed and consistent themes of human rights literature. For instance, Philip Alston, in discussing the reality as opposed to the promise of economic and social rights implementation, remarks "... there is not a single important indicator that would show anything other than the relative neglect, and often also the absolute neglect, of economic, social and cultural rights in practice" "Economic and Social Rights" in Henkin L and Hargrove J L (eds) Human Rights: An Agenda for the Next Century (The American Society of International Law, Washington DC, 1994) p 149.

[3] The Parliament of the Commonwealth of Australia Joint Standing Committee on Foreign Affairs, Defence and Trade A Review of Australia's Efforts to Promote and Protect Human Rights (AGPS, Canberra 1994) p xxxix.

[4] Exemplifying the trends identified in this section of the article is the work of the United Nations Development Program. Their annual Human Development Reports (Oxford University Press, New York 1990-1997) provide a strong conceptual base for what I will later identify as an expansive and normative approach to human rights implementation. A recent Australian publication by the Human Rights Council of Australia The Rights Way to Development: A Human Rights Approach to Development Assistance (Human Rights Council of Australia, Sydney 1995) also provides a succinct and Australian focussed approach to expansive and normative implementation. Similarly, the ongoing work of the United Nations Committee on Economic, Social and Cultural Rights has consistently argued for and developed an implementation framework supporting a normative and expansive approach.

[5] The actor/structural distinction is developed later in this article and is taken from the work of Galtung J Human Rights in Another Key (Polity Press, Cambridge 1994) pp 26-55.

[6] For instance, the International Commission of Jurists strongly develop the theme of indivisibility in their Bangalore Declaration and Plan of Action (Geneva, 1995) p 5, : "The Conference ... re-affirmed the fact that economic, social and cultural rights are an essential part of the global mosaic of human rights. ... resolved that jurists in the future should play a greater part in the realisation of such rights, than they have in the past, without in any way diminishing the vital work of lawyers in the attainment of civil and political rights."

[7] All the recent United Nations World Summits -- Human Rights, Social Development, Women, and Habitat, provide good examples of an expansive, indivisible and cumulative approach to implementation, an approach grounded in the broad conceptual and practice framework of the right to development applied to both developing and developed nations. During a recent discussion with an officer of the Australian Department of Foreign Affairs and Trade about the schism between civil/political rights and economic, social and cultural rights, "development rights" were described as providing a "healing" framework in which all other rights are required to co-exist (unpublished notes ,December 1996).

[8] For an elaborated discussion of these matters see Randall KC Federal Courts and the International Human Rights Paradigm (Duke University Press, Durham 1990) and Rosas A "State Sovereignty and Human Rights: towards a Global Constitutional Project" in Beetham D (ed) Politics and Human Rights (Blackwell Publishers, Oxford 1995).

[9] Randall K, op cit p 200.

[10] Alston P "The Committee on Economic, Social and Cultural Rights" in Alston P (ed) The United Nations and Human Rights -- A Critical Appraisal (Clarendon Press, Oxford, 1992) p 474.

[11] The Parliament of the Commonwealth of Australia Joint Standing Committee on Foreign Affairs, Defence and Trade, op cit pp xxi-xxxix.

[12] The Parliament of the Commonwealth of Australia Joint Standing Committee on Foreign Affairs, Defence and Trade, op cit p 329-333.

[13] The Parliament of the Commonwealth of Australia Joint Standing Committee on Foreign Affairs, Defence and Trade, op cit p xxxix.

[14] The recent NGO Forum, United Nations Fourth World Conference on Women Beijing Declaration of Indigenous Women (Asia Indigenous Women's Network, 1995) para 10-11, which ran parallel to the main United Nations Fourth World Conference on Women, identifies a similar tension between the discretionary and normative positions. It also develops, as does Senator Dee Margetts, ibid pp 329-333, a critique of the discretionary position based on its subjugation to economic priorities. "It (the main conference Platform of Action) does present a comprehensive list of issues confronting women and an even longer list of actions which governments, the UN and its agencies, multilateral financing institutions, and NGOs should do ... However, it does not acknowledge that this poverty is caused by the same powerful nations and interests who have colonised us and are continuing to recolonise, homogenise, and impose their economic growth development model and monocultures on us. It does not present a coherent analysis of why is it that the goals of `equality, development and peace', becomes more elusive to women each day in spite of the three UN conferences on women since 1975. ... It even underscores the importance of trade liberalisation and access to open, and dynamic markets, which to us, pose the biggest threat to our rights, to our territories, resources, intellectual and cultural heritage."

[15] For a useful and concise discussion of policy choices confronting governments and, in particular, the implications of such choices for Australia see Saunders P Towards a Balanced Vision: The Role of Social Goals, Social Policies and Social Benchmarks (Social Policy Research Centre, University of New South Wales 1994).

[16] Pusey M Economic Rationalism in Canberra (Cambridge University Press, Cambridge 1991) p 3.

[17] MacPherson CB The Rise and Fall of Economic Justice and Other Papers (Oxford University Press, Oxford 1985) pp 13-14.

[18] Pusey M, op cit p 10.

[19] Ibid pp 159-207 for a further development of these matters as applied to the place and role of the governments.

[20] Commission on Social Justice Social Justice, Strategies for National Renewal (Vintage, London 1994) p 1.

[21] Cass B "Expanding the concept of social justice: implications for social policy reform in the 1990s" (Paper delivered at the conference on Social Issues in Town Planning, Department of Town Planning, University of New South Wales 1990).

[22] Cass B "Contract state, social charter or social compromise towards a new Australian settlement" (Paper delivered at an Academy of Social Sciences seminar held at the University of Sydney 1995) p 19.

[23] Saunders P op cit p 87 identifies what might be termed a growing consensus as to the need to productively connect the social with the economic: "There is a growing acceptance of the need to seek a new realignment of economic, social and political forces, both nationally and internationally. That realignment involves choosing a better balance between the economic and non-economic: one which combines material prosperity with social well-being; which protects the freedom of the individual but also encourages individuals to participate in the community."

[24] Gewirth A Human Rights, Essays on Justification and Applications (University of Chicago Press, Chicago 1982) pp 5-6.

[25] The Human Rights Council of Australia, op cit p 30.

[26] Galtung J Human Rights in Another Key (Polity Press, Cambridge 1994) pp 26-55.

[27] Well developed examples of this approach to implementation are presented in the United Nations Development Program's Human Development Reports (1990-1997) and have been consistently developed in the comments and recommendations of the United Nations Committee on Economic, Social and Cultural Rights.

[28] Eide A "Future protection of economic and social rights in Europe" in Bloed A, Lleicht M, Nowak & Rosas A (eds) Monitoring Human Rights in Europe (Martinus Nijhoff, London 1993) p 188.

[29] Tomasevski K Development Aid and Human Rights (Pinters Publishers, London 1989) \tpp 128-130.

[30]Saunders P op cit.

[31] Pritchard K "Comparative human rights: promise and practice" in Cingranelli D (ed) Human Rights, Theory and Measurement (St Martins Press, New York 1988) pp 150-151.

[32] Tested against this indicator, the current Australian government's vacillation and ambivalence in relation to issues such as, Aboriginal land rights, the funding and role of the Human Rights and Equal Opportunity Commission, affirmative action policies, is profoundly disappointing and disturbing.

[33] Tomasevski K op cit, pp 139-140. See also the work of the United Nations Development Programme.

[34] Bloed A Lleicht M Nowak & Rosas A (eds) Monitoring Human Rights in Europe (Martinus Nijhoff, London 1993) pp 319-323.

[35] Committee on Economic, Social and Cultural Rights Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (UN doc:GENERAL E/CN.4/105, 18 December 1996).

[36] Bloed A op cit p 213.