International Treaties
And Human Rights
From Human Rights by LJM Cooray (1996)

Human rights mean different things to different people. Since the Second World War however, a great number of standard setting international documents have been drawn up mainly under the auspices of the United Nations. Some of these have been signed and ratified by countries often subject to reservations regarding inter-national enforcement procedures. They have nevertheless been seen as establishing international obligations. The most broad-ranging documents are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

These documents declare and recognize a number of classes of rights. There are the rights connected with life and liberty and the due process of criminal law which have long been recognized and respected in countries possessing democratic forms of government and legal systems. There is also a class of political and civil rights which include the freedom of expression, thought and conscience, association and assembly, freedom of the person, individual property rights and equality before the law. These too have long constituted the foundation of western democracies. In addition, the United Nations documents recognize a large number of social rights such as those relating to livelihood, employment, and social security. This last category consists of standards which can only be progressively achieved over long periods of time depending on the capacity of each nation. As such, whilst the former categories of rights are considered to be relatively enforceable, the latter category remains very much in the nature of norms incapable of enforcement (except to the extent of monitoring, reporting and providing limited material assistance).

4.1 UN Declarations Are Not Exhaustive Of Human Rights
The first important point to note is that the United Nations Declarations are not exhaustive of human rights. Having been drawn up by fora in which, except in the early years of the United Nations, western democracies were a small minority, they have failed to express a number of rights which are considered fundamental in a democracy. These include the right to property and the freedom to engage in a trade, profession or occupation. The right to property which was recognized in Article 17 of the Universal Declaration was omitted in the subsequent covenants. The fact that these rights are not incorporated in the United Nations documents does not mean that they ceased to be human rights. They remain very much a part of human freedom as recognized by free societies. Thus when the Council of Europe adopted the European Convention on Human Rights and the European Social Charter, 1961, they recognized the right to property (see Article 1 of Protocol 1 of the Convention and Part I(1) of the Charter). Irrespective of the international treaties, individual western democracies have entrenched these economic freedoms in their constitutional documents.

Thus when a country such as Australia debates the protection of human rights and Parliament passes legislation it is necessary to formulate a commitment to the types of rights which it considers are basic human freedoms. In doing so, Australia as a free society has no real option but to recognize human rights in their totality which includes the above mentioned economic freedoms. There is however a tendency to disregard these freedoms and to find support for this attitude by reference to United Nations documents which are silent on economic freedom as western civilisation has come to know it. The United Nations documents provide easy justification for the destruction of these freedoms. Governments guided by socialist philosophy have relegated these traditional freedoms while assiduously enforcing social rights. Selective application of human rights according to ideological preference has become a modern trend.

Professor Irving Kristol pointed out in The Times, 5 May 1981 that UN rhetoric is a "smokescreen". The smokescreen avoids examination of human rights in communist countries and focusses almost exclusively on the countries of the non-communist world.

The United Nations, which has produced a series of covenants and treaties on almost every conceivable issue, has however avoided dealing in a realistic manner with the problem of terrorism.

On this subject there is no effective action which points to the double standards involved by the influential majority of totalitarian states.

4.2 UN Declarations And Treaties Must Be Critically Examined And Often Cannot Be Taken At Face Value
A better perspective on the UN documents referred to above is obtained when it is realised that those influential in their drafting were a cabal of tyrannical governments. Governments which suppress human rights and repress their hapless subjects constitute a two thirds majority in the United Nations. Thus these documents cannot be accepted at face value and must be carefully examined. The extent to which sections of the Australian community, including a majority of judges of the High Court, unthinkingly and uncritically pay homage to these documents is unfortunate. Some (not all) have ulterior motives. The documents are a means of imposing socialist policies and are used to deceive the gullible.

4.3 UN Declarations Selectively Resorted To In Australia
Even the rights which are given recognition by the United Nations documents, receive unequal recognition in Australia. Freedom from discrimination is being pursued to the point where other recognized rights such as the right to a fair trial, the right to free speech and the right to association are being impaired. The necessary balance amongst equally fundamental freedoms has been disregarded in the pursuit of ideological goals.

It has been argued that human rights are not absolute and may be derogated from in particular circumstances. Restrictions are permitted on grounds such as the protection of national security, public order, public health and morals or the rights and freedoms of others (eg A 12 3, A 18 3 and A 19 3 of the United Nations Covenant on Civil and Political Rights). What is important however is that the restrictions should be strictly justified and that for this purpose judicial determination is essential. The remedies contemplated by the United Nations Covenant are not restricted to judicial action as the Covenant was intended to apply even to countries in which judicial systems in the western tradition are lacking. However A 2 3(c) creates an obligation to develop judicial remedies. In Australia, which is endowed with a strong and independent judiciary, the tendency is to leave the determination of these matters to the legislature or to non-judicial bureaucratic authorities. This tendency not only violates the concept of fundamental rights in the traditional western sense but also contravenes the spirit of the United Nations Covenant itself. Limitations on human rights will make sense only if they are capable of impartial adjudication. Where the justification for a limitation is determined by an authority which is seeking the imposition of the limitation, it makes a mockery of human rights. It also destroys the fundamental concepts of justice on which our legal system and democracy stand.

There is another important aspect to the implementation of the international Covenants. This relates to due process.

Article 141 of the International Covenant on Civil and Political Rights declares:

In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Article 142 of the Covenant declares:

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

From the above provisions two things are clear. One is that in all proceedings for the determination of rights and obligations (whether civil or criminal) a person is entitled to a fair trial by a competent, independent and impartial tribunal. Second is that if the person is charged with a criminal offence he is to be presumed innocent until proved guilty.

As regards the first rule, the requirement is a fair trial by a competent, independent and impartial tribunal. It is generally recognized in the western world that when it comes to determining rights and obligations of citizens, the tribunals which have competence, independence and impartiality are the duly constituted courts of law. However, in Australia, the power to determine rights and duties is increasingly vested in tribunals (including the Human Rights Commission, anti-discrimination boards and equal opportunity officers) which are neither competent nor wholly independent and impartial. Often the bodies entrusted with determining these rights and duties are those which are set up to create and enforce the rights and duties. See further chapters 2.5 and 12.

But there is a more serious threat to both the above mentioned rights. Often tribunals are empowered to determine violations of law. The typical justification advanced is that these tribunals do not conclusively determine the matter and that for enforcement, the complainant or law-enforcer has to institute proceedings in a court. It is also sometimes said that the allegation to be determined is not of a criminal nature as it would not involve imprisonment or fine. These arguments have some merit in a purely technical and theoretical sense. But in the practical context the authority of the tribunal would be no less potent than that of a court. The reasons are many. An example is the Sex Discrimination Act under which the Human Rights Commission can declare a person guilty of an act of discrimination. If he ignores the declaration he will have to be convicted by court after trial. But before he exculpates himself in the court he would be publicly declared a law breaker in a declaration made by the Human Rights Commission. He can absolve himself in Court only at great expense to himself and with great difficulty because a finding of guilty or other adverse comments by the Commission could prejudice the outcome of the trial. If the person accused is a company, the mere declaration can cause immense damage to its goodwill.

What is also important to note is that in the modern era where people's well being and sometimes their very livelihood depends on licences, permits, quotas and other bureaucratic discretions, there are more ways of punishment than imprisonment or fine. Theoretically the bureaucrat who exercises a discretion can be challenged in court. But given the enormous cost of litigation and the limitation of remedies (by rules regarding standing and grounds of challenge), it is the exceptional citizen who will have the financial resources, knowledge, capacity or inclination to seek judicial relief.

In many cases, the reality is that the bureaucrat makes a final decision on the citizen's right or duty and the matter ends. The consequences are often more serious than a short incarceration or modest penalty.

In their technical sense the due process clauses of the Covenant are limited in application to formal criminal trials and formal civil litigation. These clauses would have been adequate before laws crept into every facet of personal life bringing with them bureaucratic control over the lives of citizens. If these clauses are to retain their relevance they have to be extended for the protection of citizens who find their rights and duties increasingly determined by non-judicial bodies.

The Human Rights Commission is deafeningly silent on this issue. It exercises powers which derogate from the right of an individual to a fair trial. It is also active in advocating changes to the law in further derogation of these important safeguards. See chapter 6.2.

4.4 The High Court And International Treaties
The Australian Constitution was carefully drafted and involved a division of legislative power between the States and the Commonwealth. The politicians and the population of the then colonies (which subsequently became States) had significant reservations about entering into a federal system. The smaller population units (Tasmania, Western Australia and Queensland) were particularly suspicious of being subjugated to the power of the politicians of the more populated States (New South Wales and Victoria). They would not have come into the federation if not for certain constitutional guarantees. It was clearly understood that these guarantees would not be changed except by referendum which involves a vote by the people of Australia with a special weightage towards the component States.

However, a Commonwealth appointed High Court has over the years effectively rewritten the Constitution, providing more power to the centre. This was never more apparent than in two recent decisions which relied on the treaty making power. The Constitution established a division of legislative and executive power between the Commonwealth and the States. This is the essence of a federal system of government. The Constitution carefully stated what powers were to be exercised by each organ of government. However, the High Court in two recent cases dealing with alleged racial discrimination and the building of the Franklin Dam, has held that where a Treaty has been entered into by the Commonwealth Government, the Commonwealth Parliament has power to legislate in the area covered by the Treaty. Where legislative power exists, the Commonwealth Parliament can, through legislation, confer power on the executive and other agencies. Prior to these two decisions this principle had been subject to a number of restrictions. The High Court swept away some of these restrictions and denuded the others of all practical significance. It stated some restrictions which apply to the legislative power of Parliament and the implementation of treaties but these limitations in practice are likely to be of no effect. If they were, the Commonwealth legislation in at least one of these cases would not have been upheld. These two cases were presented to the public as involving racial discrimination and the preservation of the environment respectively. The public and judges of the High Court were conned into conceding powers to the Commonwealth.

These two decisions in effect give the Commonwealth power to legislate on a virtually unlimited range of topics. The entire spirit of the Constitution has been undermined and in effect it has been rewritten. It has been rewritten by four judges of the High Court, against the wishes of three others, under pressure from a Commonwealth government exploiting racial discrimination and the environment. The irresponsibility and arrogance of the four judges of the High Court who permitted this cannot be underestimated, forgiven or condemned too highly. They have permitted in effect a rewriting of the Constitution, contravening Section 128. One Justice even had the gall to describe what he was doing as a liberal interpretation of the Constitution. The essence of liberalism is freedom and the placing of restrictions on the power of governments and parliaments. But what the majority did was to provide virtually unlimited legislative power to the Commonwealth Parliament and Government. They also denied the people of Australia the opportunity to express their views in a referendum which is what would have eventuated if the High Court was true to its role of interpreting the Constitution. If the power of Parliament is to be extended the Constitution provides a mechanism. But four judges of the High Court to the plaudits of politicians and academia rewrote the Constitution. They showed their contempt of the right of the people to decide the issue.

The Commonwealth Government has under the Constitution the power to enter into a treaty on any subject matter, notwithstanding the division of powers between the Commonwealth and the States. This was a principle which the founding fathers were well aware of. They were equally aware that legislation was required to implement a treaty. The treaty entered into by the Commonwealth Government would bind the Commonwealth in international law, but have no effect on the law of Australia until Parliament had legislated in accordance with the Constitution. The draftsmen of the Constitution expected that the limitations on the power of Parliament would mean that the Commonwealth Government would have to obtain the agreement of the States on matters which were within the States area of legislative competence.

But by a cunning conjuring trick, as it were, four Judges of the High Court, against the wishes of three others, have swept away the restrictions contained in the Constitution.

The High Court created legislative power is legally unlimited. It is limited only by political factors. The reality is that the power will be used against those sections of the public who are weak, ineffectual and are lacking in political influence. It will not be used against the strong, the bullies and the powerful in society.

An effect of the decision is that since a mass of treaties and agreements at the international level relating to labour exists, this confers on the Commonwealth wide-ranging power in the field of industrial relations. It can be forecast that this power will not be exercised against organised labour. It will, however, be exercised against small business which is already restricted by State and Commonwealth legislation.

The wide Commonwealth power was exercised against the small State of Tasmania in relation to the Dams issue. It is the smallest State in the federation and had only five House of Representatives seats. It was therefore easily dispensable politically. Had the dam been situated in New South Wales (environmental factors being the same) it can be asserted that Commonwealth power would never have been used. In Queensland when the Commonwealth attempted to obstruct the highway through the Daintree forest the Queensland ALP warned that the party risked grave electoral losses (up to 14 seats). The Commonwealth backed down as the political cost was too great.

4.5 The Ideological Thrust Of The International Covenants
The international treaties on human rights have had adverse consequences on the development of human rights. The treaties have caused immense damage by equating a broad range of needs with rights properly so-called. Whilst recognising these new claims derived from the socialist conception of society, the treaties have deliberately refrained from indicating what rights should take precedence in case of conflict. The authors were not unaware of the fact that most of the so-called rights proclaimed in the documents can be effectively enforced only at the expense of traditional liberties. The conflicts that arise between these types of rights are examined in chapter 5. It is therefore an inescapable inference that the elevation of needs claims to the status of human rights is ideologically motivated and has had the effect of undermining the very foundations of the democratic societies. Western nations with the exception of the United States, acquiesce in this design. The chief reason was that most of the ratifying western governments were partly committed to such policies. They did not have the foresight to perceive the basic contradictions that were being institutionalised. The international covenants whilst creating duties in respect of human needs, were unable to install effective mechanisms for enforcement. However, by recognising these claims as human rights, the conventions provided a powerful political impetus for their realisation in domestic jurisdictions, and thus struck a crucial blow against the more important rights. Thenceforth, Australian governments and pressure groups pursuing coercive policies, could readily appeal selectively to one or more of a wide range of social rights created by international treaty. This practice of appealing to these documents is prevalent in Australia more than anywhere else.

It would seem at first sight that the international covenants are a jumble of rights carelessly put together by a group of well-meaning but incompetent delegates. But there is another dimension. The conventions are being used relentlessly in a way which has the effect of undermining the supremacy of the liberties traditionally associated with western democracies. They advance a novel set of norms which in rhetoric and substance reflect the coercive socialism practised by a majority of the contracting nations.