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Australian Journal of Human Rights |
Wayne Morgan[*]
This paper reviews communications concerning Australia that have been made to the United Nations Human Rights Committee (the Committee) over the seven years since the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) came into force for Australia.[1] The focus is on the Australian Government's responses to those communications. By employing some critical theory, I investigate some of the themes prevalent in those Government responses. I consider that the Government suffers from a `passive/aggressive' mentality when it comes to Optional Protocol communications, that is, their responses are too `passive' domestically and too `aggressive' internationally. After outlining why this characterisation is adopted, I offer some utopian suggestions about how the system could be improved.
Before undertaking this task, a picture is needed as to who sends communications and why. Information concerning communications is very difficult to access because of the Committee's confidentiality rules[2] and government lawyers are not always very forthcoming with details. Yet it is necessary to understand who is complaining and what they are complaining about, before the worth of the Optional Protocol procedure can be assessed.
The 24 communications lodged against Australia[3] cover an interesting range of issues: from the seemingly frivolous to serious human rights abuses. They vary considerably in their scope of argument and in the allegations raised, although the lack of information publicly available about communications can make it difficult to assess the credibility of some of the claims.
Eleven communications have been about the justice system: four dealt with matters arising out of the civil law, while seven concerned the criminal justice system. The civil cases concern a neighbourhood dispute,[4] as well as contract and debt cases that had been litigated unsuccessfully by the authors in domestic courts.[5] One case concerns an allegation by an Aboriginal man of bias, when the Family Court awarded custody of their children to his non-Aboriginal partner.[6] The criminal cases mainly involve various aspects of the right to a fair trial and rights to an appeal.[7] Significantly, two pending cases, one already declared admissible, concern the provision of legal aid.[8] These cases show that many litigants will attempt to use the Committee as a form of appeal court when they are unhappy with the decisions made in Australian courts. The Committee has had little hesitation in declaring many of these inadmissible, perhaps aided by the extremity of some of the claims. For example, it is unlikely to have helped Mr Werenbeck's claim that he had not received a fair trial, to allege that deals between the Queensland police, the judiciary and Lebanese drug syndicates were regularly being made,[9] or Ms Lang's claim that the Australian legal system and legal profession were corrupt and biased against women and immigrants.[10] Two communications have been lodged to prevent deportation using the controversial Rule 86 cases,[11] and three concerned refugee policy.[12] The remaining eight communications have involved workers compensation,[13] recovery of overpayments,[14] defence policy on nuclear weapons,[15] Chelmsford's deep sleep therapy,[16] the (now) infamous Tasmanian anti-gay laws,[17] rights of residency,[18] punishment for non-payment of compulsory professional fees[19] and disability discrimination in education.[20]
Of the 24 cases lodged with the Committee, 13 have reached the admissibility \t\tstage,[21] eight have been rejected as inadmissible under the Optional Protocol, with the remaining five proceeding to the merits phase.[22] The three most common bases on which the Committee has ruled Australian communications inadmissible are: because the events occurred prior to entry into force of the Optional Protocol for Australia (on 25 December, 1991); because of a failure to exhaust domestic remedies; and because of a failure to substantiate a claim that raises a possible breach of the ICCPR.
These admissibility determinations illustrate a few points for authors and their lawyers to bear in mind. Firstly, the Committee strictly applies the temporal limitation on its jurisdiction. Although events occurring before the entry into force of the Optional Protocol may be examined by the Committee if those events have continuing effects which themselves amount to a breach of the ICCPR, this exception to the strict temporal limitation is rarely invoked by authors or the Committee. For example, the Chelmsford case[23] raised serious human rights concerns but was held inadmissible as it dealt with events prior to 25 December 1991.
Secondly, failure to substantiate a claim in the initial communication (or shortly thereafter) will also lead to inadmissibility. For example, vague allegations of `sickness' or `failure to provide medical treatment', with no further information, will not satisfy the Committee.[24] Thirdly, of more concern is the obstacle which the `exhaustion of local remedies' rule continues to place before authors. The case of X, the Aboriginal man complaining of bias in the Family Court, was ruled inadmissible on this ground. Yet one can understand X's frustration when, after refusing to participate further in the case in Australia because of his concerns about bias, he is told by the Committee that his case is inadmissible because he did not subject himself to the very system he sees as being biased.
In the long term this rule will need to be re-examined. It represents a relic of a by-gone era of inviolable sovereignty. It also represents yet another manifestation of the public/private binary opposition so comprehensively criticised by feminist and other critical authors.[25] This is not to say that people who feel their human rights have been violated should be permitted immediately to send a communication to the Committee as such a situation would be abused too frequently. But it is obvious that the current rule is far too crude and itself can amount to a breach of human rights in denying some people any remedy at all. A much more sophisticated approach is needed to the issue of when a domestic system has reached the limits of its competence.
The Australian Government's response to communications was characterised in the introduction as being both too passive and too aggressive: too passive domestically and too aggressive internationally. Part of the domestic passivity relates to the failure of the Government to try and resolve human rights issues in Australia once a case is lodged (or indeed, before). This will be discussed below. The international aggressiveness relates to the way the Government pleads its cases: a trend towards vigorously contesting admissibility, not to mention merits, is clearly discernible.
Such an approach may seem appropriate in what is, after all, a litigation practise. But this very point highlights the importance of the framework in which we imagine human rights. In my opinion, Optional Protocol communications should not be envisaged by the Government as part of a litigation practise. Indeed, treating human rights cases in an aggressive, adversarial way seems to contradict some of the basic values of human rights discourse: equality, tolerance and a respect for difference. Instead of reflecting such values, the Government is intent on being legalistic and in taking every point it possibly can. The Government never addresses itself to the author, or to the author's concerns, but is more interested in blinding the Committee with rules and precedents.
One example will suffice to show the lengths to which the Government is prepared to go when disputing admissibility. Mr Werenbeck alleged that he had not received a fair trial.[26] Part of his claim related to his lack of familiarity with English and inadequate translation during his trial. As a separate issue before the Committee, \tMr Werenbeck also claimed compensation for certain tapes that were German translations of his trial. These tapes had apparently been `lost' in transit between two prisons. Not content with disputing the substance of Mr Werenbeck's claim concerning a fair trial, the Government hit this trivial issue with its full barrage: first, the Government said that the claim was inadmissible on temporal grounds; second, it said that the claim raised no issues under the ICCPR; and third, Mr Werenbeck had not exhausted domestic remedies with respect to the tapes. In his comments on the Government's submissions, the author responded that no remedies existed in practice, since it is beyond anybody's means to seek review in the Supreme Court. In response to this comment -- not that it needed one -- the Government further submitted (somewhat disingenuously) that review in the Supreme Court only costs a filing fee of $154, which could even be waived. The author commented that he was not informed of such a procedure and the time for such a case had now expired. It is difficult to see any justification for the amount of time spent making claims and counter-claims on this issue. It shows the aggressive posture that the Government adopts when it pleads its case.
This aggressive stance is even more obvious in deportation and refugee cases. This can be seen in the ARJ communication as well as in GT and the case of A. ARJ is an Iranian citizen, who was convicted of drug importation and imprisoned in Western Australia. While in prison, ARJ applied for refugee status that was refused. After unsuccessful appeals, he requested the Minister for Immigration and Multicultural Affairs to exercise his discretion to allow him to stay in Australia on humanitarian grounds. The basis of the application was that those convicted of drug offences would, upon return to Iran, be subject to an unfair trial, imprisonment for a second time and torture. Upon refusal by the Minister to exercise his discretion, ARJ lodged a communication with the Committee claiming that Australia would be in breach of the ICCPR if it deported him to a State where he was likely to receive an unfair trial and be tortured. Under Rule 86, the Committee requested that the Government refrain from any action that might result in the forced deportation of the author. The Government complied but urged the Committee to withdraw its interim protection request and stated that ARJ would be kept in immigration detention until the matter was resolved. The Committee did not withdraw its request but agreed to hear the admissibility and merits together to speed up the process. In July 1997, less than 18 months after the initial communication, the Committee declared the communication admissible but found against the author on the merits, thus allowing his deportation.
The Government's paranoia about such deportation cases, as with the refugee cases, stems from a concern with the sanctity of our borders (physical and metaphysical) and goes to the heart of an outmoded conception of sovereignty. Again, the case demonstrates that the Government will defend itself vigorously in an adversarial fashion. The Government's submissions on this communication reflect a high level of research, not just with respect to the applicable human rights law, but also with respect to the factual allegations made by ARJ. The Government was at pains to convince the Committee that it could not be said with any certainty that the author would be subject to any unfair trial or torture upon his return to Iran. In my opinion, the Government is to be commended for providing the Committee with this information, as it enables the Committee to assess better these factual matters. However, the Government's pleadings in this case are disturbing for a reason that has nothing to do with the facts of the case. The Government's submissions show a trend to argue for the narrowest interpretation of ICCPR rights whenever possible -- for a `narrow construction' of the applicable tests -- to avoid `misuse' of the Optional Protocol.[27] Again, such aggressiveness may be appropriate as a normal litigation practice between individuals. It is not, however, appropriate in a human rights context.
Unfortunately, the same aggressive stance does not characterise Government action when Australia is found in breach of the ICCPR. Australia has so far been found in violation of human rights by the Committee on two occasions: in the Toonen case and in the case of A. In both cases, passivity (and downright denial) has come to the fore. No doubt the previous Australian Government, and others, would vigorously reject this as a characterisation of the response to the Toonen case.[28] It is true that within 12 months of the Committee decision in that case, the Government had passed legislation in response to the Committee's view.[29] But this was a half-hearted response that did not really provide an effective remedy at all.[30] It was left to Nick Toonen and Rodney Croome to pursue further court \taction to achieve (eventually) the abolition of the Tasmanian laws.[31]
The Government's response to the case of A has been worse than `passive'; it has been one of denial: refusing to recognise or deal with the human rights abuses for which it is directly responsible. As Nick Poynder noted prior to the Government's response: `the initial response of the Government has, however, been disingenuous, with the immigration minister, Mr Ruddock, seeking to characterise the finding [by the Committee] as limited to the length of detention under the superseded (and by implication irrelevant) Migration Act provisions'.[32] The Government's characterisation of the issue in this way demonstrates a contempt for the author and for the wider Australian community who are concerned, as was the Committee, with the Government's blanket policy of detention per se. Motions were passed in the Senate and Amnesty International held a national day of action,[33] but the Government still refused to acknowledge the true impact of the case of A on Australia's detention policies. The Government finally responded formally to the Committee in December 1997 -- four month's late. In this formal response, the Government flatly rejected the Committee's decision, stating that the Government did not accept that any breach of the ICCPR had occurred. The Attorney-General (Daryl Williams), in announcing the response, was quoted as saying that the Committee `provides views and opinions and it is up to countries to decide whether they agree with those views and how to respond to them'.[34]
This comment by the Attorney-General illustrates a lack of understanding of the nature of Australia's treaty obligations. Australia has an international legal obligation, as set out in Article 2(3) of the ICCPR, to remedy human rights abuses occurring in Australia. It is ludicrous to suggest that any government is an adequate independent arbiter, capable of judging its own policies as to whether they breach the ICCPR. The self-interest of governments makes such independent assessment impossible. Yet the Australian Government refuses to accept the determination of the only international body capable of determining the issue and which has the authority (and the respect) of the international community. Australia's obligations with respect to A and other refugees do not stem from the Committee's decision; they stem from Article 2 of the ICCPR. Even without the Committee's decision, Australia's refugee policies were, and continue to be, in breach of the ICCPR. The Committee's view merely confirms this.
If the Attorney-General's interpretation of the ICCPR is accepted, then the Government's attitude to human rights can be viewed as little better than rhetoric. It means that the Government can refuse to deal with a human rights abuse prior to a Committee decision on the basis that it has not been determined that a breach has occurred.[35] The Government can also refuse to deal with a human rights abuse after a Committee decision by rejecting the Committee's role as umpire. On this interpretation of the ICCPR, the Government always wins. So much for a genuine commitment to human rights!
The implications of the Australian Government's passive/aggressive mentality do not bode well for the domestic implementation of human rights. Of course, the Government and government bodies do not speak with one voice, but it is true to say that there are many in the current Government who continue to perceive `human rights' as a threat. They also seem to believe that people who claim violations of human rights are, largely, not `genuine' in their claims. Further, the competency of bodies like the Committee is still openly questioned, if not purposefully de-legitimised.[36] Although other interests have prevented the full force of the anti-human rights lobby being brought to bear, the construction of `human rights as threat' can be seen in the responses to Toonen and A, and the approach taken by the Government in its submissions to the Committee.
While this construction of `human rights as threat' and human rights petitioners as `enemies' is dominant in the Government, there is little prospect of progressive change. While enormous gains have been made over the last few decades in the implementation of human rights in Australia, it is also true that the very idea of human rights is under attack in a way not contemplated just a short time ago.
While international aggressiveness and domestic passivity (and hypocrisy) when it comes to Optional Protocol cases is perhaps not surprising, it shows a sad lack of imagination, not to mention respect, for the ideals of human rights law. Critical theory may provide some ways to re-imagine human rights law as a process of communication, conversation and listening, in a context of a better understanding of `difference', and a move beyond a passive/aggressive state.
The construction of human rights as `threat' and human rights petitioners as `enemies' or `other' is analogous to other patterns of construction operating in international relations, which have been identified by critical scholars using feminist, post-colonial, critical race and queer theory.[37] This scholarship has shown how discourses of patriarchy and neo-colonialism (in its present form of `development and trade liberalisation'), as well as other discourses that structure the modern world, depend upon notions of hierarchy and exclusion.[38] Human rights discourse already does, and is in danger of increasing, its participation in such hierarchies of exclusion. Yet, at least as the Toonen case demonstrates, human rights law can also have transformative potential at a popular (if not a government) level.[39] The question is, how is that potential maximised?
The transformative potential of human rights law is found, according to some critical scholars, by thinking about questions of diversity.[40] Emancipation remains the goal, as it always has in human rights law, but is coupled with an understanding that `difference' is both irreducible to the `norm' and productive of new knowledges. Difference cannot be assimilated because of its importance as a discursive performative,[41] both to the dominant mainstream and to those whose difference has become essentialised and used as a weapon against them. But this resistance to assimilation that characterises assertions of difference, does not mean that the law generally, nor the human rights field in particular, must adopt some notion of `cultural relativity'. As Di Otto has shown, `cultural relativity' is simply a reversal of the dualism (universalism/cultural relativity) that currently privileges European enlightenment notions of human rights as `universal'.[42] Instead of a theory of cultural relativity, human rights law requires attempts to `create a politics out of multiple differences'.[43]
At least part of such creation involves hearing the stories of the marginalised. It also involves recognition that our constructions of our own identity (personal, national and global) depend upon the disqualification of `other' knowledge systems. It means giving up our fetish for (meta)physical borders and allowing alternate systems of knowledge (that is, difference) to utilise `the State' (or State fora) as a productive site of competition.[44] Competition between visions of identity and fairness that have the potential to actually change our constructions of the world. This is true at both the macro and the micro level: it is as relevant to the way the Government pleads Optional Protocol cases as it is to the functioning of global security or economic globalisation. In the context of Australian human rights communications, these esoteric notions can be translated into very practical suggestions. Although, as was noted in the introduction, this is a utopian vision and one which could only be brought about with major ideological change, not to mention monetary expense.
The Government's current passive/aggressive mentality has a number of effects. It privileges a traditional legal form or technology (adversarial process) that is exclusionary to its very core. It privileges the nation-state, clinging to outmoded forms of sovereignty. It also refuses to recognise the validity -- indeed the transformative potential -- of the knowledge systems that are marginalised in our society (such as those of refugees, of Aboriginal people, of gay men and lesbians). It should be obvious (even to the Government), that a genuine respect for human rights requires us all to move beyond a passive/aggressive state.
When an Optional Protocol case is lodged, the Government should cease being passive about it. An independent body, along the lines of the Human Rights and Equal Opportunity Commission but separate from it, should have responsibility for (and full power over) the conduct of the case. The time that it takes the Committee to conclude its examination of a communication could usefully be used by an independent body acting as a type of mediator to try and resolve the dispute. It could conduct a managed `domestic conversation' about the issue, perhaps leading to its resolution. It could provide the type of forum mentioned above: a productive site for competing visions of difference and fairness. Providing this kind of forum would also circumvent the kind of criticism of `faceless foreigners' determining `our' law that was so prevalent after the Toonen case. Of course, the conduct of such a conversation would be impossible in the current climate where Governments refuse to speak (in any meaningful way) to the authors, and address themselves only to the Committee.
If a case does go before the Committee, the Government should stop being so aggressive. Of course there are people who will abuse the Optional Protocol process and whose cases do not really involve challenges to current practices of subordination. Some of these cases will need a strong defence by governments. But an aggressive barrage of State power through law and lawyers (itself a practice of subordination) is not needed in every case. A desire to listen, rather than constructing the author as the `other', would maximise emancipatory goals more fully.
In the meantime, and whilst the Government maintains its passive/aggressive attitude, I think it is incumbent on all human rights activists to do two things. We must continue to push at the limits, to re-imagine the system, to work toward transformation. But also, in helping authors with Optional Protocol communications, we must acknowledge the Government's aggressive stance and act accordingly: challenging its narrow constructions of human rights law and its refusal to see value in non-essentialised forms of difference.
[*] Lecturer, Faculty of Law, University of Melbourne.
[1] The International Covenant on Civil and Political Rights (ICCPR), opened for signature 16 December 1966, 999 UNTS 171 (entered into force 1976). Australia acceded to the Optional Protocol to the ICCPR on 25 September 1991 and the Protocol came into force for Australia on 25 December 1991. For Australia's instrument of accession to the Protocol see ATS 1991 No 39.
[2] Rule 96 (1) of the Committee's Amended Rules of Procedure states: `All decisions not of a final nature adopted by the Committee in the course of consideration of a communication under the Protocol are confidential. They are transmitted to the parties solely for information or for the purposes of soliciting information, observations or clarifications in respect of: (a) questions of admissibility; (b) the merits of the claims; or (c) any remedial action that may have been taken by the State party. No publicity shall be given by the parties to the content of these decisions, which will remain confidential except to the extent that they may be reflected in later decisions of a final nature.' The rule goes on to state that decisions of a final nature are normally made public by the Committee.
[3] This figure refers to communications under the Optional Protocol to the ICCPR, as at the end of October 1998. I am not examining the three communications that have so far been lodged under the Convention on the Elimination of all forms of Racial Discrimination or the two communications lodged under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment.
[4] Lang v Australia UN Doc CCPR/C/58/D/659/1995.
[5] AS and LS v Australia UN Doc CCPR/C/47/D/490/1992; Jarman v Australia UN Doc CCPR/C/58/D/700/1996.
[6] X v Australia UN Doc CCPR/C/57/D/557/1993.
[7] Perera v Australia UN Doc CCPR/C/53/D/536/1993; Werenbeck v Australia UN Doc CCPR/C/59/D/579/1994; ICCPR Communication 545/1993 (denial of legal aid to appeal: merits pending); ICCPR Communication 681/1996 (denial of legal aid and denial of parole: not yet reached admissibility); ICCPR Communication 723/1996 (treatment of prisoner: not yet reached admissibility); ICCPR Communication 762/1997 (delay in prosecution: not yet reached admissibility); ICCPR Communication 802/1998 (right to a fair trial: not yet reached admissibility).
[8] ICCPR Communication 545/1993 (denial of legal aid to appeal: merits pending); ICCPR Communication 681/1996 (denial of legal aid and denial of parole: not yet reached admissibility).
[9] Werenbeck v Australia, above, note 7, para 5.6.
[10] Lang v Australia, above, note 4, paras 3.1-3.2. Not that I disagreed with her assessment.
[11] ARJ v Australia CCPR/C/60/D/692/1996 and GT v Australia CCPR/C/61/D/706/1996. Rule 86 of the Committee's rules states: `The Committee may, prior to forwarding its final views on the communication to the State party concerned, inform that State of its views whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State party that such expression of its views on interim measures does not imply a determination on the merits of the communication.' Under this Rule, the Committee has requested that Australia not deport authors who are subject to deportation, until the case is resolved. Given the time it can take to resolve a communication, this may allow such a person to remain in Australia for some years, hence the controversy surrounding the use of Rule 86 in deportation cases.
[12] A v Australia CCPR/C/59/D/560/1993; ICCPR Communication 762/1997 and ICCPR Communication No 776/1998.
[13] ICCPR Communication 751/1997.
[14] ICCPR Communication 737/1997.
[15] ICCPR Communication 646/1995.
[16] KLB-W v Australia CCPR/C/47/D/499/1992/Rev 1.
[17] Toonen v Australia CCPR/C/50/D/488/1992.
[18] Ramsey v Australia ICCPR Communication 655/1995. The author discontinued this communication when the Government provided a remedy.
[19] JL v Australia CCPR/C/45/D/491/1992. This case concerned a Melbourne solicitor who gained some notoriety when he refused to pay the practising and insurance fee. He was eventually held in contempt of court -- twice. His complaints concerning the fairness of his trial were ruled inadmissible by the Committee on temporal and material grounds.
[20] ICCPR Communication 832/1998.
[21] A communication to the Committee is normally a two-stage procedure. The Committee first determines whether a communication is admissible under the Optional Protocol to the ICCPR. This involves examination of issues such as whether the author is a `victim' of an alleged violation, whether domestic remedies have been exhausted and whether the communication raises issues under the ICCPR. The views of the State concerned are usually sought on the question of admissibility. If the communication survives this stage, the Committee will proceed to examine the merits of the case. See generally, McGoldrick D The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (OUP, 1991).
[22] Five communications have been declared inadmissible without reference to the Australian Government: AS and LS; JL; KLB-W; Lang; and Jarman. The other three communications, Perera, X and Werenbeck were declared inadmissible after the views of the Australian Government were sought.
[23] Concerning the notorious `deep sleep' therapy.
[24] These allegations were made in Werenbeck, above, note 7, paras 3.2, 4.4 and 9.3.
[25] In the context of international law see, for example, Charlesworth H, Chinkin C and Wright S `Feminist Approaches to International Law' (1991) 85 American Journal of International Law 613.
[26] Werenbeck v Australia, above, note 7.
[27] Para 4.2, 4.11 and 4.12 also reflect arguments put by the Government which, although based on the Committee's own jurisprudence, are aimed at a narrow interpretation of ICCPR rights.
[28] As indeed they did throughout the controversy, and as government lawyers continue to do. See, for example, the second reading speech of the Attorney-General upon the introduction of the Human Rights (Sexual Conduct) Bill (Cth): Commonwealth of Australia House of Representatives, Hansard 1775-1780 (1994).
[29] Human Rights (Sexual Conduct) Act 1994 (Cth).
[30] For further comment on this see Morgan W `Protecting Rights or Just Passing the Buck? The Human Rights (Sexual Conduct) Bill 1994 (Cth)' [1994] AUJlHRights 27; (1994) 1 Australian Journal of Human Rights 409.
[31] Rodney Croome and Nick Toonen brought a case before the High Court, seeking a declaration that the Tasmanian laws were invalid. The Tasmanian Government immediately challenged the plaintiffs' standing and the justiciability of the issue. The High Court decided the issue was justiciable: Croome and Toonen v Tasmania [1997] HCA 5; (1997) 142 ALR 397. This finding finally led to enough pressure being placed on the Tasmanian Upper House to repeal the laws, which happened on 1 May 1997.
[32] Poynder N `A (name deleted) v Australia: A milestone for asylum seekers' (1997) 4(1) Australian Journal of Human Rights 167. Nick Poynder was the lawyer who acted for A in his communication to the Committee.
[33] Ibid 168.
[34] MacDonald J ` Australia rejects ruling on asylum seekers' The Age, 18 December 1997, p A10.
[35] This is another aspect of the Government's domestic passivity that characterises Optional Protocol cases.
[36] See for example, Kemp R `Australian Disputes, Foreign Judgments' (1993) 46 IPA Review 10.
[37] The literature is now voluminous. See, for example, Charlesworth et al, above, note 24, Cook R (ed) Human Rights of Women (Univ of Penn, 1994); Guha R and Spivak G (eds) Selected Subaltern Studies (OUP, 1988); Ashcroft B, Griffiths G and Tiffin H (eds) The Post-colonial Studies Reader (Routledge, 1995); Delgado R (ed) Critical Race Theory (NYU, 1992); Morgan W `Queer Law' (1995) 5 Aust Gay and Lesbian Law Journal 1; Otto D, Morgan W and Walker K `Rejecting (In)tolerance: Critical Perspectives on the United Nations Year for Tolerance' [1995] MelbULawRw 14; (1995) 20 Melbourne University Law Review 190.
[38] See generally, Young I Justice and the Politics of Difference (Princeton University Press, 1990). In the context of international law and human rights, see Otto D `Subalternity and International Law: the Problems of Global Community and the Incommensurability of Difference' (1996) 5 Social & Legal Studies 337.
[39] Morgan W `Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations' [1994] MelbULawRw 10; (1994) 19 Melbourne University Law Review 740.
[40] See generally, the references cited above, notes 37 and 38.
[41] The notion of identity categories of difference as performative -- by which she means that identities come into existence by being performed in discourse -- has been pioneered, in relation to gender by queer theorist Judith Butler. See Butler J Gender Trouble (Routledge, 1990) and Bodies That Matter (Routledge, 1993).
[42] Otto D `Rethinking the Universality of Human Rights Law' (1997) 29 Columbia Human Rights Law Review 1 .
[43] Otto D `Rethinking Universality and Human Rights' unpublished Masters thesis (1996) p 172 (copy on file with the author).
[44] Nix C, Manas J and Malley R `Constructing the State Extraterritorially: Jurisdictional Discourse, the National Interest, and Transnational Norms' (1990) 103 Harvard Law Review 1273.
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