INTERNATIONAL LAW - A TECTONIC
CHANGE IN THE LEGAL SCENE
Michael Kirby
Australia's wealthiest man (if we now omit our erstwhile
citizen Rupert Murdoch) is Mr Kerry Packer.
When he almost died of a heart attack a few years
ago, he went through a near death experience. Upon his recovery he declared that he had been
to the "other side" and that there was "nothing
there".
Well, I have been to the "other side" of
international law. There is a lot there. If it does not quite measure up to one's aspirations
about heaven it cannot properly be described as hell either
(except for the occasional bureaucratic experiences).
I cannot speak about the great disputes of international
politics which capture the headlines.
Instead, I want to describe the engineroom of international
law. Down with international
agencies and national courts in which, today, lawyers and
judges increasingly witness the influence of international
law. This is where
I have seen the "other side".
It is where one finds not a few angels and secular
saints who have a deep commitment to building a better world
based on respect for universal human rights and the rule
of law.
For me, it all began when I was chairman of the Australian
Law Reform Commission twenty-five years ago.
The Commission was required by the Federal Attorney-General
to prepare a report for the Australian Parliament on privacy
protection. Shortly
afterwards I was elected chairman of a group of the Organisation
for Economic Cooperation and Development (OECD). This body prepared international guidelines on privacy protection.
Eventually most OECD countries, including Australia, accepted
these guidelines as the basis of their laws on privacy. So I saw the highly practical way in which an international legal
project prompted by interactive global technology could
assist and influence local law-making.
Subsequently, I have taken part in many international
law projects, in the World Health Organisation, UNAIDS,
the International Labor Organisation and the UN Development
Program. Most recently
I joined the International Bioethics Committee of UNESCO.
This body has been grappling with some of the most
difficult legal and ethical questions confronting humanity,
including the quandaries presented by genetic science.
The difficulties of securing an agreed response to
problems such as human cloning or patenting of life forms
in a world of so many different religious and other viewpoints
is not to be under-estimated.
But science has the potential to affect the very
future of the human species. It requires an international response. In due course these will be to binding rules
of international law.
Let no one say that the United Nations is only made
up of time servers. With my own eyes I have seen the dedicated
and idealistic servants of international human rights law,
often working in trying and even dangerous situations.
Their work goes on every day.
It is a salutary requirement that the autocrats of
the world and their representatives must come before the
bar of the United Nations and answer to charges of infractions
of international human rights law. There is progress in that fact alone.
The Australian government has recently initiated
a review of Australia's participation in six United Nations
committees which oversee human rights treaties.
That review has followed criticism of Australia in
a UN committee in respect of mandatory sentencing laws applicable
in Western Australia and the Northern Territory. Being subject to UN treaty obligations can
sometimes be uncomfortable.
But in a closely inter-related world we can all learn
from each other about the way we handle human rights.
Australia is no exception.
If one were to look to the growth areas for the application
of fresh thinking about international human rights norms
in the decades immediately ahead, they would certainly include
sexuality. A judge
of Australia's highest court (Justice Michael McHugh) has
suggested, in one of his judgments, that the "marriage
power" in the Australian Constitution, although originally
referring only to marriage between a man and a woman for
life, may in today's world, be read more broadly to include
a federal legislative power to enact laws with respect to
same-sex unions. Of course, having the constitutional power
is one thing. Having
the political will is another.
A second growth area is surely in the field of drug
use and drug dependence. I suspect that in twenty years we will look
back on the current national and international response
to the problems presented by drugs of addiction with something
like the shame we now feel for the way national law dealt
with homosexuality a few years ago.
So far as the application of international law by
the judges in Australia is concerned, it has been said,
accurately I believe, that the High Court has been "very
cautious in its embrace of international law; it has kept
its gloves and hat on at all times".
If, occasionally, as a judge, I have lifted my hat
to pay passing respect to international law, it is
because my experience over twenty years has brought
me into close familiarity with the operations of international
law and international institutions - especially in the field
of human rights. International
law is by no means foreign to lawyers of the Anglo-American
legal tradition. Most
of the great international treaties on human rights were
written by lawyers of our tradition.
So they are not alien to us.
No sitting of the High Court now passes without some
relevant international legal principle being considered
in connection with an Australian legal problem. A lot of cases come before the court concerning
the Refugees Convention because, in Australia, we have incorporated
into our national law the UN definition of "refugees". Beyond this, important questions are regularly
presented to our courts concerning extradition law, the
Convention on Child Abduction, the international patent
protection regimes, various conventions of the International
Labor Organisation, the Closer Economic Relations Treaty
between Australia and New Zealand and so on.
Even if judges today were personally disinclined
to acknowledge the burgeoning growth of international law,
their ordinary judicial duties would increasingly require
them to face up to the realities that come with global transport,
interactive technology and international problems. International law is no longer a concern of diplomats and nations.
The global economy and the global village have brought
international law into courtrooms at every level.
An element of self-satisfaction and even a sense
of superiority has never been far from our legal traditions.
Now, lawyers everywhere must live in the reality
of a world in which international law has a large and growing
part to play. But
the base question remains:
Will today's lawyers have the insight and imagination
to recognise the tectonic changes that are taking place?
