The new national consultation, under way from February 2009, calls for examining where rights come from, and and what they mean to Australians. Here James Dunn discusses how rights in Australia haven’t had a fair go, even though we were instrumental in giving them to the world.
Safeguarding democracy and human rights
By James Dunn* AM, CLA member
This a subject of such fundamental importance to all of us but one, unfortunately, poorly understood. Thanks to government attitudes in recent decades, human rights – insofar as it had a profile in relation to domestic matters – has drifted off our political agenda.
Paul Keating downplayed human rights, in relation to foreign policy, but worse was to come with the Howard government. A move that shocked me, not long after Mr Howard won office in March 1996, was the Prime Minister’s refusal to sign an agreement with the European Union because it contained two quite bland human rights references, declaring that both parties agreed to recognize basic rights. By that time more than 50 other countries had concluded a similarly-worded agreement with the EU, without protest.
This shift aroused little interest in the Australian media, an indication that human rights was only weakly acknowledged by those responsible for informing and enlightening us. The movement for a universal acceptance of human rights may have attracted little interest in this country, but it had become an issue central to the functioning of democracies in the European Union, and other advanced democracies – in effect in those countries who in the 19th and 20th centuries were the source of the peoples who flooded into this country, and shaped our democracy.
Human rights and democracy
One implication of fundamental importance has often been disregarded: democracy is almost an empty shell unless enmeshed in the fabric of human rights. To put it simply, if human rights are not being appropriately upheld, then the state is not a fully functioning democracy.
It is deeply regrettable that many Australians in positions of political leadership or government authority will only grudgingly agree that there is a link between international human rights and our democracy. It is still common for Australians to believe that the evolution of our democracy is a process more closely linked to this country’s social, political and economic history than to the development of human rights standards elsewhere. Politicians should know better, but many still appear to believe that human rights is about conditions beyond our borders, especially under authoritarian or totalitarian regimes – they think that “human rights is about what is happening there “, but never what is happening here.
A common Australian response to news of some gross human rights violation abroad is to express relief that we live in the Lucky Country – a response that misses the point. The distorted view of the role of human rights has caused Australia’s standing in the world at large in the human rights context to decline quite sharply.
Development of human rights
This humanitarian movement began to develop long before the 20th century, usually prompted by the horrors of war, oppression, or conditions of the underprivileged during the Industrial Revolution, but the movement did not attain a universal status until after the end of World War II when the international community took stock of the consequences of the most catastrophic conflict in human history. The springboard for change was the UN Charter, which includes a number of references to basic human rights, if on the vague side.
The next step was the Universal Declaration of Human Rights, described by Eleanor Roosevelt (wife of US President, Franklin D.) as the ‘Magna Carta for all Mankind’. The UDHR provided the basis for the development of human rights conventions, which provided these basic humanitarian standards with legal force, as well as moral authority. Taken together, these international human rights conventions and declarations have presented the world community with standards with universal application, whose observance is essential if we are to achieve the level of civilization necessary not only for the creation of a just, environmentally sensitive and peaceful world, but to produce a political and economic environment conduce to humankind’s very survival on Planet Earth.
The essential, relevant human rights instruments
There are dozens of human rights instruments, most of them declarations, but the UN’s moral authority is largely based on the Universal Declaration of Human Rights (UDHR), and six conventions spawned by it (plus the Conventions dealing with refugees and asylum seekers), instruments that Australian governments have ratified. At the centre of this catalogue of instruments are the so-called Bill of Rights, the International Covenant on Civil and Political Rights (ICCPR) and its sister convention, the International Covenant on Social Economic and Cultural Rights (ICSECR), and four other conventions – Elimination of Racial Discrimination (ERD); Elimination of Discrimination against Women (EDW): UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the Convention on the Rights of the Child (CRC).
These instruments are the end product of a standard-setting process that is arguably the most profound achievement of the UN system, and it is one in which Australians played a part: Australia’s Dr H V Evatt helped to draft the UDHR. He was the president of the UN and in the chair when the General Assembly adopted the UDHR on 10 December 1948.
The above conventions began to come into force in the 1970s, and by the late-1980s Australia had ratified all of them, albeit with reservations. Some our governments baulked at, such as the optional protocols which pave the way for national complaints to be considered by international committees, yet these protocols are designed to emphasize the universality of these humanitarian standards.
Human rights today
Sixty years ago human rights were focused on ending humanitarian abuses, but today it has a much deeper meaning. It is not just about our individual rights, as many interpret it here in Australia. These rights present us with standards to do with the way we treat each other, at all levels of society – an international code of conduct.
Based on the logic now widely accepted, we enjoy these rights only if we uphold them for others, a principle applying to their application at all levels of human society. In the nature of Australia’s political system, it sometimes seems that the victor at a general election assumes the prerogative to identify what rights we Australians should enjoy. In this sense, a kind of confidence trick has been played on the Australian community.
Ratification means a formal commitment to enshrine these rights into our laws and our democratic practice, and to enlighten the community as to their essential relevance not only in relation to rights, but also in the way we behave towards each other. Thus these rights and responsibilities are not a gift from the Emperor, or of a newly-elected government: they are fundamental, and remain with us regardless of political changes.
Human Rights, the essence of democracy
These human rights form the essential fabric of a functioning democracy. They are applicable to all levels of human society, and are of absolutely essential importance to the political processes in a democratic system.
These days accountability and transparency are of course fashionable terms. In practice they allude to the scrutinizing of the functioning of a democratic system, but they are more about means than substance. Human rights principles present us with the real substance – the most critical test of the quality of our democratic practice. This view, unfortunately, is much more widely accepted in Canada, New Zealand and the European Union, in the latter case, thanks to the European Convention on Human Rights, the European Social Charter and other instruments, which have an enforceable quality.
Here in Australia, we tend to dismiss international criticisms of our treatment of asylum seekers and aborigines. The official response to such criticisms has, in the past, been one of resentment at the international intrusion. But the international mechanisms have been designed to allow for a measure of intrusion, reinforcing their universal application. In such cases our media have often let us down, by echoing the official resentment rather than the international concern.
Human rights always has an international character, but in the recent past our democracy assumed a nationalist wrapping – past military and sporting achievements, and the level of economic prosperity providing the main focus of national pride. This approach appeals to people who believe that our homegrown democracy is by far the best – with its populist right of a fair go for all, our rights to free speech, freedom of religion, and our much-vaunted spirit of mateship. These qualities are today being extolled as ‘Australian virtues’, execially by people who want to displace the term ‘human rights’.
There is of course much to be said for these admirable qualities, but as past experience has shown, they are simply not enough. They lack definition, substance, and consistency, and have not always been sufficient. In spite of these much-vaunted traditions, in the past racist views flourished (and are still persist among us); women were discriminated against; and our aborigines were subjected to sub-human treatment. Indeed it was not until the late 1960s that aborigines were considered human enough to be included in the census, and for that we have the inspiration of the UDHR to thank. In short, past ‘Australian values’ included a prejudiced view of the world around us.
When international human rights conventions were being ratified, they captured very little attention from our political establishment, and no serious attempt was ever made to develop in the Australian community an understanding of what they meant. In fact human rights impact directly on the responsibilities, as well as the rights, of citizens, as well as the responsibilities of instruments of government. Those who took an interest were dismissed as bleeding hearts, but the principles enshrined in these rights began to have an impact, especially in relation to the rights of our indigenous people, women, children, and of course in relation to our international obligations.
As it happened, the Australian Democrats came into being between the ratification of the ICESCR and ICPR, in fact reflecting the influence of these developments on party founder Don Chipp and others parliamentarians. Today the Democrats and the Greens remain the strongest supporters of human rights issues in the Federal Parliament, though the Labor Government has recently moved to hold a ‘national consultation’, though without providing a lead as to what direction it wants to take the country.
Measure of the quality of the democracy
The reality is that the way that a nation observes and values human rights conventions constitutes both the measure of the quality of its democracy, and its status as a good international citizen. Those of us who have worked the field of international human rights have in the past decade been deeply dismayed at the indifference of the Howard Government towards the human rights issues, both abroad and in this country.
Our international record displays a high degree of selectivity. The abuses of Saddam Hussein were extremely serious and deserved the exposure they got, but that exposure came more than a decade after the worst of those atrocities, when Saddam Hussein enjoyed some Western support for his war with Iran. Indeed, had he not been given critical material support he would most likely have been deposed in the late 1980s.
To take up an issue nearer home, what about the atrocities for which Indonesian generals are responsible? We were silent when they were being perpetrated in the 70s and 80s. When I was preparing my report on atrocities committed in East Timor in 1999, I have to say that I received little encouragement from Australia’s official representatives in Dili. It seemed that there had been no real change in our long tradition of indifference towards the suffering of the people of East Timor.
Then there is the Iraq invasion, which UN lawyers have condemned as a violation of the Charter. It has so far cost well over 100,000 civilian lives lost in Iraq, and millions of lives disrupted so that millions of internal and external refugees have been created.
This early part of the 21st century gives parliamentarians an opportunity to provide the Australian people with leadership in relation to what this country should stand for. Analysis of the state of Australian democracy calls for a new approach, one based on those rights and responsibilities this country took on board by virtue of its ratification of human rights treaties. If we look closely at the state of Australian democracy against this background, we will inevitably confront a widening gap between the rhetoric of this nation’s leaders and the disturbing reality of a democratic system in decline, when compared with the state of democracy and human rights in most of Western Europe.
A government must abide primarily by its human rights commitments, which are designed, among other things, to prevent a newly-elected government from downgrading human rights, based on its claim to a popular mandate. In reality, no government can claim a mandate to disregard or weaken human rights, for such an action is an unacceptable departure from the commitment this country solemnly took on board by virtue of ratification. In practice, certain basic human rights are simply not negotiable.
We talk of free elections and free speech but these freedoms are being seriously eroded by factors to do with the ownership of our media, the question of our access to it, and the capacity of governments to influence and, when it suits them, to tailor the flow of information that gets to the Australian voter. Fundamental to a properly functioning democracy is an enlightened electorate, that is, an electorate enlightened through its awareness of and commitment to the humanitarian standards set out in international human rights. It is about a national consensus on what is right, and what is wrong, on the fundamentals of a society committed to those values essential to the shaping of an effectively functioning Australian democracy; to the shaping of a more just and safer world.
Rights is about realism
Some will say this is heady idealism: I would argue the contrary; it is about realism, about promoting the kind of global consensus that will secure our rights, our security, our environment, and our economic prosperity. Just as our states and communities are inter-dependent, so too are we part of an inter-dependent world community of nations.
I suspect that most of our politicians see human rights as something separate from the practice of democracy, a kind of adornment or refinement that we hardly need because of an inflated confidence in our traditional democratic credentials.
That is the way the practice of democracy would have been understood, at least in the first half of the 20th century. We saw democracy in general, simplistic terms, through the prism of its infrastructure, ignoring the serious erosion caused by the authoritarian nature of the major parties, the corruptive power of money, and the capacity of governments and others to manage our media. There are of course many things we have a right to be proud of, in relation to the way our democracy has evolved. In fact the measure of freedom that we now enjoy should enable us to take that extra step and bring about those changes essential to a democratic system based on the civilizing impact of human rights.
In the post-communist world we entered a new phase of world history. It is a phase that demands more commitment on the part of the democratic nations of the world if we are to attain the level of global cooperation and understanding envisaged in the UN Charter. It calls for a stronger and more effective UN, an international forum based on the commitment of truly independent states to those objectives set down 60 years ago, a revival of the resolve that formed in the ashes of the worst conflict in human history, to make our world a safer, more peaceful, more cooperative and more democratic place.
The human rights process in Australia has really only just begun; outside Australia, we have fertile ground for promoting human rights in our Pacific and Asian neighborhoods.
This article is slightly modifiedfrom a keynote address to an earlier Australian Democrats conference in Canberra. * James Dunn AM is a former Australian diplomat, UN human rights expert and a member of CLA.