Hi. My name is Lisa, a Healthy Discussions Officer from the Office of the Public Advocate. As a part of the Healthy Discussions Project, I'm doing some interviews with various people about various related subjects. This is from the viewpoint of a person with lived experience of disability, experiencing various forms of discrimination. In so doing, I hope that this will help improve the general understanding of disability.
This interview is with Dinesh Wadiwel, an Associate Professor in Human Rights and Socio Legal Studies from the University of Sydney. The questions cover very mildly and obviously, human rights, their origin, their influence and effect. This is a subject I feel very passionate about, having spent a semester in Sydney doing a human rights course and trying to figure out the relationship between rights and reality.
This is part one of the interview.
What are human rights?
Well, I guess the simple answer is that human rights are the rights that accrue to individuals because they’re humans. So that's the simple answer. The more complex answer is that human rights are about the things that are owed to us because of our presumed dignity, that we all have. And because of that dignity, or because we are seen as important, and maybe because we belong together in a social and political community, we are owed certain things as a result of being participants in that community. And in contemporary discourse, we use human rights as one way to describe that.
Where do they come from?
There's some different schools of thought on where human rights come from. If you think about a community, we recognise other people in our community because we see them as constituents of those communities and we see them as having a right to speak and participate in those communities. Human rights reflects our status within a community, our ability to be seen and be heard within that community, and that's what human rights expresses. So I would, as a scholar of human rights, I don't think there's anything necessarily intrinsic about us that says that we are owed rights necessarily. What I would say is that we all participate in social and political communities, and in order to participate, we all have to be granted equality and respect. And that means rights.
Why should we respect them?
Well, again, this comes back to how we look at human rights. So my understanding of human rights as a kind of social, political status within a community, the reason we respect rights is because we want that community to function but also reflect the values of that community.
So if we want a community that is premised upon democracy, upon respect for individuals on an equal basis, then we would want a community that respects rights of individuals. So if we have a community where only some people get rights and others don't, then that's immediately not a democratic community. So if we want a community that's democratic, for example, then we're going to have to have forms of equality that respect individuals on an equal basis with others in that community.
Does anyone in particular have a duty to protect human rights?
Lots of people would say, ‘Oh, it's the government's responsibility to protect human rights’, or it's the police or it's the law, or it's institutions that have the responsibility to protect human rights. Actually, a different view is that we all have a responsibility to protect human rights. So this view would say, actually, the only way that human rights really come into force, mean anything, is that we build a culture where everybody respects human rights.
I'd certainly be of that view. So I would say that we can't really talk about protecting fundamental rights, such as freedom from torture or treating people right, or respecting freedom of speech until we culturally embed human rights within the way we engage with other people. So that in a community everybody has a strong respect for human rights. And this will lead to a strong human rights culture within that community. From that standpoint, everybody has a responsibility to respect human rights and protect them.
Is there a hierarchy of human rights?
Some people would say that some of the foundational civil and political rights. When I say that, I'm saying things like rights to freedom from torture or freedom from slavery, rights to free speech, rights to equality before the law. Some people would say that these are the most important rights, and to an extent that's kind of true if you think about rights to freedom from torture or to refrain from slavery, are quite fundamental to how we think about how we get treated as equals in a society. But I think there's an evolving view that says that actually we can't, we can't hierarchise rights, and often many rights are interdependent.
So to give you one example, the right to education is often seen as a, what's called an economic, social and cultural right. It's not often seen as a core civil right. However, if you think about something like freedom of speech, we can't realistically realise the right to freedom of speech until we have a right to education. There's no capacity for us to express ourselves within a community of others, or be heard, or understand what others say unless we have education. So increasingly, human rights scholars and activists are trying to think about the human rights system as interwoven and interdependent. And this means that we can't just separate one right and say that's the most important right.
Probably the best example of this progress is the Convention on the Rights of Persons with Disabilities, because I would say, and I teach my students, in some ways it is the most, one of the most advanced treaties in bringing together civil and political rights and economic, social and cultural rights.
So to give you one example, one of the, I would say, one of the most amazing articles in that treaty is Article 19 on the right to live independently in the community. And that that article is, partly refers to, a classic right, which is freedom from arbitrary detention. And as you know, many people with disability don't get to choose the circumstances that they live within. And some people with disability have been subject to forced institutionalization through their whole life. Just because they are people with disability.
So that article takes that on and says, well, this is actually a form of false imprisonment, if you like. But it also says the only way to solve this problem is by society, governments, communities, actually supporting people with disability to be part of communities and enjoy equal rights to participation. Now you can only achieve this by funding social security, funding housing, all that sort of stuff. So all the stuff that goes beyond civil and political rights and goes towards economic, social and cultural rights.
Why are there conventions?
We think about a United Nations treaty. It's an agreement between nation states. A human rights treaty is a special kind of treaty in that nation states have got together to agree on some core human rights. More recent human rights treaties are more democratic. So it's not just nation states, but typically non-state actors such as NGOs are very active in drafting the treaty.
The Convention on the Rights of Persons with Disabilities is a good example of this sort of treaty, in that NGOs and academics actually drafted a lot of the text that is in the treaty itself. A treaty, in a human rights sense, has two different functions. One is that it proclaims into law, both international law and hopefully into domestic law, how individuals should be treated and raises this to the level of law in that it's meant to bind nation states and bind institutions, and can actually lead to forms of law that are enforceable.
But also treaties are aspirational documents. They both create the context by which law can enshrine rights, but simultaneously they're very aspirational in that they often set the benchmark for how individuals should be treated. And everybody involved, including the activists, know that the treaty may be decades away from actually being fulfilled, but it gives you something to campaign towards. Certainly, I'd say the Convention on the Rights of Persons with Disabilities is again another good example where many elements of the Convention about immediately we need to get some things into law. Some of the debates that are happening internationally around guardianship are good examples of the way that the treaty has immediately started to change law and policy.
But some of the elements of the treaty are going to take decades to fulfill. So hopefully that helps to illustrate what a treaty is. It's both a legal document, yet hopefully binds nation states and their laws, but it's also a kind of a document for social movement. It sets aspirational goals for social movements, for change.