How Useful are International Human Rights in a Sovereign and Democratic State?

By Anthony Hallal

Sovereignty and Democracy

There are compelling reasons to question the usefulness of human rights that are not supported by specific Australian laws. In the absence of an enforceable domestic law demanding that a particular human right is respected, individuals within a sovereign and democratic state such as Australia arguably gain little from having that right assigned to them by international agreements. Indeed, Australia’s humanitarian efforts provide us with much to be proud of, and many human rights are well respected by our Government. However, devoid of an effective enforcement mechanism, any attempt to implement a human right remains practically impotent. While international human rights agreements might play some role in bringing about rights-respecting Australian policies through democratic processes, they are limited in their usefulness.

Is Australia’s sovereignty a force against human rights?

A fundamental implication of respecting state sovereignty is that any mechanism of enforcing human rights in Australia must come from within the nation’s own domestic legal system.

While the principle of sovereignty shields Australia’s laws from the interference of ill-intentioned outsiders, so too does it indiscriminately shield those laws that violate internationally recognised rights. In 2011, for example, the UN’s Universal Periodic Review on Australia’s human rights record was published. It contained an assessment of the nation’s human rights deficiencies and recommended ways in which these deficiencies might be remedied. However, when given the opportunity to respond, Australia bluntly rejected various recommendations relating to some of our most blatant rights violations. Recommendation 70, for instance, advised Australia to amend the Marriage Act 1961 (Cth) in order to recognise same-sex marriages. Sections 5 and 88EA of this Act explicitly exclude all same-sex marriages from recognition in Australia. This fundamentally conflicts with article 23(2) of the International Covenant on Civil and Political Rights(ICCPR)—an international treaty that Australia has formally consented to be bound by via ratification—which indiscriminately affords all consenting adults the equal right to a recognised marriage. Despite Australia’s ratification of the ICCPR, our domestic laws do not provide two consenting adults the right to marry if they happen to be of the same sex. This policy will stay in force until it is amended by the Australian Parliament as our sovereign authority.

There is, however, an alleged safeguard against these types of problems for at least violations of rights provided by the ICCPR. Victims of rights-violating Australian laws are supposedly afforded an avenue of redress under the First Optional Protocol to the ICCPR.  Australia’s accession to this Protocol would suggest that if a right enshrined within the ICCPR is violated, the victim can have their complaint heard by the United Nations Human Rights Committee (UNHRC) as an external adjudicator.

However, as evident in A v Australia, this arguably amounts to an ineffectual mechanism of rights enforcement. In this case, an asylum seeker (A) complained that the Australian government had arbitrarily held him in mandatory immigration detention for more than four years without judicial review. The Committee found that Australia’s conduct violated article 9 of the ICCPR—the clause prohibiting arbitrary detention—and determined that A was entitled to compensation for the violation. The Australian government simply ignored this determination and no compensation was ever provided.

Cases like A v Australia demonstrate the relative ease with which sovereign states can depart from the rulings of appointed decision-makers at the global level. No external body is able to force our Government’s hand, and so the implementation of human rights appears to be chiefly at the mercy of our sovereign Government. This begs an important question: what purpose do these international agreements serve if they do not ensure the enforcement of human rights?

What good is an international human rights agreement that is not incorporated into domestic law?

While international human rights agreements lack the political fortitude necessary to directly enforce rights in Australia, it might be argued that they set an important standard against which voters can assess Government policies. Our democratic institutions place the Australian public at the centre of any human rights issue. Before Australian laws that enforce human rights can be established, a majority must first elect politicians who support rights-respecting policies at election time. Individuals and NGOs can point to the standards set by international agreements when assessing a political party’s policies and pressuring them for legislative change. For example, here, Amnesty International appeals to the International Covenant on Economic, Social and Cultural Rights (ICESCR) when condemning various Governments for failing to provide, among other things, free primary education and adequate housing. As such, international human rights agreements can be used as criteria against which Government policies can be examined.

It is arguable that by using these agreements in this way, voters can clearly measure the extent to which a political party respects rights. A party whose policies are consistent with international agreements will be clearly distinguishable from others who fail to meet the obligations of the agreements. This would work to inform voters of the direction in which they should cast their vote, and would be an important contribution to the achievement of a right-respecting democracy.

However, there is at least one significant limitation associated with using the human rights set out in international agreements as a standard for assessing legal policies. It falsely presumes that these human rights reflect the objectively true ingredients of fairness and justice. When we speak about human rights, we refer to a particular notion of what is fair and just. In claiming that we have a human right to free primary education and housing, for example, we are really stating that our particular idea of fairness and justice requires all people to have access to these things. However, while there are good reasons to agree that the state should provide all individuals with free primary education and adequate housing, as per articles 13 and 11(1) of the ICESCR, there are also plausible counterarguments. Some might legitimately believe that the idea of taking money from one group and redistributing it to another is in fact unfair and unjust.  If individuals are convinced by this type of rationale, then they are likely to reject the idea that the state should use taxpayers’ money to provide primary education and housing for others, thereby rejecting the content of the human right itself. As there is no single accepted conception of what it means to be fair and just, we are unable to use the human rights set out in international agreements as the exclusive indicator of how fairly and justly a Government is operating.

Certainly, this does not render the human rights set out in these agreements but not incorporated into the domestic legal system entirely redundant. They can still be used to guide the valuable votes of those who happen to agree with them in principle. However, in sovereign nations like Australia, they seem to be practically useless to those who fundamentally disagree with their content. For these people, not only are such international rights incapable of directly altering our domestic laws due to Australia’s sovereignty, but they are also irrelevant in assessing legal policy.

While international human rights agreements have a place in the global political landscape, their usefulness in Australia is currently circumscribed by the sovereignty of our Parliament, and by the absence of consensus regarding what it means to have a fair and just society.

Anthony Hallal is a student studying Arts (Human Rights)/Law at Monash University. He has been awarded several academic prizes and scholarships, some of which have been used to study human rights abroad. He is passionate about the various ethical and legal issues surrounding rights violations.