COVID-19 has caused a global public health emergency, a global economic emergency, and a global human rights emergency. The crisis is detrimentally affecting all recognised human rights in every country.
Unrestrained spread of COVID-19 is prejudicial to the human rights to life and health. All governments have human rights obligations to take appropriate measures to combat the spread of the virus.
In response to recent questions about the human rights compatibility of the curfew in Victoria, Premier Daniel Andrews bluntly responded that the curfew was “not about human rights”, but rather “human life”. That is a stark dichotomy, which leaves little space for human rights arguments. However, human rights are not optional extras, even in this pandemic.
Limits to human rights
Most internationally recognised human rights can be limited in certain circumstances. Even the right to life, globally recognised in Article 6(1) of the International Covenant on Civil and Political Rights, is subject to limitations. A person must not be “arbitrarily” deprived of life, so “non-arbitrary” deprivations are permissible.
Of course, the nature of the right to life dictates that few limitations are tolerable. Furthermore, a COVID outbreak has the potential to be catastrophic, costing many lives, causing debilitating long-term illness to many more, and overwhelming health systems.
But there must be some limit, even in the context of COVID-19. Human rights law does not mandate harsh lockdowns until elimination of COVID-19 or the development of a cure or vaccine. The question becomes one of just how much increased sickness and death, or risk thereof, is permissible under international human rights law?
The flipside of that question is to ask what human rights restrictions are permissible to suppress COVID-19 and decrease the risk of sickness and death?
Proportionality, risk and catastrophe
A key concept in working out the appropriate limitations to rights is that of proportionality: are the limiting measures reasonably necessary for the achievement of a legitimate purpose?
A key consideration in the test of proportionality is how important the limitation might be. The purpose of stopping the spread of COVID-19 is vitally important. But a more precise way of phrasing the purpose of most restrictions is to “stop the risk of the spread of COVID-19”.
For example, the quarantining of a person known to have COVID-19 contains spread, whereas the quarantining of someone who might have it contains risk. As it is impossible to know who might have COVID-19, it may be assumed that containment of spread is the same as containment of risk. But is this so? Not all risks are the same.
Consider the following example. Most Australian states and territories have imposed border restrictions (of varying degrees of strictness and geographic impact) to stop infections from being introduced from interstate. These measures restrict freedom of movement and forcibly separate families and friends.
Sarah Caisip is a Canberra woman who was unable to attend her father’s funeral and comfort her family in Queensland. She was refused an exemption from hotel quarantine due to the potential risk that she might introduce infection to Queensland. Was this a breach of her right to family life?
The ACT has not recorded a positive COVID diagnosis for months. The risk posed by Caisip is tiny: there is virtually no chance she has COVID-19. So the chance she would transmit the virus and cause a serious or catastrophic outbreak was infinitesimal. The problem is every single catastrophic outbreak, anywhere, has logically been sparked by a single case.
So in the Caisip example there is, on the one hand, a miniscule risk, but on the other, the potential for devastating outcomes if the risk materialises. Furthermore, the stakes seem amplified when COVID-19 is under ostensible control, as in Queensland and the less populous states: few decision-makers want to risk the replacement of a situation of control with one of a lack of control.
If decisions can be justified by the possibility of catastrophic outcomes from tiny risks, they can logically be justified if risks are larger, even if still very small. However, there is the danger any measure can be justified based on its marginal impact, or even potentially marginal impact, on reducing the risk of catastrophic outbreak.
For example, Victoria’s curfew has been criticised on human rights grounds. The virus is not more infectious at night. The curfew was not requested by either Victoria’s health authorities nor its police.
However, perhaps the curfew prevented an illicit party which might have led to further extensive spread and longer lockdown in Victoria. Alternatively, that illicit party may have simply moved to the daytime. Regardless, does the possibility of a benefit make the curfew “worth it”?
If we accept anything that might reduce the risk of COVID-19 infections is permissible, we may effectively permit extreme measures with only marginal, and perhaps no actual, benefit. Proportionality is reduced to a rubble, and human rights considerations are effectively jettisoned. If so, the most vulnerable and marginalised are those most likely to have their rights abused.
Government officials deserve some sympathy in having to engage in a wicked “balancing” exercise involving a novel deadly pathogen. But it is very likely some laws and decisions have overreached, and important human rights have been displaced by restrictions with dubious benefit.
It is vital governments face scrutiny and remain accountable over the human rights compatibility of COVID measures.
Under international human rights law (and some domestic laws), Australian governments must take all reasonable measures to prevent and manage COVID infections. Requisite measures extend beyond coercive restrictions to the establishment of appropriate systems to control spread of the virus.
This is particularly important as system failure has contributed greatly to the spread of the virus in Australia and beyond. There are major weaknesses in the regulation of aged care homes, where there has been a devastating death toll in Melbourne. Hotel quarantine failure sparked the Victorian second wave, while sub-optimal contact tracing failed to detect extensive spread before it was too late.
System improvements will help to ensure against further major outbreaks in Australia. Lockdowns and other general human rights restrictions are not the only tool in the kitbox. System improvements should give Australian governments greater confidence in managing the risks associated with any easing of coercive restrictions.
Balancing the right to life with the right to live
Sensibly, Australians are prioritising safety for themselves and their communities over freedom during the COVID-19 pandemic. But how much risk avoidance is sustainable socially, economically, politically, and even legally, if COVID cures and vaccines remain unavailable?
The continued adoption of an extreme precautionary approach could mean Australia remains balkanised, loved ones (including the vulnerable) separated, livelihoods destroyed, and coercive measures tolerated where they offer little benefit. And the countervailing human rights issues will only loom larger and larger. The human right to life is vitally important, but there is also a human right to live.
CCTV cameras mounted on vans have recently been seen in public parks around Melbourne, ostensibly to nab anyone breaking lockdown rules. They are part of a joint initiative between several Melbourne councils, Victoria Police and the Commonwealth government.
Coming on the back of Victorian police arresting and charging a number of people for inciting others to break bans on public gatherings by protesting in the streets, there is likely to be widespread resentment to the presence of these mobile surveillance units.
Many people are already claiming the Victorian government has once again over-stepped the mark in its aggressive approach to suppressing COVID-19.
These mobile units are not new, though. They were introduced in 2018 to help combat crime. They are not cheap, either. The cost to purchase and operate four of the units has been estimated at $3.6 million.
But what are the laws around public surveillance of people going about their daily business or recreational activities outdoors?
Let me tackle this question by posing four related questions:
are the cameras legal?
are such surveillance tools effective?
are these measures acceptable in a vibrant democracy?
It needs to be stated at the outset the Constitution does not include any specific rights related to privacy. And the High Court suggested two decades ago that privacy was unlikely to be protected under common law.
So, it should not be surprising that mobile CCTV cameras driven to and stationed in public places are perfectly legal.
Moreover, so-called “unmanned airborne vehicles” (UAVs), more commonly known as drones, are regularly deployed by police for surveillance purposes, too.
Both of these surveillance tools are backed by regulatory force at all three levels of government.
Are these surveillance tools effective?
Proponents of these mobile surveillance units argue the perceived risks to privacy and heavy investment are worth it, given the social disorder they prevent and the help they provide police in solving crimes.
In one study in 2009, for instance, CCTV cameras were only found to reduce crime by 16% overall (and by only 7% in city and town centres and public housing communities).
The efficacy of these surveillance units in a health emergency has yet to be proven. The cameras would seem to be most useful in providing police with information regarding who is using the parks, and perhaps providing something of a deterrent to those who might consider breaching lockdown restrictions, but not much more.
Are these measures acceptable?
Yes and no. On the one hand, there is no doubt people want the coronavirus restrictions to end. And if these units deter people from breaking lockdown rules, and this, in turn, helps bring the new case numbers down more quickly, people may accept the intrusion in their lives.
On the other hand, some are understandably alarmed at the increasing use of surveillance tools by authorities — dubbed “uberveillance” by sociologists.
But without civic push-back, little will change. Parliamentarians are unlikely to limit the powers of the executive to allow mobile surveillance units to be parked in public places unless it becomes politically unpopular. One can but wonder when this tipping point may be reached.
You might have seen articles or comments on social media lately alluding to “sovereign citizens”, or “SovCits” for short, with some reports suggesting COVID-19 government restrictions have driven a surge of interest in this movement.
So, who are these self-styled sovereign citizens, and what do they believe?
Sovereign citizens are concerned with the legal framework of society. They believe all people are born free with rights — but that these natural rights are being constrained by corporations (and they see governments as artificial corporations). They believe citizens are in an oppressive contract with the government.
SovCits reportedly believe that by declaring themselves “living people” or “natural people”, they can break this oppressive contract and avoid restrictions such as certain rates, taxes, and fines — or particular government rules on mandatory mask-wearing.
The SovCit movement arose in America decades ago, with roots in the American patriot movement, some religious communities, and tax protest groups. It has also been known as the “free-man” movement.
SovCits see themselves as sovereign and not bound by the laws of the country in which they physically live. Accepting a law or regulations means they have waived their rights as a sovereign and have accepted a contract with the government, according to SovCit belief.
The SovCit movement doesn’t have a single leader, central doctrine or centralised collection of documents. It is based on their reinterpretation of the law and there are many legal document templates on the internet for SovCit use to, for example, avoid paying fines or rates they see as unfair.
SovCits tend not to follow conventional legal argument. Some have engaged in repeated court action and even been declared vexatious litigants by the courts.
The SovCit movement has many local variations but there are some key commonalities across the Australian SovCit movement.
Key beliefs and phrases
A central belief, according to news reports, is that the Australian government, the police, and other government agencies are corporations. Believers feel they must be on guard to avoid entering into a contract with the corporation. They often do this by stating, “I do not consent” and trying to get the police officer or official to recognise them as a “living” or “natural” being and therefore as a sovereign.
SovCits are often careful to avoid showing ID such as driver’s licences or giving their name and address. Saying “I understand” also risks being seen to agree to the contract so SovCits will repeat the phrase “I comprehend” to show they are refusing the contract.
Many reject their country’s constitution as false and reportedly refer to the Magna Carta of 1215 as the only true legal document constraining arbitrary power.
SovCits often come to the attention of authorities due to driving offences. It is a core belief of the movement that “sovereigns” have the right to travel freely without the need for a drivers licence, vehicle registration, or insurance.
Until COVID-19, the main threat seems to have been in committing road offences. More recently, actions protesting measures aimed at limiting the spread of COVID-19 have been linked to the sovereign citizen movement.
Indonesia has recently indicated it is considering investigating the killings of hundreds of thousands of people in the 1965 “anti-communist” purge under authoritarian leader Suharto.
If the inquiry goes ahead, it would mark a shift in the government’s long-standing failure to address past atrocities. It is unclear if they will include other acts of brutality alleged to have been committed by the Indonesian regime in the troubled region of West Papua.
Clashes between security forces and the West Papua National Liberation Army have escalated since January, which human rights groups say have resulted in at least five deaths. At least two other civilians were killed in another incident.
Our aim was to bring renewed attention to the protracted crisis in West Papua. We hope that by showing the extent of state-sanctioned violence going back decades, we might encourage the kind of international scrutiny that eventually led to intervention in East Timor.
The map only documents some of the massacres that have taken place in West Papua since the 1970s, as conditions in the territory make it difficult to accurately record and verify deaths. The challenges include a lack of resources for record-keeping, internal displacement and frequently destroyed properties, and a fear of reporting deaths. Others have disappeared, and their bodies have never been found.
We also encountered a relative dearth of data from the 1990s to 2010s, in part due to few journalists reporting on incidents during this period.
many killings were committed while Papuans were peacefully protesting for independence from Indonesia
given the numbers of troops posted to West Papua and the types of weapons at their disposal, the government should have had full knowledge of the extent of devastation caused by attacks by security forces and militia groups. (Indonesian security forces are generally known for being out of the government’s control)
in the vast majority of killings, the perpetrators have never been held to account by the government.
The government claims the National Human Rights Commission (Komnas HAM) is conducting inquiries into some of the more recent incidents, although there are concerns the body doesn’t have sufficient powers and the government has previously been reluctant to accept findings of abuses.
Why has the world stayed silent?
Both Australia and New Zealand have been hesitant about intervening in human rights crises in the region, particularly when Indonesia is involved.
In 2006, Australia signed the Lombok Treaty, which assured Jakarta it would respect the sovereignty of the Indonesian state and not support “separatist movements”.
It was largely the diplomatic intervention at the international level by US President Bill Clinton, alongside the deployment of Australian Federal Police (AFP) working as unarmed civilian police for the UN mission in East Timor, that eventually secured the referendum.
Media coverage played a critical role in persuading the world to take action. In West Papua, the media have not had the same effect.
This is in part due to what the Indonesian security forces learned from East Timor on how to control the media. The Indonesian government has frequently cut internet services in West Papua, enacted a complete ban on foreign journalists and denied requests from the UN Human Rights Commission to investigate human rights violations.
In the absence of extensive media coverage, Papuan pro-democracy advocates and their supporters have been calling for a UN-sanctioned human rights investigation. There is also significant support from human rights defenders in Indonesia for such an inquiry.
As it now has a seat on the UN Human Rights Council, Indonesia should fully support such a move. However, the military retains considerable influence in the country, and holding commanders suspected of human rights abuses to account remains politically difficult.
Given these challenges, what will it take for the world to show enough moral courage to force change in West Papua?
The right way forward is clear. As a member of the UN Human Rights Council, Indonesia needs to put an end to the media ban in West Papuan, support an independent UN investigation and hold accountable those responsible within the government for violent acts.
If Indonesia does not take this course of action, then diplomatic pressure from the world will be required.
For example, term 2 began this week in New South Wales. From week 3, children in government schools have been allocated a day per week when they should learn on site. In Western Australia, parents have been asked to decide if their children will return to the classroom, learn online from home or learn from home with hard copy materials. The situation in both states is to be reviewed around week 3.
In contrast, all Victorian students who can learn from home must do so. The ACT is also proceeding with online learning for all children who can be supervised at home.
Human rights relevant to schooling
Australia lacks a comprehensive human rights framework, although human rights laws have been passed in the ACT, Victoria and Queensland. Little commentary to date has considered the return to school in a human rights context.
Human rights are interconnected values. Many are relevant to this issue and the pandemic more broadly.
Under international law, all people have the right to the highest attainable standard of physical and mental health. The right to health extends beyond access to health care. Importantly in the context of the coronavirus pandemic, it includes a right to the prevention, treatment and control of disease.
All people, and particularly children, also have a right to education. This right is described as essential for people to participate effectively in a free society. Countries are obliged to protect the right by ensuring, at a minimum, free and compulsory primary education and a system of schools to provide equitable access to education at each level.
International law also confirms the right of all people not only to work, but to enjoy just and favourable conditions of work. This includes a right to safe and healthy working conditions.
Human rights issues arising from a return to the classroom
How can we balance human rights implications of a return to classroom learning, when rights may come into tension with each other?
Most human rights can be constrained, although not to the point where their essence is denied. Limitations on rights must be necessary in response to a pressing public or social need. They must also pursue a legitimate aim and be proportionate to that aim.
When we consider rights in tension at this time, it is clear a right to health must be the primary focus. A weakening of protective measures may heighten the risk of a second wave of the virus.
However, the advice for those who are at risk continues to be to stay at home. While some jurisdictions are moving to require in-person attendance, little has been said about how at-risk staff and students are to be protected at school or supported to continue in isolation.
Aspects of a return to school also pose mental health risks. Some students who require set daily routines may become anxious when required to attend only one day per week. Others, especially high school students in their final year, should perhaps be prioritised to return as a cohort in order to complete their education.
For teachers, there are significant workload implications in managing both in-class and online cohorts of students. The right of teachers to enjoy good mental health may also be compromised by a sense of risk in the return to classroom teaching. The potential for stress-related illnesses is obvious among parents, many of whom have found learning from home taxing on their mental health.
There is a widespread desire to support the right of students to education. Schools in Australia have mostly remained open throughout the peak of the crisis for children of essential workers and children who are safer at school than at home. This approach was a measured means of balancing rights to health and education and could be maintained for a longer period across the country.
It has been argued here that the “staggered” return to school in some states ought to prioritise the needs of children at certain key stages of learning.
We add that the most vulnerable children should also be prioritised. For example, greater equity in access to education at this time may call for special arrangements to include students with disabilities, chronic illnesses or mental health conditions. Students who lack at-home access to online learning could also be prioritised in a return to the classroom.
The physical environment in schools is a further complicating factor, particularly in terms of teachers’ rights to safe conditions of work. The prime minister is adamant schools are exempt from social-distancing requirements. Yet those states returning students to the classroom are implicitly undermining that message by setting maximum numbers and requiring staggered break times and other measures.
Many teachers feel confused and stressed about how they can do their work safely. This is unsurprising, given some states and other countries are taking much more cautious approaches to the health and safety of school staff.
No magic right answer
The balancing process between human rights values at this time is highly complex and beyond what we can hope to resolve in this article. And human rights analyses cannot deliver us a simple “right” answer as to how the return to classroom learning should be managed.
What human rights give us is another frame through which to consider these fundamental challenges. There are obvious economic and educational imperatives to prompt a return to classroom learning. Our national debate could be richer and more inclusive if it also included human rights claims.
Australia has just entered its final year of its membership on the UN Human Rights Council. This position was won on the strength of two key arguments:
Australia would be the first Pacific nation to sit on the body, founded in 2007
our long-standing commitments to civil and political rights made us a safe set of hands among a membership that includes several dictatorships.
This championing of Australia’s record, however, sits oddly beside our own well-publicised violations of human rights, most visibly on asylum seekers and Indigenous rights.
My new book, Human Rights in Twentieth Century Australia, probes this contradiction. One of the questions I grapple with is how a nation that crows of its achievements in certain areas of human rights can so flagrantly breach others.
One answer is that Australia has long used its British heritage of civil and political rights and higher average standard of living to discount more expansive social, economic and cultural rights, particularly when it comes to questions of race and citizenship.
It is often forgotten that Australian representatives joined those of seven other nations to draft the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948.
Attorney-General Herbert Vere Evatt headed the negotiating team. He argued for a strong document enforceable by an international court, which would defend traditional “negative” rights like freedom of expression, alongside “positive” ones such as the right to work.
Even at this high point of global consensus following the second world war, Australia’s double-handed approach to human rights was apparent. While Evatt likened the UDHR to Australia’s sentimental belief that everyone deserves a “fair go”, he guaranteed the White Australia Policy would not be threatened by such a document.
Using language that echoes Australia’s asylum policy today, he said
There is no relationship between the Declaration of Human Rights […] and the exercise by a country of its national right […] to determine the composition of its own people.
This argument for the primacy of so-called “domestic jurisdiction” was also extended to the rights of Indigenous peoples by Evatt and other Australian leaders at the time, meaning their rights were considered to be only of national concern.
The Communist newspaper Tribune captured this in a cartoon depicting the worldly Evatt set against an enchained Indigenous man to whom rights had little meaning.
By positioning itself as a responsible “middle power” on human rights, while also insisting it be judged by a scorecard of its own choosing, a benchmark was set for future Australian governments.
Human rights have, henceforth, been understood very restrictively in Australia.
Challenges to Australia’s human rights policies
Despite such evasions, Indigenous people, refugees and other social movements have long used human rights discussions and debates to further social and political agendas.
Chinese wartime refugees, dubbed a “recalcitrant minority” by Immigration Minister Arthur Calwell, were threatened with deportation in 1949. They petitioned the newly formed Australian Human Rights Commission, protesting “in the name of humanity” for their protection “from the arbitrary and inhuman actions” of the minister.
Indigenous Australians also began petitioning the commission in the 1960s, challenging governmental obfuscations on human rights directly.
While Australia insisted the country’s Indigenous policy accorded with the UN’s language of equality, a 1970 petition by five Indigenous Australians – delivered in person to the UN offices in New York – declared nothing had changed.
Alleging the ongoing “literal, physical destruction of our people”, the petitioners demanded Australia be judged
in light of what it does […] rather than what it says.
From collective to individual rights
Starting in the late 1970s, the focus of international human rights shifted. Protecting individuals from suffering and violence replaced the fight for collective economic and social rights that defined the era of decolonisation in the 1950s and ‘60s.
Groups like Amnesty International, which won the Nobel Peace Prize in 1977, made political prisoners and basic sufficiency the watchwords of rights activism.
Economic, social and cultural rights were thus downgraded in importance compared to civil and political ones. Such a focus imposed few obligations on Australia, already a constitutional democracy governed by the rule of law.
Gareth Evans, attorney-general under the Hawke government, said in 1978 the very idea of economic and social rights was:
beyond the scope of the topic ‘human rights’ as that term has meaning in this country.
Since the late 2000s, though, the ground has moved quickly. On one hand, Australia’s continued violation of Indigenous rights has garnered more international condemnation.
The failure to deliver on the promise of constitutional recognition – one of the “pillars” of Australia’s Human Rights Council bid – seems particularly egregious.
The Declaration on the Rights of Indigenous Peoples in 2007 has also created reporting and compliance mechanisms unavailable to earlier generations. Under this declaration, the UN has already condemned the so-called “Intervention” in the Northern Territory and the revelations of abuse at the Don Dale detention centre.
Western governments like Australia are also back in the crosshairs on economic rights.
Kumi Naidoo, Secretary-General of Amnesty International, acknowledged in December 2018 that Amnesty’s focus on political prisoners meant issues of poverty, inequality, housing, food and sanitation had largely disappeared from activists’ lexicon.
It’s now necessary to view human rights as a “package”, Naidoo said, including renewed focus on economic rights. And importantly, western and non-western nations can – and must – be judged on an equal footing.
Australia has already seen what this future looks like. The UN’s special rapporteur on extreme poverty, Phillip Alston, recently said in a widely publicised report the so-called “Robo Debt” and Cashless Welfare Card schemes were bringing forth a “digital welfare dystopia”.
Australia should expect more uncomfortable finger pointing in future. If we are to remain a human rights leader at home and abroad, the ranking of some rights as more important than others must come to an end.
On December 10, the world marks 70 years since the adoption of the Universal Declaration of Human Rights. Regrettably, instead of the anniversary signalling the enduring impact of human rights, some are fearing the “end of human rights”. Here we highlight some of the rights challenges that captured the world’s attention this year, illustrating the struggle to secure human rights is far from over.
1. Australia’s first year on the UN Human Rights Council
Australia took its place on the UN Human Rights Council this year for a three-year term. Australia delivered a strong statement about Myanmar’s atrocities against ethnic Rohingya Muslims, but was criticised for holding refugees and asylum seekers offshore. While Australia supported important country resolutions, it failed to take a leadership role on any key issues.
2. United States’ retreat from Human Rights Council
The US faced international condemnation when it quit the Human Rights Council, calling it a “protector of human rights abusers and a cesspool of political bias”. The US has long complained of the council’s perceived bias against Israel. But, by withdrawing, the US decreased its options for confronting and addressing human rights violators. This increases the responsibility of governments like Australia’s to ensure the council addresses the world’s most serious human rights violations.
3. Violence against women
In Australia, while the #MeToo movement has spurred women to come forward with their experiences of sexual harassment and abuse, a number of high-profile cases of alleged sexual harassment by actors and politicians highlighted ongoing barriers to justice for victims. At the same time, the #countingdeadwomen femicide index reports that one woman in Australia is killed every week by an intimate partner.
4. Facebook’s reckoning
Free speech, privacy and electoral integrity came under the microscope in March, when a former employee of Cambridge Analytica blew the whistle on its practice of harvesting data from millions of US Facebook users in an effort to influence the 2016 presidential elections.
There is also growing criticism of Facebook for not doing enough to stop its use to spread hate speech. For example, in Myanmar it has been used as a tool to incite violence against Rohingya.
5. Rohingya crisis
In August, a UN Fact Finding Mission on Myanmar, which included Australian human rights expert Chris Sidoti, delivered a scathing report detailing crimes against humanity, war crimes, sexual violence and possible genocide by Myanmar’s security forces against the Rohingya.
The UN Human Rights Council, in response, created a mechanism to collect and preserve evidence to aid future prosecutions for atrocity crimes in Myanmar. Australia joined other Western nations in imposing targeted sanctions on military officers named in the UN report. While the Australian government maintains an arms embargo on Myanmar, our defence forces continue to provide training to the Myanmar military.
6. Crackdown against Turkic Muslims in Xinjiang
Turkic Muslims in China’s northwestern Xinjiang region have long faced repression. In 2018, Human Rights Watch and others reported an escalation in this repression with the government detaining 1 million people in political re-education camps, with evidence of their torture and mistreatment. Muslims not detained still face pervasive controls on freedom of movement and religion. The Foreign Affairs Department revealed under parliamentary questioning that three Australians were detained in the camps.
7. Saudi Arabia
Saudi Arabia made international headlines when a prominent journalist, Jamal Khashoggi, was murdered in the Saudi consulate in Istanbul. The case prompted a closer examination of Saudi Arabia’s human rights record. The country’s repression, imprisonment and ill-treatment of activists includes the alleged torture of leading women’s rights defenders.
In Yemen, the Saudi-led coalition has committed many violations of international humanitarian law, including apparent war crimes, killing thousands of civilians. Millions of Yemenis are confronting a famine, in part because of restrictions on aid delivery. Yet the USA, UK, France and Australia sell the Saudi government weapons and military equipment that may well contribute to its Yemen campaign.
8. Children off Nauru
Australia’s government appeared to respond to the “Kids Off Nauru” campaign launched by civil society groups, medical professionals and lawyers. December figures show ten refugee children remain on the island, down from 119 children in August.
Mounting political pressure forced the government to remove children who had been transferred there in 2013 and 2014, though many were removed from Nauru only after legal proceedings were started. But the departure of families makes the situation even more desperate for the adults left behind. And those transferred to Australia are told they will not remain permanently, keeping them in limbo.
9. One year since the Uluru statement
Indigenous communities have fought hard throughout 2018 to have the federal government focus on the Uluru Statement from the Heart, after the Turnbull government dismissed it out of hand in 2017.
The statement calls for a constitutionally enshrined “First Nations Voice” in parliament and the establishment of a Makarrata Commission to supervise agreement-making between governments and First Nations, and facilitate truth-telling of First Nations’ histories. These steps were seen as laying the foundation for a treaty with Australia’s First Nations peoples. A 2018 parliamentary committee endorsed the need for a voice in parliament and has called for a process of co-design between Indigenous people and government appointees.
10. LGBTI discrimination
One year on from the breakthrough on marriage equality, the parliamentary year ended with Australia’s politicians unable to find a way to remove legislative exemptions allowing religious schools to discriminate against LGBTI pupils and teachers.
Advocates and the Labor opposition rejected government amendments that sought to stop schools being able to exclude students on the basis of their sexual orientation, gender identity, or sex characteristics, but would also allow them to enforce rules in line with their religious teachings.
The Committee on the Elimination of Discrimination against Women is a UN treaty body, made up of 23 independent experts from around the world, and its key functions include:
examining state parties’ implementation of rights under the convention
making recommendations detailing how state parties can improve compliance with the convention
accepting individual complaints about violations of rights under the convention
What did the committee say about Australia’s record on women’s rights?
The committee noted areas of improvement, including marriage equality, the introduction of the paid parental leave scheme and the prohibition of discrimination on the grounds of sexual orientation, gender identity, intersex status and family responsibilities.
However, it also issued over 90 recommendations for improvement, demonstrating that negative aspects far outweigh progress on women’s rights.
Human rights framework
The committee reiterated its 2010 recommendations that Australia should introduce a charter of rights. The Committee also recommended that Australia harmonise state, federal and territory discrimination laws to enhance their effectiveness in prohibiting discrimination against women.
The committee denounced funding cuts to the Australian Human Rights Commission, and emphasised the importance of the government respecting the independence of the commission.
Violence against women and sexual harassment
The committee noted the endemic nature of violence against women, with one in three women experiencing physical violence, and almost one in five women experiencing sexual violence. The committee recommended that the government reinforce efforts to change behaviours that lead to violence against women. This includes encouraging reporting violence, and adequately funding services under the National Action Plan to Reduce Violence Against Women and Their Children.
The committee raised the prevalence of sexual harassment, and recommended that the government take into account the outcomes of the national inquiry into workplace sexual harassment, encourage reporting and impose appropriate sanctions on perpetrators.
Women’s economic disadvantage
The committee condemned the government’s lack of gender budget analysis. It said:
The Committee considers that some of the State party’s recent cuts to social, health, education and justice budgets, reduction of taxes for high income groups and increase of the defence budget represent a setback…
It recommended the government take immediate measures to mitigate the effect of recent budget cuts on women, implement gender-responsive budgeting in the allocation of public resources, and reinstate the funding of services catering to women’s rights.
Access to justice
The committee criticised funding cuts to legal assistance services, and urged the government to implement the recommendations of the 2014 Productivity Commission Inquiry into Access to Justice. This includes ensuring adequate funding for community legal centres and legal aid.
The committee raised concern at provisions in funding agreements that restrict the ability of community legal centres and civil society organisations to advocate for women’s rights, and recommended the government remove provisions from funding agreements that restrict freedom of expression.
Treatment of diverse groups of women
The committee recognised that diverse groups of women, including Aboriginal and Torres Strait Islander women, LGBTI women, women with disability, women from culturally and linguistically diverse backgrounds, refugee women and older women experience greater barriers to accessing and enforcing their rights.
These include discrimination, lack of access to appropriate services, higher risk of violence, higher unemployment and homelessness rates, and lower representation in public life. The committee recommended numerous measures to improve gender equality for diverse groups of women.
Where to from here?
The release of these recommendations comes at a time of great uncertainty in international human rights. We’re seeing a disturbing retreat from fundamental human rights principles and institutions across the world.
While Australia has been using its seat on the Human Rights Council to advocate at the international level for the rights of women and girls, the gap between our global leadership on gender equality and the reality faced by women and girls in the Australian community is stark.
Australia has an extremely poor record of implementing treaty body recommendations. During the committee’s review of Australia last month, the Australian government, while stating that it takes its international obligations “incredibly seriously”, admitted that on most fronts it had no plans to amend laws or policies to improve protection of the rights of women and girls in the Australian community.
As part of the committee’s follow-up procedure, Australia must explain to the committee what steps it has taken to implement priority recommendations within two years.
The committee’s four priority recommendations focus on Aboriginal and Torres Strait Islander women, funding for women’s services, reproductive rights, and ending offshore processing of refugees.
The challenge for Australia is to engage positively with the committee’s recommendations and implement changes to improve human rights for women and girls at home
Maria Nawaz, Law Reform Solicitor/Clinical Legal Supervisor, Kingsford Legal Centre UNSW; Lecturer, UNSW Human Rights Clinic, UNSW and Tess Deegan, Law Reform Solicitor/Clinical Legal Supervisor at Kingsford Legal Centre, UNSW
US President Donald Trump’s policy of separating children from their families at the Mexican border has sparked outrage in recent months, both in the US and abroad. It became so heated that he eventually ended the separation of families, though their fate remains unclear.
However, Trump is not the only leader to incarcerate children and use their suffering as a form of deterrence. The detention of asylum-seeker children has a long and brutal history in Australia. Trump’s policy invites us to reflect on our own policies regarding the detention of asylum seekers and the situation of children and families fleeing persecution.
Currently, over 200 children are in asylum-seeker detention, including on Nauru, in mainland detention centres and in community-based detention. Many have endured prison-like conditions, with no clear date for their release for months, if not years.
While most children remain with one of their parents, my research has found that separation of families is common. This includes the removal of young men on their 18th birthdays from their families with no warning or follow-up as to their whereabouts.
The mandatory incarceration of asylum-seeker children is an uncommon practice globally. It contravenes important human rights instruments to which Australia is a signatory, most notably the Convention on the Rights of the Child. This states:
No child shall be deprived of his or her liberty unlawfully or arbitrarily … (This) shall be used only as measure of last resort and for the shortest appropriate period of time.
The degree of despair felt by children and their families is well-documented and goes back many years.
In 2004, the Human Rights and Equal Opportunity Commission (HREOC) published A Last Resort? National Inquiry into Children in Immigration Detention. This document outlined the privations of the lives of those held in detention centres in Australia, including the famous case of Shayan Badraie. He was detained for nearly two years, witnessing attempted suicide, self-harming and violence that resulted in several hospital admissions before the family was released.
The report also documents physical assault by guards, mental illness and lack of appropriate food, shelter and education.
A Last Resort not only documents terrible human rights abuses, but the ongoing effects on those who experienced them. But, far from ending the incarceration of children and their parents, the policy of detention as deterrence has continued. In this regard, Australia is unusual, being the only developed country that imposes mandatory detention on people arriving by boat.
In 2014, the HREOC conducted another investigation, The Forgotten Children. This report documents in detail ongoing breaches of human rights, unsafe living conditions, medical neglect and physical and sexual assault.
Dehumanisation occurs on every level. One 16-year-old boy stated:
People were called by boat ID. People had no value. No guards called me by name. They knew our name, but only called by boat ID.
Children are also constantly exposed to the trauma of other detainees. One father said:
The word of “suicide” is not an unknown word to our children anymore. They are growing up with these bitter words. Last week a lot of women took action to suicide in Construction Camp. All the kids were scared and crying. How do we remove these bad scenes from our kids’ memories?
The report documents other cases of despair. A 13 year-old-boy detained on Nauru expressed to the treating doctor “a complete loss of hope; despair”. The doctor described how “[h]e had no appetite and no will to eat. He lost over 10 kilograms, which would be about a quarter of his body weight.”
The Australian government has tried to hide the conditions experienced by those held in places like Nauru and Manus Island. In particular, the Border Force Act (2015-17) imposed criminal sanctions on workers who speak publicly about what they see.
However, there is overwhelming and easily accessible evidence that Australia’s policies cause both immediate and ongoing trauma to children, and indeed all those incarcerated in detention. We must recall that Australia is a signatory to the Refugee Convention and that seeking asylum is enshrined in this instrument.
So while we can express moral outrage about things that occur far from home, our own policies ensure human rights breaches that cause unnecessary suffering and trauma for long periods of time.
There is now substantial evidence of the poor treatment of asylum-seeker children. This has come from a plethora of reports from human rights organisations, healthcare providers and detainees like Behrouz Boochani, who document and publish the conditions of incarceration.
They remind us of what the Holocaust historian Yehuda Bauer said: “Do not be a victim; do not be a perpetrator; and above all, do not be a bystander.”
In doing so, they claimed the council was a roadblock to genuine global human rights protection. This move by the Trump administration has been anticipated for some time. In a sense, the elephant has left the room. But in doing so, the elephant has belled the cat on a number of serious issues regarding the HRC.
Is the United States’ decision sound in terms of international human rights protection? Is it one that Australia, an HRC member from 2018-2020, should follow?
What is the Human Rights Council?
The UN Human Rights Council was established in 2006 to replace the UN Commission on Human Rights, which ran from 1947 to 2006. By the time of its demise, the commission was criticised from all sides for being overly politicised.
The HRC’s 47 seats are divided between the five official UN regions in the following way: Africa (13); Asia (13); Latin America and the Caribbean (8); Western Europe and Other (7); Eastern Europe (6). The US (and Australia) is in the Western Europe and Other Group, known as WEOG.
One-third of the council is elected each year by the UN General Assembly, and members serve three-year terms. No member may serve more than two consecutive terms. A member can also be suspended from the council in a vote of two-thirds of the UN General Assembly: Libya was suspended in 2011 after Muammar Gaddafi’s crackdown on Arab Spring protesters and armed dissidents. No other member has been suspended.
The HRC meets three times a year for a total of around ten weeks. Its 38th session has just begun. It also meets for one-day special sessions at the initiative of one-third of its members. It has so far held 28 special sessions.
The HRC also authorises independent investigations into particular human rights issues, either thematic (dealing with a human rights issue such as torture or LGBTI rights) or, more controversially, focused on a particular state. At the time of writing, there are 46 thematic mandates and 12 country mandates for these “special rapporteurs”.
It has one major new function compared to its predecessor, the Universal Periodic Review (“UPR”), whereby the human rights record of every UN member is reviewed by the HRC (as well as all other “observer” nations) every five years.
The US’ grievances against the HRC arise with regard to the human rights records of its members, and its politicised character. Its key red line concern seems to be the HRC’s “unconscionable” and “chronic bias” against Israel (to quote from this morning’s press conference). These issues are examined in turn below.
Membership criteria as they stand are very soft: candidates commit to the highest standards of human rights, and states should take into account a nominee’s human rights record when voting. Both of these rules are basically unenforceable.
Human rights criteria were mooted as prerequisites for membership when the HRC was created. However, the UN’s nearly 200 members could not agree on substantive criteria, as they have very different views on human rights. The US, for example, wanted only “democratic nations” to be eligible. Such a criterion would have led to debates over the meaning of “democracy”, and would seem to prioritise civil and political rights over economic, social and cultural ones. A focus on the implementation of economic and social rights might have led to the exclusion from eligibility of the US itself.
In any case, the “measurement” and respective ranking of human rights records across states is contentious. While comparisons between two states may lead to easy conclusions over which one is better or worse, it is a fraught exercise across the entirety of the UN membership.
Procedural criteria, such as a nation’s record on ratification of human rights treaties, would be more objective. However, such criteria might have led to the exclusion of the two most powerful countries in the world – the US and China, which have both failed to ratify crucial treaties. Realpolitik indicates that such an outcome is very unlikely.
In the press conference, Haley and Pompeo decried the presence of human rights abusers on the council, including China, Cuba, Venezuela and the Democratic Republic of the Congo. Consternation has also commonly been expressed over the common presence of Saudi Arabia and Russia on the HRC. Certainly, none of those states is remotely close to upholding the highest standards of human rights. Haley and Pompeo went further, claiming that these states manipulate the HRC to shield abusers and target blameless states in its resolutions.
So how bad is the HRC membership? Freedom House is a non-government organisation (NGO) that rates states as “free”, “partly free”, or “not free”, according to certain civil and political rights criteria, such as press freedom. While Freedom House’s methodology is assailable, I will use its rankings in assessing the current HRC, as the US itself historically uses them in making certain policy choices.
2018 is in fact one of the worst years in terms of the numbers of non-free HRC members. Nevertheless, free states always outnumber unfree states on the HRC, and can easily pass or block any resolution with the cooperation of just a few partly free states, if they vote together.
Any problem with “bad” resolutions on the HRC arises not from a preponderance of bad states, but from bloc voting within regions, like-minded groups and alliances.
The phenomenon of clean slates
Nevertheless, one can still fairly criticise the HRC for containing 14 non-free states. How do such states get elected?
A major problem for HRC elections is the issue of “clean slates”, whereby the number of candidates presented by a UN region correlates exactly to the number of seats it is scheduled to have elected at any particular time. For example, a region might put forward only two candidates for two seats. In such circumstances, the various candidates’ election seems to be a fait accompli. This phenomenon of clean slates was what Pompeo was referring to when he said that some states were elected by a rigged, collusive process.
Yet clean slates are a problem with all of the UN regions. The US itself was initially elected to the HRC on a clean slate in 2009. Australia was elected to the HRC on a WEOG clean slate in 2017, due to France’s belated withdrawal of its candidature.
Genuine elections do occur when open slates are presented by regions. This is how Russia was rejected in 2016, an unprecedented and humiliating blow that probably led to Russia’s failure to even stand for election in 2017. Other serious human rights abusers, such as Azerbaijan, Sri Lanka and Belarus, have failed to gain seats in similar circumstances.
Although states are elected on a regional basis, each member must still attain the majority of votes in the general assembly in order to be elected. There remains a possibility that an unacceptable candidate will simply not reach that threshold, even in the case of a clean slate.
That possibility has in the past led to the late replacement of controversial candidates, such as Syria’s replacement by Kuwait in 2011. This author eagerly awaits the day when the General Assembly finally flexes its muscle by refusing to elect an entire clean slate, thus depriving a region of a seat for a year. Such an outcome, in the absence of a relevant reform, is one way to dissuade future clean slates.
Finally, while states – particularly WEOG countries – might rail against the awful records of other members, those sentiments might not be reflected in their actual voting. After all, voting is by secret ballot. For example, given that Saudi Arabia is a key US geopolitical ally, it seems likely that the US (and even Australia) has voted for it on occasion. Certainly, the UK seems to have done so.
The US is correct that membership criteria should be revisited. Certain obstacles could be put in the way of the worst abusers, such as compulsory open slates, public voting (which might help prevent UK votes for Saudi Arabia), and a requirement that an eligible state must allow visits by all special rapporteurs.
Politicisation of the HRC
As the HRC’s members are representatives of their governments, the HRC is a highly politicised body, like its predecessor. State governments are political constructs, so any institution made up of government representatives is inevitably political too.
Unfortunately, states will generally vote in favour of their national interests rather than human rights interests if the two should clash. Pompeo inadvertently admitted that this morning, when he praised Haley by saying that she always put “American interests first”.
Politicisation inevitably leads to the manifestation of political biases. The most notorious HRC bias concerns Israel. It seems that the US’ biggest complaint over the HRC, and the “red line” that has led to its withdrawal, is the HRC’s treatment of Israel.
Its special rapporteur mandate stands until the occupation is over, so its renewal is automatic rather than the subject of periodic debate, as is the case with other mandates. The mandate-holder investigates its actions rather than those of the Palestinian authorities, whose abuses are largely ignored.
Israel has been the subject of more special sessions than any other state (more than a quarter of the 28 sessions). Having said that, it was the subject of the first three special sessions in 2006, and four of the first six, so the “hit rate” of 4 out of 22 is less stark since then.
Why is the HRC preoccupied with Israel? For a start, Israel has committed serious human rights abuses that are worthy of the HRC’s condemnation. It is absurd for Pompeo to have implicitly suggested that Israel has “committed no offence”. Any HRC bias does not mean that the substance of its criticisms is wrong. The recent killings of Palestinian protesters, targeted killings, illegal settlements, forced evictions, war crimes, the Gaza blockade and, most fundamentally, an ongoing occupation of Palestine that has lasted for more than 50 years, will cause critics to proliferate.
Nevertheless, that does not explain the HRC’s disproportionate attention to one country, given the scale of human rights abuses by other states that receive far less attention.
Ardent supporters of Israel often contend that the bias is driven by anti-Semitism. While such a motivation cannot be dismissed, there are other reasons that seem likely to be driving this phenomenon. The equation of “anti-Israel” with “anti-Semitic” is simplistic.
Israel has many enemies among UN states. Some have never accepted Israel’s right to exist, believing that it was established illegitimately on Arab (Palestinian) land. Indeed, the Organisation of Islamic Cooperation was set up in 1969 to unite Muslim states after the 1967 war in which Israel seized the occupied territories, so opposition to Israel has been an article of faith since its inception. The OIC routinely brings as much diplomatic pressure to bear on Israel as possible. As OIC states straddle the two biggest UN groupings, Africa and Asia, they can rely on significant bloc solidarity for support in their initiatives.
The racial element, whereby the Jewish State of Israel illegally occupies lands populated by Arabs in the occupied territories, attracts the ire of developing states, which have historical grievances regarding racial oppression. Yet other instances of racial tension – such as the oppression of the Tibetans, the Kurds, the West Papuans, the Tamils or the Chechens – fail to attract the same HRC scrutiny.
One difference is that Israel’s occupation of the Palestinian Territories is not recognised as legitimate by any other state, unlike for example China’s sovereignty over Tibet or Indonesia’s sovereignty over West Papua.
Indeed, increasing numbers of states have diplomatically recognised the occupied territories as the State of Palestine, and the UN General Assembly voted in 2012 to recognise Palestine as a non-member state.
Occupation also allows states to feel safe in attacking Israel without being too hypocritical. While human rights abuses are sadly common, the status of “occupier” is rare. Indeed, Israel is sometimes seen as a remnant of colonialism, and its actions certainly breach the right of self-determination enshrined in the UN Charter.
However, Israel is not the only occupier. Morocco has long annexed the [Western Sahara], yet the global silence on that situation is deafening in comparison.
Israel is also seen as a surrogate for the West, particularly the US. Given that Israel is almost always defended within the UN by the US, and is often defended by much of WEOG, the question of “Israel-bashing” has become part of a greater North/South divide in the UN. Anti-American states such as Cuba, Venezuela, Ecuador and Russia see Israel as a US surrogate in the Middle East, and exploit the issue accordingly.
Bias against Israel is matched by biased displays of support for Israel by its allies, such as the US and Australia. For example, the US instinctively presumed that the recent border killings were justified. Past bombings of Gaza (in 2009 and 2012) have been blithely dismissed by Australia as an exercise of Israel’s right to self-defence. But a legitimate case of self-defence can still result in an illegal use of excessive, indiscriminate or unnecessary force.
Regardless of its causes, the HRC’s perceived bias against Israel is counterproductive. It provides Israel with a ready-made argument to reject even legitimate condemnation, thus providing cover for human rights abuses. Indeed, claims of bias (within and outside the UN) have become a dominant part of the Middle East narrative on both sides, detracting from a focus on the actions of the actual protagonists. It has facilitated Israel’s progressive disillusionment with and disengagement from the UN, and now, the disengagement of the US. It reduces the HRC’s credibility and opens it up to charges of hypocrisy. None of these outcomes is useful for those who sincerely wish for improvements in human rights for all in Israel and the Palestinian occupied territories.
Finally, the biggest problem with the focus on Israel is the corresponding lack of focus on other serious human rights situations. While it is impossible to demand or expect that a political body, or even an apolitical one, should achieve perfect balance in its human rights focuses, it is fair to expect that such focuses not be way out of balance.
The US and human rights
Haley and Pompeo reassured us that the US will continue to play a leadership role in human rights, despite its withdrawal from the HRC. And certainly, the US’ role on the HRC was in many ways positive. For example, it took the lead in addressing impunity in Sri Lanka. The WEOG group suffers from some dysfunctionality on the part of EU states, which generally seek a common position. Strong non-EU voices are important in this regard.
Yet the US is as political as other players on the HRC. Just as some states instinctively oppose Israel, the US instinctively supports it. Neither position is principled. The US has also protected other allies, such as Bahrain.
Outside the HRC, US President Donald Trump is not a credible leader on human rights. He seems to have an affinity with leaders with horrible records, such as the Philippines’ Rodrigo Duterte. Most recently, he responded to comments about North Korea’s human rights record, which is possibly the worst in the world, by praising the “talented” Kim Jong-un.
And of course, the US has long had its own serious human rights problems, which are too numerous to mention, but which include torture and the highest proportion of incarceration in the world. Its recent decision to separate migrant children from their parents and intern them reflects its status as the only country in the world that has failed to ratify the Convention on the Rights of the Child.
Furthermore, it is nonsense for Pompeo to suggest that the HRC had sought to infringe on US sovereignty. This betrays a serious misunderstanding of the concept of sovereignty, indicating that it dictates immunity from criticism. It does not.
Is the council salvageable?
The US is correct to note there are major deficiencies in the current HRC. Is its response therefore the correct one? If so, that would seem to indicate that Australia should also quit the HRC. It is very unlikely that Australia will do so.
The HRC is the peak global intergovernmental human rights body, which may represent the world of today, warts and all. The battle for universal human rights observance will not be won by adopting an “us and them” mentality, which excludes significant numbers of countries in the world from “the human rights club”. Such a solution is more likely to lead to balkanised human rights discussions, and possible competing institutions inside and outside the UN.
The HRC must remain a forum where non-like-minded states, and civil society, can talk to each other, and occasionally cross divides to make important human rights decisions.
Furthermore, the HRC is meant to be a political body. Other parts of the UN human rights machinery are made up of independent human rights experts, and accordingly take a more impartial approach than the HRC. While their human rights findings are more credible, it also seems that states generally take their findings less seriously.
States tend to care more about what their peers think than what human rights experts might think. Hence, human rights would suffer in the absence of a relevant intergovernmental global body.
Despite its flaws, the HRC does make decisions that benefit human rights, even in the face of political lobbying by members with scurrilous motives. For example, a special rapporteur was appointed to investigate Iran (after the application of US pressure), and it remains in place, despite that influential country’s forceful efforts to dismantle the mandate. A special rapporteur on LGBTI rights was appointed in 2016, despite fierce opposition from the OIC and homophobic states, due to an alliance of developed and developing states, and civil society.
The HRC will continue to be an imperfect institution for as long as the UN is made up of states with imperfect human rights records. However, the council still can and must be improved.
But the worst way to achieve that goal is by just walking away.