Law Seminar 2008: The Importance of Australia’s engagement with International Human Rights Law: coming in from the cold? by Gillian Triggs

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The Importance of Australia’s engagement with International Human Rights Law: coming in from the cold?

While Australia may have come in from the cold, the wind has been taken from my sails.  The typical role of an international lawyer over the last few years, whether in Australia or in the UK, Europe and North America has been to berate their respective government ministers with numerous failings and to list the necessary reforms to policy. In Australia’s case these have been to persuade the Commonwealth government to:  

• End Australia’s contribution to the Coalition of the Willing in Iraq.
• Increase its engagement with the UN human rights committees, particularly by meeting reporting requirements.
• Ratify optional protocols of  human rights instruments such as the Torture Convention and the Rights of Women
• Withdraw the boundary reservations to the ICJ compulsory jurisdiction clause
• Adopt a Charter of Human Rights
• End mandatory detention of refugees and asylum seekers
• Implement human rights treaties directly in Australian law.
• Support the Draft Declaration on the rights of  indigenous  peoples
• Fully support Australians detained in Guantanamo Bay or other prisons in the Middle East and reject extra-ordinary renditions

Perhaps international lawyers became a little predictable. We have certainly not been as effective in delivering our message as we might have been.

It has, however, been gratifying to listen to new government policies delivered  in the early days of its term of office that place Australia firmly back on the road to a meaningful contribution to international human rights law. To quote the PM, Australia is ‘back in business’ with an explicit mandate to strengthen Australia’s engagement with the UN system. Recent examples include:

• ‘Straight talking’ with China with respect to the human rights abuses in Tibet

• Australia to seek  a seat on the Security Council
• Government seeking advice on bringing Iran or its President to the ICJ or ICC

• Strengthening of the Human Rights Council and HR Committees;   coordination with the Office of the UN High Commissioner for Human rights

• Announcement that refugees will be automatically qualified to apply for permanent visas, with which status they can seek to resettle their relatives in Australia, subject to security and character requirements.
• Recognition of Kosovo despite ‘difficulties with blocking by the Security Council’.
• Humanitarian assistance to Burma
• Consultations to become a party to the Optional Protocol to the Convention Against Torture and Convention on the Rights of Women.
• Coming into force of the UN Convention on Disabilities and efforts to ratify, subject to changes in domestic legislation.
• Objections to human rights abuse in Zimbabwe and call for arms moratorium
• Humanitarian assistance to Darfur.

In light of these recent advances, what is left for me to discuss? The aim of my discussion today is to consider the opportunities for the future and to encourage our new government to carry out its international human rights mandate.

Historical role of Australia as a leader in international human rights

In fairness, the notion that Australia has ‘come in from the cold’ paints a not entirely accurate picture of Australia’s contribution to international development of human rights.

Overhead: Dr Evatt with Clement Atlee, London 1946; after drafting the UN Charter and Universal Declaration on Human Rights.

• Significant contribution to drafting of the major treaties, Universal Declaration, ICCPR, more recently, the Rome Statute for an International Criminal Court.
• Development aid, human rights fund; Red Cross.
• Supported ban on Land Mines.
• Consistent role in peacekeeping forces since the 1950s.
• Diplomacy in Burma, PNG, Bougainville autonomy, East Timor

Despite these contributions to international human rights it will, nonetheless, be recognised that Australia’s practices over the last few years in respect of indigenous rights, refugees and asylum seekers, the Coalition of the Willing in Iraq, and apparent endorsement of the Bush doctrine of pre-emptive attack, have diminished Australia’s reputation as a strong advocate for international human rights. 

We now have an opportunity to map our current policies and consider the opportunities that we have in the future. Central to current government policy is reengagement with the international legal system. The question I have been asked to consider is:   why is support for international human rights law important?

The answers are fairly straight forward:

• By being a member of the Security Council, ratifying treaty protocols, and attending international conferences on law reform, we are better able to influence the development of international laws and policy, and the acts of international organisations, in ways that support Australian interests. (Lawyers have proved quick to ensure they draft the first document and thereby maintain some control over its content through the negotiating process).

• Through international law, human rights laws have moved from the domestic laws of some predominantly western states to articulation as universally recognised rights. In this way, international law can be developed to give effect to domestic standards of human or civil rights

• As substantive rights emerge from the interstices of procedure, ratification of the optional protocols providing mechanisms for individual complaint is important.

There are, however, some other features of a failure to engage with international human rights laws that warrant better understanding:

• Australia remains relatively isolated from the intellectual developments of the legal cultures that have been the foundations of our legal traditions.

• As the UN Charter recognises, international human rights law is vital to an ordered, peaceful and just society.

Intellectual isolation of Australia from developments

Absence of an Australian Charter for Human Rights has exacerbated Australia’s isolation from the intellectual developments of Europe and North America. CJ Spigelman commented in 1998 that:

 ‘one of the strengths of Australian common law has been the ability to draw on a vast body of experience from other common law jurisdictions. Now, both Canada and England, and to a lesser extent New Zealand, may progressively be removed as sources of influence and inspiration. Australian common law is threatened with a degree of intellectual isolation that many would find disturbing.

Today in Europe, most legal issues are informed, directly or indirectly, by references to the European Convention on Human Rights and Fundamental Freedoms. For example, up to 50% of superior court cases in the United Kingdom raise human rights questions. A similar influence is experienced in New Zealand, Canada and the United States.

The recent experiments in Victoria and ACT are important and may bring into being a full Commonwealth Charter. A recent and heartening illustration of the impact human rights legislation can have is the Victorian Charter of Human Rights where the judiciary is ready to consider Charter provisions even where counsel has yet to raise them. In the Kelly Grey Case, Justice Bernard Bongiorno applied the Victorian Charter on Human Rights guaranteeing a right to trial without unreasonable delay (s 25(2) ( c), despite the failure of counsel to rely on the provisions.

Case study

One of the most significant questions of contemporary international law is the extent to which a state and its officials are responsible for the activities of government officials abroad, or beyond the territory of the state. More precisely, what is the extraterritorial scope of national human rights laws?

I would like briefly to mention the Human Rights Act 1998 (UK) in the Al-Skeini v SE State for Defence, June 2007. The legal issue, ultimately for the House of Lords, was whether the Department of Defence had acted unlawfully in not holding an independent inquiry into the death of 6 Iraqis caused by members of the British armed forces in Iraq. In respect of one of these deaths, Mr Baha Mousa, had been taken to a British military base in Basra where he was beaten to death by British military officers.

For the House of Lords, the question whether there should be judicial review of the circumstances leading to this death depended in turn on whether the public authority had acted incompatibly with the European Convention on Human Rights. The answer to this question depended on whether the Human Rights Act 1998 UK has an extra-territorial effect to apply in Iraq.

In short, were the acts abroad of officers of the British army in Iraq subject to the obligation to comply with the Human Rights Act?

The majority of the House of Lords found that the British defence facility in Basra was within the jurisdiction of the UK for the purposes of the application of the HR Convention and HR Act. The members of the House relied on the views of the European Court of Human rights in another case Bankovic v Belgium (2001) 11 BHRC 435, where relatives of those killed in a missile attack by NATO on the RTS building in Belgrade. The European Court had concluded that the air strikes did not bring the victims within the jurisdiction of the defendant states.

In reaching this decision, much judicial attention  was given to yet another decision of the ECHR in  Issa v Turkey concerning aclaim that shepherds killed in Northern Iraq by Turkish Troops were within the authority and effective control of the Turks, even though not on Turkish territory. While the claim failed on the facts, the reasoning was influential in subsequent decisions.  On the basis of these authorities, the House of Lords decided that the Human Rights act did extend to the acts of British military serving at the Iraqi prison and that there was an obligation to hold an inquiry into this death.

In tracing through these cases we see that a United Kingdom court is examining judicial reasoning and jurisprudence of the European Ct Human Rights, and the national courts of many other European states. The question whether UK legislation has an extra-territorial effect was thus to be resolved by reference to an international treaty and the judicial views of both an international court and the other national European courts.

While I have chosen a human rights case by way of illustration, my wider point is that the UK Human Rights Act informs and influences all aspects of British law, whether it is competition law, tax, public services, property rights and environmental issues.

In the absence of these advances in judicial thinking, Australia has become increasingly isolated from evolving jurisprudence in the legal systems where our roots are to be found. CJ Spigelman’s concerns have proved to be prescient. This would possibly be acceptable if we had a stronger and better integrated regime for the protection of human rights in the Asia pacific region.

In discussing why engagement in international human rights law is important, my first somewhat negative point has been that the absence of commitment to a Human Rights Charter or similar and a failure to engage actively in the human rights system leaves us behind in contemporary thinking about and implementing human rights in today’s globalised world.

My second and more positive point is that: International Human Rights Law matters

Human rights and the international rule of law are directly linked by the UN Charter to international peace and security; they matter to the individual, to the national and international body politic and to the future of healthy democracies.  Indeed, the international community increasingly demands that national governments act according to the law.

An example lies in the opinion polls conducted in the weeks prior to the invasion of Iraq by the coalition of the willing.  70% of those polled in the US, UK, Europe and Australia accepted that war was justified if there was Security Council authorisation; by contrast 70% were against the threatened invasion of Iraq if the coalition were to go ahead without authorization. I don’t imagine that the wider public has much of an idea about the intricacies of the Security Council’s powers, but the public will judge the rightness of an act in significant part by whether it meets the rule of law. As a public international lawyer, I find this particularly gratifying.

I have raised the example of the Iraq war because it underscores the point that human rights are more likely to be at risk in times of conflict than at any other time. While  we might agonise about whether the asserted threat of terrorism justifies detention without charge or trial for two days or seven, civil and international conflict lead to the deaths of tens – if not hundreds- of thousands of people. The conflicts in Sudan, former Yugoslavia, the NATO bombing of Kosovo under the guise of humanitarian intervention, the invasion of Afghanistan on so called grounds of self defence and the war in Iraq have breached the rule of law, not necessarily because they were wrong in the first instance but because they violated quite simple rules of necessity and proportionality.

While I feared that, in these enlightened days of a reinvigorated engagement by Australia in international human rights law, it would be churlish to dwell on the past, I believe we should recall how easy it has been to be seduced by t of:

• pre-emptive attacks,
• unlawful combatants,
• water boarding and other forms of interrogation
•  detention without trial in a war against terror
• the contrived logic of an implied Security Council authorization for the use of force.

Australians it seems are also vulnerable to being drawn into the vortex of deceptive language camouflaging violations of fundamental prohibitions on torture and inhumane treatment, detention without trial and the use of force. Indeed, as we come in from the cold, the light has illumined the horror of these distorted asserted new concepts of international law and the dangerous path Australia upon which embarked.

The lesson to be learned from these past years is that eternal vigilance is required to  ensure that apparently obvious and agreed universal principles of international human rights law are disseminated and confirmed for each generation of Australians. It is more important than ever that we have an educated Australian community that can respond to clear breaches of international human rights law. Most particularly the rightness of current policy to engage more positively with the international legal and political system is confirmed.

Future of international human rights law

While the International treaty system and the UN committees have been very important, especially in allowing complaints by individuals and NGOs and thereby facilitating evolving jurisprudence, international human rights law has tended to be dominated by the UN committees and reporting procedures. (see for example, Australia’s Common Core Document  that incorporates the 5th Report under the ICCPR and 4th report under the ICESCR, 25 July 2007) and the technical legal procedures.

The 21st century will require effective implementation of substantive rights as distinct from the 20th century emphasis on articulating human rights in the international legal instruments. It is now time to focus on enforcement of rights with a greater emphasis on economic and social rights, group rights of minorities and indigenous peoples. The recent natural disasters confirm this direction as tsunamis, monsoons, earthquakes expose the vulnerability of thousands of people and the weaknesses of their governments in responding. We may see many more such human catastrophes as the consequences of global warming become more apparent, including disease and scarcities of food and energy.

Australia has an opportunity for building upon its leadership in the Asia Pacific region over the coming years. I have some specific proposals:

• Continue to support the Asia Pacific Forum of National Human Rights Institutions; significant body of work, ACJ references, eg:  the most recent one on human rights impacts of climate change.

• Develop the concept of the collective and individual Responsibility to Protect : important leadership potential; Burma tests the commitment of the international community to the collective responsibility to protect and avoids the pitfalls of unilateral, individual assumption of the right ot intervene for humanitarian reasons.

• Maintain Australia’s significant role in regional peacekeeping: East Timor, Bougainville and the Solomon Islands.

• Training and education, for example, meeting treaty obligations by disseminating the principles of International Humanitarian Law or Red Cross law.

• Develop aid programmes to strength legal capacities and build institutions.

• Establish an Australian Institute for International Law and human rights with a capacity to provide scholarly research to assist the development of government policy

• Support the UN General Assembly Dec on the Rights of Indigenous Peoples.

• Support the work of the Human Rights Council, with its Universal Periodic Review, Office of the High Commissioner for Human Rights.

Conclusions

Looking forward, we may be entering a new global environment for human rights with a Secretary General actively trying to give effect to the collective responsibility to protect in Burma and the probability of significant changes in leadership in the US and UK over the coming months and years.

I wish the Attorney good luck with implement the new government human rights policies. While we will continue to hold his feet to the fire, I trust he knows the Australian legal profession and Law Faculties stand ready to assist in any way they can.

Gillian Triggs

Dean

Faculty of Law

University of Sydney

23 May 2008