2. International law and human rights

Question 1

Terminology, standpoint and positionality - ATSI

Answer 1

• international context: Indigenous peoples, especially in UN
• domestic: ATSI peoples preferred term, some ATSI object to the term indigenous as it fails to respect their own identity and preferences
  
  • WA: Aboriginal people preferred as less TSI
• diverse communities: Indigenous and Aboriginal terms are artefacts of colonisation (that don’t reflect the cultural and linguistic diversity different Aboriginal language groups), ATSI people prefer to identify themselves in their own language terms e.g. Noongar
• standpoint and positionality:
  
  • who I am
  • who I claim to speak for
  • privilege, power and accountability
  • decolonising approach: how to change issues created by colonisation, e.g. reducing power of ‘white justice system’ (criminal justice system often used as a tool for dispossession), addressing overrepresentation in judicial system

Question 2

‘Closing the Gap’

Answer 2

• 2007: Human Development Index, looking at life expectancy, mortality rate, general health including prevalence preventable diseases, education attainment, housing conditions, rates of family violence, over representation in justice system, youth and child suicide rate (health, education, standard of living)
  
  • general ranking: 3^rd

human development index for Indigenous people: 103^rd

Question 3

Ideas underlying Indigenous Legal Systems

Answer 3

• Indigenous Legal Systems (ILS) are shaped by Indigenous worldviews
• Jagged Worldviews Colliding – Leroy Little Bear: “no matter how dominant a worldview is, there are always other ways of interpreting the world”
• in the modern world, there is an emphasis on the nation-state

Question 4

Indigenous knowledge v. non-Indigenous knowledge:

Answer 4

• respect for the earth
• respect for the land, obligations to renew land v land ownership
• balance and renewal v progress, accumulation, control
• lateral thinking v linear thinking
• consensus v hierarchical patriarchy
• reciprocity v one-way exchange
• justice, harmony v adversarial punishment
• relationships v binaries
• eternal time v linear/machine time

Question 5

Aspects of Australian Aboriginal legal systems

Answer 5

• not a reductionistic system – ‘law’ not located in specific practices but in the larger systems that inform those practices
• role of law:
  
  • looking after country – connection to country (some believe country should be a proper noun)
  • self, family, creation
  • at its broadest, the ways of living in country that sustain country

Question 6

International law and Indigenous peoples

Answer 6

• UN Declaration of Rights of Indigenous People Act 33: no universal def., viewed as right of Indigenous peoples themselves to define own identity
  
  • modern understanding of the term: self-identification at individual level and acceptance by community as their member, strong link to territories and surrounding natural resources, distinct social, economic or political systems, language, culture and beliefs
• historical dominance of the ‘state’ in international law (how to retain sovereignty of state with global focus), obsession with borders
• while still strongly state-centred, international law now influences and is influenced by, a range of non-state actors including non-governmental organisations, transnational corporations and Indigenous peoples
  
  • Prof James Anaya: international law is ‘increasingly free of the bounds of Eurocentric perspectives’ (and increasingly by non-Western actors and their perspectives)
  • paradox for Indigenous people: still emphasis on state by Aus., Indigenous people don’t fit in under the state but are controlled by it, state is biggest abuser of Indigenous people
  • how to make state custodian of the rights of people who it has habitually oppressed

Question 7

Emergence of contemporary framework for indigenous people in the international system

Answer 7

• up until 1920s: denial of Indigenous voice
• 1940s: emergence of human rights laws
• 1950s: first Indigenous peoples treaty
  
  • International Labour Organisation Convention: limited recognition that state law does not protect the particular needs of Indigenous people (only insofar as they are members of the mainstream)
• 1980s: emergence of Indigenous collective rights
• 2000s:
  
  • UN Permanent Forum on Indigenous Issues (2002)
  • 2007: adoption of United Nations Declaration on the Rights of Indigenous Peoples, source of international standards courts can use in the interpretation of domestic legislation, can provide a framework for future legislative reforms, guide to the content of self-determination, surrounded:
    
    • self-determination (within nation-state)
    • equality
    • culture, spirituality, language (right not to be subjected to forced assimilation)
    • education
    • development rights (participatory rights)
    • rights to lands, territories and resources (native title)
    • free, prior and informed consent – beneficial in relation to Indigenous lands and territories and activities occurring on them, treaties, policies and legislation with or affecting Indigenous peoples

Question 8

Domestic issues in terms of treatment of Indigenous people

Answer 8

• overrepresentation in justice system: Western legal model assumes individuals are rational, capable actors who make decisions with knowledge of consequences
  
  • stats:
    
    • around 42% of adults incarcerated are Indigenous
    • 51% women
    • 81% youth
  • reasons for this:
    
    • perception of being caught
    • mandatory sentencing especially for youth – circumstances for offence often outweigh other factors (e.g. burglary for food)
    • how did it come to the attention of members of the justice system? Indigenous Australians are the most overpoliced group, race factors into whether someone is arrested or not
    • cognitive impairment amongst Indigenous people affecting rational judgment and filtering of behaviour
• identification of FASD or other cognitive impairment must trigger appropriate responses and not itself cause greater harm
  
  • decolonising approach: link FASD to the unresolved trauma of settler colonisation*****
  • FASD should not be de-coupled from debated about Indigenous knowledge and viewed solely through a clinical lens

Question 9

What is international law?

Answer 9

• process and system of international rules and norms (with regards to public international law)
• LexisNexis Australian Legal Dictionary: “the body of law established by sovereign states that regulates the conduct of states and other entities possessing international legal personality.”
• Higgins: “international law is not rules. It is a normative system. All organised groups and structures require a system of normative conduct – that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violation carries a price.”
• influences on the development of international law:
  
  • state practice – what states actually do, how they behave towards each other
  • ideas about how states should behave, and what the world should be
• reality of international law:
  
  • aspiration vs reality: UN aspires for peaceful relations between states but in reality this does not always occur
  • much of international law is about relatively simple (but important!) matters: like air traffic control or shipping
  • role in conflict situations - including internal conflict (e.g. Iraq, Syria)

role in Australia - a sovereign ‘nation state’ but also a member of the international community

Question 10

Varying beginnings of IL

Answer 10

• if meant merely the ensemble of methods or devices which give an element of predictability to international relations, origin may be as far back as recorded history
• late classical period and middle ages: time of birth if looking at it as a substantive code of conduct
• 17^th century: starting time is taken to mean a set of substantive principles apply uniquely to states
• 19^th century: if defined as the integration of the world at large into something like a single community under a rule of law
• if, finally, ‘international law’ is understood to mean the enactments and judicial decisions of a world government, then its birth lies (if at all) somewhere in the future
• history shows that development is static and definition varying

Question 11

History of IL

Answer 11

• beginnings in ancient, mainly Western world
  
  • gradual rise of independent, competing nation-states in Western Europe during the Middle Ages brought with it a need for laws to govern relationships between those nation-states
  • scholars begun to write about the rules applying to relationships between nation-states
• Hugo Grotius (1583-1645): ‘father of international law’, it established the idea of a systemic body of law applying to nation-states
• Peace of Westphalia 1648: ended religious wars ongoing in Europe
  
  • Westphalian system: system of independent states which are all equal with each other and which do not interfere in each other’s internal affairs
  • sovereignty: generally equated with this notion of independence and freedom from interference, rise in this idea along with the nation-states

Question 12

Influences on international law

Answer 12

• natural law
  
  • idea that there is a universal and eternal law
  • concept of natural law provided a higher order against which the laws of human beings could be measured
  • weaknesses: does not have defined content – it is inherent in nature – it can be vague, ambiguous, and used to justify almost anything e.g. at various points in human history, slavery has been argued to be part of natural law
• positivism
  
  • law is found in the commands of the ‘sovereign’
  • law is defined in terms of itself and not by reference to any higher order, it is about whether procedures have been followed.
  • weaknesses: located law only in the practices of states, law was fragmented (reductionist) with was no overarching structure, law had no innate goal, other than the achievement of political ends by various nation-states.

Question 13

Influences through history on IL

Answer 13

• early development: strongly influenced by natural law ideas, as time went on, natural law theory about international law became increasingly divorced from reality
• 17^th century: recognition of state practice as source of law, increasing split between to theorists
• 19^th century: positivism came to dominate
  
  • the idea of any higher order was rejected, rules of law were created by the behaviour of states, and law was between, and NOT above, states
  • also led to an insistence that the only subjects of international law were states
  • still mainly in Western nations
  • states were independent, equal and did not interfere in each other’s internal affairs.
• 20^th century:
  
  • WWI: creation of the League of Nations which ended up failing
  • 1945: post-WWII, led to a more committed and sustained move to international peace, also resulted in a resurgence of natural law ideas
    
    • foundation of the UN and the major institutions of international law
    • human rights movement
    • the decolonisation process, which has subsequently resulted in a massive expansion in the number of nations

Question 14

Case study: Indigenous peoples under IL

Answer 14

• early natural law theorists were (to a degree) sympathetic to Indigenous peoples, however, it also provided justifications for dispossession
• when international law changed to state-centred (positivist) system, it supported and facilitated the behaviour of the colonising nation-states – dispossession justified if done via a ‘just’ war under Eurocentric ideas
• in more recent times indigenous peoples have established a presence at the international level

Question 15

UN

Answer 15

• set up by the UN charter, comprises General Assembly, Security Council, Economic and Social Council, Trusteeship Council, International Court of Justice and a Secretariat
• Article 1 sets out purpose, including to maintain international peace and security, develop friendly relations, achieve international cooperation in solving international problems, be a centre for harmonising the actions of nations in the attainment of these common ends
• General Assembly:
  
  • comprised of all member states of UN with each getting on vote
  • policy making, debating issues
  • resolutions are not binding
• UN Security Council
  
  • primarily responsible for maintaining international peace and security under the UN Charter
    
    • peaceful settlement of disputes (Chapter VI)
    • enforcement measures in relation to threats to the peace, breaches of the peace and acts of aggression (Chapter VII)
  • decisions are binding on all member states (Art 25)
  • cannot make a decision if there is a veto vote by any of the 5 permanent members (Art 27)
  • role: represent states, generally Western
• Secretariat
  
  • administrative arm of UN
  • headed by Secretary General who is appointed for 5 year terms by the GA on the recommendation of SC
  • role of Secretary General: bureaucrat, diplomat, spokesperson, face of the UN
• UN Economic and Social Council
  
  • 54 members elected by GA, including 5 permanent members
  • can initiate studies and make recommendations (not binding)
  • has created a number of subsidiary bodies and runs a variety of programs including independent forum on Indigenous issues
• International Court of Justice
  
  • established 1945 to prosecute war crimes, resides in The Hague
  • 15 judges elected for 9-year terms by the GA and SC
  • functions:
    
    • settles disputes submitted to it by states, in accordance with international law
    • issues advisory opinions, consent based decisions

Question 16

Jurisdiction of international law – areas and actors

Answer 16

• areas of international law:
  
  • law of the sea
  • international telecommunications and transportation
  • human rights and humanitarian law
  • trade
  • environmental law
• began as the law governing nation-states but now increasingly influences, and is influenced by, ‘non-state actors’ such as human rights organisations, transnational corporations, and others’

Who does it apply to?

• entities with ‘international legal personality’ are subject to international law i.e. entities capable of exercising international rights and duties, and with the capacity to bring international claims - this includes nation-states and international organisations
• international organisations with international legal personality include the United Nations, European Union, African Union, and specialised UN organisations

Question 17

Influences of IL on State/Non-state actors

Answer 17

States

• sovereign: entitled to exercise control within own territory
• includes;
  
  • defined territory
  • permanent population
  • under control of a government
  • ability to enter into international relations
• equal: all states are equal in international community
• politically independent and territorial integrity: Art 2(4) UN Charter requires states to refrain from threat of use of force against political independence and territorial integrity of any state
• new states can be created: the newly formed South Sudan was admitted into the UN in July 2011
• why do they adhere to international law?
  
  • consent
    
    • can be seen in decolonising states
  • public opinion
    
    • especially in democracies as a force to retain reputation
  • reciprocity
  • coexistence

Non-state actors

• transnational corporations (TNCs): large corporations operate across borders and can have profit margins which exceed the income of states
• non-governmental organisations (NGOs): includes human rights and environmental organisations
• Indigenous peoples: Permanent Forum on Indigenous Issues, Special Rapporteur on Rights of Indigenous Peoples, Expert Mechanism on the Rights of Indigenous Peoples
• benefits: provide a greater cross-section of ideas, some perceiving the UN as distant from everyday citizens

Question 18

Sources of international law

Answer 18

Treaties

• can be bilateral (between two states) or multilateral (between many states)
• binding only on parties that sign and ratify the treaty (unless a treaty obligation is also customary law)
• treaty can reflect existing customary law, or can form the basis of a new customary law rule
  
  • e.g. Vienna Convention on the Law of Treaties: deals with, for example, termination of treaty relationships, and the effect of breach of treaty obligations
• states indicate their intent to be bound by signing a treaty, and then consent to be bound by ‘ratifying’ a treaty.

Custom

• general practices of States which are accepted as law
• must be ‘opinio juris’ (opinio juris sive necesitas: an opinion of law or necessity.) - states must adopt the practice because they believe they are bound to by law
• determinants of whether a new customary law rule has been formed:
  
  • duration
  • continuity and repetition
  • conformity
  • generality

Other types

Jus cogens (compelling law)

• rules of law which are accepted by the international community of states as ‘jus cogens’ these are fundamental peremptory norms, from which no derogation is permitted, and which can only be modified by a subsequent norm of the same character.
• e.g. prohibition against unlawful use of force, slavery, genocide and piracy

Non-binding types

• can come from non-binding resolutions of international organisations
• influence includes Declaration on the Rights of Indigenous Peoples

Question 19

Theories on the relationship between international and domestic law

Answer 19

• monism: international law automatically binds a nation state and becomes part of the domestic law of a nation state.
  
  • e.g. Netherlands: view international law as same level as domestic
• dualism: international law is distinct from domestic law and does not automatically become part of domestic law
  
  • Racial Discrimination Act (1975) enacted because Australia ratified the UN Convention on the Elimination of All Forms of Racial Discrimination
  • treaties which have not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law (Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J))
  • allows for the relevance of international law to be constantly reviewed and then applied e.g. Criminal Conduct Human Trafficking Amendment (2005)
  • Australia and refugees: although contravening international law which may affect Australia’s standing in the international community, it does not provide a basis for challenging the plan in court (as not ratified in Parliament)

Question 20

Terrorism currently (normalisation of extreme measure)

Answer 20

• normalisation of exceptional measures:
  
  • creep and contamination: laws specific for terrorist act begin to be in state permanently and applied to different situations
  • permanent emergency: meet agenda of terrorists as create permanent state of emergency
  • reduction of human rights for those suspect of terrorist acts
• prevention and individual liberty:
  
  • great focus on prevention of crime rather than aftermath (as effect is generally so great)
  • in order to prevent, generally affects individuals’ civil liberties which we generally accepted by society
  • Australia: doesn’t have regional civil rights framework like for example Europe, making it more important how we treat individuals

Question 21

Laws pre – 9/11

Answer 21

• argument was there was a state of emergency an event threatening the life of the nation which trumps individual civil and human rights, derogate from international obligations
• NI: Northern Ireland (Emergency Provisions) Act 1973 and Prevention of Terrorism (Temporary Provisions) Act 1984 in response to IRA
  
  • determined how long people can be detained and questioned for
  • interrogation techniques included harsh almost torturous acts
  • criticisms: miscarriages of justice associated with use of laws, unfairly targeted certain individuals, some say furthered terrorist agenda
  • wording influential on terrorist laws post-9/11
• Italy: repressive legislation (1978 and 1979) introduced in response to domestic terrorism from Brigate Rosse and neo-fascists in the 1960-70s

Question 22

Recent terrorist developments

Answer 22

• rise in “van attacks” allowing for great impact and little extra organisation
• in particular rise in France attacks
• some critics say that current attacks in comparison to events occurring in e.g. Syria are sensationalised due to the media and social media

Question 23

Response to September 11 (in general)

Answer 23

• significant: occurred in US, media and social media reporting, almost 3000 people killed
• UN Security Council: passed a number of resolutions requiring member states to take action domestically to prevent and prosecute terrorist acts (legally binding)
  
  • purpose: global peace and security, another is to uphold human rights – created tension of need to protect international security and individual rights
  • Security Council Resolution 1373: all states should ensure that terrorists are identified, prevented and prosecuted as a serious criminal offence, emphasis on financing and planning acts – prompted states to realise that they needed laws on top of criminal codes
  • emphasised international cooperation to prevent further attacks
  • states: ‘tough new antiterrorism laws’, ‘increased emphasis on prevention’ – more recent development
• Australia’s response:
  
  • previously had no specific anti-terrorism law
  • Howard govt. term: rapidly 48 anti-terror laws introduced
    
    • Kent Roach: described this as ‘hyper legislation’
    • despite low significance attacks and risk of attacks, passed a greater amount of laws than many other countries
  • first decade after: 54 anti-terror laws passed by Fed Parl
  • mid-2016: 66 anti-terror laws passed

Question 24

First wave after September 11 - 2002 Aus response

Answer 24

• defining terrorist act and established terrorist offences (e.g. preparatory and financing offences)
  
  • CC s101.1: ‘action or threat of action’ that is done with intention of ‘advancing a political, religious or ideological cause’ AND ‘coercing, or influencing by intimidation’ an Australian or foreign govt. or part of a state or country or ‘intimidating the public’ or a section thereof
    
    • action: serious physical harm to a person, serious damage to property, serious risk to health/safety of public, interferes/destroys with electronic system
    • added part: does not include advocacy/protest/dissent/industrial action that is not intended to cause serious physical harm to a person, serious damage to property, serious risk to health/safety of public
  • substantive offence: s101.1, to engage in a terrorist act
    
    • penalty: life imprisonment
  • inchoate liability: ss101.1.11.1, offence to attempt to engage in a terrorist act
    
    • penalty: same as if the offence attempted had been committed
    • emphasis on prevention and preparatory acts
  • preparatory offences:
    
    • includes: ‘provides or receives training’ s101.2, ‘possess a thing’ s101.4, ‘collects or make a document’ s101.5 AND the training/thing/document is ‘connected with the preparation for/engagement of a person in/assistance in a terrorist act’ AND the person knows of the connection
    • penalties: 25 (15) years imprisonment for training, 15 (10) years imprisonment for thing/document (with recklessness as to the existence of the connection)
    • s101.6: other acts in preparation for or planning a terrorist act, penalty is life imprisonment
    • Lodhi v R [2006] NSWCCAA: first conviction on counts of collecting a document, doing an act in preparation, making a document and possessing a thing, noted preparatory acts not normally made into an offence, judge saw intention of Parl to create offences where an offender does not actually knows what they intended to do
    • Anzac Day 2015: s101.6 prosecution for ‘plot’
• increased powers for ASIO
  
  • could have warrant to question and question and detain someone on criminal offences
  • **
• prosecutions:
  
  • September 2014: terrorism alert threat level raised from medium to high ***
  • David Irving AO: justification allowed prevention of attacks **

Question 25

Second wave of anti-terror laws – mid-2000s Aus response

Answer 25

• London Bombings and the threat of homegrown terrorism
• CC 104: control orders
  
  • establish restrictions/obligations/prohibitions to be imposed on an individual for the purpose of preventing a terrorist act
  • issued in civil proceedings (not criminal) as individual not able to be prosecuted under preparatory sections but police/ASIO may have intelligence that may prevent them committing a terrorist act
  • 6 control orders issued
  • max penalty for breach is 5 years’ imprisonment
• CC 105: preventative detention orders
  
  • purpose: to allow a person to be taken into custody and detained for a short period of time in order to: prevent an imminent (around next 14 days) terrorist attack occurring/preserve evidence of/relating to a recent terrorist act
  • slight greater encroachment on civil liberties
  • 4 preventative detention orders issued since September 2014: issue for individual autonomy
• 2010: creation of the Independent National Security Legislation **

Question 26

Third wave of anti-terror laws – 2014-16 Aus response

Answer 26

• focus included discussion on foreign fighters – citizens who engage in and return from hostile activities in foreign countries e.g. conflicts in Syria and Iraq or train with extremist groups overseas
• 2014: shift in nature of threat as we know it, IS declaring caliphate
• since 2012: estimated 40 000 foreign fighters have travelled to Syria/Iraq while 200 Australians have travelled there **, 180 passports cancelled
• legislative response:
  
  • extension of CO to foreign fighters: ‘reasonably necessary/appropriate’, support for or engagement in a foreign country added
  • creation of ‘declared area’ offences e.g. war/conflict zones
    
    • s119.3: FA Minister may declare if an area has a listed terrorist organisation in a hostile activity
    • concern for communities with relatives in these areas
    • may be punished by 10 years imprisonment by entering/remaining in a declared area unless travel was for solely legitimate purposes shown
    • ‘legitimate purposes’: providing humanitarian aid, appearing before a court/tribunal, bona fide (genuine) visit to family, making a new report, performing an official duty s119.2
  • power to revoke Aus citizenship of dual citizens who engage in terrorism-related conduct – severe impact to individual’s human rights and civil liberties
• further proposals:
  
  • creation of a post-sentence preventive detention and supervision regime for terrorism offenders – issue for human rights as assumption is once someone has served their sentence they are free to live
  • extension of CO regime to persons as young as 14 and to allow secret evidence into CO proceedings
  • **

Question 27

Key issues raised by anti-terror lawmaking (Migration and normalisation)

Answer 27

• laws sometimes introduced in response to terrorist acts occurring in another country
• law implementation occurs in response to
  
  • internal events
  • international events
  • UN Security Council resolutions
• creep and contamination: laws go beyond what was originally intended
  
  • national security context applied to normal criminal justice setting
  • CO originated in anti-terrorism laws now see serious organised crime control orders now exist in all but 2 Australian jurisdictions
  • problematic from a human rights and civil liberties perspective
  • laws originally seen as exceptional, yet now normalised

Question 28

Key issues raised by anti-terror lawmaking (Prevention and individual liberty)

Answer 28

• to some degree, we forego our rights for collective security
• side stepping protections of CJS
• Roach: trend away from the criminal law to ‘less restrained alternatives’
• lower standard of proof, secret evidence, often attenuated rules of evidence and procedure
  
  • these processes in place to ensure innocent people not prosecuted
• Ashworth and Zedner: preventative protection orders have fewer rights than if changed, max penalty for breach greater than most criminal offences

Fundamentally incompatible?

• criminal justice model
  
  • crime occurs: evidence gathered about past evens
  • react and respond to harm already occurred by investigating and prosecuting criminal acts
• terrorism: preventive, intelligence-led model
  
  • ‘pre-crime’: suspicion, risk, surveillance, intelligence – focus on future events
  • intervene and prevent or pre-empt future harm
  • can principles of CJM be applied to this new method

Question 29

Reactive law making – democratic safe guards

Answer 29

• parliamentary scrutiny e.g. Parliamentary Human Rights Committee
• independent oversight (introduced around 2010)
• sunset provisions: given length for application of acts e.g. declared areas last for 3 years, also exemptions included
• human rights scrutiny