The Influence of Human Rights on International Law

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International Law Under Construction

The poor standard of some media and the intolerance of criticism of some government officials. All of these problems I chronicle with, I hope, constructive suggestions for improvements.

The Horizontal Effect of International Human Rights Law in Practice

The experience of doing this is a humbling one. The hall is packed with the great variety of humanity. Virtually every nation on earth and many inter-governmental and international agencies are there. It is, of course, an imperfect place, just as our world is imperfect. Doubtless at the tables sit not a few who have little real commitment to fundamental human rights or whose agenda puts any such concerns below others.

They have complete freedom to speak as they see things. They call dictators and tyrants to account before the bar of the international community and the judgment of humanity. It is the pressure of these almost continuous sessions of international scrutiny of human rights which has helped bring about the fundamental changes we have recently seen in South Africa, in Malawi, in Palestine and elsewhere. It is there that reports are made on particular countries and on abiding themes of importance to global human rights.

Once, in the name of "sovereignty", they would have ignored such pressure.

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In front of the world community that is now impossible. Pressure is even applied to Australia in respect of our long neglected Aboriginal people. Of course, the pressure sometimes fails. Immediately following my last report on Cambodia, the Rapporteur on Sudan was denounced by the government of that country. But the important point is that the representative of Sudan was obliged to answer to the world and to very specific criticisms. The lesson of recent decades is that this requirement may eventually have a beneficial effect. It gives a voice to the oppressed.

It lifts the hopes of those who would otherwise be without hope. In the one big room, the essential inter-dependence and ultimate unity of humanity is brought home to all.

University for Peace

In a world of jumbo-jets, of instantaneous telecommunications, of global environmental hazards and of AIDS we are forced to see human rights as it is: a cause of international concern. Doubtless it has many inefficiencies and weaknesses. But it grew out of the awful revelations of the last World War and the detonation of the atomic bomb at Hiroshima. International peace and security were seen as interrelated with human rights. International Security would have no lasting reality unless built on universal respect for fundamental rights.

So long as that is not assured, the world will continue to be an angry and a dangerous place. We in Australia cannot be entirely cut off from the international moves for the protection of universal human rights. Our continent is part of the world. The thought that we can shut out the influence of this global development of such potential for the coming millennium is as unrealistic as it is unworthy.

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Some, at least, of the concerns that have been voiced by the commentators about the growing influence of international human rights principles upon our law can, I think, be adequately answered:. The international committees which are frequently criticised stand in an entirely different relationship to the Australian legal system than the Privy Council in London did.

By our constitution, the Privy Council was part of the Australian judicial hierarchy. No United Nations committee and no international court has the same power. So far as the committees are concerned, their decisions derive only from the power which we, as a nation, have accorded them. Their decisions are not self-executing. As in the case of the decision of the UN Human Rights Committee on the complaint of Mr Toonen against the Tasmanian laws,11 the decision is only translated into action in Australia by the authority of an Australian law-maker.

No Australian law was changed, as such, by the decision of the United Nations committee;. The United Nations committee has, it is true, members from a number of states which do not share all of our perspectives on human rights. But the members of the committee are elected for their individual expertise.

When serving, they do not act as representatives of their country but in a personal capacity. They must make a solemn and public declaration to that effect. The Toonen decision was unanimous. This suggests that, even in a matter as controversial in some countries as the rights of homosexuals, nationality and legal tradition had little final influence.

But that was simply the result of the fact that, by the Australian constitution, the Commonwealth is the international representative of Australia. In fact, the Federal authorities consulted Tasmania. Extracts from Tasmania's submissions were included in the Australian statements to the committee. But rejected;. The notion that Tasmania's democratically elected Parliament should have the right to over-ride fundamental rights, globally declared and relevantly held applicable, begs an important question. It would have been preferable for the people of Tasmania, through their Parliament, to have accepted the justice of repealing the sections of the Tasmanian Criminal Code which threatened to punish, and which stigmatised Mr Toonen, and other homosexual and bisexual men and occasioned the complaint.

There is now an Australia-wide legal standard on this matter. A distinguished international human rights court had earlier declared what fundamental respect for human rights required of the law on this subject. Tasmania has an unusual electoral system. The prospect of a change of mind in the Upper House seemed remote, at least in the short term. Australia's international obligations have been declared. It was either to ignore the declaration and justify it by reference to its constitution and politics - or it was obliged to act to fulfil the obligation it had accepted;.

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The democratic argument, and the complaint about loss of "sovereignty" have an undoubted appeal. But it is increasingly recognised that democracy is not simple majoritarian votes. Democracy, as it is now practised, is a system of government which accords power to persons elected by the majority of citizens upon the condition that they will respect the fundamental rights and dignity of minorities.

The Foundation of International Human Rights Law

Professor Ronald Dworkin has explained that human rights are promises to minorities that their dignity and equality be respected by the majority. Seen in this light, the limits of democracy are reached. Far from being a surrender of "sovereignty", measures taken to uphold minority rights, authoritatively declared by an expert international committee, may be seen as an exercise of sovereignty.

To talk of "sovereign States", or for that matter "the sovereign Federation", is to indulge in metaphors which are not sustained by the Australian Constitution as it has been interpreted. Australia's is a complex sovereignty. In it divided up great power by adopting the Federal system of government. It did not adopt the other means of dividing power by an entrenched, written, bill of rights although this is now being reconsidered.

A little known change which has come about in recent years parallels the passage of legislation through Parliament to give effect to international standards. This is the impact of international human rights jurisprudence upon Australia's court decisions.

The impact of human rights law on general international law

As Justice Brennan pointed out in Mabo 18 it is inevitable that, over time, the influence of the International Covenant on Civil and Political Rights will be brought to bear upon the perception by Australian judges of what judge-made law requires. If there is a gap in the common law, or if a statute is ambiguous, it is inevitable and right that Australian courts should fill the gap, or resolve the ambiguity, by reference to any applicable international rule.

Better that the judge should do this than rely upon personal, idiosyncratic values or upon distant analogies from earlier, different times. This is simply the next natural phase in the development of the Australian common law as it adapts to the world of internationalism. Fortunately, our system of law has a never-ending capacity to respond to new problems and to adapt sensible solutions from new sources;19 and. For those who say that Australia has nothing to learn from these international developments, which may be useful enough to the poor people of Cambodia and to the oppressed in Cuba, Sudan, Burma and elsewhere, history denies it.

In the matter of the human rights of homosexuals, the statute law stood as an oppression to that section of our community in all parts of Australia for more than a hundred years. It still remains on the statute books of Tasmania. In hindsight, what is remarkable is not that these things were changed, but that they lasted so long. It was left to the High Court of Australia in Mabo to shatter the fiction and propel our country to a juster law. In this way Australians, through their constitutional government, strive toward enlightenment. Sole reliance upon the democratic assemblies may not always ensure that respect is accorded to the fundamental rights of minorities.

Occasionally, an external stimulus is useful.

Introduction to Human Rights - Lesson 18: "Universal and Regional Protection Mechanisms"

One such stimulus in today's world is international human rights law. We should see these instruments as a natural development of the history of our planet to which Australia has an obligation, and a privilege, to contribute. The concerns of many Australians about respect for democracy, the preservation of the Federal compact and local responsibility for human rights matters must not be lightly dismissed. The strength of a human rights-based approach to anti-corruption instruments is simultaneously its weakness. This is because of the ambivalent attitude of the global South towards human rights.

The critique against human rights overlaps with fundamental objections to the international anti-corruption agenda. Until well into the 19th century, patronage and the purchase of public offices were largely considered legal and legitimate components of governance everywhere in the world, including in Europe.

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Put differently, anti-corruption is based on the picture of a state that performs public duties through public officials who are hired on the basis of merit and who act according to legal rules that formally apply to all. In this sense, the contemporary concept of corruption is inextricably linked to the modern state governed by the rule of law.

This explains why anti-corruption is difficult in regions of the world where this understanding of the state is not firmly established or is experienced as alien. The critique is that the ideal of a meritocratic state on the basis of the rule of law disqualifies communities based on family and clan relationships which are sustained by exchanging gifts and providing group members with official posts.

The Influence of Human Rights on International Law The Influence of Human Rights on International Law
The Influence of Human Rights on International Law The Influence of Human Rights on International Law
The Influence of Human Rights on International Law The Influence of Human Rights on International Law
The Influence of Human Rights on International Law The Influence of Human Rights on International Law
The Influence of Human Rights on International Law The Influence of Human Rights on International Law

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