Australia’s Human Rights Council election comes with a challenge to improve its domestic record



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Australia’s campaign for a seat on the Human Rights Council opened it to further scrutiny of its record on such issues.
Reuters/Denis Balibouse

Amy Maguire, University of Newcastle and Georgia Monaghan, University of Newcastle

Australia has been elected to a seat on the United Nations Human Rights Council. It will serve on the council from 2018 to 2020.

The announcement overnight formalised an assumed result: Australia and Spain were the only two countries seeking election to the two available seats for the Western Europe and Others group. Most of the other newly- elected council members similarly ran uncontested.

However, all campaigning countries required the support of a majority of voting countries to ensure their election. Australia received 176 votes and Spain 180 – both survived grilling by an expert committee.

How did Australia present itself as a candidate?

Foreign Minister Julie Bishop led Australia’s campaign, which had a particular focus on freedoms, free speech, and equality. The “five pillars” of Australia’s bid were:

  • gender equality

  • good governance

  • freedom of expression

  • the rights of Indigenous peoples

  • strong national human rights institutions and capacity building.

Australia presented itself as a “pragmatic and principled” candidate for the council position. Bishop cited Australia’s “strong track record for human rights” as well as its active and practical involvement in international affairs.

Such active and practical involvement can be seen in Australia’s advocacy for the abolition of the death penalty, as in the case of Myuran Sukumaran and Andrew Chan. Furthering global advocacy for death penalty abolition is one of Australia’s primary pledges as a new council member.

Australia’s involvement in multiple UN treaties and its anticipated adoption of the Optional Protocol to the Convention against Torture were also cited as evidence of its worthiness for election.

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Australia’s bid and opportunities for human rights advocacy

However, Australia’s campaign opened it to further scrutiny of its human rights record. Human rights organisations in Australia and overseas have been lobbying to ensure that Australia’s practices are well publicised and subject to oversight and critique.

In December 2016, Bishop sought to pre-empt such criticism, claiming “no country is perfect”. Bishop pledged to be “honest and open” about Australia’s human rights record during the campaign.

Yet the campaign’s pledges failed to acknowledge Australia’s human rights abuses. As such, Australia remains open to accusations of hypocrisy on human rights.

Australia’s human rights track record is more chequered than it would claim. The UN has condemned Australia for its asylum-seeker policies and treatment of Indigenous peoples.

Bishop frequently praised Australia for its success in building a multicultural society and valuing the diverse background of migrant settlers. Yet asylum seekers arriving by boat continue to be dehumanised.


Further reading: ‘Fake refugees’: Dutton adopts an alternative fact to justify our latest human rights violation


Another key area of human rights controversy is the current postal plebiscite to survey public opinion on marriage equality. Australia’s council bid promised the protection of LGBTQI rights. But as was forewarned, the plebiscite campaign has exposed LGBTQI people to harmful fear campaigning and social exclusion.

It is incongruous for a claimed champion of human rights to put the rights of a minority group to a popular vote, potentially in an effort to prevent that group from gaining marriage equality.

Australia strikes a similarly dissonant note in relation to its treatment of Indigenous people. A key pledge of the council bid was the recognition of Indigenous Australians in the Constitution. However, a constitutional convention rejected the form of “recognition” the government-sponsored Recognise campaign had promoted.

The Recognise campaign has since been abandoned, and the future of the proposed referendum is unclear. The Australian government is yet to embrace the Referendum Council’s proposals for treaty, truth-telling and a First Nations Voice.


Further reading: Listening to the heart: what now for Indigenous recognition after the Uluru summit?


France’s withdrawal was a loss to the election campaign

Given Australia’s record, France’s withdrawal as a third candidate for the two available seats was unfortunate. The lack of competition reduced pressure on Australia to extend its human rights commitments.

The weight of international disapproval of Australia’s practice in relation to refugees, in particular, could well have weakened the bid had France stayed in the race.

No doubt this was also true for Spain. The recent Catalan independence referendum exposed Spain’s problematic record in relation to self-determination and political rights for minority groups.


Further reading: As Spain represses Catalonia’s show of independence, the rest of Europe watches on nervously


In interesting company

The UN’s orientation is to promote inclusion rather than marginalisation of member countries on international bodies. The UN is committed to universal values and obligations, and seeks to enforce these through universal involvement in its processes.

It is undoubtedly difficult to countenance egregious human rights violators participating in human rights processes. But it is at least arguable that their involvement promotes the progressive realisation of human rights more effectively than their marginalisation would.

However, in some cases, it may be that a country’s membership should be postponed until it can show improvement in a deplorable record. Leading up to the election, Human Rights Watch campaigned against promoting the Democratic Republic of the Congo to the council due to its grave human rights violations.

Meanwhile, the US warned it may withdraw if the council continued to elect countries responsible for gross abuses.

Australia is not in this category. It aspires to be an exemplary member of the council. And its election should act as impetus for progressive gains in its human rights performance.

The value of Australia’s election for human rights

Human rights advocates will take the opportunity to draw attention to any gaps between Australia’s international legal obligations and its domestic practices.

Bishop was right to highlight the value of Australia becoming the first Pacific country to join the council. Strong diplomatic and trade relationships will hopefully enable Australia to influence human rights development in its region. It is the only place without a regional human rights treaty or institution.

An important focus in this context will be Australia’s advocacy for the abolition of capital punishment. Allied to that concern for the right to life, perhaps Australia might also consider lobbying other countries – notably the US – for gun laws that prioritise human life and wellbeing.

Australia could substantially increase the legitimacy of such efforts, though, by working to build adequate domestic human rights architecture. Without federal human rights legislation, Australia cannot demonstrate the social and legal value of building human rights protections into law.

Australia’s election also calls for a renewal of political commitment to the value of international human rights review processes. Recent years have seen expressions of frustration, dismissal and poor faith that undermine Australia’s strong record of commitment to international human rights treaties.

Nowhere was this troubling attitude toward human rights protection more clear than in efforts to tarnish the reputation and work of former Human Rights Commission president Gillian Triggs.

Such mixed messages sit poorly with Australia’s continued efforts to review the practices of other countries – particularly now that it has an official role on the Human Rights Council.


Further reading: Why does international condemnation on human rights mean so little to Australia?


Australia has claimed leadership in the areas of gender equality, good governance, freedom of expression, the rights of Indigenous people, and strong national human rights institutions.

Imperfect performance in these areas indicates key targets for immediate focus – for example through human-rights-informed approaches to gendered violence, and concern for limitations on the freedom to express views about politically sensitive matters.

Considerable progress will be required on the rights of Indigenous people for Australia to claim success on that key pillar of its council campaign. The federal government could look to progress on a treaty in Victoria as evidence that such a conversation can be inclusive and productive.

The ConversationImportantly, Australia must also be held accountable in the key area its bid sought to avoid: the treatment of asylum seekers and refugees. Its election provides an ideal opportunity for Australia to show leadership and commitment to durable regional and global responses to refugee flows.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle and Georgia Monaghan, Research Assistant, University of Newcastle

This article was originally published on The Conversation. Read the original article.

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United Nations: Weakness on West Papua


The link below is to an article that reports on the snub given at the UN towards West Papua.

For more visit:
https://www.theguardian.com/world/2017/sep/30/west-papua-independence-petition-is-rebuffed-at-un

UN condemnation and a sports boycott: Australia again called on to end offshore detention



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EPA/Nyunt Win

Amy Maguire, University of Newcastle

On ABC TV’s The Drum on Monday, author Antony Loewenstein called for a sports boycott of Australia. Loewenstein’s argument was that such a move from other countries could force a change in approach to the offshore detention of asylum seekers who travel to Australia by boat.

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Sports boycotts have had a colourful history in the UN era. By far the most-well-known is the boycott of apartheid South Africa.

There has been debate regarding the impact of sporting boycotts in the past. In the South African case, sports boycotts were accompanied by wide-ranging political and economic sanctions. Apartheid was almost universally condemned as a violation of the international legal prohibition on racial discrimination.

No doubt a boycott of sports-loving Australia would be hugely controversial. However, a boycott seems highly unlikely to eventuate. Criticism of Australia’s refugee policies tends to come from or through UN humanitarian bodies and NGOs more so than from individual countries.

The major sporting codes in Australia are also largely domestic. So, boycotts of Australian rules football or rugby league would likely have a negligible effect. And a boycott would potentially risk the further entrenchment of negative attitudes toward asylum seekers travelling by boat.

Australia again criticised for offshore detention

Loewenstein’s argument was prompted by the latest in a long series of international critiques of Australia’s policy of mandatory offshore detention of people who seek asylum here by boat.

Specifically, the UN High Commission for Refugees (UNHCR) chief Filippo Grandi has accused Australia of misleading conduct.

The UNHCR describes as “exceptional” its decision to assist Australia in concluding a refugee transfer arrangement with the US. That arrangement has been mired in controversy. It was agreed in the final days of the Obama administration. Tensions arose early in the Trump administration over what the new president described as “the worst deal ever”.

The two countries now appear set to manage the transfer of a large number of those still in offshore detention on Nauru and Manus Island. The fate of those who do not pass US checks remains uncertain.

Yet, according to the UNHCR, Australia committed to resettling vulnerable affected refugees in Australia if they had family members already living in the community. However:

UNHCR has recently been informed by Australia that it refuses to accept even these refugees, and that they, along with the others on Nauru and Papua New Guinea, have been informed that their only option is to remain where they are or to be transferred to Cambodia or to the United States.

This means, for example, that some with serious medical conditions, or who have undergone traumatic experiences, including sexual violence, cannot receive the support of their close family members residing in Australia.

Human Rights Watch Australia regards the UNHCR’s statement as a stinging rebuke of Australia’s non-compliance with international legal obligations towards refugees and asylum seekers.

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The Human Rights Law Centre joined the call for an immediate end to offshore processing and the resettlement in Australia of the 2,000 people still on Nauru and Manus Island. Immigration Minister Peter Dutton has reiterated Australia’s commitment never to resettle refugees in Australia if they have been transferred to offshore detention.

Fruitless attempts to force compliance?

The perennial problem of international law – particularly troubling for students of the area – is the often overwhelming difficulty of requiring countries to comply. The international legal system lacks a court of compulsory jurisdiction, police force, or global parliament.

When compared with a robust domestic legal system like Australia’s, the international legal system appears weak on enforcement mechanisms. Famously, though:

Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.

Australia is – across a vast range of areas – an enthusiastic proponent of the international legal system. In the human rights context, Australia routinely comments on the performance of other countries and describes itself as a global leader in human rights.

However, as I wrote last week, there is a disjuncture between Australia’s policy and practice on asylum seekers and its bid for a seat on the UN Human Rights Council. Continued international critique of mandatory offshore immigration detention undermines Australia’s standing.

Political leaders of both major parties have maintained a longstanding commitment to punitive dealings with asylum seekers travelling by boat without visas. This is an area of Australian practice that seems unlikely to shift in response to international critique.

The ConversationInstead, the will to locate humanity within Australia’s refugee policy must come from within. While Loewenstein’s sports boycott proposal seems improbable, it was worth making to highlight Australia’s intransigence in this area.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Australia’s bid for the UN Human Rights Council


Sarah Joseph, Monash University

Foreign Minister Julie Bishop has announced that Australia is running for a seat on the UN Human Rights Council for the period of 2018 to 2020. The bid was originally made by the previous government, and has now been officially endorsed by this one.

What is the Human Rights Council?

The UN Human Rights Council was established in 2006 to replace the UN Commission on Human Rights, which had run from 1947 to 2006. In that time, the commission had some impressive accomplishments, including its early drafting of the Universal Declaration on Human Rights (UDHR) in 1948, and most of the core UN human rights treaties. The commission played a role in promoting and developing human rights norms, and investigating and highlighting human rights issues and crises.

However, by the time of its demise, its reputation was so clouded that its official name seemed to have become “the Discredited” Human Rights Commission. The West felt that too many countries with terrible human rights records, such as Sudan and Zimbabwe, were joining the commission (it had 53 member nations) to protect themselves from censure. In contrast, developing nations felt that the commission had become too antagonistic in its dealings with them.

A revamp was needed, so the commission was replaced by the council, which has the same normative and investigative functions and has 47 member nations. It has one major new function, the Universal Periodic Review (“UPR”), whereby the human rights record of every UN member is reviewed by the council (as well as all other “observer” nations) every four-and-a-half years.

The 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). Australia is in the Western Europe and Other Group, known as WEOG. One-third of the council is elected every 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 upon a vote of two-thirds of the UN General Assembly: Libya was so suspended in 2011 after Muammar Gaddafi’s crackdown on Arab Spring protesters and armed dissidents.

As the council’s members are representatives of their governments rather than independent human rights experts, it is hardly surprising that the council, like the commission before it, is a highly politicised body. So is the council an improvement upon the “discredited” commission? While the UPR is capable of improvement, it has generally been praised as a jewel in the council’s crown, which clearly distinguishes it from the commission.

Nevertheless, many of the same criticisms arise as were levelled at the commission. Some of its members, now and in the past, have terrible human rights records. After all, while Libya was suspended in 2011, one may fairly ask why it was elected in the first place?

Saudi Arabia’s leadership role is currently attracting much adverse media attention. Russia, China and Cuba are routinely elected, as was the case with the commission, though they all had to sit out 2013 as they had all served two consecutive terms. It is no coincidence that 2013 was a comparatively productive year for the council. **

Human rights criteria were mooted as prerequisites for membership back when the council was created. However, the UN’s nearly 200 members could not agree on substantive criteria, as they have different views on human rights. The US, for example, wanted only “democratic nations” to be eligible, whereas a focus on the implementation of economic and social rights might have led to the exclusion of the US itself.

Procedural criteria, such as a nation’s record on ratification of human rights treaties, would have been more objective. However, such criteria may have led to the exclusion of the two most powerful countries in the world – the US and China. As it stands, members commit to the highest standards of human rights, and countries should take into account a nominee’s human rights record when voting. But both of these rules are basically unenforceable.

Nevertheless, I believe that the membership of the council has generally been better than was the case with the later years of the Commission on Human Rights. It is notable that notorious abusers such as Sri Lanka and Belarus have sought and failed to gain election, while Syria was sensibly talked out of running in 2011. The secret ballot for council elections may be a key here, as there is a chance that a UN region will lose a seat for a year if an insufficient number of its nominees are deemed acceptable enough to be elected by a majority of the UN General Assembly.

The council is also criticised for running hard against human rights abuses in some contexts, while being notably soft in others. For example, inconsistency arose in 2009 when Israel was heavily condemned over Operation Cast Lead in Gaza while Sri Lanka was effectively praised a few months later for the end of its long-running civil war despite thousands of civilian deaths.

To be fair, the 2009 Sri Lanka resolution was possibly a nadir in the council’s operations, and it has been more proactive in responding to major human crises since, such as those in Côte d’Ivoire, Libya, Syria, Mali and the Central African Republic. It has also now adopted resolutions condemning Sri Lanka and calling for war crimes investigations. However, Australia did not support the 2014 resolution, presumably as it sought continued political favour with Sri Lanka to ensure its ongoing co-operation to stop asylum seeker boats.

A global intergovernmental body focusing on human rights is important. Such a body will always be dogged by politics, but it is important to have such a forum as countries care more about what other countries think than they do about the statements of human rights experts and NGOs. The council is that global intergovernmental body, and its evolving membership represents the world of today, warts and all.

It is doubtful that the battle for universal human rights observance will be won by adopting an “us and them” mentality which excludes significant numbers of countries even running for election for the “human rights club”. It could lead to balkanised human rights discussions, and possible competing institutions within the UN. The council must be a forum where non-like-minded countries can talk to each other and cross divides (as does happen on occasion) to make important human rights decisions.

Australia and the council

Australia is seeking a three-year term from 2018. It is competing with France and Spain for two WEOG seats. Will Australia be elected?

It is impossible to predict; much water will flow under the bridge before the election in 2017. Widespread praise for the role Australia ultimately played as a Security Council member indicates a reasonable amount of goodwill towards us. Clearly, France and Spain have the advantage of being members of the European Union, meaning they likely have a solid bloc of votes locked in.

On the other hand, Australia benefits from being seen to represent a different region than the always-well-represented Europe. Australia could for example try to position itself as a champion of the Pacific nations, and we will no doubt use the eternal narrative that “we punch above our weight”. Furthermore, the EU has frankly been dysfunctional in its lobbying efforts on the council, due to its slowness in being able to pin down a position among its own members.

Australia’s own human rights record will be of relevance to nations in deciding how to vote. Australia’s upcoming second UPR on November 9 will enable us to see what their major concerns are.

Australia has significant and well-known human rights problems, for example concerning asylum seekers, onshore and offshore detention, Indigenous people, violence against women and counter-terrorism laws. Here, I will focus on issues which have the capacity to undermine Australia’s reputation for cooperation with the UN.

One concern will be the Abbott government’s hounding of Gillian Triggs, the president of Australia’s Human Rights Commission, as those attacks do not sit well with the single resolution that Australia routinely co-sponsors before the council – that concerning the importance and independence of National Human Rights Institutions. However, it is likely that the government’s open hostility towards Triggs will soften under new Prime Minister Malcolm Turnbull.

Of great concern will be Australia’s attitude to its direct engagements with UN human rights bodies. We do not have a good record of implementing the findings of the UN treaty bodies, which have found Australia to be in breach of international human rights law more than 40 times.

In March, the UN Special Rapporteur on Torture, an independent human rights expert who is appointed by and reports to the council, found that Australia’s treatment of asylum seekers contravened anti-torture standards. Then-prime minister Tony Abbott petulantly responded that Australia was “sick of being lectured to” by the UN.

Only this week, the Special Rapporteur on the human rights of migrants postponed his official trip to Australia as the government could not guarantee that he could receive information from people about the offshore detention centres without those people suffering legal reprisals under the Border Force Act.

If Australia’s reputation for non-co-operation with the UN continues to grow, its council bid could and should suffer.

Conclusion

Australia has a long and proud history with regard to human rights and the UN. Herbert Vere Evatt oversaw the adoption of the UDHR in 1948 as the president of the UN General Assembly. Distinguished Australians have served on the UN treaty bodies (for example, Elizabeth Evatt, Ivan Shearer and Ron McCallum) and as Special Rapporteurs (for example Philip Alston is the current Rapporteur on extreme poverty and human rights).

It is appropriate for Australia to continue that history of leadership and engagement by running for the Human Rights Council. It is a flawed body, but a necessary one.

Australia’s road to election in 2018 will however be tough. A good faith attitude to our upcoming UPR and the resultant recommendations, as well as efforts to redress our considerable human rights failings, will help in that regard.


**The sentence on Saudi Arabia was added a few minutes after posting, due to the topicality of that issue.

The Conversation

Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash University

This article was originally published on The Conversation. Read the original article.