INTERNATIONAL LAW - A TECTONIC CHANGE IN THE LEGAL SCENE

Michael Kirby*

          Australia's wealthiest man (if we now omit our erstwhile citizen Rupert Murdoch) is Mr Kerry Packer.  When he almost died of a heart attack a few years ago, he went through a near death experience.  Upon his recovery he declared that he had been to the "other side" and that there was "nothing there".

          Well, I have been to the "other side" of international law.  There is a lot there.  If it does not quite measure up to one's aspirations about heaven it cannot properly be described as hell either (except for the occasional bureaucratic experiences). 

          I cannot speak about the great disputes of international politics which capture the headlines.  Instead, I want to describe the engineroom of international law.  Down with international agencies and national courts in which, today, lawyers and judges increasingly witness the influence of international law.  This is where I have seen the "other side".  It is where one finds not a few angels and secular saints who have a deep commitment to building a better world based on respect for universal human rights and the rule of law. 

          For me, it all began when I was chairman of the Australian Law Reform Commission twenty-five years ago.  The Commission was required by the Federal Attorney-General to prepare a report for the Australian Parliament on privacy protection.  Shortly afterwards I was elected chairman of a group of the Organisation for Economic Cooperation and Development (OECD).  This body prepared international guidelines on privacy protection. Eventually most OECD countries, including Australia, accepted these guidelines as the basis of their laws on privacy.  So I saw the highly practical way in which an international legal project prompted by interactive global technology could assist and influence local law-making.

          Subsequently, I have taken part in many international law projects, in the World Health Organisation, UNAIDS, the International Labor Organisation and the UN Development Program.  Most recently I joined the International Bioethics Committee of UNESCO.  This body has been grappling with some of the most difficult legal and ethical questions confronting humanity, including the quandaries presented by genetic science.  The difficulties of securing an agreed response to problems such as human cloning or patenting of life forms in a world of so many different religious and other viewpoints is not to be under-estimated.  But science has the potential to affect the very future of the human species.  It requires an international response.  In due course these will be to binding rules of international law.

          Between 1993 and 1996, as Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia, I saw the way the United Nations can stimulate, cajole and encourage local law and practice to conform with international human rights treaty obligations.

          Let no one say that the United Nations is only made up of time servers.  With my own eyes I have seen the dedicated and idealistic servants of international human rights law, often working in trying and even dangerous situations.  Their work goes on every day.  It is a salutary requirement that the autocrats of the world and their representatives must come before the bar of the United Nations and answer to charges of infractions of international human rights law.  There is progress in that fact alone.

          The Australian government has recently initiated a review of Australia's participation in six United Nations committees which oversee human rights treaties.  That review has followed criticism of Australia in a UN committee in respect of mandatory sentencing laws applicable in Western Australia and the Northern Territory.  Being subject to UN treaty obligations can sometimes be uncomfortable.  But in a closely inter-related world we can all learn from each other about the way we handle human rights.  Australia is no exception.

          If one were to look to the growth areas for the application of fresh thinking about international human rights norms in the decades immediately ahead, they would certainly include sexuality.  A judge of Australia's highest court (Justice Michael McHugh) has suggested, in one of his judgments, that the "marriage power" in the Australian Constitution, although originally referring only to marriage between a man and a woman for life, may in today's world, be read more broadly to include a federal legislative power to enact laws with respect to same-sex unions.  Of course, having the constitutional power is one thing.  Having the political will is another.

          A second growth area is surely in the field of drug use and drug dependence.  I suspect that in twenty years we will look back on the current national and international response to the problems presented by drugs of addiction with something like the shame we now feel for the way national law dealt with homosexuality a few years ago.

          So far as the application of international law by the judges in Australia is concerned, it has been said, accurately I believe, that the High Court has been "very cautious in its embrace of international law; it has kept its gloves and hat on at all times".  If, occasionally, as a judge, I have lifted my hat to pay passing respect to international law, it is  because my experience over twenty years has brought me into close familiarity with the operations of international law and international institutions - especially in the field of human rights.  International law is by no means foreign to lawyers of the Anglo-American legal tradition.  Most of the great international treaties on human rights were written by lawyers of our tradition.  So they are not alien to us.

          No sitting of the High Court now passes without some relevant international legal principle being considered in connection with an Australian legal problem.  A lot of cases come before the court concerning the Refugees Convention because, in Australia, we have incorporated into our national law the UN definition of "refugees".  Beyond this, important questions are regularly presented to our courts concerning extradition law, the Convention on Child Abduction, the international patent protection regimes, various conventions of the International Labor Organisation, the Closer Economic Relations Treaty between Australia and New Zealand and so on. 

          Even if judges today were personally disinclined to acknowledge the burgeoning growth of international law, their ordinary judicial duties would increasingly require them to face up to the realities that come with global transport, interactive technology and international problems.  International law is no longer a concern of diplomats and nations.  The global economy and the global village have brought international law into courtrooms at every level.

          An element of self-satisfaction and even a sense of superiority has never been far from our legal traditions.  Now, lawyers everywhere must live in the reality of a world in which international law has a large and growing part to play.  But the base question remains:  Will today's lawyers have the insight and imagination to recognise the tectonic changes that are taking place?



*     Justice of the High Court of Australia who yesterday in Sydney opened the Joint Meeting of the American Society of International Law and the ANZ Society of International law.