Castan Centre for Human Rights Law

"Global challenges for the protection of human rights"

Elizabeth Evatt

introduction: great expectations
Fifty three years ago today, the Universal Declaration of Human Rights expressed the hopes of many people in terms of rights and entitlements. In declaring and defining rights, the Declaration awakened huge expectations. The challenge for human rights is to deliver on those expectations.
There have been gains. The very existence of the Declaration gave oppressed people a language of rights by which to assert their claims.1 States accepted the Declaration and later bound themselves to respect and to ensure rights in legally binding treaties. The revolutionary nature of human rights was that Governments could no longer plead domestic jurisdiction to avoid scrutiny of their human rights records.
Perhaps the most positive outcome has been the development of a world wide human rights movement, linking international and local NGOs and with ready access to the media to press their demands and to scourge States with bad records.
Nevertheless, the expectations that the Declaration inspired remain out of reach for many millions of people. Oppression and poverty remain their lot. And for women, gender based violence and sexual slavery. I want to identify briefly some of the reasons for this, and some of the challenges for human rights in the coming years.
connecting domestic law and human rights standards
One of the most significant failings of the international human rights system is that many States have failed to make a meaningful connection between human rights and domestic laws and policies. Australia is one such State.
The human rights obligations of States, though international in nature, have to be fulfilled in the domestic jurisdiction.2 Rights are best enjoyed in countries which have stable democracies, respect for the rule of law and a commitment to social justice. But democracy is not a sufficient guarantee of human rights. If it were, the requirement to accord democracy and ensure respect for law would be the beginning and end of human rights principles.
Australia, for example, can claim to be a stable, democratic country, with respect for the rule of law. But Australia began its century of nationhood as an overtly racist society, with a determination to keep out Asians and other undesirable non-anglos, a disregard for the rights and interests of indigenous people and gender inequality. The Constitution expressly allowed for discrimination on the ground of race, and may still do so.3
The progress in Australia over the last century has been influenced by the international system of human rights. The Convention on the Elimination of all Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women have been partially enacted by domestic legislation. The Disability Discrimination Act also draws from international standards.4
Cases such as Koowarta, which applied the Racial Discrimination Act, and, indirectly, CERD, opened the way for the later recognition of native title in the Mabo case,5 and to a broader recognition of the rights of indigenous people. Australia has at last set out on the long road to reconciliation and reparation.
But Australia does not fully protect the whole range of human rights. The two Covenants, the Convention on the Rights of the Child and the Convention Against Torture are not enforceable in Australia, despite valiant efforts by the courts to respect their principles wherever possible, as in Teoh.6 Some rights have no legal protection. For example Australia has no general guarantee of freedom of expression or against arbitrary detention.
A recent international study has confirmed what was already understood in theory, namely that the impact of international human rights standards is greatest and most effective where those standards are part of domestic law, by direct incorporation, by inclusion in the constitution or through legislation of special status,7 so that those rights can be enforced and remedies secured in case of violation.
The idea of imposing restraints on the exercise of government powers, and of empowering an independent judiciary to determine the limits of legislative or executive power are familiar to our constitutional system. The principles of human rights are by no means foreign to our thinking. Nevertheless, we remain the odd one out among democratic countries in failing to provide comprehensive legal protection of human rights.
Regrettably, our governments have given their human rights commitments less priority than their obligations in regard to the WTO or WIPO. Indeed, Australia has pursued international trading agreements with little consideration of their impact on rights here or elsewhere.
Australia's failure to provide for effective protection of human rights through the courts, is compounded by the lack of respect shown by the government for the UN treaty bodies which monitor compliance with human rights treaties. Those bodies have a mandate to assess compliance by States with their human rights obligations, and to determine whether States have violated individual rights. Although they have no enforcement powers and their conclusions are not binding, their views should be given respect by States which take their obligations seriously.
In 2000, however, the Australian government not only refused to accept the conclusions of the treaty bodies but also insulted the expert members of those bodies. Four of the six treaty bodies examined reports from Australia in 2000. They identified several concerns relating to indigenous issues and the treatment of asylum seekers.8 Among these were mandatory sentencing,9 the discrimination inherent in the Wik Native Title Amendments10 and the rejection by Australia of the Human Rights Committee's decision in the A case, concerning the arbitrary detention of an asylum seeker.11
The treaty bodies also noted with concern the lack of effective legal remedies under Australian law for many rights.12 The Human Rights Committee urged Australia to give effect to all Covenant rights and freedoms and to ensure that all persons whose Covenant rights and freedoms have been violated have an effective remedy.13
The government has ignored or rejected the views of the treaty bodies. Even worse, it has sought to justify its position by denigrating those bodies, by questioning their integrity and by limiting its co-operation with them. CERD was the main target of the government's venom. I have written about this many times.14 No doubt there was rejoicing in Canberra recently, when it learned that the US did not nominate Gay Mc Dougall for re-election to CERD. She is a fine human rights lawyer, and was CERD's rapporteur for Australia.
Although CERD was the main target of the government's anger, the retaliatory measures it took included refusing to ratify the Optional Protocol to the Women's Convention. This appears unrelated to the issues which the government had raised; in fact, Australia had actively supported the protocol project from 1993 to 2000.15
failure of collective responsibility
This sad story of Australia's failings also illustrates the basic weakness of the international human rights system and its lack of power to persuade or coerce States into complying with their human rights obligations. These weaknesses are a result of the failure of the international community to accept collective responsibility for the protection and defence of the human rights of all people who are at risk.
To take up that responsibility would not be officious meddling. The UN Charter calls on States to co-operate in promoting respect for human rights.16 There are increasing expectations that the community of States will accept responsibility for ensuring that the human rights standards they have adopted are met.
There are several ways in which States can, collectively or individually, influence the human rights of people in other countries: through aid and development programs (and by meeting their aid targets); by including human rights provisions in trade agreements; and by imposing human rights obligations on transnational corporations. States can be helped to improve their democratic institutions, justice systems, and so on, through UN technical aid and by specific national aid programs, such as those of Australia's Centre for Democratic Institutions.
making States accountable
But we are still far from having an effective global solution to the problem of how to make States accept fully their responsibilities to implement human rights and to be accountable for violations of those rights. Some States which receive assistance for human rights institutions are among the worst violators of rights. Eg. Indonesia and Burma. The world just watches while Indonesian armed forces kill the people of Aceh and West Papua.
Effective sanctions could be tried if there were sufficient political will. But there seems to be a lack of collective will on the part of States to agree to actions or to create powers which might, at some other time, threaten their own interests. Sanctions were imposed by the Security Council on Afghanistan some time ago, but this was not to ensure the rights of women or others, but to secure the handing over of Bin Laden to the US. Those sanctions did not succeed.
The treaty bodies do not have enforcement powers, and they are ill-equipped to deal with grave violations. In any event, it is quite probable that many States would not have ratified the major UN human rights treaties if the treaty bodies had been given binding powers.
Resolutions in the UN, reports from special rapporteurs, diplomacy and hand wringing are all that is available, until the situation becomes so bad that full scale armed intervention seems needed.
Some solace can be found in considering the European model, under which member States must accept effective monitoring of human rights. The inter-American system, however, lacks the strength of the European model, and there is little progress in Africa. In this region, Asia, we are light years from a solution along European lines. The Commonwealth has a commitment to human rights, and it did suspend Fiji, Nigeria, Pakistan, but the effects are not overwhelming.
The challenge is to find effective ways to push States towards human rights compliance, to treat offending States as illegitimate by requiring them to meet minimum standards if they are to be accepted in the body of nations on equal terms. However, State sovereignty is a hard nut to crack, and action by individual States is not likely to achieve much. One has to ask how effective it would be for Australia to ignore or boycott Indonesia or China?
making individuals accountable
There has been a little more progress in making individuals accountable for serious violations of human rights, such as war crimes and crimes against humanity. The two war crimes tribunals, for the former Yugoslavia and for Rwanda, have launched a new era. Soon, the new International Criminal Court will be in operation.
There are already 47 ratifications of the ICC, out of the 60 needed to bring it into force. One of the latest is Nauru. Australia will need to act promptly if it is to ratify in time to participate in the first Assembly of States parties. We also need legislation making genocide an offence under Australian law.17 Otherwise we will have to send persons accused of genocide for trial internationally, while being unable to put them on trial here.
The existence of the ICC could have a deterrent effect on the budding Milosevic's of this world. It is to be regretted that it is not already in force to put on trial those responsible for the crimes against humanity committed on September 11, and any further international crimes committed during the ensuing war on terror, such as the apparent slaughter of Taliban prisoners in Mazar i sharif.18
However, though laudable, the war crimes tribunals and the ICC are themselves witness to grave failures on the part of the world community to take any effective action to prevent genocidal massacres in Rwanda, Srebrenica or East Timor.
use of force - is intervention ever justified?
Those were situations which went too far for any course other than forceful intervention to protect the victims. Delay in reaching agreement on collective action left the East Timorese exposed to massacre and allowed the Rwanda genocide to occur. No State was willing to play the card of humanitarian intervention.
There is a current debate on whether and how to establish criteria for humanitarian intervention to prevent crimes against humanity and genocide, by proportionate use of force.19 The Security Council has not and appears unlikely to agree to any such criteria, but if some States were to reach agreement among themselves, the argument runs, it might give legitimacy to any actions they take in accordance with such criteria.
That there is debate on this issue at all, is because the community of nations has failed totally to provide effective mechanisms to insist that States respect democracy and human rights, to stop the descent into chaos. Intervention involving the use of force and inevitably adding to the total of death and destruction should never be thought of as anything but a last resort to avert a worse disaster.
the consequences of failure
The failure of the international community to act when universally accepted standards are violated has led to widespread disillusionment and discontent. It has left us with States like Iraq and Afghanistan. The latter's appalling human rights record, including the complete stripping of women's rights, was never challenged by effective action. The contribution of other countries to Afghanistan was, in fact, mostly negative, including the introduction of large numbers of weapons to supply the deadly internal conflict. A stable, peaceful and even moderately democratic Afghanistan could never have harboured Bin Laden and his gang.
The world community, far from bringing States into line, has countenanced the growth of oppressive, rogue States, which harbour terrorists and/or give rise to massive refugee problems.
asylum - an alternative to action
The boats that bring asylum seekers to the shores of Australia bring the results of problems which originated in States which pay scant regard to the human rights of their citizens, which provide no recourse, no means of protection, when their lives and security are at risk.
Their exodus is witness to the complacency of the international community in the face of persistent violations and the failure of the human rights system to secure minimum levels of compliance, to find any effective means to persuade or coerce the State concerned to do the right thing, to protect rights of women in Afghanistan, and minorities in Iraq and Sudan.
Instead of acknowledging these failures and working for something better, the Australian government has chosen instead to discredit the victims, to disregard the rights of asylum seekers and to equate them with people smugglers and queue jumpers. Redefining our boundaries, forcibly shipping people to impoverished Pacific States desperate for a hand out, is simply to flout our obligations under the 1951 Refugee Convention. The treatment of asylum seekers who make it past the naval defences to the beach, the compulsory detention of men, women and even children, the harsh conditions of detention and the grudging nature and anti-family values of the temporary protection visa violate Australia's human rights obligations, particularly of the children. It shatters Australia's reputation as a fair minded people.
I wish to pay respect to Mr Vidarlis, PILCH Victoria, Liberty, the VCCL and the team of pro bono lawyers who worked for the 433 Tampa people. And to award the wooden spoon to the Attorney-General, whose support for pro bono work quickly found its limits. The threat by the government to claim costs in the Tampa case sits very uncomfortably with the Attorney-General's stated goal of encouraging and co-ordinating pro bono work around Australia.
Support for the government's policies has been gained by misleading information, and by instigating both hatred and fear in the community, in a way which threatens a hard won acceptance of tolerance and multiculturalism. People trying to get away from brutal regimes have been stripped of their individuality. They are no longer men, women, children. They have no faces, no personal stories, or identities. They are categorised by their ethnicity or religion, or simply referred to as illegals. Their cultures are portrayed as un-Australian - not the kind of people we want here. They are, in this way, denied their human dignity and rights. Even worse, after September 11, they have been associated with terrorism, adding fear to the hatred which had already been incited.
We seem to have slipped back one hundred years.
The search by so many millions for asylum is, as I see it, a direct result of the failure of the world community to deal with serious human rights problems at their source. Our responsibilities for asylum seekers do not begin or end at our newly defined national boundary, at the low water mark of the mainland, where the immigration laws kick in. The large numbers of asylum seekers around the world looking for refuge, and the reasons why they are doing so, should lead us to conclude that there is an urgent need for a more effective global responses to the problems of human rights violations in many countries of the world.
If we cannot find such a response, then we must cease to complain about the consequences.
terrorism and wider issues after September 11
September 11 has added a further urgency to these global challenges. The enormity of the crime committed on that day has made us acutely aware that issues of human rights can no longer be left safely within the borders of each sovereign State and that the failure to address human rights violations in other States can have disastrous consequences affecting us all.
The attack has put at risk tolerance and multiculturalism. There has been a wave of racial vilification and racist violence directed against Muslims, including the destruction of a mosque. There have been reports of harassment of Muslim women.
It has also led to a climate of fear in the US and other countries, including Australia. Everyone wants security, of course. But security may be bought at a very high price in terms of loss of traditional freedom and protections. The US, the UK and Australia are pushing forward with draconian anti-terrorist measures. New legislation will come forward in Australia early in 2002, and needs to be watched carefully to ensure that there are no powers of arbitrary detention, no vaguely worded offences, no guilt by association and no loss of the presumption of innocence or the right to silence.
Ironically, the US, which did its best to undermine the ICC, has now decreed secret military tribunals, with power to put foreigners on trial with fewer guarantees of their rights than under the ICC, and under procedures similar to those which it condemned when used by Peru, or by the Soviet Union in times past.
Conclusion
Australia's failures to deliver on the implementation of human rights puts it in contempt of its international undertakings.
The collective failure of the community of nations to deliver on the promise of human rights delivers asylum seekers to our shore and sends our servicemen and women on risky missions.
The challenge for Australia in its domestic law and in its international relations is to strengthen respect and support for the human rights supervisory mechanisms; to make it hard for countries to ignore their obligations or to violate human rights; to be alert to the need to take effective action to prevent situations from descending into chaos.
The option of continuing to fail is not acceptable.
END

1 Michael Ignatieff, Human Rights as Politics and Idolatry, Edited by Amy Guttmann, Princeton UP, 2001, p 7 (Ignatieff).
2 L. Henkin, "International Human Rights and Rights in the United States", in T. Meron, Human Rights in International Law-: Legal and Policy Issues. (OUP) 1984, p. 25; Ignatieff, p 35.
3 Kartinyeri v Commonwealth 1998.
4 the Disability Discrimination Act 1992 and the Disability Services Act 1986 reflect to some extent international standards, such as the Declaration on the Rights of Disabled Persons, 1975.
5 Mabo v Queensland 1992.
6 Minister for Immigration and Ethnic Affairs v Ah Hin Teoh, 1995 69 ALJR 423.
7 Christof Heyns and Frans Viljoen, of the Centre for Human rights, University of Pretoria, The United Nations Human Rights Treaties at the National Level, Kluwer Law International, the Hague (unpublished).
8 Concluding Observations by the CESCR on Australia, 24 March 2000, CERD/C/56/Misc.42/rev.3; Concluding Observations on Australia, July 2000, HRC Report for 2000, ¤¤512, 513.
9 HRC, Concluding Observations on Australia, July 2000, ¤522, 523; Concluding Observations by CERD on Australia, 24 March 2000, CERD/C/56/Misc.42/rev.3; Conclusions and Recommendations of the Committee against Torture on Australia, 21 November 2000.
10 Concluding Observations by the Committee on the Elimination of Racial Discrimination (CERD) on Australia, 24 March 2000, CERD/C/56/Misc.42/rev.3..
11 Concluding Observations on Australia, July 2000, HRC Report for 2000, A/55/40, ¤¤520, 521; referring to Communication No. 560/1993 (A. v. Australia)
12 Concluding Observations on Australia, July 2000, HRC Report for 2000, A/55/40, ¤¤ 514, 515; Concluding Observations of the Committee on Economic, Social and Cultural Rights (CESCR) on Australia. 01/09/2000. E/C.12/1/Add.50.
13 The HRC also took the view that the proposed legislation to overrule the Teoh decision would be incompatible with Australia's obligations under the Covenant. It urged the government to withdraw the bill.
14 "The current debate surrounding Australia's participation in the UN committee system" (2001) 12 Public Law Review 3. "Australia's performance in human rights" (2001) 26 Alternative Law Journal 11.
15 Five Year Review of the Vienna World Conference, 1988, section V, equal status and rights of women.
16 UN Charter, Preamble, articles 55, 56.
17 Legislation has been recommended on a number of occasions, not least in the report by HREOC, Bringing them Home, 1997.
18 Amnesty International called for an urgent inquiry into the large-scale killing of captured Taliban fighters and others at a fort on the outskirts of Mazar-i Sharif.
19 See Geoffrey Robertson QC, Crimes Against Humanity: The Struggle for Global Justice, Penguin Books, 1999, p 409; Nicholas J Wheeler, "Legitimating Humanitarian Intervention: Principles and Procedures" Melb J Int Law vol 2, No 2, p 550; Ignatieff, p 40
Castan/Kinley March 6, 2002