A review of the UN human rights treaty review

The Cabinet review of Australia’s interaction with the UN human rights treaty has set off both a flurry of congratulation and a storm of protest. How can we assess the outcomes of the review in an informed way?

At the outset, it is important to note that all we have to go on is the brief press release by the three responsible Ministers, brimming with dot points and rather cryptic phrasing. The review document is not available to the public. This itself is an indication of the closed and secretive way in which the review took place: no terms of reference were ever issued and no submissions called for. On such an important issue, transparency would seem to be of the essence. The way the review has been conducted is also quite inconsistent with the government’s reforms to the treaty-making process in 1996, when it declared that participation in treaties should not be the preserve of the executive, but subject to the scrutiny of the legislature.

Some aspects of the press release seem progressive and reasonable: Australia will take ‘strong measures’ to improve the effectiveness of the UN human rights treaty bodies. The current system of expert committees monitoring country reports has been criticised for many years, inside and outside the UN. Indeed, a distinguished Australian human rights expert, Professor Philip Alston, undertook a comprehensive review of the problems of the treaty reporting system five years ago, at the behest of the Secretary-General of the UN. Alston made some valuable proposals, for example the creation of a single expert monitoring body in place of the current six specialist committees, and a proper resourcing of such a committee. No action has yet been taken on Alston’s conclusions and recommendations and if the review outcomes include giving energetic Australian support to the Alston report, this will be an important and useful step.

However, the overall tone of the press release suggests that positive reform of the UN system is not a major priority of the review. It is built on a misunderstanding about the nature of human rights. The release speaks of the need to ‘ensure adequate recognition of the primary role of democratically elected governments and the subordinate role of non-government organisations’ in the human rights system. Governments, of necessity, play a primary role in human rights protection through enacting laws but the implication of the press release seems to be that, if a government is democratically elected, it can be relied on always to protect consistently the rights of its inhabitants. As the philosopher Ronald Dworkin has pointed out, however, the very basis of human rights is the protection of minorities against the will of the majority in certain defined areas.

While the democratic political card game should usually be run along majoritarian lines, a civilised society needs to protect certain rights of minorities. For example, a majority of Australians may profess Christianity, but it would go against our ideas of tolerance if an Australian government attempted to ban all other faiths. While non-democratic governments by definition are in breach of their citizens’ human rights, they are not alone. Democratically elected governments also regularly violate human rights – over fifty decisions by the European Court of Human Rights against the United Kingdom testify to this. Mr Howard himself did not shirk recently from criticising the actions of the democratically elected government of Malaysia in relation to the Anwar trial. Governments, even gold-plated democracies, have little interest in exposing their own human rights breaches. Without a robust culture of scrutiny and debate, typically led by human rights NGOs, many human rights issues would remain covered up.

The review takes the curious approach of reforming the UN human rights system by distancing Australia from it. The rationale of the reporting system is to promote ‘constructive dialogue’ between the committees and the countries concerned. Australia’s new policy appears designed to avoid a genuine dialogue, and encourage a dialogue of the deaf. The press release refers to a decision to take a more ‘economical and selective’ approach to reporting under the human rights treaties. Given that Australia is typically very late with its reports, we wonder what further economies might mean. The press release also announces a general rejection of visits to Australia by the treaty committees, unless the government considers there is a compelling reason, a tactic made familiar by countries such as North Korea and China. Critics of the UN system have argued that Australia has been dealt with more harshly by the treaty bodies than systematic abusers of human rights. As proof of this tendency, Mr Howard noted that the number of recommendations made to Cuba and China was less than the number made to Australia. This is a simplistic and inappropriate measurement: the important thing of course is not the number of recommendations made, but the actual content of the recommendations. On such a criterion, it is clear from reading the human rights committees’ reports that Australia has not been singled out.

Overall, the press release indicates that, with respect to human rights, Australia is in the grip of a form of patriotic isolationism. We may be the only country in the western world without a domestic system of rights protection, but we’re alright mate. Our gold-plated democracy might tolerate mandatory sentencing of children and deep inequalities in the economic and social rights of indigenous people, but as long as no arm-severing of political opposition groups takes place, we should not be criticised. It is clear, however, that the Australian legal system is not yet able to respond properly to many important human rights issues here. The UN human rights system operates as some sort of safety net in the absence of a comprehensive Australian system for rights protection.

A way beyond the rather belligerent, isolationist mind set displayed in the press release would be for the Australian government to introduce a home-grown Australian bill of rights: this would offer a local system for redress for human rights violations and reduce our reliance on the United Nations system in this area.