Speeches

A PRACTICAL SETTING

"As little as two decades ago, rare was the university whose curriculum included human rights studies. Much has changed, to the point where one no longer questions why such studies should be offered but rather how they could be ignored. The human rights movement [including] governmental as well as non-governmental developments in human rights since 1945 - grew out of the disasters of World War II. A mere half century later human rights ideals deeply inform both the practise and theory of international law and politics".

 

A lawyer may have the right inclinations and even the intellectual conviction that initiatives of this kind should be taken. But without the basic source materials, he or she will make little progress. Without the support of a professional culture in which defence of fundamental human rights is seen as legally orthodox, respectable and professional, lawyers may lack the courage to advance their submissions and to conduct their cases with reference to the setting of global human rights.

That global setting is actually very practical. It has no time for pie in the sky. This message is brought home powerfully in the first chapter of the book by Steiner and Alston. That chapter is called "Global Snapshots". It is designed to demonstrate that challenges to human rights of ordinary human beings are part of the contemporary reality of the world we live in. They are not theoretical things of interest only to academic lawyers and misty-eyed dreamers who join idealistic fellow travellers in non governmental organisations devoted to starry-eyed ideals. Amongst the "snapshots" are reports of:
 

• The Special UN Rapporteur on Iraq's account of officially sanctioned amputations, maiming and branding of dissidents and military deserters in Iraq⁵.
• Of the denial of basic workers' rights to union membership of their choice under the Suharto regime in Indonesia⁶.
• Of the banning and confiscation in Turkey of a book by the nation's best known novelist because of a contribution he had made to a foreign magazine describing the oppression of fellow Kurds⁷.
•  Of the proud boast of a Singapore Minister of the receipt of hundreds of letters and phone calls from the United States supporting corporal punishment by Singapore of an 18 year old American, beaten with a rattan, after conviction for car vandalisation⁸.
• Of the persisting practice of dowry demands on women in India⁹.
• Of the Kenya Government's crack-down on the opposition, the press and the Legal Aid Centre which was fire bombed in 1995 after it published a report implicating a presidential adviser in murder¹⁰.

• In the United States economic inequality has been on the rise since the 1970s. Especially since tax cuts in the 1980s, the gap between the rich and the poor has widened¹¹. The authors might have added reference to the continuing disadvantages suffered by ethnic minorities reflected in the high proportion of African Americans in prisons and exposed to HIV. Or the lack of an adequate national and comprehensive healthcare system, astonishing in one of the wealthiest countries on earth.
•  In Britain the age of consent for sex between homosexual men is 21, much higher than anywhere else in the European Union where it is usually 16 or below¹².
• In Israel, the government has continued a policy of demolishing or sealing houses on the West Bank in response to Palestinian resistance to Israeli military occupation¹³.
• Out of Serbia, long before the present crisis in Kosovo, have come horror stories of the plight of survivors of Serb run concentration camps - of prisoners who were made to watch all manner of cruelties: fathers forced to have oral sex with their sons; women raped in front of their husbands and sons; people quartered after their limbs were tied to cars that drove off in different directions; others with their fourth and fifth fingers cut off at the knuckle, leaving the remaining fingers fixed in the traditional two fingered salute of Serbian nationalism¹⁴.

THE GLOBAL CIVIL SOCIETY

Apart from the proliferation of newly minted national constitutions, in newly independent States emerging from colonialism, a distinct feature of the past fifty years has been the establishment, and growing influence, of regional bodies protecting human rights¹⁸and of international institutions which play a part in the implementation of global human rights standards and the elaboration of international human rights jurisprudence.

The European Court of Human Rights and the Inter-American Court of Human Rights are the most notable of the regional bodies. In February 1998, African Ministers, meeting under the auspices of the Organisation of African Unity endorsed the text of a protocol for the creation of an African Court of Human and People's Rights¹⁹. Only my own region of the world, Asia and the Pacific, has proved recalcitrant in the face of this global movement.

So far as the international institutions for the defence of fundamental rights are concerned three stand out. The first is the Human Rights Committee of the United Nations, established under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The second is the Commission on Human Rights, established under ECOSOC, to consider human rights issues and receive reports on human rights concerns. The third institution comprises the Special Rapporteurs and Special Representatives, appointed by the Secretary-General of the United Nations or elected by the Commission on Human Rights. Some of these officials investigate and report upon thematic subjects (as does the Special Rapporteur on the Independence of the Judiciary or on the Rights of Women or on Children's Rights). Others report on human rights concerns in particular countries.

For a time²⁰, I served as Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia. In that capacity, I reported to the United Nations twice yearly: in April in Geneva to the Commission on Human Rights and in November in New York to the General Assembly. The members of the Human Rights Committee and virtually all of the Special Representatives and Rapporteurs are lawyers. Skills in legal analysis, in sifting facts, expounding the applicable rules, finding infractions and in presenting observations about unacceptable practices and procedures explain why lawyers dominate these fields of endeavour. In reports of this kind, on these topics, they have special skills.

As a result of the case decisions of the European Court of Human Rights, countries found in breach of their obligations under the European Convention on Human Rights are obliged to bring their laws into conformity. So indeed they do. In 1989 in Norris v Ireland²¹, the European Court of Human Rights, following an earlier like decision in Dudgeon v United Kingdom²², found that Senator Norris, by being exposed to penalties under Irish criminal law rendering him liable to punishment for consensual adult homosexual conduct in private²³, had suffered a violation of his rights to respect for his private life. As a consequence, Ireland in 1993 reformed its criminal law. It abolished the old offences and set a non-discriminatory age (17) for lawful sexual conduct of whatever sexuality. Not pie in the sky. Practical human rights achievements secured, in large part, by political agitation, community activism and good lawyering. One of Senator Norris's counsel was Mrs Mary Robinson SC, later President of the Irish Republic and now the United Nations High Commissioner for Human Rights.

Australia is not a party to the European Convention. There is no applicable regional treaty. But Australia did subscribe in 1993 to the First Optional Protocol to the ICCPR. This action led to a prompt complaint against Australia to the Human Rights Committee. It was brought by Mr Nicholas Toonen. He, and Mr Rodney Croome, were homosexual citizens of Australia living in Tasmania. That was the last Australian State to preserve laws criminalising adult consensual private homosexual conduct. With the aid of lawyers, the Toonen/Croome complaint was prosecuted before the Committee which found in their favour²⁴. The Committee rejected the suggestion that moral issues were exclusively a matter of domestic concern²⁵.  It stated that if this were so it would "open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy". It concluded that the provisions of the then Tasmanian law²⁶, which the Parliament of Tasmania had failed to repeal, arbitrarily interfered with Mr Toonen's right to privacy under Article 17.1 of the ICCPR. The Committee called for a prompt report of action from the State party (Australia) as to the measures taken to give effect to its views^27.

The Australian Federal Parliament did not enjoy general constitutional power to enact laws with respect to crime in the State of Tasmania. But it did enact the Human Rights (Sexual Conduct) Act 1994 (Aust). This provided that "sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law to any arbitrary interference with privacy within the meaning of Article 1 of the [ICCPR]". The Act defined an adult as a person who is 18 years old or more. The legislation, and the Human Rights Committee, were criticised from many angles by Australian commentators²⁸. Further litigation ensued to test the State legislation in the light of the operation of the federal Act. In the wake of this, the Tasmanian Parliament ultimately repealed the old laws. Lawyers and lawyer-led civil liberties organisations prosecuted and led the challenges in the courts to the Tasmanian legislation²⁹. With the help of good lawyering, unimportant changes were achieved in the legislation and, perhaps even more importantly, in community attitudes. Not pie in the sky. Practical human rights protection.

In the United Kingdom, there have been many cases in the courts in recent years, calling on the principles in the European Convention and on the decisions on the ICCPR, designed to effect and secure decisions of the common law or of statutory interpretation in harmony with fundamental human rights. The issues considered have ranged from those related to the discharge of military personnel on the grounds of their sexual orientation³⁰, the construction of prison rules relating to correspondence between a prisoner and his solicitor³¹; the public disclosure by police of names and addresses of persons who have been convicted of sexual offences against minors³²; the entitlement of criminal accused to confront witnesses giving evidence against them³³; the rules governing mandatory life sentences of imprisonment³⁴; and laws impinging upon legitimate freedom of expression³⁵.

Fifty years ago, in England, the then Lord Chancellor, Lord Jowitt, described the European Convention of Human Rights as a "half-baked scheme" which was "administered by some unknown court"³⁶. With the recent moves to incorporate the Convention into the domestic law of the United Kingdom³⁷it will fall to United Kingdom lawyers and United Kingdom judges in the first instance, to give meaning to fundamental human rights. They will be obliged to approach the Convention as a "living instrument" to be "interpreted in the light of present day conditions"³⁸. This is an exciting moment for the law of the United Kingdom and a big challenge for its judges and lawyers. One of them has expressed quite bluntly the need for a radical change to the approach to statutory interpretation; another to the need for a change of the legal culture³⁹. A similar resort to international law, including in the context of fundamental human rights, has been occurring in the New Zealand courts⁴⁰.

Even in the United States of America, the last bastion of perceived human rights self-sufficiency (with the developed jurisprudence of the Bill of Rights now two centuries old) has begun to feel the growing influence of international human rights law. On 12 December 1998, the United States Supreme Court issued a stay order for the execution for Joseph Stanley Faulder, less than 30 minutes before he was scheduled to die by lethal injection in Texas. The prisoner had been on death row for 21 years following the brutal killing of an old woman, an act which he never denied. The point in issue is that Mr Faulder was a Canadian citizen. This was something he had not mentioned to Texas officials at the time of his arrest. After many other legal arguments were found to be without merit, Mr Faulder's lawyers argued that his conviction had violated the Vienna Convention on Consular Relations . This obliges signatory States, such as the United States, when they arrest a foreign national for a serious crime, to notify the nearest consulate of the national's home country. Canadian officials were not notified of the case until 1991.

The Supreme Court's intervention in the Faulder case was noteworthy because, earlier in the same year, lawyers for a Paraguayan national (Angel Breard) appealing against his death sentence in Virginia, persuaded the government of Paraguay to file a claim against the United States in the International Court of Justice. That claim was based on the failure of the Virginian officials to notify the Paraguayan consular officers before or at the time of the trial of Mr Breard. The International Court asked that the execution be postponed whilst the matter was considered. Secretary of State Albright pleaded for the State of Virginia to do so out of respect for international law. Virginia refused. The United States Supreme Court declined a last minute request for its intervention. Yet in Mr Faulder's case, the Court ordered that his execution should be postponed to permit time for the issues to be considered.

A commentator on these cases remarks⁴¹:

"At the beginning of 1998, a UN Special Rapporteur issued a report condemning the United States for racist and abusive applications of the death penalty An Amnesty Report on human rights abuses in the United States, issued in 1998, devotes an entire chapter to abuses on the death penalty which it asserts be contrary to international law. The United States has been a hold out against many sorts of grand international ventures in this century - from the League of Nations to the Law of the Sea Treaty, from the Children's Rights Convention to the International Criminal Court. This is not a world that any of the American Founders looked back on with nostalgia. But it seems to appeal very much to the champions of global civil society. It remains unclear whether the Constitution can still keep the United States from joining it".

 

THE BANGALORE MOVEMENT

I attended the first Bangalore meeting, as did the Honorable Ruth Bader Ginsburg. Neither of us was at that time a member of the ultimate court of our country. I went to the meeting with the usual predilections of a lawyer brought up in the dualist school which upholds a strict divorce between domestic and international law⁴². The meeting adopted the Bangalore Principles⁴³. According to these principles⁴⁴:

"There is a growing tendency for national courts to have regard to these international norms [of human rights] for the purpose of citing cases where the domestic law whether constitutional, statute or common law - is uncertain or incomplete. It is within the proper nature of the judicial process and well established judicial functions for national courts to have regard to international obligations which a country undertakes - whether or not they have been incorporated into domestic law - for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law".

 

"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights, brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration".

 

This is not to say that, especially in federal countries where power is divided and in societies where the Executive subscribes to treaties which may or may not have legislative backing, care must not be taken to respect the separate constitutional law-making roles of the several actors in the law-making drama. But there can be little doubt that the process set in train by the Bangalore Principles will continue to have its impact on the legal systems of the world, especially those which follow the common law methodology. In my own Court, in a case concerning the law on compulsory acquisition of property by federal authorities⁵⁰and another case concerning the race power⁵¹, I have suggested that constitutional interpretation will also, in contemporary conditions, legitimately embrace the Bangalore approach⁵²:

"Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of fundamental rights rather than an interpretation which would involve a departure from such rights. Australian law, including its constitutional law, may sometimes fall short of giving effect to fundamental rights. The duty of the Court is to interpret what the Constitution says and not what individual judges may think it should have said. If the Constitution is clear, the Court must give effect to its terms. Nor should the Court adopt an interpretive principle as a means of introducing, by the back door, provisions in international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law. However, the inter-relationship of national and international law, including in relation to fundamental rights, is 'undergoing evolution' [I]nternational law is a legitimate and important influence on the development of the common law and constitutional law, especially where international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia's Constitution, as the fundamental law of government accommodates itself to international law, including in so far as that law expresses basic rights".

 

"[T]he Australian Constitution which is a special statute, does not operate in a vacuum. It speaks to the people of Australia. But it also speaks to the international community as the basic law of the Australian nation which is a member of that community. If there is one subject upon which the international law of fundamental rights resonates with a single voice it is the prohibition of detrimental distinctions on the basis of race".

 

The Bangalore Principles, when first formulated, recognised that the whole burden of this change of thinking cannot be left to the judiciary alone. Sometimes individual members of the judiciary, or even perhaps a majority of judges, may be resistant to new ideas of this kind. It will depend upon lawyers in their advocacy to press forward the universal norms. In 1988, the judges meeting in Bangalore observed⁵⁴:

"It is essential to redress a situation where, by reason of traditional legal training which has tended to ignore the international dimension, judges and practising lawyers are often unaware of the remarkable and comprehensive developments of statements of international human rights norms. For the practical implementation of these views it is desirable to make provision for appropriate courses in universities and colleges, and for lawyers and law enforcement officials, provision in libraries of relevant materials, promotion of expert advisory bodies knowledgeable about developments in the field; better dissemination of information to judges, lawyers and law enforcement officials; and meetings for exchanges of relevant information and experience".

 

"It is the vital duty of an independent, impartial and well-qualified judiciary, assisted by an independent, well-trained legal profession, to interpret and apply national constitutions and ordinary legislation in harmony with international human rights codes and customary international law, and to develop the common law in the light of the values and principles enshrined in international human rights law".

 

OTHER WAYS OF ACTING

But lawyers, including judges, are not confined to the courtroom. Most legal problems never end in a contested trial. That still leaves a great mass of lawyerly activity to be influenced by human rights principles and attitudes. Attitudes of respect to the dignity of clients, including prisoners, to opponents and to the clients of opponents. Attitudes of respect to other human beings outside the legal office. Respect for legal colleagues and court officials.

Lawyers can contribute to the advance of human rights, and community education in human rights, by involving themselves in civil society organisations. This includes involvement in bodies of lawyers such as the IBA, the ICJ, the International Lawyers' Group and so on. And bodies which lawyers have helped to found and to flourish, such as Amnesty International, the Human Rights Watch organisations, the United Nations Associations and so forth. It may be that judges have to be more careful in participating in such organisations, lest demands are made that they recuse themselves from participating in cases for ostensible bias⁵⁹. However that may be, such limitations do not affect the practising Bar. They should not affect most judges in most circumstances. It has long been traditional and accepted for judges to be associated, in proper ways, with bodies of lawyers and other citizens concerned with human rights, judicial and professional independence and the rule of law.

Lawyers can also play a part, through legal education, in promoting the values of human rights and in teaching the next generation of the way in which such rights can be secured in practice. The large expansion of law courses on human rights topics, described by Professors Steiner and Alston, give rise to opportunities which academic and practising lawyers should seize. Similarly, many opportunities present themselves for lawyers to take part at some stage in their careers, in the international activities of the United Nations and its agencies or in regional bodies with like concerns. Where such opportunities arise, lawyers with relevant skills should respond affirmatively. Many do.

When, at home, the fundamental rights of individuals are breached, it is the duty of lawyers to lift their voices. And they should always remain alert to the fact that the catalogue of human rights is not closed. When I was a young lawyer, few indeed were those, including in the legal profession, who spoke up for the fundamental rights of women, of people of colour, of Asians and of Aboriginal Australians. Absolutely no one spoke up for the fundamental rights of homosexual, bisexual and trans-gender people. We must learn from these silences of the past to be alert to the contemporary issues of human rights which, because of our mindset, we may not see clearly enough. The human rights of people living with HIV/AIDS. The human rights of people addicted to illegal drugs. The human rights of drug dependant people, occasional small users and the families of these citizens. The human rights of people with so-called "defective" genes. The human rights of all to privacy in cyberspace.

It is the responsibility of every lawyer in today's world to keep abreast of developments in human rights and of the challenges which abuses of human rights present in every land. The IBA, its Section on Legal Practice and its Human Rights Institute, provide practical means of breathing life into the universal human rights principles and upholding them in many and varied ways. I honour the IBA and the Section on the Silver Anniversary. I acknowledge the Human Rights Institute for its many achievements. The major challenges lie ahead.