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Kinley, David; Martin, Penny --- "International Human Rights Law at Home: Addressing the Politics of Denial" [2002] MelbULawRw 24; (2002) 26(2) Melbourne University Law Review 466

Critique and Comment

International Human Rights Law At Home: Addressing The Politics Of Denial

DAVID KINLEY[*]AND PENNY MARTIN[†]

[Successive Australian governments have questioned the legitimacy of international human rights law in the resolution of domestic political issues. This article plots the course of recent political statements regarding the United Nations treaty body system and international human rights instruments, demonstrating the perceived separation of international and national jurisdictions and the rhetoric of ‘invasion’ or ‘intrusion’. We argue that, although states necessarily give fundamental substance to the obligations of international human rights law through local interpretation and implementation, international human rights law exerts obligations that cannot be derogated from by the mere assertion of state sovereignty. State sovereignty is now a concept that is both expanded and qualified, and is marked by the interdependence of the international and national spheres. Today, more than ever, the legitimacy and relevance of a state is defined as much by its external face as its purely internal face. A state’s involvement in the ongoing process of international human rights law-making, therefore, is not only inevitable, but essential.]

CONTENTS


INTRODUCTION

Australia’s political leaders have recently made statements suggesting that international human rights law should keep out of domestic affairs. The statements have been made in response, in the main part, to the determinations of a number of United Nations human rights treaty bodies in relation to Australia’s human rights records, particularly its treatment of indigenous Australians and asylum seekers.

The purpose of this article is to analyse the nature of the ideas underlying these statements in order to assess their implications for Australia’s fulfilment of its international obligations. We argue that the bulwark of state sovereignty cannot obfuscate the legal demands of international human rights law, or its relationship with the domestic jurisdiction. Although the state remains the essential unit for the formulation and implementation of international law, each act of creation of international human rights law norms and institutions represents the pluralisation, if not dilution, of state sovereignty. The legal territory ‘ceded’ by states cannot simply be unilaterally reclaimed as national interest dictates. To pretend otherwise is to strike at the foundations of international comity and wholly to subordinate international human rights law to domestic political exigency.

II HUMAN RIGHTS: A PRIVATE MATTER?

Since at least 1995, the Australian government has reacted sharply to the incursions of international human rights law into domestic law and politics. Current reactions can be traced back to Minister for Immigration and Ethnic Affairs v Teoh,[1] in which the High Court held that entering a treaty raised a ‘legitimate expectation’ that administrative decision-makers would make decisions taking into account Australia’s international obligations. The judgment provoked intense debate on the separation of powers (particularly the judicial usurpation of the powers of Parliament) and the proper impact of international law. Both successive Labor and Coalition governments criticised the judgment and issued statements[2] that sought to remove ‘any expectation that government decision-makers will act in accordance with [a] treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law’.[3]

In consequence, and without the Australian Constitution providing for automatic incorporation of international treaties upon ratification, a damaging rhetorical distinction has been created. As incorporation must be effected by legislation, unlegislated international obligations are seen to be transitional, or of little or no relevance. This has provided a legal pretext for the political endeavour to distance Australia from its obligations under international human rights law. For example, the various comments made in relation to the UN human rights treaty bodies employ the language of separation, and those concerning the relationship between domestic and international human rights laws use the language of ‘invasion’ or ‘intrusion’. The most telling of these pronouncements are presented below.

The criticisms and denouncements of the treaty committees by the federal government have been born of what some have called a ‘bunker mentality’.[4] For example, in relation to the determination of the UN Human Rights Committee in A v Australia,[5] Attorney-General Daryl Williams said:

the Government does not accept that the detention of Mr A was in contravention of the [International Covenant on Civil and Political Rights] ... The Committee is not a court, and does not render binding decisions or judgments. It provides views and opinions, and it is up to countries to decide whether they agree with those views and how they will respond to them.[6]

Responding to the views of the UN Committee on the Elimination of Racial Discrimination (‘CERD’) on Australia’s 10th to 12th periodic reports[7] (determining that the policy of mandatory sentencing was racially discriminatory under the International Convention on the Elimination of All Forms of Racial Discrimination[8]), the Minister for Foreign Affairs, Alexander Downer, said that ‘these committees need to be a good deal more professional than, frankly, I think they are if they are to make pronouncements about the policies of a liberal-democratic society’.[9] He added that ‘[t]he Government believes that we’ll work out our own destiny within our own shores’.[10] It was Mr Downer’s view that the Committee should concern itself only with ‘egregious breaches of human rights’.[11] The same line was reiterated when Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs, denied a request for members of CERD to visit Australia (prior to its consideration of Australia’s reports), on the grounds that it was politically motivated[12] and that ‘such visits should only be to countries where “grave human rights abuses were occurring”’.[13] Prime Minister John Howard’s view on the matter was characteristically prosaic and forthright when he remonstrated: ‘I mean, can’t these things be resolved by Australians in Australia and not us having to dance attendance on the views of committees that are a long way from Australia ... I mean we are mature enough to make these decisions ourselves’.[14]

Further, a series of criticisms of Australia by the Human Rights Committee in relation to mandatory and prolonged immigration detention,[15] and by CERD in its examination of Australia’s 10th to 12th periodic reports (particularly regarding mandatory sentencing and the ‘Wik Ten Point Plan’)[16] precipitated a generic response from the federal government. First, it announced on 30 March 2000 that it would undertake a comprehensive review of Australia’s relationship with the UN treaty committees.[17] This was followed by a more substantive Cabinet statement on 29 August 2000 that Australia would ‘adopt a more robust and strategic approach to ... interaction with the treaty committee system’,[18] including seeking a reassertion of the primary role of states and the subordinate role of non-government organisations (‘NGOs’) in international human rights deliberations.[19] The international refugee protection system was singled out as warranting particular attention, with the government warning that UN treaty committees, together with the UN Office of the High Commissioner for Refugees (‘UNHCR’), needed to be kept within their mandates.[20] It further threatened that its reporting to the treaty committees might henceforth be conducted in a selective manner, and that visits to Australia by treaty committees and other UN bodies, including the High Commissioner for Human Rights, would be permitted only ‘where there is a compelling reason to do so’.[21] The government also announced at the same time that it would refuse to sign or ratify the Optional Protocol to the Convention on the Elimination of Discrimination against Women,[22] which establishes an individual complaints mechanism.[23] In review, Australia’s ongoing strategic engagement with the committee system was contingent on the degree of effective reform.

By April 2001, it appeared that the approach of the Australian government to the treaty committees had become slightly less strident,[24] but the issue of mandatory detention of asylum seekers again provoked strong statements as to the proper place and role of the UN. The government prevaricated on allowing the UN High Commissioner for Human Rights, Mary Robinson, to send an envoy to visit the refugee detention centre at Woomera, with Mr Howard stating, ‘I’m not immediately bowled over by every request that comes from Mrs Robinson.’[25] Mr Downer was similarly critical of the circumstances of, and motives for, the request.[26] Further still, Australia’s recent objections to the adoption of the Optional Protocol to the Convention against Torture[27] regarding access to a state’s prisons and detention centres appear to be based on similar grounds of suspicion and distrust of international human rights bodies, even if the countries that it usually likes to associate itself with apparently have no such concerns.

Most recently, Australia’s forthright approach to the ‘war on terror’ on the domestic front has been criticised by some on the grounds that the scope of the recently passed ‘anti-terrorist’ provisions[28] are unjustifiably broad and out of step with the responses of other Western nations.[29] Of especial concern has been the breadth of discretion that the provisions bestow upon the federal Attorney-General.[30] However, notwithstanding this, the Attorney-General was evidently comfortable with presuming ‘that the community is prepared to take some modest sacrifices of human rights and civil liberties in order to give the government the tools that will enable [it] to assure the public that [it is] protected appropriately’.[31] Apparently, the public did not agree as the package of anti-terrorism bills were modified in important respects subsequent to nationwide public hearings. These amendments included, most crucially, the element of intended intimidation or coercion in the definition of ‘terrorist act’ and removing the reversal of the onus of proof on those accused of a terrorist act.[32] On the issue of anti-terrorism laws and Australia’s ratification and impending implementation of the Rome Statute of the International Criminal Court,[33] it remains to be seen how much the Australian government will invest in international human rights law and international humanitarian law in the future.[34]

The aggregate of these ploys — the stressing of legal form over substance, the questioning of the integrity and professionalism of UN human rights bodies, and, above all, the adopting of an attitude that borders on a dismissive disregard of international opinion which differs from that of the Australian government — has been the construction of an argument that Australia should not be subject to the scrutiny of international human rights mechanisms.[35] An air of Australian inviolability pervades the talk of those who propagate or believe this argument, which, even if not directly intended, is nonetheless dramatically misleading, especially in respect of the nature of our obligations under international law.

III STATE RESPONSIBILITY, NOT STATE RIGHTS

An analysis of the themes underlying these political statements on international human rights law reveals that they are surprisingly uniform. They represent an apparently deep-seated distrust of the foreign, an emphasis on jurisdictional as well as geographical separation, and a belief either in the irrelevance or bias of the international human rights law system, or all of the above. Human rights are seen as worthy, but only of significance to others in other (specifically, developing) countries, rather than to Australians. Human rights standards are seen as already well catered for in Australia and, in any case, the extent to which they might cross the invisible border delimiting a state’s authority is purely a matter for Australia to determine. In short, the dominant sentiment is that the business of Australians will be decided by Australians, no matter what the nature of that business is. This stance hints at disengagement from the international regimes for human rights protection and promotion, and a subscription to the dogma of the jurisdictional exclusivity of the domestic realm.

In one important respect, these proprietorial protestations are directly on point. However, they are correct in a way that was not likely to have been in the contemplation of those who made them. Certainly, as a matter of fact as well as legal theory, states remain the fundamental units of international law. The human rights instantiation of international law is mediated almost wholly through the domestic apparatus of interpretation, expression, application and enforcement. States, typically, are obliged to ensure for all those within their jurisdiction the enjoyment and protection of the rights in the relevant instrument.[36] Indeed, it is the fact that states parties, by assignation, knowingly and solemnly undertake to fulfil this explicit obligation which forms the basis of international human rights law. However, too often easy rhetoric glosses over legal reality. International human rights law and states do not exist in separate and hermetically-sealed spheres of responsibility and influence. They could not, given that international human rights law regimes are state-made and sanctioned, even if they are in actuality more than the sum of their (state) parts.

To be sure, the various international human rights regimes were established by an exercise of state sovereignty, but art 2(7) of the Charter of the United Nations notwithstanding, their existence is not at the perpetual mercy of the domestic jurisdictions that created them. Obviously, states can and do derogate from their international obligations, or decide collectively to modify or dismantle an international institution. Short of this, international human rights norms, whether ratified by a particular state or forming part of international customary law, exert their force on a domestic level and place limitations on how state power may be exercised. Above all, international human rights law relies on states for the application and enforcement of human rights norms at the domestic level.[37] This circumstance stems from the recognition of both the necessity to accept some limited degree of local variation, and the fact that the most effective means of implementation are the governmental apparatus of states, not their pale imitations on the international plane. The domestic and international tiers are therefore engaged in a constant dialectic, mediating norms, duties, rights and means of enforcement. The adaptation of domestic jurisdiction that is the consequence of the creation of international human rights law cannot be undone by the mere assertion of absolute state sovereignty.

The impact of international human rights law on Australian public life has been significant. Our politicians, diplomats, bureaucrats, academics, media, judges, lawyers, as well as business, community and religious leaders all take notice of, utilise, and are affected by international human rights law. International human rights law manifestly affects the domestic Australian legal system, even when the relevant standards have not been transposed into Australian law.[38] Moreover, even when individuals criticise the impact of human rights as being variously too great, inappropriate or irrelevant, their efforts to some extent confound these ends, for to criticise is to engage in human rights discourse, to be affected by the substantive elements of human rights and to perpetuate their impact.

IV STATE SOVEREIGNTY AND THE CHANGING NATURE OF INTERNATIONAL LAW

Ultimately, what is at issue is the authority of the sovereign state, or more precisely, the authority of the notion of state sovereignty. That is, in political terms, the legitimacy of the state’s use of power and, in legal terms, the demarcation of its jurisdiction. The claims of states to jurisdictional primacy can be considered at nearly all times to be both legitimate and necessary, not only so that a state may function effectively on a day-to-day basis but also, importantly, so that the objects of international law have a vehicle by which to implement the standards they impart. Where, however, such claims are extended either to assert jurisdictional primacy in all events, or (and what amounts to much the same thing) to claim exclusive jurisdiction in respect of any one matter, the very bonds that bind the communities of nations are stretched to breaking point. Assertions by nation-states that the notion of state sovereignty can be used in this way — as a ‘trump card’ when international human rights laws make unpalatable demands on domestic policy — are both legally erroneous and politically short-sighted.

It is doubtful that state sovereignty — even its Westphalian configuration — ever entailed exclusivity in an extreme, isolationist sense. The very operation of international relations and international law necessarily restricts the reach of unilateralism. In any case, the situation is different today: state sovereignty, as Philip Alston puts it, ‘is not what it used to be.’[39] Its modern manner and form is both expanded and qualified. It is expanded as it is no longer a limited or known quantity but increasingly shared and varied. It is qualified in the face of globalisation in the fields of commerce, trade, aid, communications, education and culture, human rights and humanitarian intervention, and even legal culture.[40] The state itself is now fragmented along the increasingly blurred public/private divide in respect of both the nature and authority of the power-holder, as well as the forum in which the power is exercised.[41] In addition, the actions and advocacy of civil society, NGOs and transnational bodies mitigate against viewing sovereignty in a linear form, insisting instead that the concept is more pluralist and elastic than singular and rigid. The power of the state is today continually and variously challenged, even if not necessarily diminished, as it responds and adapts to the jurisdictional encroachments of other states, as well as to international regimes that have been collectively created by states.

What is crucial to this situation of international dynamism is not confined to the impact that the changing nature and role of the state has on the place of the state in international relations and international law. In order to obtain a complete picture of the relationship between the international and domestic dimensions of the state, what must also be contemplated are the implications for the nature and form of international law of these adaptations to the state model.[42] It is in this regard that one is able to appreciate more fully the influence of non-state actors, alluded to above, on the development of the new order of global relations and the rules that govern them. Alongside the actions of states, the activities of NGOs (especially international NGOs), transnational corporations, international regulatory organs (particularly in respect of their policy and rule-making agencies) and even individuals (through their increasing use of individual complaints mechanisms in the various international and regional human rights charters) are now all significant influences on the reshaping of the international order.[43] What is significant about this in respect of our present concern is the fact that, despite the expanding array of ‘cooks’, the state remains the principal ingredient — as responsibility-bearer and competent authority in the broth that is the implementation and enforcement of the multifarious sets of international standards.

V THE IMPERATIVE TO ENGAGE

International human rights law and the international institutions that govern its creation and supervise its implementation are by no means beyond criticism. States and civil society must, and do, actively engage in shaping human rights norms and determining the appropriate means for national implementation. International institutions and regimes, such as the UN human rights treaty bodies, are designed — albeit imperfectly realised — to reflect the perceived common interests of their signatory states. As such, the challenge before them is to remain relevant to the changing circumstances and attitudes of states collectively, if not also, at times, individually.

A serious consequence of a state’s twin assertions that, firstly, as it is the sole authority within its borders it can, secondly, act as it sees fit within those borders, is that together they effectively close down debate. International human rights law is thereby reduced to the level of merely another political claim at the national level. This is to misrepresent both the object and means of international human rights law. The source and legitimacy of international law is at its base the collectivity of states. This is signified by the participation of states in the creation of international standards, their agreement (or acquiescence) to abide by the resultant instruments and associated institutions, and their frequent invocations of international law, especially in respect of the conduct of other states. This is true of all branches of international law, but in respect of international human rights law there is an added dimension. In so far as states are able to represent broad cultural groupings,[44] a truly ‘inter-civilizational approach’[45] to the construction and propagation of human rights standards is not only desirable but required if human rights are to be truly universally applicable and therefore accepted.

Given these precepts, states are not, as a matter of international law, free to abide by international laws selectively either in terms of different international regimes (‘yes’, for example, to free trade or the ‘war against terror’, but ‘perhaps’ or ‘no’ to human rights obligations), or in terms of to whom international human rights laws in particular are to apply (‘yes’, for example, to the undemocratic states and non-Western violators or human rights, but ‘maybe’ in respect of Western democratic state violators). The interconnectedness of international human rights law specifically, and international law generally,[46] provides almost no room whatsoever for such discretion. States are bound by international law because international law is a construct of the notion of the rule of law. Where, in international relations generally, states push (or are pushed) to extremes, international law and with it its binding quality, is left behind. The trick is to limit the situations in which this happens and equally where states claim it must happen.

The imperative of international human rights law is that it makes demands on a democratic state, as on any other, that it respect the rights of individuals in the sphere of its domestic authority. It requires that a state exercise its power in ways that respect individual human rights, accepting that this entails balancing other legitimate interests (including public interest, public health and national security) with those rights claims, as well as balancing rights against each other. It is, in other words, the exercise of ‘responsible sovereignty’.[47] It is true that in this way the median of human rights is seen as chastening — the state is to respect the rights of all within its jurisdiction — but that is indeed its intention. At the domestic level of political authority, this can be seen as a necessary condition on the exercise of state authority which is the essence of social contractarian theory.[48] At the international level, it is the case that, as Anne-Marie Slaughter argues, ‘human rights law is precisely about structuring state–society relations to ensure at least minimal individual flourishing’.[49] The fact that this means relying on domestic institutions, rules and remedies shows how the circle of inter-dependence of the international and domestic spheres is complete. Where, further, on the international plane, states themselves seek directly or indirectly (through international apparatus) to pressure other states to comply with human rights standards, they must demonstrably practice what they preach if they are to avoid charges of hypocrisy. None of this is to deny a state speaking out against egregious human rights abuses overseas; quite the reverse. It is, in fact, to seek to ensure that such criticism is as effective as possible, which it most certainly will not be where the critic does not take human rights seriously at home ‘where infractions are most sensitive and hurtful’.[50] This applies irrespective of the apparent disparity of degree the infraction between the domestic state and other states.

VI CONCLUSION

Where a state single-mindedly pursues its claims to jurisdictional exclusivity it will inevitably breach international human rights law. Further, at the level of international reputation, if Australia adopts such an attitude it will lose its frequently invoked standing to criticise other states that abuse the rights of their citizens. Its capacity to encourage a culture of human rights and development in countries in our region will be reduced which may impact upon our national security. Similarly, it will be less able to engage in debates on critical international issues such as population movement, the expansion of democratic governance, the alleviation of poverty and the maintenance of national security which require a human rights-based approach for their resolution.

Prospectively, such a stance runs the risk of rendering a state increasingly irrelevant to the development of international law, including human rights formulation. It is of even greater and immediate importance that taking this line will betray the citizens of the state itself, which, in the case of Australia, is the very audience that the federal government has recently called to its aid to justify playing hardball with international human rights regimes.[51]

Any assertion of the inviolability of domestic legal jurisdiction can no longer be maintained, if it ever could. It does not reflect the realities of the interdependence of national and international spheres. No matter what our political leaders say, as a nation-state we do not have a choice, but rather an obligation, to engage in the process of making and remaking international human rights law. It is an obligation that is at least as pressing today as it has ever been. Certainly, questions have been asked about the ideological and phenomenological force of human rights in international relations post-September 11, including whether, as Michael Ignatieff surmised, the ‘era of human rights has come and gone’.[52] But it is clear that their importance remains, even if their focus has shifted — to the engagement and capacity-building of states and civil societies (as Ignatieff answers his own question[53]) — which proves the point that, as human rights are in a state of permanent flux, there is a compelling need for all who have a stake in the outcomes to be part of the process.


[*] BA (CNAA), MA (Sheff), PhD (Cantab); Professor of Law, Faculty of Law, Monash University; Director, Castan Centre for Human Rights Law, Monash University.

[†] BA/LLB (Hons) (Monash); Barrister and Solicitor, Supreme Court of Victoria and the High Court of Australia.

[1] [1995] HCA 20; (1995) 183 CLR 273.

[2] Gareth Evans (Minister for Foreign Affairs) and Michael Lavarch (Attorney-General), ‘International Treaties and the High Court Decision in Teoh’ (Joint Statement, 10 May 1995); Alexander Downer (Minister for Foreign Affairs) and Daryl Williams (Minister for Justice), ‘The Effect of Treaties in Administrative Decision Making’ (Joint Statement, 25 February 1997).

[3] Evans and Lavarch, above n 2. The lapsed Administrative Decisions (Effect of International Instruments) Bill 1999 (Cth) and its predecessors (Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth) and Administrative Decisions (Effect of International Instruments) Bill 1997 (Cth)) were introduced to this effect.

[4] Alice Tay (President, Human Rights and Equal Opportunity Commission), ‘Human Rights Commission Responds to UN Committees Reform Announcement’ (Press Release, 29 August 2000).

[5] United Nations Human Rights Committee, 59th sess, UN Doc CCPR/C/59/D/560/1993 (1997).

[6] Daryl Williams (Attorney-General) and Philip Ruddock (Minister for Immigration and Multicultural Affairs), ‘Australian Government Responds to the United Nations Human Rights Committee’ (Press Release, 17 December 1997).

[7] CERD, Twelfth Periodic Reports of States Parties Due in 1998: Australia, UN Doc CERD/C/335/Add.2 (1999).

[8] Opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); CERD, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, 56th sess, UN Doc CERD/C/304/Add.101 (2000).

[9] ABC Television, ‘Government to Review Participation in UN Treaty Committee System’, The 7.30 Report, 30 March 2000 <http://www.abc.net.au/7.30/stories/s114903.htm> at 17 July 2002.

[10] Ibid.

[11] Ibid.

[12] As James Dunn argued, ‘[t]he suggestion that CERD was being political is particularly absurd ... upholding human rights is an essentially political matter’: James Dunn, ‘What Is This Petulance? Is This Australia or Iraq?’, The Age (Melbourne), 4 April 2000, 15.

[13] Andrew Clennell, ‘Ruddock Hits Back at UN Chairwoman’, Sydney Morning Herald (Sydney), 3 April 2000, 4.

[14] Quoted in Lincoln Wright, ‘Howard Softens Stand on UN’, Canberra Times (Canberra), 3 April 2000, 1.

[15] A v Australia, United Nations Human Rights Committee, 59th sess, UN Doc CCPR/C/59/

D/560/1993 (1997).

[16] CERD, above n 8, [8], [16]. The government responded that it

was appalled at the blatantly political and partisan approach taken by [CERD] when it examined Australia’s periodic reports ... The Committee’s observations are little more than a polemical attack on the Government’s indigenous policies. They are based on an uncritical acceptance of the claims of domestic political lobbies and take little account of the considered reports submitted by the Government ...

Alexander Downer (Minister for Foreign Affairs), ‘Government to Review UN Treaty Committees’ (Press Release, 30 March 2000).

[17] Downer, above n 16.

[18] Alexander Downer (Minister for Foreign Affairs), Daryl Williams (Attorney-General) and Philip Ruddock (Minister for Immigration and Multicultural Affairs), ‘Improving the Effectiveness of United Nations Committees’ (Press Release, 29 August 2000).

[19] The argument being that UN treaty committees were giving too much credence to the views of NGOs, especially the ‘shadow reports’ that NGOs are increasingly submitting to committees as counterbalances to government reports.

[20] Downer, Williams and Ruddock, above n 18.

[21] Ibid.

[22] GA Res A/54/4, UN GAOR, 54th sess, Annex, Supp No 49, UN Doc A/54/49 (2000).

[23] Downer, Williams and Ruddock, above n 18.

[24] Alexander Downer (Minister for Foreign Affairs), Daryl Williams (Attorney-General) and Philip Ruddock (Minister for Immigration and Multicultural Affairs), ‘Australian Initiative to Improve the Effectiveness of the UN Treaty Committees’ (Press Release, 5 April 2001). See also, Australian Department of Foreign Affairs and Trade, Australian Initiative to Reform the UN Treaty Committees: Frequently Asked Questions (2001) <http://www.dfat.gov.au/un/untreatyfaq.html> at 17 July 2002.

[25] Quoted in transcript of ABC Radio, ‘Howard Unfazed by MP Snub’, AM, 6 February 2002 <http://www.abc.net.au/am/s474436.htm> at 17 July 2002. See also Channel Nine, ‘Interview: John Howard’, Sunday Program, 10 February 2002 <http://news.ninemsn.com.au/sunday/

political_transcripts/article_981.asp> at 17 July 2002: ‘Well, you might ask why if the UNHCR has ready access, why is it that the High Commissioner for Refugees or whatever her title is, Human Rights Commissioner, I’m sorry, why is it that she also wants access. I mean, you might start to wonder whether there’s some agenda being run.’

[26] Mr Downer was reported to say, ‘[w]e just can’t have a stream of people from every UN agency that gets lobbied by the ACTU or other non-government organisations and, on the basis of that, they think they might get a bit of a media run out of it, rush along and go to Woomera’: Mark Forbes, ‘UN Envoy May Visit Woomera after May’, The Age (Melbourne), 12 February 2002, 4.

[27] Commission on Human Rights, Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment to Punishment, 58th sess, Annex, UN Doc E/CN.4/RES/2002/33 (2002). For critical comment, see Amnesty International, Association for the Prevention of Torture, Human Rights Watch, the International Commission of Jurists, the International Federation of Action by Christians for the Abolition of Torture, the International Federation for Human Rights, the International League for Human Rights, the International Service for Human Rights, the International Rehabilitation Council for Torture Victims, Redress Trust for Torture Survivors and the World Organization against Torture, ‘UN: Crucial Vote at ECOSOC on the Draft Optional Protocol to the UN Convention against Torture’ (Press Release, 24 July 2002). The other nations to vote against the Optional Protocol were China, Cuba, Egypt, Japan, Libya, Nigeria and Sudan.

[28] Security Legislation Amendment (Terrorism) Act 2002 [No 2] (Cth); Telecommunications Interception Legislation Amendment Act 2002 (Cth); Suppression of the Financing of Terrorism Act 2002 (Cth).

[29] Although the UN has also taken considerable initiative in supporting anti-terrorist action (see United Nations, ‘UN Action against Terrorism’ <http://www.un.org/terrorism> at 17 July 2002), a human rights approach must be taken to both temper the reaction to terrorism and to prevent the instability that partly led to the events of September 11. See also the Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Received by the Committee: Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 [No 2], Suppression of the Financing of Terrorism Bill 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, Border Security Legislation Amendment Bill 2002, Telecommunications Interception Legislation Amendment Bill 2002 (Cth) (2002) [3.101]–[3.158] and the Parliamentary Joint Committee on the Australian Security Intelligence Organisation, Australian Secret Intelligence Service and Defence Signals Directorate, Parliament of Australia, An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (2002).

[30] In respect of the Attorney-General’s power to proscribe certain organisations under the Security Legislation Amendment (Terrorism) Act 2002 [No 2] (Cth), see Senate Legal and Constitutional Legislation Committee, above n 29, [3.101]–[3.158].

[31] Daryl Williams (Attorney-General), ‘Transcript of Doorstop’ (Press Release, 8 May 2002).

[32] Daryl Williams (Attorney-General), ‘Counter-Terrorism Package’ (Press Release, 4 June 2002).

[33] Opened for signature 17 July 1998, 37 ILM 999 (entered into force 1 July 2002).

[34] In fact, Australia entered a ‘declaration’ upon ratification of the Statute stating that ‘no person will be surrendered to the Court by Australia until it has had the full opportunity to investigate or prosecute any alleged crimes’ and that ‘[f]or this purpose ... no person can be surrendered to the Court unless the Australian Attorney-General issues a certificate allowing surrender.’

[35] It is perhaps this fact that explains the extraordinary silence that has greeted the recent Human Rights Committee’s finding of Australia’s latest infringement of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, arts 17, 23, 24 (entered into force 23 March 1976) (‘ICCPR’) in Human Rights Committee, Winata v Australia, 72nd sess, UN Doc CCPR/C/72/D/930/2000 (2001). The official response of the Australian government was a one-page interim response communicated to the Committee on 18 November 2001, which simply stated that the government was ‘giving careful consideration to the views of the Committee’, and would provide a detailed response ‘as soon as possible’ (this document is not on the public record). It is understood that a subsequent response has been made to the Committee, but it is not yet on the public record either. It is certainly remarkable that neither the responses nor the Committee’s views have received any media coverage.

[36] For the unambiguous consequences of this common obligation, see, eg, in respect of the ICCPR, Human Rights Committee, General Comment 3, Article 2 Implementation at the National Level, 13th sess, [1], UN Doc HRI/GEN/1/Rev.1 (1981); Human Rights Committee, General Comment 4, Article 3, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, 13th sess, [1], UN Doc HRI/GEN/1/Rev.1 (1981).

[37] As evidenced by the various responsibilities placed on signatory states of, for example, the ICCPR, opened for signature 19 December 1966, 999 UNTS 171, art 2 (entered into force 23 March 1976) and the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3, art 2 (entered into force 3 January 1976).

[38] For an account of the various categories of such legal effects, see Kate Eastman and Chris Ronalds, ‘Using Human Rights Laws in Litigation: A Practitioner’s Perspective’ in David Kinley (ed), Human Rights in Australian Law (1998) 319; in respect of the federal dimensions of such effects see Hilary Charlesworth, ‘International Human Rights Law and Australian Federalism’ in Brian Opeskin and Donald Rothwell (eds), International Law and Australian Federalism (1997) 280.

[39] Philip Alston, ‘The Myopia of Handmaidens: International Lawyers and Globalization’ (1997) 8 European Journal of International Law 435, 435.

[40] ‘The conventional image of a sovereignty associated with exclusive territorial jurisdiction ... is no longer theoretically or empirically serviceable in the face of the internationalization of economic and social activity’: Kanishka Jayasuriya, ‘Globalization, Law, and the Transformation of Sovereignty: The Emergence of Global Regulatory Governance’ (1999) 6 Indiana Journal of Global Legal Studies 425, 425.

[41] See Serge Sur, ‘The State between Fragmentation and Globalization’ (1997) 8 European Journal of International Law 421.

[42] It is the analysis of this dimension that is the rationale of Alston’s paper, above n 39, 436.

[43] See Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994) 39.

[44] Which cannot necessarily be assumed to be the case, as Yash Ghai so trenchantly argues: Yash Ghai, ‘Human Rights and Asian Values’ (1998) 9 Public Law Review 168.

[45] As advocated by Omuna Yashuaki, ‘Towards an Intercivilizational Approach to Human Rights’ in Joanne Bauer and Daniel Bell (eds), The East Asian Challenge for Human Rights (1999) 103, 120.

[46] See, eg, in respect of the necessary links between the operations of global financial markets and the level of human rights protection, Ross Buckley, ‘The Essential Flaw in the Globalisation of Capital Markets: Its Impact on Human Rights in Developing Countries’ (2001) 32 California Western International Law Journal 119.

[47] Richard Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (2000) 69.

[48] Ibid 72–3.

[49] Anne-Marie Slaughter, ‘A Liberal Theory of International Law’ (2000) 94 American Society of International Law Proceedings 240, 246.

[50] Falk, above n 47, 57.

[51] See generally Philip Ruddock (Minister for Immigration and Multicultural Affairs), ‘Australian Government Measures to Reform UN Refugee Bodies’ (Press Release, 29 August 2000): ‘The Australian Government is focused on offering protection to those in the most vulnerable positions. If we do not take this action, public support for the [Convention Relating to the Status of Refugees] is at risk’.

[52] Michael Ignatieff, ‘Is the Human Rights Era Ending?’, New York Times (New York), 5 February 2002, 25.

[53] Ibid.


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