JAMES COOK UNIVERSITY
TOWNSVILLE, QUEENSLAND
MONDAY, 16 OCTOBER 2000
THE 2000 MAYO LECTURE
LAW, LIKE THE OLYMPICS, IS
NOW INTERNATIONAL
BUT WILL AUSTRALIA WIN GOLD?
The Hon Justice Michael Kirby
AC CMG
OLYMPIC AFTERGLOW
Who cares about international law?
Specifically, who cares about the international law
of human rights? I
do. You do, or should. Members
of every minority (and there are a lot of them) do. Millions of people overseas do. That makes a lot of people who care about human
rights. And universal
human rights are now a major focus of international law.
Even those who pretend that they do not care change
their spots immediately their own human rights, or those
of people close to them, are threatened. If it were not so sad, it would be amusing
to see how rapidly some people, with a hard-line attitude
about the "war on drugs", alter their perceptions
when suddenly they find that a person who has been contributing
to the billion dollar industry in illegal drugs, is a son
or a daughter or a spouse or other close friend. Then, at last, they may come to see the issue as one of human rights.
If it is an issue of human rights, it involves international
law for human rights are universal. They are expressed in terms of international
law.
I offer these remarks in the warm afterglow of the
successful Sydney Olympic Games.
I did not actually attend the events.
But like millions of Australians, I watched the competitors
on television, pressing themselves to, and beyond, the limits
of human ability. I
sat on the edge of my seat as Cathy Freeman made her run. I did not expect to be moved by it at all.
The one thing I always agreed about with Justice
Meagher, in the New South Wales Court of Appeal, was a disdain
for sport But as
I watched, I came to realise a universal truth.
Sport can unite people in peaceful competition, plumb
the depths of human abilities, test the nobility and courage
of the human spirit and emphasise things that we can all
understand, simply because we are humans.
Similar themes lie at the heart of human rights.
Searching for values that we hold in common. Realising that there are some universal rights, despite all the
differences that race, religion, gender, history, sexuality
and other differentials give rise to.
In the Olympic ceremonies, there was something for
everybody. Certainly something for everybody in Australia.
The symbols of our country and its best aspirations
were reinforced. At
the opening, women alone carried the torch in the final
lap. All of them were champions. An indigenous Australian champion lit the Olympic
flame. The names
of our competitors (including some medal winners) illustrated
the great variety of the ethnic communities of contemporary
Australia. The Olympics
will be followed this week by the Paralympic Games, with
their celebration of the fact that "disability"
is not necessary an appropriate word where various forms
of human impairment are concerned.
In the closing ceremony of the Olympics there were
the comedians taking the mickey out of pretension, the sentimental
tunesmiths and musical stirrers. And at the end of the parade, in imitation
of the Sydney Gay and Lesbian Mardi Gras, the "divas"
and other drag queens.
None of these symbols would have been thinkable in
the Australia of the Melbourne Olympics of 1956. They show how far Australia has advanced in
44 years.
Symbols come comparatively cheaply.
Substance, not sentiment, is what ultimately matters.
Yet symbols can help to shape popular thinking. They can also help focus Australia's attention,
at a moment of prime concentration, on the unfinished agenda
for human rights. The
human rights of women.
Of indigenous peoples. Of ethnic minorities. Of the young and old. Of people with impairments. Of gays, lesbians, bisexuals and trans-gendered
people. And we should
see all of these issues in a global context.
Australians should continue to strive for gold in
the race for human rights.
After a century of our federal Constitution, we can
look at ourselves and, without too much self-satisfaction,
accept that our laws and institutions are in a better shape
than those of many countries.
Better than Fiji or Indonesia or East Timor or the
Solomons. Much better than Burma, Yugoslavia, Iraq.
Yet comparing our laws and institutions with countries
beset by military coups and autocratic destabilisation,
is scarcely a reason for prolonged self-praise.
In the second century of federation, Australians
must preserve and extend their quest for freedom.
We must do better in our national commitment to uphold
the human rights of all. Inevitably this means that we must become aware
of the world-wide movement for human rights upheld by international
law and international institutions.
There is an Australian tendency to be suspicious
of international law, indeed of foreigners.
It does not matter which government is in office.
It probably has to do with our history.
It is a typical attitude of people living on an island. In this Mayo Lecture, I want to explain why I do not share this
attitude. From the
background of my own experiences in international bodies
and as an Australian judge. I want to give the reasons why I see the growth
of international law as generally a beneficial, indeed inevitable,
development. I have
seen the future. I
feel obliged to share the knowledge of what I have seen.
THE AGENCIES
For me, it all began when I was appointed chairman
of the Australian Law Reform Commission twenty-five years
ago. Soon afterwards,
the Commission was required by the Federal Attorney-General
to prepare a report for the Australian Parliament on privacy
protection. This task coincided with the establishment
by the Organisation for Economic Cooperation and Development
(OECD) of an Expert Group to develop guidelines on privacy
protection in the context of transborder data flows.
That was an unusual task for the OECD.
Looking back, we can see it as an early portent of
the increasing moves in recent years of that hard-nosed
combination, the OECD, the World Bank, the International
Money Fund (IMF) and the World Trade Organisation into areas
of governance without which economic advancement will be
a hollow achievement, if it is attainable at all.
I was elected chairman of the OECD group.
We prepared our guidelines. They were adopted by the
Council of the OECD. They
were as much designed to prevent the economic inefficiency
of disparate municipal regulation of the new information
technology as to defend fundamental human rights. Eventually most OECD countries, including Australia,
accepted the guidelines
In this country they provided the basis for privacy
principles incorporated in privacy protection legislation. Through the Law Reform Commission,
I was able to witness the highly practical way in which
a legal project at an international level could assist and
influence municipal law-making.
After that, I could never accept that international
law - even soft law - was a matter for scholars
and theorists alone. In
countries as far apart as Japan, the Netherlands and Australia,
the deliberations of our group in Paris had a real, practical and beneficial effect on local law and international
cooperation.
In the manner of these things, one engagement leads
to another. Soon after the OECD work was completed I took
part in the general conference of UNESCO, also in Paris. An expert group of UNESCO was exploring the
meaning of the common first articles to the International
Covenant on Civil and Political Rights the International Covenant on Economic, Social and Cultural Rights which
promise the self-determination of peoples.
Who were a "people" for this purpose?
I was appointed to the group and ultimately elected
as rapporteur and chairman.
The issue we explored was, and is, a highly controversial
topic. It is uncongenial
to many nation states. It is even unwelcome to some people in Australia. But who can doubt, looking at the real causes
of conflict in the world today, that this is one of the
great issues of international law - from East Timor to Acheh;
from Burma to Tibet; from Palestine to Kosovo; from Corsica
to Ulster; from the Falklands to Nunavut; and most recently
from Fiji, Bougainville, West Irian and Solomon Islands
to Aboriginal Australia.
This is an issue that circles the earth and goes
to the heart of most contemporary dangers to international
peace and security. It
concerns the rights of peoples but also the human rights
of the individuals who make up those peoples.
The UNESCO expert group completed its task.
It identified four elements necessary to constitute
a "people" for international law purposes. It is a misfortune that many
who are unaware of the body of international law on this
subject mistake self-determination for total national independence. That is a possible but not a necessary attribute of self-determination.
This is a message from international law that needs
to be learned in many countries.
By the time the work of the UNESCO groups was completed
the HIV/AIDS pandemic was upon the world.
I then met one of the truly noble participants in
the building of international law - a United States doctor
who called me to serve on the World Health Organisation
Global Commission on AIDS.
This was Dr Jonathan Mann who tragically lost his
life in 1998 en route to Geneva for a meeting on HIV vaccines. The Global Commission established principles
for the management
of the HIV epidemic, now being pursued by that unique inter-agency
body, UNAIDS. Implementing the guidelines has been by no
means easy, given the cultural impediments that exist in
various countries. It
has fallen to some of the participating agencies, such as
the United Nations Development Programme (UNDP), to attempt
to persuade governments and bureaucracies in affected countries
to adopt the bold strategies that will help reduce the spread
of the virus. Significantly,
those countries which have done so (including Australia)
have seen the graph of sero-conversions to HIV plateau and
even fall. Those
countries which have not (particularly in sub-Saharan Africa
and parts of Asia) have witnessed rapid escalation in the
spread of the virus.
Even that secular saint, Nelson Mandela of South
Africa , could not, whilst President, bring himself to support
effectively the UNAIDS strategy. His successor, President M'beke, appeared at
one stage to be embracing denial and unorthodox medical
theories, for example that HIV is not the cause of AIDS.
UNAIDS guidelines worked out in 1997 at meetings held in concert with the United Nations
Centre for Human Rights which I have chaired, provide reflections
of consensus amongst the most informed public health and
epidemiological experts in the world.
The guidelines afford a stimulus to the recalcitrant
or the ignorant leaders and officials of nation states.
This is not international law in the traditional
sense. But the influence
of such guidelines, carried into municipal bureaucracies
by WHO and UNAIDS experts, fired with a zeal to prevent
the ravages of AIDS, can sometimes have a direct local impact
far greater than high-sounding treaties. This is international cooperation and principle
turned to the vital effort to save human lives. Without international law and international
agencies it would just be a dream.
In two other specialised agencies of the United Nations
I have witnessed the practical helping hand that can sometimes
be offered to domestic law-making.
In 1991-92 I participated with two other judges in
the International Labour Organisation (ILO) Fact-Finding
and Conciliation Commission on Freedom of Association. Our particular task, just before the achievement
of constitutional change, was to examine the labour laws
of South Africa and to advise on the standards they had
to attain in order to conform to ILO Conventions.
Having walked out of the ILO rather than be expelled
during the apartheid years, South Africa's labour laws had
fallen into serious disrepair.
South Africa was keen to repair its relationship
with international legal norms. The ILO mission examined
closely the letter and practice of the South African law. Its report, delivered to the de Klerk government
was subsequently acted upon by the Mandela government. A new Labour
Relations Act was adopted, complying with ILO standards.
In 1994, UNDP arranged my participation in a number
of meetings leading up to a constitutional conference in
Malawi. It was that
conference which agreed on the text of constitutional changes
designed to usher in a multi-party democracy in the place
of the one-party rule of President Hastings Banda.
After a referendum and elections, a peaceful change
of government was accomplished in Malawi.
I met the fine officers of UNDP and other agencies
who facilitated this remarkable change in Malawi and in
other lands. This
was truly a translation of the universal principles of human
rights into action in a particular country.
I do not believe that it could have happened without
the skills of United Nations agencies which I saw in operation
at first hand. Similar
skills are at work today in East Timor, Kosovo, Cyprus.
In more recent years I have been privileged to take
part in the International Bioethics Committee (IBC) of UNESCO.
A meeting of that body in Quito, Ecuador will be
held shortly. The IBC has been grappling with some of the
most difficult legal and ethical questions confronting humanity. I refer to the quandaries presented by genomic
science and the development of the Human Genome Project. The UNESCO Committee in 1998 adopted the Universal Declaration of Human Rights and the
Human Genome. This
contains a number of basic norms aimed to provide a framework
for a global response to legal and ethical questions relevant
to the entire human species. It is possible that in due
course this Universal Declaration will lead on to a treaty,
as others in the past have done.
The point to be made is that an international agency,
calling on diverse expertise and viewpoints from different
religions and cultures, is seeking to design an effective
universal response. The
difficulties of securing such a response in a world of so
many different starting points and where large investments
and differing national intellectual property regimes apply,
is not to be under-estimated.
In April 2000 I was called to Vienna by the United
Nations Office for Drug Control and Crime Prevention. Under
the aegis of that agency, a Global Programme Against Corruption
has been established. Several
international agencies, including the OECD, the World Bank,
the IMF and the World Trade Organisation, have been concerning
themselves with the problem of corruption and its insidious
effect on municipal governmental institutions. A judicial group on strengthening judicial
integrity has now been established in Vienna working directly
to the United Nations office there.
This group comprises four Chief Justices from Asia
and four from Africa. At present, all of them are from countries
of the common law tradition.
The intention, in due course, is to establish similar
groups in Latin America, Central and Eastern Europe, the
former Soviet Union and perhaps elsewhere. The task is to draw up strategies, including
a universal minimum code of judicial conduct.
Wisely, the Vienna agency is leaving the task to
the judges themselves, supported by research and other staff,
as well as by informed non-governmental organisations, such
as Transparency International in London and the Centre for
the Independence of Judges and Lawyers within the International
Commission of Jurists in Geneva.
In due course it may be expected that the Vienna
Group will draw up guidelines. These will afford a framework for action by
United Nations agencies and member countries.
Whether these guidelines lead to treaty obligations
or are given effect as conditional requirements imposed
by the OECD, the World Bank, the IMF or the World Trade
Organisation, remains to be seen.
Effective international law cannot be dismissed. Pursuant to an OECD Convention, long arm legislation
has been enacted both in the United Sates and Australia,
to render it a crime for nationals of those countries to
engage overseas in corruption of foreign officials.
The point to be made is that, once again, an issue
of common concern has attracted a universal response under
and outside the aegis of the United Nations. The sharing of research and knowledge and the
pooling of ideas will contribute to global standards and
hopefully effective action, not just papers and talk.
I tell these stories not to enlarge my own role in
any of these multifarious activities.
It has been relatively minor.
Instead, it is told to illustrate, by reference to
some activities with which I am familiar, the rapid advance
of international initiatives, many of them relevant to law. What, only forty years ago, was basically the
concern and responsibility of the nation states has increasingly
become an issue for international cooperation, the development
of universal guidelines, the involvement of people and their
organisations and, sometimes, international law.
These developments continue to gather pace.
We are only witnessing the opening phase of them.
But we were privileged, in effect, to be there at
the creation. All citizens, but especially lawyers, should be aware of them.
POLICING UNIVERSAL HUMAN RIGHTS
One of the most remarkable developments of international
law in recent decades has been the growing impact of international
human rights treaties on municipal law and practice.
I have observed this at three levels.
I want to mention each.
Between 1993 and 1996 I served as Special Representative
of the Secretary-General of the United Nations for Human
Rights in Cambodia. That function arose in the aftermath of the successful completion
of the UNTAC phase, as a requirement agreed between Cambodia
and members of the international community and given effect
in the Paris Peace Accords. Twice a year, in Geneva in
April and in New York in November, it was my duty to report
on the state of human rights in Cambodia to the Commission
on Human Rights and to the General Assembly.
I was one of about thirty United Nations Special
Representatives and Special Rapporteurs. I saw at first-hand the operations of the Centre
for Human Rights. I
worked closely with the High Commissioner for Human Rights. The criteria for my visits and reports were not intuitive beliefs
of my own about civilised standards.
They were the principles laid down in the international
treaties which together establish the basic framework of
international human rights law.
Despite various difficulties, I have no doubt that
my work and that of the United Nations Office of Human Rights
in Cambodia, stimulated, cajoled and encouraged domestic
law and practice in that country to conform with the international
treaty obligations which Cambodia increasingly accepted.
In a land that had been racked by revolution,
war, genocide and invasion, there was a deep thirst for
guidance and support.
Let no one say that the United Nations is made up
of time servers. I have seen with my own eyes the dedicated
and idealistic servants of international human rights law,
often working in most trying and even dangerous situations.
That work goes on.
Many of the Special Rapporteurs of the United Nations
have suffered retaliation for their actions, including the
Special Rapporteur on the Independence of the Judiciary
(Dato' Param Cumaraswamy) whose case was recently taken
to the International Court of Justice. The bureaucracy of the United
Nations is often trying.
The frustrations and rejections are sometimes dispiriting. But let no one say that it is all talk. At least in the case of Cambodia, there was
action. Even for
more oppressive nation states, it is a salutary requirement
of international institutions and practice today that the
autocrats 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 ICCPR First Optional
Protocol
My second
illustration brings little credit on me.
Soon after it was announced that Australia would
sign the First Optional Protocol to the International
Covenant on Civil and Political Rights (ICCPR) (thereby
rendering itself accountable to the United Nations Human
Rights Committee on the communication of an individual),
I was asked whether the gay and lesbian reform group in
Tasmania should mount a complaint to the United Nations
concerning the Tasmanian criminal laws against adult homosexual
conduct between males. I am ashamed to say that
I advised against such a communication.
The intended complainant, Nicholas Toonen, had not
been charged with an offence under the Tasmanian laws.
He had not exhausted domestic remedies because no
domestic process had been taken against him.
I told him that his complaint was doomed to fail.
In fact, the Human Rights Committee upheld Mr Toonen's
complaint against Australia. In the ultimate result, the
Australian Federal Parliament enacted a statute over-riding
the Tasmanian laws. Those laws were repealed
and replaced by the non-discriminatory provisions now in
force. Now, nowhere in Australia is there any law
imposing criminal sanctions on people for adult private
sexual conduct, although there are still serious inconsistencies
in the treatment of who is an adult for this purpose.
The lessons of the Toonen
Case are many. For my immediate purposes,
they show once again the practical operation of international
human rights law, at least in a country such as Australia
which has signed the First Optional Protocol to the ICCPR
and is a good international citizen. As we do not have a general constitutional
Bill of Rights in Australia and as there is no regional
human rights court or commission for Asia or the Pacific,
the importance of the ICCPR could not be over-stated.
Indeed, the significance of the Toonen
decision runs far from Tasmania and Australia which,
ultimately, would have corrected their legal aberration
on homosexual offences.
It brings hope to people in countries where individuals
are still oppressed by reason of their sexuality. Because I am homosexual myself,
I understand that oppression; indeed it helps me to understand
all oppression. Indeed,
it helps me to understand all oppressions based on irrational
and irrelevant grounds.
I applaud the fact that two Australians, Nicholas
Toonen and Rodney Croome, politely ignored my advice and
pressed on with their communication, invoking international
law. They teach
once again the importance of courage and obstinate adherence
to principle in the face of apparently overwhelming difficulties.
The Toonen
decision, and its reasoning, has passed without criticism
in Australia. For
example, some have seen it as an unwarranted and premature
intrusion into Australia's domestic concerns and federal
arrangements. Some of the other view have considered that
it did not go far enough.
Thus, it has been suggested that it is fundamentally
mistaken to rest the human rights response to oppression
on the ground of sexuality on notions of privacy rather than on notions of full
equality. This has been seen, by some observers, as little more than the "freedom"
of a closeted human identity and one which tolerates the
very public violence and discrimination suffered by many
homosexual citizens when they move out of the privacy of
the kind that ICCPR protects.
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, I suggest,
include two. One
would be sexuality. Already,
in the legal literature, essays are appearing on whether
the right to same-sex marriages, for example, can be derived
from international law. One judge of the High Court,
Justice McHugh, has suggested that the "marriage power"
appearing in the Australian Constitution, although originally denoting only marriage between a man and a woman
for life may, in today's society, be read more broadly to
include a federal legislative power to enact laws with respect
to same-sex unions. Having the constitutional
power is one thing. Having
the political will is, of course, another.
The second growth area is surely in the field of
drug use and drug dependence. This was the subject of a previous Mayo Lecture
by Justice Jones on the subject:
"Towards a National Solution for the Drug Problem
Problem". 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 that
now attends, or ought to attend, the way local laws dealt
(and in some places still deals) with human sexuality.
Bangalore Principles on Domestic Application
of International Law
A third and most important development has occurred
in Australia in the use that is being made of international
human rights law. It is a development new in a country which has hitherto adhered
strictly to the "dualist" notion:
that the norms of international law do not become
part of the domestic law unless made so by the municipal
lawmaker. The development to which
I refer is sometimes described by reference to the Bangalore
Principles.
The Bangalore Principles were adopted at a conference
mainly attended by Commonwealth judges in Bangalore, India
in 1988. The Bangalore Principles acknowledge the dualist rule. International law is not in most countries,
as such, part of domestic law.
But in respect of international human rights norms,
the Bangalore Principles accept that judges of the common
law tradition may properly utilise such international rules
in construing an ambiguous statute or in filling the gaps
in the precedents of the common law.
In my former judicial post with the New South Wales
Court of Appeal, I frequently invoked the Bangalore Principles,
sometimes with, and sometimes without, the support of judicial
colleagues. An important breakthrough
occurred in Australian thinking on this subject in the Mabo decision which, for the first time, upheld the rights of indigenous
peoples in Australia to title in land with which they could
prove long association. One strand in the reasoning
which led the majority of the High Court to reversing past
judicial holdings and upholding that claim, was the serious
breach that would otherwise arise in respect of Australia's
international human rights obligations. Sir Gerard Brennan, a judge who derived from
Queensland and who wrote the leading opinion in the Mabo Case, said:
"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 in unjust discrimination
in the enjoyment of civil and political rights demands reconsideration.
It is contrary both to international standards and
to the fundamental values of our common law to entrench
a discriminatory rule".
The Court in Mabo
acknowledged the impact which "the powerful influence
of the Covenant" would increasingly come to play upon
Australia's common law.
The judiciary of the common law tradition can, in
appropriate cases, play a part in moulding the common law
to universal principles expressed in international human
rights law. In doing
so, they should not simply incorporate a treaty holus bolus "by the back door". However, the legitimate role
of judicial elaboration using international law as an influence
upon municipal common law is now increasingly understood
and decreasingly controversial.
This process will, I have no doubt, continue to gather
pace.
In my reasons in a number of decisions in the High
Court of Australia, I have suggested that the Bangalore
Principles might be appropriate for incorporation into reasoning
about the meaning of the Australian Constitution itself. I have proposed that the
Court "should adopt the meaning which conforms to the
principles of universal and fundamental rights rather than
an interpretation that it would involve a departure from
such rights". In elaborating this opinion
I have suggested:
"Where there is ambiguity,
there is a strong presumption that the Constitution, adopted
and accepted by the people of Australia for their government,
is not intended to violate fundamental human rights and
human dignity ... The Australian Constitution ... 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".
I believe that in due
course this approach will be vindicated.
The rapprochement between municipal laws (including
constitutional laws) and international law will gather pace
as the twenty-first century.
So far as domestic application of international law
by the judges is concerned, Professor Hilary Charlesworth
has said, accurately I believe, that any suggested "threat
of international law to the Australian legal system is much
exaggerated". She has described the High
Court as being "very cautious in its embrace of international
law; it has kept its gloves and hat on at all times". A similar view of the Court's
jurisprudence has recently been expressed by Amelia Simpson
and Professor George Williams. If, occasionally, I have
lifted my hat to pay passing respect to international law
it is (I hope you will understand) 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.
CONCLUSIONS
In this Mayo Lecture I have concentrated mainly on
the international law of human rights.
But no sitting of the High Court of Australia now
passes without some relevant international legal principle
being invoked as an aspect of a domestic legal problem. Many cases come before the Court concerning
the Refugees Convention
which, in Australia, has been incorporated into municipal
law in respect of the definition of "refugees". Beyond this, important question,
cases are regularly presented to the Court concerning extradition
law, the Convention on the Civil
Aspects of International Child Abduction, the international intellectual property protection regimes, various conventions of the International Labor Organisation to which
Australia is a party, the Hague Rules and the
Brussels Convention for the Unification of
Certain Rules of Law Relating to Bills of Lading, and the Closer Economic Relations
Treaty between Australia and New Zealand.
Even if judges of national courts in countries such
as Australia were personally still disinclined to lift their
eyes to the growth of international law, their ordinary
judicial duties would increasingly confront them with the
realities that come with global transport, interactive technology
and international problems.
International law is no longer a realm of princes,
diplomats and nations. The global economy and the global village have brought international
law into the courtrooms at every level. This does not mean that we should be uncritical of institutional
and substantive weaknesses. But hostility or indifference
to the growth of international law and international institutions,
are not appropriate responses.
Such developments will continue and indeed will gather
pace. They will require greater imagination and open-mindedness
on the part of judges and lawyers. The element of parochial self-satisfaction and the sense of superiority
has never been far from the legal traditions of the common
law. Now lawyers
of that tradition must live in the reality of a world in
which international law has a very large and growing part
to play.
We are fortunate, therefore.
We have the chance to witness, and to contribute
to, changes of the most profound legal significance for
law, for Australia and the world. Let future generations say of international law at this moment that
it was blessed in Australia with creative intellects who
saw the tectonic shift occurring and recognised what they
saw.
