Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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Keith D. Suter
There are many reasons why much more should be done to protect Aboriginal human rights, such as the ethical and legal imperatives. However the factors I wish to consider are concerned specifically with the self-interest of non-Aboriginal Australians. They are listed both to draw attention to some interesting new developments and to provide additional arguments for use with persons who may be unimpressed with the ethical and legal imperatives for respecting Aboriginal rights.
According to Article 2(7) of the UN Charter, `Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter ...' The exception to this prohibition are matters which represent threats to peace and in which the UN Security Council takes a hand.
In 1945 when the UN Charter was finalized, it was decided that the new organization should be restricted to the major international problems of preventing war and facilitating international economic and social co-operation. It was necessary to reassure governments that the new UN would not start reordering their internal affairs; governments were to be allowed time to get used to working with the UN. This approach paid off and the UN is now firmly established as a part of the standard procedure for handling problems.
Meanwhile, there has been a steady erosion of the force of Article 2(7). There is no question of deleting or amending it fully (all attempts at major amendments to the Charter have failed). But the everyday practice of the UN has meant an inevitable weakening of this Article. This was foreshadowed in 1945. The UN's predecessor, the League of Nations, had a more specific prohibition on its involvement in economic and social affairs and in any event, it did not have the same range of tasks in this regard. The UN Charter by contrast uses the word `essentially' in Article 2(7). The wording is sufficiently flexible to allow the UN gradually to move into areas which only a few decades ago were regarded as purely domestic matters.
Soon after World War II, India expressed concern about South Africa's racial policies. In 1954 the UN General Assembly criticized those policies in some detail. Some western nations challenged the UN's right to make such statements but criticism of the policies has continued and intensified. It is now fashionable for even conservative Australian prime ministers to engage in this criticism. Less than 50 years ago, the British government refused to criticize Hitler's policy of ill-treating his Jewish citizens, partly on the grounds that nations did not criticize the internal affairs of other nations. That general prohibition has been replaced with a more partial approach which depends on whether a government has close political ties with a nation whose human rights policies are giving offence. Thus Australia is more concerned with Soviet Jews than with Indonesia's political prisoners. But at least there is less use of the argument that a government which is engaging in criticism is breaching a principle of customary international law. At the 1975 session of the UN Commission on Human Rights, there was a detailed examination of Chile's human rights policies. At no point did.Chile try to argue that because these policies were essentially of 'a domestic nature, they ought not be discussed at the UN.
The lesson here for Australia is that Australia :cannot hope to evade UN criticism of its Aboriginal policies on thee grounds that such matters are only domestic matters. AA few years ago that argument would have worked, but not now.
The UN has practically worked itself out of its first job: the creation of international standards for the protection of human rights. Some areas remain, such as the finalization of a declaration on religious freedom and its conversion into a treaty, and no doubt new issues will arise with technological developments. However the UN is increasingly concerned with the machinery for the protection of human rights. The Human Rights Committee is now established (in accordance with the Civil and Political Covenant) and eventually the post of High Commissioner for Human Rights will be established.
The UN's change of emphasis will permit it to deal more with particular cases of human rights violations, rather than dealing with them in the abstract through general norms. Given the lamentable situation regarding Aboriginals, the UN's attention may well turn to Australia's human rights policies.
The League of Nations paid particular attention to the protection of minorities. It set standards which we are only now beginning to equal, such as the right of individuals to petition an international body regarding the alleged violation of their rights by their government. This concern arose partly from the belief that aggrieved minority populations are a potential cause of international unrest (such as we still see, as with the PLO). The UN was given the same task but it decided not to deal quite so specifically with minorities but to improve the general economic and social well-being of all people.. This neatly side-stepped the fact that almost all nations have problems with minority populations and it avoided head-on collisions between UN bodies and governments which are sensitive about minority questions.
The 1980s are seeing a rapid change in one aspect of this vast problem: the rights of 200-400 million indigenous peoples. American Indians, Indians in the Brazilian Amazon, Canadian indigenous groups and Australian Aboriginals all have one feature in common: they are all victims to varying extents of the rush for minerals on their land and the consequent economic, social and environmental disruptions caused by mining companies (mainly transnational corporations). In terms of direct retaliation, the American Indians - especially the American Indian Movement - are having the most impact. Russell Means, AIM's co-founder is for the American Indians what Martin Luther King was for the American Blacks. Means and his colleagues are operating through a mixture of prayer vigils, demonstrations, direct action,[1] and recourse to the legal system. AIM is the manifestation both of the Indians' reawakening to their old culture and a questioning by white Americans of whether their John Wayne-type history of the white settlement of the US is in fact the correct interpretation of history.
There are many parallels here for Aboriginals. Indeed, some of the corporations which are being opposed by the AIM are precisely those with an interest in Aboriginal land. These parallels are encouraging co-operation between indigenous peoples and a sharing of experiences and techniques, through for example, the World Council of Indigenous Peoples. It is only a matter of time before the issues become as acute here as they are in the U.S.A. The question is which one of several international organizations will make the running: it could be the UN Commission on Human Rights' Sub-Commission on Prevention of Discrimination and Protection of Minorities (which has been studying discrimination against indigenous peoples since 1971) or an international non-governmental organization.
NGOs are part of the backbone of the international protection of human rights. It is virtually impossible to over-estimate the significance of the work conducted by such organizations as Amnesty International, the International Commission of Jurists and the Minority Rights Group. There are other NGOs which include human rights as part of their ambit,.such as the World Council of Churches.
NGOs are now more interested than ever before in Aboriginal rights. They are keeping the issue alive at the UN and elsewhere. Owing to the role of US corporations in the violation of Aboriginal rights, US NGOs are criticizing these corporations. NGOs are helping Aboriginals prepare their case for presentation at the UN and elsewhere. They are providing financial assistance. They are drawing Australian attention to the issue (most notably through the recent, best-selling WCC Report).
While there is some doubt as to the extent of the coming mineral boom, there is no doubt that, barring an international economic recession, Australia will receive a great deal more attention by corporations wishing to gain access to the minerals. Some of the minerals are on specifically Aboriginal land - in another sense, all the minerals are on Aboriginal land (having regard to who was here first).
Australia's mineral boom will inevitably attract greater international media attention to Australia. This will be a change from the minimal attention which Australia currently receives and which mainly concerns sport, culture and speculation about the Prince of Wales becoming the next Governor-General. With Australia likely to become more of a fixed news subject, editors will be looking for new 'angles' for stories and inevitably Aboriginals will form part of those angles - both because of their plight and because of the ability of some Aboriginals to articulate the feelings of their people.
Australiaa is having to move more into the Third World ambit. There is the relative decline of its main ally (the United States); the rise of Asia as the world's focal point for the 21st century (in succession to the US in this century and Britain last century); the increasing mportance of the Third World in international politics and its ability to shape the political agenda (as with Australia’s belated agreement to oppose South Africa’s racial policies); and the way in which Australia’s economy itself (owing largely to the involvement of transnational corporations) is more akin to that of a Third World nation than that of the US or Britain.
Each of these points would require a book-length examination and each will have an impact on Australia at different times. But the cumulative effect is to make Australia realize - as even Mr Fraser is slowly doing - that Australia's future rests more with the Third World. This does not mean, for the foreseeable future anyway, that Australia will become a formal member of the UN's Third World voting group. But it does indicate the route along which Australia has to travel.
The Third World is a variety of nations, with few points of complete agreement (other than a determination to avoid entanglement in US-USSR disputes). But it is united in its opposition to racial discrimination - after all, most of its members have suffered it for centuries. Part of the price that Australia will have to pay in order to improve its links with the Third World is that of ending all forms of racial discrimination in its country. Australia is living on borrowed time. It must immediately do more to protect Aboriginal human rights. Otherwise it will feel the pressure of the new factors I have outlined.
(This is a revised version of a paper given at the 'Human Rights for Aboriginal People in the 1980s' Conference at the University of NSW, 31 October - 1 November 1981).
[1] One example of direct action was the seizure in 1973 of part of Wounded Knee, South Dakota (where 83 years earlier the Indian Wars had ended with a massacre of Indians). After 71 days, Wounded Knee was retaken, but only through a major police and FBI operation carried out in the full glare of the media.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1981/19.html