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THE HON JUSTICE MICHAEL KIRBY AC CMG[*]
Have you not heard his silent steps?
He comes, ever comes
Every moment and every age, every day and every night,
He comes, comes, ever comes
Many a song have I sung in many a mood of mind,
But all their notes have always proclaimed
He comes, comes, ever comes[**]
My thesis is that international law, as an influence on the domestic law of a country such as Australia, comes, ever comes. It comes on the tide of international technology which, in the Internet, in intercontinental travel and in confronting global problems, presents forces that bring our species together. It comes as a result of growing international trade, of broadcasting and huge movements of peoples and cultures. It reaches even to a country, like Australia, comparatively isolated by its geography but now intimately inter-connected with its region and the world.
An important agent for the advent of international law—for its formulation, declaration and implementation—is the United Nations Organisation. In my lifetime, I have been privileged to play a part in a number of agencies of the United Nations. Not often, it is true, in the chief political organ of the General Assembly and never in the Security Council—the two places where the political and governmental representatives of the nation states meet to iron out their differences and to advance the purposes of the Charter. Instead, for me, it has been in the agencies of the United Nations that I have seen the world body at work.
Commenting on the energetic clash over the role that international law, specifically the international law of human rights, can play (if any) in the interpretation of the Australian Constitution (reflected in the exchanges between Justice McHugh and myself in the decision of the High Court of Australia in Al-Kateb v Godwin[1]), Mr Ernst Willheim, formerly an officer of the Federal Attorney-General’s Department and now a scholar in the Research School of Social Sciences at the Australian National University, remarked that of the current members of the High Court of Australia, only I have ‘held high international office’ and have had ‘significant international legal experience’.[2]
In the past, Sir Anthony Mason, as Solicitor-General of the Commonwealth, took an active part in international legal meetings and negotiations.[3] Sir Garfield Barwick sat as an ad-hoc member of the International Court of Justice.[4]
Sir Ninian Stephen, after his service on the High Court, was a judge of the International Criminal Tribunal for the Former Yugoslavia. He also chaired a United Nations committee appointed to investigate and report on the establishment of an international tribunal in Cambodia to conduct the trials of Khmer Rouge suspects for crimes against humanity. After her retirement, Justice Mary Gaudron was appointed a member of the Administrative Tribunal of the International Labour Organization. However, generally speaking, in the work of an Australian barrister and judge, exposure to the activities of the United Nations and involvement in those activities, is not an ordinary part of life’s experience. Inevitably, as Mr Willheim suggests, such exposure and involvement affect the mind and attitudes of those who have that privilege, as I have done.
The privilege is continuing in four areas. I want to lay the ground by describing the current mood of anxiety, in Australia and elsewhere, about the United Nations. I will then examine some recent activities in which I have been involved that give me cause for hope and optimism. I will finish with some general remarks that I hope will contribute to reflections on the 60th anniversary of the United Nations Charter.
After the failure of the League of Nations, the terrible Second War that saw so much loss of life, destruction and human suffering and the post-War discoveries of the acts of genocide both in Europe and Asia, it was unsurprising that a new global organisation would be established. Australia, in a delegation led by Dr HV Evatt, a past Justice of the High Court, played a significant part in the negotiations that came to fruition in the middle of 1945. Even before the end of the Pacific War, the new President of the United States of America, Harry Truman, flew to San Francisco to join the ceremonial signing of the Charter in the Veterans’ War Memorial Building San Francisco on 26 June 1945. In his speech, he made observations that enjoy a contemporary relevance to the role of the United Nations and the maintenance of international law:[5]
This Charter, like our own Constitution, will be expanded and approved as time goes on … Changing world conditions will require adjustments—but they will be the readjustments of peace and not of war.
We all have to recognise—no matter how great our strength—that we must deny ourselves the license to do always as we please … If any nation would keep security for itself, it must be ready and willing to share security with all. The Charter is dedicated to the achievement and observance of human rights and fundamental freedoms. Unless we can obtain those objectives for all men and women everywhere … we cannot have permanent peace and security in the world.
A few days later, John Foster Dulles, subsequently Secretary of State and then the leader of the Republican advisers to the American Negotiating Team, said in a speech to the Foreign Policy Association in Philadelphia:[6]
Membership of the new organisation will engage us to work with others to promote human rights and liberties; to eradicate intolerance; to clear away the obstacles to healthy trade; … to seek, for independent peoples, self-government and, meanwhile, to avoid exploitation. Such are the goals set before the members of the new organisation.
Interestingly, during the negotiations, the British Foreign Minister, Anthony Eden, had urged the expansion of Article 51 of the Charter to cover multilateral action not only against armed attack, but also against every sort of aggression short of an armed attack, be it direct or indirect. The United States Secretary of State did not accept this proposal. He argued that such a broad formula would open the way for preventive action which, after all, was what had started World Wars I and II. The British finally backed down.
Come forward nearly sixty years. In the wake of dramatic events, supposedly occurring in response to attacks by Islamist extremists within the United States, the United Nations faces challenges to its multilateral role and universal significance. Reviewing those challenges, in a talk at the Australian National University in January 2004, Australia's Ambassador to the United Nations in New York, Mr John Dauth, reported:[7]
To say 2003 was a bad year for the United Nations is undoubtedly a significant under-statement. We in the international community who still broadly support the UN, are a long way from the euphoria of late 2001, when, in the immediate aftermath of the appalling terrorist attacks … the Security Council reacted decisively with Resolutions 1368 and 1373, established the Counter-Terrorism Committee and, with the undivided support of the Council, authorised the removal of the Taliban in Afghanistan. The emblem of those measures of activity was the Nobel Peace Prize, shared between the Organisation and the Secretary-General, Kofi Annan. 2003, by comparison, has been racked with divisions over Iraq … This sad period in the Council’s history was a major contributor in 2003 to the dented image of the organisation as a whole.
To similar effect was a speech given in February 2004 at Indiana University by Professor Ivan Shearer. Speaking with equal bluntness to a mainly American audience, he described the growing mood of unilateralism that had caused some jurists to view the present age as ‘the end of a great experiment’ in collective security established by the Charter.[8] In his lecture titled ‘In Fear of International Law’,[9] Ivan Shearer said:[10]
It has been evident that at many points international law has been ignored or pushed to the sidelines by the governments of the United States and—to a lesser extent—of Australia. … [T]his is not only wrong, but unnecessary, since the objectives we strive to attain may be made compatible with international law. Our security is made stronger if we can bring the rest of the international community with us, and show that we are prepared to live by the same rules as all … [I]nternational law is a necessary curb and restraint on the exercise of power and [it] … should be recognised more widely as such, not only at the executive level but also at the judicial and legislative level.
Taking up a similar theme, but with reference to developments in the Australian governmental system, Professor Hilary Charlesworth and her colleagues, in an essay in the Sydney Law Review, described what they called ‘Deep anxieties: Australia and the international legal order’.[11] They noted the increasing internationalisation of various aspects of Australian life. But they observed that ‘international law has become a charged and politicised field in Australia [often portrayed] as an intrusion from “outside” into our self-contained and carefully bounded legal system’.[12]
The authors of this article attributed the perception of international law ‘as a source of un-Australian, fanciful and chaotic norms’ as connected to the ‘politics of Australian fundamentalism—the “shrinking society” described by Ghassan Hage’.[13] According to this description, Australia is ‘a worrying, defensive society—in which anxieties about our own individual positions are projected into the nation. Nationalism has thus become characterised by a focus on the politics of preserving our borders from outsiders’.[14] As Hage puts it, ‘The defensive society … suffers from a scarcity of hope and creates citizens who see threats everywhere. It generates worrying citizens and a paranoid nationalism’.[15] International law is rejected as having no relevance to domestic law precisely because it represents the voice of outsiders. It is ever the danger of people who live on islands—even islands as big as Australia—that they feel the need, from time to time, to pull up the drawbridge. For such people, international law, like the wogs of old, often begins at Calais—or in Australia’s case Dili or Bali.
The contemporary feeling of discouragement over international law is traced in the Charlesworth paper by reference to the debates leading to Australia’s ratification of the statute of the International Criminal Court (strongly supported by the Foreign Minister and the then Federal Attorney-General but attacked by others).[16] It is followed through the responses of the Australian Government to decisions of the United Nations Human Rights Committee[17] (upon which Professor Shearer serves), through the responses of successive governments, Labor and Coalition, to the High Court’s decision in Teoh v Minister for Immigration and Ethnic Affairs.[18] And into the utilisation of international law in the domestic decisions of our national courts.[19]
The highly critical view about what is left of Teoh, following the decision of the High Court of Australia in its new composition in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam,[20] is portrayed as a far cry from the halcyon days of Justice Brennan’s embrace in Mabo v Queensland [No 2][21] of the international law of human rights—as a legitimate influence on the development of the common law of Australia. The importance of that approach in Mabo was that it provided the key that unlocked the door to permit examination of past common law authority in Australia. It was the international law against racial discrimination that stimulated the High Court to overrule the former doctrines on the extinguishment of indigenous title to land in this country. Yet, for the critics, that was precisely what was wrong with this invocation of international law.[22]
Do all these developments combine to suggest an international and national period of setback for international law and the United Nations? Particularly do they indicate a retreat from multilateral solutions to world problems and from the advance of global human rights to replace the brute power, cruelty and oppression of the past? With the exchanges in Al-Kateb still ringing in my ears, these are the questions I want to address in this contribution. I want to do so from a viewpoint of a participant in the United Nations: from one who has seen that body in various facets, close up.
Between 1993 and 1996 I served as Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia. My office derived ultimately from the provisions in the 1991 Paris Peace Agreements by which the United Nations brought peace to Cambodia after decades of war, revolution, genocide, invasion and resistance.[23]
My mission as Special Representative was to encourage adherence to United Nations human rights treaties; to advise on the conformity of Cambodian laws and practices with the obligations of those treaties; to promote discussion and awareness about the international law of human rights; and to support civil society organisations. Each year during my mandate I had to report twice to the United Nations, once to the Sixth Committee of the General Assembly in New York and also to the United Nations Human Rights Commission in Geneva. This was the machinery by which the United Nations applied a sanction of international public scrutiny to those countries and themes where the special human rights procedures are deemed appropriate and necessary to strengthen the observance of human rights and to address breaches when they are shown to have occurred.
Upon my appointment to the High Court of Australia in 1996, I resigned my office as Special Representative. I was succeeded, in turn, as Special Representative, by Mr Thomas Hammarberg, a Swedish diplomat and then by Professor Peter Leuprecht, a Canadian academic originally from Austria.[24]
Early in November 2005, although the mandates of Ambassador Hammarberg and myself had expired, we were consulted on a report, to be made to the United Nations by Professor Leuprecht at the end of his mandate. The report concerned impunity from criminal and civil liability.[25] The report traced the successive efforts of the three Special Representatives and the continuing difficulty in ‘bringing to justice those responsible for crimes committed during the rule of the Khmer Rouge from 1975-1979’.[26] Reading the report required me to revisit the serious difficulties in Cambodia’s conduct of criminal trials at the time of the restoration of constitutional government and the rule of law during the UNTAC period (1991-1993). The report lists the ongoing problems in the way of bringing those responsible for the Khmer Rouge genocide to justice. It pulls no punches. It speaks of the weak Cambodian judiciary, executive interference in criminal trials and corruption. It also speaks of the effective immunity of police and armed forces responsible for committing serious violations of basic rights.
Reports such as this, delivered to the entire international community, constitute the only effective means of imposing pressure upon the Cambodian Government to bring its laws and practices (including those affecting impunity) into line with international law.
Ambassador Hammarberg and I, having concluded our offices, could not, as such, continue to make recommendations to the organs of the United Nations. That duty belonged only to the Special Representative, Professor Leuprecht. However, in so far as his report included reference to, and drew upon, the findings that we had successively made during our respective mandates, we affirmed those findings. We associated ourselves to that extent with the document prepared by the outgoing Special Representative.
Of course, United Nations procedures of this kind are not perfect. They fall short of imposing sanctions that really bite upon a recalcitrant or indifferent nation state. Yet adverse reports on human rights infractions increasingly attract economic consequences for the nation states impugned. Sometimes by law and at other times by state practice, nation states are persuaded to curtail trading benefits to countries in default of their human rights obligations. The sanction of reporting is not immediately effective. Nevertheless, it is a whole lot better than the global community turning a blind eye and showing indifference to the acts of murder, violence, oppression and impunity.
My recent limited involvement, once again, in the Special Representative’s report was a reminder of the precious network of Special Representatives and Special Rapporteurs of the United Nations who are often the last resort of complaint where every other domestic or international appeal has failed. Having worked closely with the Special Representatives and Rapporteurs in the past, I know of their general courage, integrity, fearlessness and dedication to the principles of international law that provide the inspiration for their reports to the United Nations and, through it, to the world community.
He comes, comes, ever comes.
On 19 October 2005, the Thirty-Third General Conference of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) convened in Paris. The conference adopted with acclamation a new Universal Declaration on Bioethics and Human Rights.[27]
I was the chairperson of the Drafting Group of the International Bioethics Committee of UNESCO (IBC) which drew up the Declaration, secured the approval to it of the International Bioethics Committee plenary, engaged in dialogue with national representatives and experts and then presented it to the member states of UNESCO for adoption.
My appointment to the IBC occurred in 1997. It is a body comprising forty-five persons from different countries, cultures, religious professions. It has been at the forefront of the development of the responses of the United Nations to scientific changes connected with advances of biology and the discoveries of the human genome.
In 1997, the IBC adopted the Universal Declaration on the Human Genome and Human Rights.[28] Encouraged by this success, in 2002 it began exploring the possibility of formulating universal norms on bioethics. The Director-General of UNESCO (Mr Koichiro Matsura) asked the IBC to prepare a Declaration to bring together the hitherto disparate bodies of principle concerning fundamental human rights (on the one hand) and bioethics (on the other). The principles of human rights had largely been elaborated by the United Nations institutions created after the Second World War. The principles of bioethics, affecting medical ethics, stretch back to ancient civilisation. Bringing the two streams of principle together was a major and novel enterprise.
The contemporary controversies of biotechnology concerning such topics as reproductive human cloning, the use of embryonic stem cells, xeno-transplantation, intellectual property protection of lifesaving pharmaceuticals and so on gave the work of the IBC, and specifically of its Drafting Group, a high contemporary significance. The Drafting Group and the IBC met frequently in interactions between January 2004 and January 2005. There was intensive consultation with inter-governmental organisations having a close interest in the project and also with non-governmental organisations, national bioethics committees and international bioethics societies.
The project of preparing the new Declaration was conducted in a most transparent way. Every step in the process of the IBC’s work was posted on the Internet. The developments could be observed there by anyone interested to do so. Bringing together the diverse views of IBC members and negotiating a text that could be recommended as a consensus document, proved a major challenge.
In the course of performing my functions as chairperson of the IBC group, I worked closely with an Australian inter-departmental committee convened by the Australian Department of Foreign Affairs and Trade. The members of that committee supplied me with a constant stream of information and opinion. I reported to the committee on the progress made at every stage. The members of the committee respected my independence as a member of the IBC. I respected their entitlement to give independent advice to the Australian Government, as they did. The interaction was practical and useful. Similar consultations were taking place in other countries whose members served on the IBC and its Drafting Group.
In the end, the new Declaration was hammered out. It was transmitted to the Director-General of UNESCO early in 2005. There followed intensive consultations with the UNESCO Inter-Governmental Bioethics Committee (IGBC) and with experts representing many of the 191 member states of UNESCO convening in Paris at meetings held in April and June 2005.
A consensus document was finally adopted by the inter-governmental representatives. It incorporated some significant amendments to the IBC draft. This was done in order to render that draft acceptable to the member states. This is the way in which international principles are negotiated and agreed in international agencies. The final document was transmitted to the General Conference by the Director-General. As I have said, it was approved. Yet this is just the beginning of the process of ensuring that the document brings to bear on domestic law and practice the fundamental principles of bioethics and human rights which it expounds.
The principles of the new Declaration include those requiring respect for human dignity and human rights (Art 3); the maintenance of a balance of potential benefits and harms (Art 4); respect for autonomy and individual responsibility (Art 5); specific provisions on informed consent, including by persons without a full capacity to give consent (Arts 6 and 7); respect for human vulnerability and personal integrity (Art 8); respect for privacy and confidentiality (Art 9); deference to the fundamental equality of human beings and to the universal principles of justice and equity (Art 10); prohibition of discrimination and stigmatization (Art 11); respect for cultural diversity and pluralism, but not so as to infringe human dignity, human rights and fundamental freedoms (Art 12); adherence to the principles of solidarity and cooperation (Art 13); observance of social responsibility (Art 14[29]); the sharing of benefits (Art 15); and recognition of the duty to protect future generations (Art 16) and the environment, the biosphere and biodiversity (Art 17).
The Universal Declaration on Bioethics and Human Rights is not, as such, a statement of international law. However, it is the first step towards achieving consensus on the basic rules that should govern the myriad of important bioethical decisions that will be made in the years ahead. A meeting of the IBC in Tokyo in December 2005 (which will be my last as a member of the IBC) will address the future. I have prepared a paper for that meeting on ‘What’s Next?’. Translating international principles into action, both at the international and municipal level, is a constant challenge for United Nations agencies. In respect of the new UNESCO Declaration, this challenge has been accepted by the IBC.
In due course, as the operation of the Declaration is monitored, it is possible that the importance and urgency for the human species of many of the decisions that will be made in the sphere of bioethics will encourage the preparation of a treaty with provisions that are binding on the member states that subscribe to them. This is the way in which the Universal Declaration of Human Rights of 1948 ultimately gave rise to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. So it may be, in due course, with the Universal Declaration on Bioethics and Human Rights. It was a great privilege to take part in the process by which the new Declaration was formulated and adopted. The measure of success achieved in a relatively short time demonstrates that, even on highly controversial and sensitive questions, it is possible to secure agreement by hard work, the input of relevant expertise and appropriate international give and take.
In October 2005, as rapporteur, I attended, the fourth meeting of the Judicial Integrity Group convened by the United Nations Office on Drugs and Crime (UNODC). The meeting took place at the United Nations office in Vienna. Present were the Chief Justices of Austria, Kenya, Nigeria, South Africa and Uganda and senior judges from Egypt and the Czech Republic. The former Chief Justice of India, PN Bhagwati, participated as did Judge Christopher Weeramantry, past Vice-President of the International Court of Justice (the chairperson). Dr Nihal Jayawickrama of Sri Lanka is the Group’s facilitator.
Under the auspices of UNODC, a United Nations Convention Against Corruption has been prepared. By Article 11 of that Convention (which Australia has signed but not yet ratified) each State Party is obliged to ‘take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary’.[30] Such measures ‘may include rules with respect to the conduct of members of the judiciary’. In earlier meetings the United Nations Judicial Integrity Group, which has been meeting since 2000, prepared draft Principles of Judicial Conduct.[31] These Principles (formerly called ‘the Bangalore Principles’) are a step in the direction of fulfilling the postulate of Article 11 of the Convention Against Corruption. They have been widely discussed within the judiciary of many countries. In the Philippines, whose Chief Justice H Davide Jr, is a member of the Judicial Integrity Group, the Principles have been substantially adopted as the new national Code of Judicial Ethics.
Because the Principles of Judicial Conduct were originally devised by a group of Chief Justices, mostly from common law and specifically Commonwealth nations, steps were taken by the Judicial Integrity Group to convene an international consultation with judges from a number of civil law countries. The present draft of the Principles of Judicial Conduct reflects an adaptation of the original document. It takes into account the comments and criticisms on the original draft made by the judges of the civil law tradition.
As rapporteur of the Judicial Integrity Group, I have been involved in dialogue with senior judges from a wide range of countries, many of them sharing the common law tradition but others who do not. The commonality of challenges to the integrity of the judiciary is significant. On the other hand, different countries face different aspects of the problem. In developed countries, the issue of financial corruption is not so significant. Other issues of integrity and transparency remain to be addressed. With the judiciary in most parts of the world, however, financial corruption is a daily problem. This is the specific aspect that has attracted the particular attention of the Global Programme Against Corruption within UNODC. UNODC realises that unless a judiciary can be assured that is as free as possible of financial and other forms of corruption and interference in its integrity, economic progress and advances in fundamental human rights cannot be safeguarded. If the judge can be bought, or intimidated, by powerful, rich and opinionated interests, the growth of the economy and the maintenance of human rights and the rule of law will not be certain.
At the October 2005 meeting, the Judicial Integrity Group accepted a proposal of UNODC that the Principles of Judicial Conduct should be recommended to the Secretary-General of the United Nations for transmission to the United Nations Commission on Crime Prevention and Criminal Justice at its Sixteenth Session, scheduled to take place in 2006. The objective is to have the Principles recommended, in turn, to the General Assembly of the United Nations, with a view to their possible adoption or endorsement by the Member States of the United Nations in 2006 or thereafter. In the past, the United Nations has endorsed draft Principles on Judicial Independence. The objective now is to take those Principles a step further and to endorse new universal principles for the attainment of integrity in judicial office worldwide.
A session of the meeting of the Group in Vienna in October 2005 was devoted to an extensive report by the Chief Justice of Kenya (the Hon JE Gicheru) on the steps taken in that country to tackle allegations of financial corruption in the judiciary. According to his report, five of the nine judges of the Court of Appeal, eighteen of the thirty-six High Court judges and eighty-two of two hundred and fifty-four magistrates were under investigation on allegations of corruption. The dislocation caused by such allegations was self-evident and the consequent suspension from office of the judicial officers concerned was obviously disruptive to the judiciary of Kenya. Chief Justice Gichuru described the pain he had personally felt in dealing with complaints against former colleagues and friends. However, he paid tribute to the Principles expounded by the Judicial Integrity Group in its earlier meetings which, he said, had been of ‘immense value’. He urged the development of ‘truly universal principles and approaches to address the common concerns of the independence, competence, authority and effectiveness of the judiciary’.
In countries like Australia, with strong judicial institutions, unwavering adherence to judicial independence and integrity and low levels of financial corruption we may take the Principles of Judicial Conduct for granted. However, we owe it to others in countries less fortunate than our own to help in the building of effective rules and mechanisms for judicial integrity. Adopting a document at a United Nations meeting does not do this. Yet securing agreement on universal principles, that can gradually become accepted in the judiciaries of diverse nations (many of them in an early phase of judicial development) can help to clarify the basic rules applicable to judicial officers everywhere. This is the spirit in which the Judicial Integrity Group has been performing its functions for the United Nations.
In addition to the Principles of Judicial Conduct, the Group considered and adopted, for the first time, Principles for the Conduct of Court Personnel. This document, building on proposals made earlier by the Chief Justice of the Philippines, had already been examined by court personnel in Australia and elsewhere. The Principles, as adopted by the Group, will now be trialled in several countries. They will go forward as a supplementary document in fulfilment of Article 11 of the United Nations Convention Against Corruption. Experience in many countries has shown that a major source of corruption of the judicial branch lies not amongst the judges, as such, but amongst court personnel who have effective control on the listing of cases and the allocation of presiding judges to hear them. Addressing the issues of integrity amongst court personnel as a global issue is therefore timely and useful.
He comes, comes, ever comes
The foregoing involvement that I have had in late 2005 in three activities of the United Nations—those of the Special Representative in Cambodia, the International Bioethics Committee of UNESCO and the Judicial Integrity Group of UNODC—serves to illustrate the kind of work that the United Nations is performing in its agencies, normally out of the spotlight.
This work is largely unsung and often unnoticed. Yet it is proof that, in a time of interactive technology and inter-related problems affecting people everywhere, humanity can address issues in common. It can develop principles by consensus. It can thereby influence domestic law and practice. Many countries, perhaps most, do not have a local infrastructure to define for themselves the principles important for good governance and for responding to many complex contemporary challenges. This is where the agencies of the United Nations in which I have participated play a part. They bring together expertise from all parts of the world. They produce advice, stimulate the growth of international principles and herald the development of international agreements that lay the foundation stones of future international law.
The three activities that I have described do not represent the entirety of my involvement in the United Nations at this time. For example, I also serve in an International Advisory Panel on Human Rights of UNAIDS (the joint United Nations initiative designed to coordinate the response of the United Nations agencies to the global peril of HIV/AIDS). The global response to AIDS, particularly in sub-Saharan Africa, India, and Southern China, has reached a critical phase. Questions are now presented as to whether some modification or adaptation of previous understandings of obligations of international human rights law affecting informed consent for testing for HIV may be justified. Specifically, these questions concern whether, in order to overcome the stigma about AIDS that exists in many such societies and to ensure the availability of life-saving and life-changing drugs that are now available to combat the advance of HIV in human beings who have been infected, radical new approaches may be justified, for example, involving mass screening for HIV. The Panel on which I serve is advising UNAIDS on the approaches that should be adopted at this significant moment in the global response to the epidemic. It is an issue upon which differing points of view have been expressed, both in Australia and overseas. Important decisions must be made. Ultimately, those decisions must conform to United Nations principles of universal human rights. However, the application of those principles in the new environment of antiretroviral therapies available now to treat HIV, presents new challenges to which legal and other experts can be expected to address their attention and provide their advice for the United Nations decision-makers.[32]
Not everyone—not every lawyer or judge—can be involved in United Nations work of the variety and intensity that has been possible in my life. Not all would wish to. My involvement has come about as a result of a series of curious chances. However, I have seized those chances. They have given me the opportunity to see the international agencies of the United Nations at work. I have been a witness to countless acts of integrity and dutiful service on the part of the officers of the United Nations. I have seen their general serious mindedness and their appreciation that every little step in the global journey may help people to live fuller, healthier, happier and safer lives.
Against the background of the experience that I have described, it is perhaps unsurprising that I have a greater sympathy for the role of international law and a clearer perception of its importance as an aspect of the context in which today the Australian Constitution is read,[33] ambiguous statutes are construed[34] and uncertain principles of the common law are expounded and elaborated.[35]
Although my insights in this respect are not universally shared, they are relevant, I suggest, to the world we live in. That is why I draw attention to international law in my judicial reasons. If my views have not, as yet, attracted general acceptance in the Australian legal scene, this is because novel insights quite often take years, or decades, to be accepted by lawyers. So it was with the view that Isaacs J propounded from soon after his arrival in the High Court concerning the proper approach to the interpretation of the Constitution.[36] This was a view that he continued to express until, ultimately, it was adopted in the Engineers Case.[37] So it was too in the principle of the separation of powers implied from the arrangement of the chapters of the Australian Constitution and the purpose of the text providing for the Judicature.[38] It took time for this doctrine of separation to evolve. Indeed, it is still evolving.[39] There are many other examples of this emergence of legal principles and growing judicial insights. They are occurring all the time. We cannot expect that new perspectives, especially of a large dimension, will be accepted overnight. In constitutional doctrine, legal interpretation and exposition of the common law, these things take time.
One thing is sure. The world we live in, its economy, its cultural forces, its communications, its global travel, its great problems and even issues threatening to the survival of the human species—are all affected by the contemporary international experience. The critical agency by which humanity addresses itself to that experience in an organised way is the United Nations. It is an institution, like every human creation, flawed and imperfect, as I know. There have been serious inefficiencies, mistakes and outright failures.[40] Yet it remains, overall, a noble institution. Close up, I have seen that it does important, practical, life-saving and life enhancing work.
I have no doubt that the international law that has been built, and continues to be built, by the United Nations, will make an increasing mark on the perception that Australians have of their own law—including the law of the Constitution. This is an outcome as inevitable as the ongoing expansion of the global economy, global communications, global challenges and, we hope, human survival. We can be blind to such developments as we please. We can, for a time, deny them. But they will not disappear. And eventually they will be seen as a vital contextual agent for change in Australian society and its laws. In so far as that agent for change gives expression to the universal principles of human rights and fundamental freedoms, it is an agent for change for the good. It challenges our provincial self-satisfaction and our occasional moral blindness.
He comes, comes, ever comes
In the fragrant days of sunny April through the forest path
He comes, comes, ever comes.
In the rainy gloom of July nights.
On the thundering chariot of clouds
He comes, comes, ever comes.
[*] Justice of the High Court of Australia.
[**] Rabindranath Tagore, Gitañjali—Song Offerings (Trans. by Tagore himself, 1912-13).
[1] [2004] HCA 37; (2004) 78 ALJR 1099 at 1112-1115 [62]- [73], 1128-1136 [152]-[192]; [2004] HCA 37; 208 ALR 124, 140-145, 163-173. Professor James Allan (‘“Do the Right Thing Judging?” The Australian High Court in Al Kateb’ [2005] UQLawJl 1; (2005) 24(1) The University of Queensland Law Journal 1, 11) mistakes the sequence of events in Al Kateb. It ought to have been clear that the author’s draft reasons originally concluded at [151]. The added paragraphs were a response to the reasons of McHugh J, who took the occasion to criticise the use of international law in constitutional interpretation. The added paragraphs were not, therefore, needless obiter as might be implied (ibid 10) but a response to the judicial reasons of a member of the majority. Al Kateb has provoked the engagement of McHugh J and Professor Allan and that is a step in the right direction.
[2] E Willheim, ‘Globalisation, State Sovereignty and Domestic Law’ (2005) 6 Asia-Pacific Journal on Human Rights and the Law 36 (forthcoming).
[3] Most especially in treaty development within UNCITRAL.
[4] In the Nuclear Tests Case: Australia v France [1974] ICJ 253, available online at <http://www.icj-cij.org/icjwww/icases/iaf/iafframe.htm> at 24 November 2005.
[5] Harry S Truman quoted in book review by Ove Bring of SC Schlesinger’s, Act of Creation: The Founding of the United Nations (2003), reviewed (2003) 24 Australian Year Book of International Law 257.
[6] Quoted (2004) 24 Australian Year Book of International Law 257.
[7] J Dauth, ‘The UN in 2003: Letter from New York’, unpublished address, Canberra, 29 January 2004, 1.
[8] MJ Glennon, ‘Why the Security Council Failed’ (May/June 2003) 82 Foreign Affairs 16, 1.
[9] George P Smith Lecture, Indiana University School of Law, Bloomington, unpublished, 2 February 2004.
[10] Ibid 32, 33.
[11] Hilary Charlesworth, Madelaine Chiam, Devika Hovell and George Williams, ‘Deep anxieties: Australia and the international legal order’ [2003] SydLawRw 21; (2003) 25 Sydney Law Review 423.
[12] Ibid 424.
[13] G Hage, Against Paranoid Nationalism: Searching for Hope in a Shrinking Society (2003): words paraphrased by Charlesworth, above n 11, 425.
[14] G Hage, above n 13, 47.
[15] Ibid 3.
[16] Charlesworth, above n 11, 434.
[17] A v Australia (No 560/1993), 3 April 1997, UN Doc CCPR/C/59/D/560/1993, noted [2003] SydLawRw 21; (2003) 25 Sydney Law Review 423, 436-437; cf D Hovell, ‘The Sovereignty Stratagem—Australia's Response to UN Human Rights Treaty Bodies’ (2003) 28 Alternative Law Journal 297.
[18] [1995] HCA 20; (1995) 183 CLR 273.
[19] Charlesworth, above n 11, 452-454.
[20] (2003) 77 ALJR 699, 714 [83] (McHugh and Gummow JJ), 725 [145] (Callinan J). See Charlesworth, above n 11, 450.
[21] [1992] HCA 23; (1992) 175 CLR 1, 42.
[22] J D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian Bar Review 110. First published (2003) 47 Quadrant 9.
[23] MD Kirby, ‘Cambodia: The Struggle for Human Rights’ in MD Kirby, Through the World's Eye (2000) 24.
[24] In mid-November 2005 a new United Nations Special Representative for Human Rights in Cambodia was appointed, Professor Yash Ghai CBE, a distinguished human rights lawyer who has served in many countries.
[25] United Nations, Special Representative of the Secretary-General for Human Rights in Cambodia, Continuing Patterns of Impunity, Report, November 2005.
[26] Ibid 3.
[27] The draft declaration is available at UNESCO's website: <www.unesco.org>.
[28] Adopted at UNESCO's 29th General Conference of 11 November 1997, endorsed by the General Assembly by Resolution AIRES/53/152 on 9 December 1998 in its 53rd session.
[29] T Faunce, ‘The UNESCO Bioethics Declaration “Social Responsibility” Principle and Cost-Effectiveness, Price Evaluations for Essential Medicines’ (2005) 25 Monash Bioethics Review 10.
[30] Australia signed the Convention when it was opened for signature on 9 December 2003. See Coleman v Power [2004] HCA 39; (2004) 78 ALJR 1166, 1207 [220]; SD Murphy (ed), ‘Adoption of UN Convention Against Corruption’ (2004) 98 American Journal of International Law 182; LM Landmeier et al, ‘Anti-Corruption: International Developments’ (2002) 36 The International Lawyer 589.
[31] MD Kirby, ‘A Global Approach to Judicial Independence and Integrity’ [2001] UQLawJl 1; (2000) 21 University of Queensland Law Journal 147.
[32] Cf Edwin Cameron, Witness to AIDS (2005), 67-68.
[33] See Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 512; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 154; North Australian Aboriginal Legal Service Inc v Bradley [2004] HCA 31; (2004) 78 ALJR 977, 979 [4]; Fardon v Attorney-General (Q) [2004] HCA 46; (2004) 78 ALJR 1519, 1533 [64]. As to decisions of the writer, see Newcrest Mining (WA) Limited v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 657-658; Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 417-419 [166]-[167].
[34] Attorney-General (WA) v Marquet [2003] HCA 67; (2004) 217 CLR 545, 602 [172]; Coleman v Power [2004] HCA 39; (2004) 78 ALJR 1166, 1209 [240]; [2004] HCA 39; 209 ALR 182, 241.
[35] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 42 (Brennan J) (Mason CJ and McHugh J agreeing).
[36] Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087. See K Booker and A Glass, ‘The Engineers’ Case’ in HP Lee and G Winterton, Australian Constitutional Landmarks, (2003), 37-38.
[37] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 (Isaacs J for the Court).
[38] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 270 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). See also [1957] HCA 12; (1957) 95 CLR 529 (PC).
[39] See eg Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1997) 189 CLR 1.
[40] R Sifris, ‘Darfur, Sudan’ (2005) 30 Alternative Law Journal 222, 224.
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