Kirby, Michael --- "Globalism - future human rights issues" [2000] ALRCRefJl 2; (2000) 76 Australian Law Reform Commission Reform Journal 6

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Reform Issue 76 Autumn 2000

This article appeared on pages 6 - 11 & 98 of the original journal.

Globalism - Future Human Rights Issues

By Justice Michael Kirby*

Globalisation is such a feature of the world in which the law now operates that it is beginning to affect the way we think of law.

It impacts on the institutions that make the norms of law, the courts and tribunals that enforce those norms, the officers and agencies who help uphold global standards and the issues which are now regarded as falling within legal problems. Many global (and regional) questions are concerned with trade, the economy, telecommunications and the like. I will leave these to others to explore. What I want to do is to glance at some future issues of human rights. They demonstrate the global character of the challenges and also of the solutions that lie ahead for the law in the coming century.

The painstaking steps by which the new global legal order is being built have seen promising developments in recent times, which can only give encouragement to those who look to the future with optimism. For example, the adoption of the constitution for the world’s first permanent International Criminal Court has been followed by intensive negotiations to set it up when the necessary ratifications were received.

Meanwhile other international institutions are at work to defend universal human rights. For three years before my appointment to the High Court of Australia, I served as Special Representative of the Secretary-General for Human Rights in Cambodia. That post involved at least two missions to Cambodia each year upon which I was required to report to the Commission on Human Rights in Geneva in April and to the General Assembly of the United Nations in New York in November.

When I arrived in Cambodia I discovered that the large UNTAC (United Nations Transitional Authority in Cambodia) force that had supervised the elections, which led to the new Constitution and National Assembly, had departed. There were but three blue helmets left in the whole of Cambodia, where in 1993, the security situation was still extremely delicate. Yet one of the outstanding achievements of UNTAC was the growth of a large number of human rights non-governmental organisations (NGOs). The establishment of an Office of the United Nations Centre for Human Rights in Phnom Penh and the work in that office of fine human rights experts, local and international, afforded a permanent international presence to support, encourage and defend the human rights in effective ways, often for the first time.

When, in the big halls of the United Nations, I would rise to give my reports on the achievements and problems which I had observed in my missions to Cambodia, I saw the global community at work. Of course, the mechanisms were not perfect. The sanctions for human rights violations were often inadequate. The abusers continued their affronts to humanity. But for the first time in history, tyrants were effectively obliged to send their representatives to answer before the bar of humanity to the complaints of an international official looking independently into the ‘internal affairs’ of their nations.

During my service, much that was good about Cambodia could be honestly reported by me. Much that was critical was reported and candidly admitted by the government. Yet for a number of the other Special Rapporteurs and Special Representatives of the United Nations, who ascended the rostrum before and after my reports, the stories were of unrelieved terror and horror. The Special Rapporteur on the Sudan. The Special Rapporteur on the Independence of Judges and Lawyers. The Special Rapporteur on Afghanistan. The Chairman of the Working Group on Arbitrary Detentions. These and other reports were often gruesome and upsetting. But at least the representatives of the nations impugned had to attend and provide their answers. Nowhere in the world is an oppressor of human rights sure that the world is not watching and may not eventually demand an account before a Commission of the United Nations or before a court.

Challenges in the global machinery

It would be self-deception to pretend that the experience of Cambodia at that time was typical. Or that the mechanisms in place beckon us with certainty to an improved world in the new century. Indeed, there are many troubling features of current arrangements.

Special Rapporteurs. The unhappy developments in Malaysia are illustrated by the fact that the Special Rapporteur on the Independence of Judges and Lawyers has been sued for defamation in respect of comments made by him in London concerning the discharge of his functions. The Court of Appeal of Malaysia declined to give summary effect to the Special Rapporteur’s claim for diplomatic immunity in respect of this suit.¹ The United Nations Economic and Social Council referred to the International Court of Justice for an Advisory Opinion on whether the Special Rapporteur was entitled to diplomatic immunity. That Court, by majority, advised that the Special Rapporteur was acting in the course of the performance of his mission and was, therefore, immune from legal process of any kind. It expressed the opinion that the government of Malaysia was under an obligation to communicate its Advisory Opinion to the Malaysian courts in order that Malaysia’s international obligations be given effect.² So far the government has not accepted this advice. The saga continues.

Commission on Human Rights. The 55^th session of the Commission on Human Rights (CHR), the successor of that to which I reported as Special Representative, took place in March and April 1999. By report it was a ‘depressing affair’.³ Unfortunately the reality of global machinery is often far from noble. The review of the mechanisms of the CHR, which had begun in the previous session and which was aimed to enhance the capacity of the United Nations to promote and protect human rights in practical ways, seemed to get nowhere. When progress looked likely a small but determined number of ‘like-minded’ governments torpedoed the reports ‘while mouthing their commitment to progress’.⁴ Yet outside the areas where great power or influence dictated outcomes, some progress was made. The grave situations in Sierra Leone and Chad were added to the agenda for the next session. The mandate of the Special Representative for Iran was extended. A Special Rapporteur on the Rights of Migrant Workers and members of their families was appointed for the first time. Agreement was achieved on the response to the situation in Kosovo.

Withdrawals from UN system. A somewhat worrying recent development has been the decisions by a number of countries to withdraw from international human rights treaties and/or human rights mechanisms. Jamaica, Guyana, Trinidad and Tobago, Peru and North Korea are some of these. The first three, members of the Commonwealth of Nations, withdrew from the mechanisms of the International Covenant on Civil and Political Rights because of the criticisms which had been voiced about decisions to carry out capital punishment in circumstances found objectionable by the United Nations Human Rights Committee.⁵ So the instruments and sanctions of global law which I have described are by no means perfect. But they do illustrate an important development. Nations are not now wholly immune from the energetic pursuit of human rights defenders and NGOs. And this is a significant advance for global human rights.

Crimes of universal jurisdiction

One development of the greatest importance is the Pinochet affair. The legal cases in England arose out of an application by a Spanish magistrate for the extradition of General Augusto Pinochet, former President of Chile, to Spain to face trial on charges including torture allegedly committed in Chile when he was head of state. The House of Lords, reversing a decision of the Queen’s Bench Division, held that Senator Pinochet was liable to extradition.⁶ Although this decision was re-committed,⁷ the second decision of the Law Lords reaffirmed the conclusion that Senator Pinochet was liable to extradition.⁸ On 8 October 1999, a magistrate in London ruled that ‘all conditions are reunited to oblige me to defer Senator Pinochet to the Secretary of State’s decision’.⁹ Only when he accepted that Senator Pinochet was incapable of standing trial did the Home Secretary authorise his return to Chile.

While the English courts divided on the scope of the immunity of a former head of state such as Senator Pinochet and on whether acts of torture and hostage-taking could ever be regarded as within the functions of ‘official duties’ of a head of state entitled to immunity, the result of the Pinochet litigation to date appears an important development within the common law world for the assertion of a kind of jurisdiction over universal crimes. It shows the limitation of impunity of those alleged to have participated in such crimes. For effective redress it is not always necessary to wait for the creation of international courts and tribunals. (Editor’s note: for a further analysis of this issue, see N Blake ‘Torture, persecution and the state: recent developments in international law’ 75 Reform 10)

Sexuality & human rights

Sexual identity is now increasingly accepted as an important issue of global human rights. Many individuals have been subject to, and continue to suffer from, unjust criminal and civil sanctions for their sexuality. And also to the shame, alienation and self-doubt which such laws give rise to and reinforce.

In the 40 years since the Wolfenden debates¹⁰ in England, there have been notable successes, including in Australia. By 1994 only one Australian jurisdiction, Tasmania, retained laws imposing criminal sanctions on private, adult homosexual conduct for which consent was no defence.¹¹

This fact, and the legislature’s resistance to reform, led to a remarkable story of individual courage and purposeful action by a United Nations agency. A Tasmanian gay activist, Mr Nicholas Toonen, brought proceedings against Australia in the Human Rights Committee of the United Nations. The Committee upheld his complaint.¹² This led to federal legislation designed to over-ride the Tasmanian laws.¹³ After a challenge was mounted in the High Court of Australia,¹⁴ Tasmania capitulated. Its laws were changed. A new non-discriminatory law was adopted which deals with unlawful sexual conduct without discrimination. Mr Toonen’s case is, I believe, a singularly vivid illustration of the practical way in which, today, international law can sometimes be brought to bear upon domestic law, including in Australia and in a field of criminal law and even in the sensitive area involving sexuality.

Drugs & human rights

Another area in which reform appears necessary because of a global problem concerns the laws and policies observed on drug use and drug dependence. In Australia during 1999 there have been numerous high level meetings to re-examine current laws and strategies. It now seems clear that Australia’s politicians and police may be ready to consider fresh approaches to drug law and policy. Police commissioners have suggested that current strategies need reconsideration. Politicians of all political persuasions have begun to call for a new approach, which will place greater emphasis on considerations of liberty and harm minimisation than on the implementation of law and order by use of Draconian deterrence and intrusive methods of control.

In several countries of Europe new approaches are being tried on drug harm minimisation. Many of these changes are justified by reference to considerations of the fundamental human rights of those people who are addicted to drugs or otherwise are adults who wish to use recreational drugs in private. In Switzerland and in the Netherlands important initiatives have been taken which reject the prohibitionist approach that national and international laws have taken until now.

The proposed experimental establishment of a safe injecting room in New South Wales to tackle the high incidence of drug overdoses among the young in Sydney is an indication of the changing thinking that is occurring in many countries and has now reached Australia. This is a global human rights issue of the present and the future. If we are in doubt, we should reflect on the number of people in Australia’s prisons for drug-related offences. Is our current way of treating drug dependant people, in particular, an infringement of fundamental human rights? The answer demands a global response. It cannot effectively be confined to one place.

Nuclear peril, privacy, HIV & the genome

A recurring theme of recent years has been the impact of global science and technology on the law. The importance of technological change for issues of fundamental human rights is obvious. Four considerations of great importance can be mentioned.

Nuclear. The most perilous technology of the 20th century is that involving nuclear fission. The proliferation of nuclear weapons and nuclear materials presents unique challenges to human survival and thus to human rights. There is probably no more urgent global challenge than this. Recent events are sobering. The proliferation of the possession of nuclear materials in countries of the former Soviet Union and the risk of sale of such materials on a global market presents urgent dilemmas. So do the recent political changes in the Indian subcontinent. And so, too, does the rejection in October 1999 by the United States Senate of the ratification of the Comprehensive Nuclear Test Ban Treaty. US President Bill Clinton predicts that the vote will be reversed. But it is a sombre event on the eve of a new century.

_{Cyberspace. The second consideration concerns the impact of information technology on fundamental rights. In 1980 when I was Chairman of the Australian Law Reform Commission (ALRC), I took part in the work of an Organisation for Economic Co-operation and Development (OECD) Committee which produced guidelines for the defence of privacy in the context of transborder data flows.}¹⁵ _{The guidelines proved highly influential on the ALRC’s 1983 report on Privacy (ALRC 22) and later on the laws of Australia and many OECD countries. They showed how global rules can be agreed and can influence national laws even on sensitive questions where significant differences exist.}

_{In May 1999, The Economist asked whether with the advent of cyberspace we are witnessing ‘the end of privacy’.}¹⁶ _{In the past, the chief practical protection for privacy lay in the sheer cost and difficulty of retrieving personal information and in the impermanency of the forms in which much information was stored. On the Internet, such practical safeguards largely disappear. That is why new kinds of human rights are being suggested in the context of informatics. The right not to be indexed. The right to encrypt personal information effectively. The right to obtain human checking of adverse decisions made in computer files. The right to be alerted to computer decisions affecting the subject. The right of disclosure about the collections to which others have access and which may affect the projection of one’s data profile.}¹⁷

HIV vaccines. A third issue presented by technology arises in response to the global HIV/AIDS epidemic. In that context there are many human rights issues which demand attention. Many of them arise in the developing world where every day 16,000 new HIV infections occur.¹⁸ Behaviour modification is a very slow and imperfect process. That is why there is great urgency to develop, trial and use vaccines. Yet a major problem in the field of vaccines is the real interest which the vaccine producer necessarily has in the exposure of the participant in the trial to the peril which the vaccine is designed to ward off, that is, exposure to HIV. In the case of vaccines against measles, whooping cough and the like, such a peril may be tolerable. But in exposure to HIV there are special dangers. That is why it is imperative that the human rights of trial participants in developing countries should be respected and protected effectively. They need guardians and defenders who will speak up for their basic human dignity and human rights.

Genomic science. A fourth global issue arises in the context of the Human Genome Project. This is the project which, by the year 2003, will have mapped all of the human genes. In due course it will provide an encyclopaedia for medicine for the coming century. Many social, ethical and legal problems arise as a result of this project. They include protection of the confidentiality of such data, the scope of patenting of life forms and the sharing of benefits of genomic research. They also include the use of genetic data to alter in significant ways the future make-up of the human species. Few questions of human rights could be more fundamental than who the future human beings will be.

Beyond traditional paradigms

Human rights now and in the future will extend far beyond traditional concerns, important though they all are. Now they reach out into the wider world of discrimination and prejudice. They throw a girdle around the earth in the form of cyberspace. They reach down into the infinitesimally small elements of our genes that make up the basic ingredients of our humanity.

It is our common humanity which binds us together in this blue planet. It has led us to some remarkable achievements in the century that has now closed. It was a century of war and devastation, of genocide and nuclear explosions. But it was also the century that witnessed the global movement of human rights and the development of norms and institutions to protect them. The battles go on as contemporary experience in countries close to home and far away makes clear to us.

At the opening of the 12^th Commonwealth Law Conference in Kuala Lumpur in September 1999, the Malaysian Prime Minister, Dr Mahathir Mohamad, responding to some comments of President Clinton, then in Auckland, attacked the United Nations as a ‘feudal organisation’. He defended the imprisonment in Malaysia of a Canadian journalist for contempt of court. He asserted that ideas about human rights were ‘getting more and more peculiar’.¹⁹ No doubt he would think that some of the thoughts in this essay of mine were very peculiar indeed.

^{On the other side of the world, Justice Louise Arbour was being sworn in as a judge of the Supreme Court of Canada after a period of service as prosecutor before the International Criminal Tribunal for the former Yugoslavia. On that occasion she said:}

‘Judges don’t build bridges and cathedrals. They don’t write symphonies, remove malignancies, cultivate and harvest. They don’t explore space or win marathons. Unlike others, they are required to speak a language of authority, of finality, of legality. I believe that we should make every effort to do so persuasively. And we must always do so courageously.’

Justice Arbour’s words are addressed to all those who struggle for global human rights and human dignity – not just judges and lawyers. Her words present us with the touchstone for the new century. The ambit of universal concerns is ever expanding. We should reaffirm our commitment to the struggle for global human rights. As the World Bank has lately come to realise, they represent the other side of the coin of growth in the global economy. A strong economy is intended to improve the quality of life of its citizens and to enhance their freedom. Economic freedom is an attribute of liberty. But economic advances without secure respect for fundamental human dignity and human rights would be built on shifting sands. The global movement is about human beings and other living things, their environment and the world in which we all live. However imperfectly, the 20th century has shown the way to establish global norms and to implement them. The 21st century calls us to complete the job. And lawyers have a major role to play.

* The Hon Justice Michael Kirby is a Justice of the High Court of Australia. He was the Foundation Chairman of the Australian Law Reform Commission, and the founding Editor of Reform.

This article is derived from ‘Human Rights – The Way Forward', Michael Hirschfield Address for the Freedom Foundation of Amnesty International NZ, Wellington, New Zealand, 30 October 1999.

Endnotes

1. Cumaraswamy v MBf Capital Bhd [1998] 3 LRC 187.

2. Differences Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, International Court of Justice Advisory Opinion, 29 April 1999 <http://www.icj-cij.org> .

3. LS Wiseberg, ‘The Fifty-fifth Commission on Human Rights’ in Human Rights Tribune, September 1999, vol 6 no 3, 6.

4. ibid.

5. International Commission of Jurists, Comments on the UN Subcommission for the Promotion and Protection of Human Rights (31 August 1999), 2.

6. R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [1998] UKHL 41; [1998] 3 WLR 1456; 4 LRC 628.

7. The English Court of Appeal upheld the claim for immunity in respect of civil proceedings arising from the alleged acts of torture committed abroad. See R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [1999] UKHL 1; [1999] 2 WLR 272; 1 LRC 1 and 482.

8. R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [1999] 2 WLR 827.

9. Reported The Australian, 6 October 1999, 1, 19.

10. In 1954 the British Home Office set up a committee, chaired by Sir John Wolfenden, to examine laws relating to homosexual offences and prostitution. The Wolfenden reform proposals, released in 1957, generally concluded that adult homosexual relationships in private should no longer be criminal.

11. Criminal Code (Tas) ss 122(a), (c), 123.

12. Toonen v Australia (1994) 1 Int Hum Rts Reports 97. See HJ Steiner and P Alston, International Human Rights in Context (1996), 545. For earlier decisions of the European Court of Human Rights see Dudgeon v United Kingdom [1981] ECHR 5; (1981) 4 EHRR 149; Norris v Ireland [1988] ECHR 22; (1991) 13 EHRR 186 and Modinos v Cyprus (1993) 16 EHRR 483.

13. Human Rights (Sexual Conduct) Act 1994 (Cth).

14. Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119.

15. Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, OECD, Paris, 1981. The guidelines were reflected in the Australian Law Reform Commission Report, Privacy, (ALRC 22) at para 603, and 604-607; and in the Privacy Act 1988 (Cth) s14 (‘Information Privacy Principles’).

16. The Economist, 1 May 1999, 12.

17. L A Bygrave, ‘Data Protection Pursuant to the Right to Privacy in Human Rights Treaties’ (1999) 6 International Journal of Law and Information Technology, 247; MD Kirby, ‘Privacy in Cyberspace’ [1998] UNSWLawJl 47; (1998) 21 UNSWLJ 323; G Greenleaf, ‘Privacy in Cyberspace: An Ambiguous Relationship’ (1996) 3 PLPR 5 at 88; SD Balz and O Hance, ‘Privacy and the Internet: Intrusion, Surveillance and Personal Data’ (1996) 10(2) International Review of Law, Computers and Technology, 219.

18. AIDS Policy and Law, 30 September 1994 (vol 9 no 18), 1, 8.

19. Reported South China Morning Post, 14 September 1999, 3. See also Prime Minister Mahathir’s later statement to the General Assembly of the United Nations.