GLOBAL MOVES TO LEGAL PROTECTION OF HUMAN RIGHTS

Most countries of the world either include in their written Constitution a charter of basic human rights or (like New Zealand¹and lately the United Kingdom²), they have a statute-based bill of rights to be used in construing other legislation and otherwise advancing protection of fundamental human rights. Australia is now one of the few countries which has neither of these systems, although there is a high level of human rights respect, often protected by specific legislation, judicial decisions and constitutional interpretation³. Every lawyer, in his or her own jurisdiction, will be generally familiar with these legal rules. In appropriate cases, they may be invoked to protect a client's rights and thereby to defend human rights more generally.

Apart from the proliferation of newly minted national constitutions, in newly independent States emerging from colonialism, a distinct feature of the past fifty years has been the establishment, and growing influence, of regional bodies protecting human rights⁴and of international institutions which play a part in the implementation of global human rights standards and the elaboration of international human rights jurisprudence.

The European Court of Human Rights and the Inter-American Court of Human Rights are the most notable of the regional bodies. In February 1998, African Ministers, meeting under the auspices of the Organisation of African Unity endorsed the text of a protocol for the creation of an African Court of Human and People's Rights⁵. Only my own region of the world, Asia and the Pacific, has proved recalcitrant in the face of this global movement.

So far as the international institutions for the defence of fundamental rights are concerned three stand out. The first is the Human Rights Committee of the United Nations, established under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The second is the Commission on Human Rights, established under ECOSOC, to consider human rights issues and receive reports on human rights concerns. The third institution comprises the Special Rapporteurs and Special Representatives, appointed by the Secretary-General of the United Nations or elected by the Commission on Human Rights. Some of these officials investigate and report upon thematic subjects (as does the Special Rapporteur on the Independence of the Judiciary or on the Rights of Women or on Children's Rights). Others report on human rights concerns in particular countries. For a time⁶, I served as Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia. In that capacity, I reported to the United Nations twice yearly: in April in Geneva to the Commission on Human Rights and in November in New York to the General Assembly. The members of the Human Rights Committee and virtually all of the Special Representatives and Rapporteurs are lawyers. Skills in legal analysis, in sifting facts and finding infractions and in presenting observations about unfair practices and procedures explain why lawyers dominate these fields of endeavour. In reports of t his kind on these topics they have few equals.

As a result of the case decisions of the European Court of Human Rights, countries found in breach of their obligations under the European Convention on Human Rights are obliged to bring their laws into conformity. So indeed they do. In 1989 in Norris v Ireland⁷, the European Court of Human Rights, following an earlier like decision in Dudgeon v United Kingdom⁸found that Senator Norris, by being exposed to criminal law penalties rendering him liable to punishment for consensual adult homosexual conduct in private⁹had suffered a violation of his rights to respect for his private life. As a consequence, Ireland in 1993 reformed its criminal law. It abolished the old offences and set a non-discriminatory age (17) for lawful sexual conduct of whatever sexuality. Not pie in the sky. Practical human rights achievements secured, in large part, by political agitation, community activism and good lawyering. One of Senator Norris's counsel was Mrs Mary Robinson SC, later President of the Irish Republic and now the United Nations High Commissioner for Human Rights.

Australia is not a party to the European Convention and there is no applicable regional treaty. But Australia did subscribe in 1993 to the First Optional Protocol to the ICCPR. This action led to a prompt complaint to the Human Rights Committee against Australia brought by Mr Nicholas Toonen. He, and Mr Rodney Croome, were homosexual citizens of Australia living in Tasmania. It was the last Australian State to preserve laws criminalising adult consensual private homosexual conduct. With the aid of lawyers, the Toonen/Croome complaint was prosecuted before the Committee which found in their favour¹⁰. The Committee rejected the suggestion that moral issues were exclusively a matter of domestic concern¹¹. It stated that if this were so it would "open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy". It concluded that the provisions of the then Tasmanian law¹², which the Parliament of Tasmania had failed to repeal, arbitrarily interfered with Mr Toonen's right to privacy under Article 17.1 of the ICCPR. The Committee called for a prompt report of action from the State party (Australia) as to the measures taken to give effect to its views¹³.

The Australian Federal Parliament did not enjoy general constitutional power to enact laws with respect to crime in the State of Tasmania. But it did enact the Human Rights (Sexual Conduct) Act 1994 (Aust). This provided that "sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law to any arbitrary interference with privacy within the meaning of Article 1 of the [ICCPR]". This provision defined an adult as a person who is 18 years old or more. The legislation, and the Human Rights Committee, were criticised from many angles by Australian commentators¹⁴. Further litigation ensued to test the State legislation in the light of the operation of the federal Act. The Tasmanian Parliament ultimately repealed the old laws. Lawyers and lawyer-led civil liberties organisations prosecuted and led the challenges in the courts to the Tasmanian legislation¹⁵. With the help of good lawyering, changes were achieved in the legislation and, perhaps even more important, in community attitudes. Not pie in the sky. Practical human rights protection.

In the United Kingdom, there have been many cases in the courts in recent years, calling on the principles in the European Convention and on the ICCPR designed to effect and secure decisions of the common law or of statutory interpretation in tune with fundamental human rights. The issues considered have ranged from those related to the discharge of military personnel on the grounds of their sexual orientation¹⁶, the construction of prison rules relating to correspondence between a prisoner and his solicitor¹⁷; the public disclosure by police of names and addresses of persons who have been convicted of sexual offences against minors¹⁸; the entitlement of criminal accused to confront witnesses giving evidence against them¹⁹; the rules governing mandatory life sentences of imprisonment²⁰; and laws impinging upon legitimate freedom of expression²¹.

Fifty years ago, in England, the Lord Chancellor, Lord Jowitt, described the European Convention of Human Rights as a "half-baked scheme" which was "administered by some unknown court"²². With the recent moves to incorporate the Convention into the domestic law of the United Kingdom²³it will fall to United Kingdom lawyers and United Kingdom judges in the first instance, to give meaning to fundamental human rights. They will be obliged to approach the Convention as a "living instrument" to be "interpreted in the light of present day conditions"²⁴. This is an exciting moment for the law of the United Kingdom and a big challenge for its judges and lawyers. One of them has expressed quite bluntly the need for a radical change to the approach to statutory interpretation which has been followed until now; another to the need for a change of the legal culture²⁵.

A similar resort to international law, including in the context of fundamental human rights, has been occurring in the New Zealand courts²⁶. Even in the United States of America, the last bastion of perceived human rights self-sufficiency (with the developed jurisprudence of the US Bill of Rights now two centuries old) has begun to feel the growing influence of international human rights law. On 12 December 1998, the United States Supreme Court issued a stay order for the execution for Joseph Stanley Faulder, less than 30 minutes before he was scheduled to die by lethal injection in Texas. The prisoner had been on death row for 21 years following the brutal killing of an old woman, an act which he never denied. The point in issue is that Mr Faulder was a Canadian citizen. This was something he had not mentioned to Texas officials at the time of his arrest. After many other legal arguments were found to be without merit, Mr Faulder's lawyers argued that his conviction had violated the Vienna Convention on Consular Relations . This obliges signatory States, when they arrest a foreign national for a serious crime, to notify the nearest consulate of the national's home country. Canadian officials were not notified in the case until 1991.

The Supreme Court's intervention in the Faulder case was noteworthy because, earlier in the same year, lawyers for a Paraguaian national (Angel Breard) appealing against his death sentence in Virginia, persuaded the government of Paraguay to file a claim against the United States in the International Court of Justice in the Hague. That claim was based on the failure of the Virginia officials to notify the Paraguayan consular officers before or at the time of the trial of Mr Breard. The International Court asked that the execution be postponed whilst the matter was considered. Secretary of State Albright pleaded for the State of Virginia to do so out of respect for international law. Virginia refused. The United States Supreme Court declined a last minute request for its intervention. Yet in Mr Faulder's case, the Court ordered that his execution should be postponed to permit time for the issues to be considered.

"At the beginning of 1998, a UN Special Rapporteur issued a report condemning the United States for racist and abusive applications of the death penalty An Amnesty Report on human rights abuses in the United States, issued in 1998, devotes an entire chapter to abuses on the death penalty which it asserts be contrary to international law. The United States has been a hold out against many sorts of grand international ventures in this century - from the League of Nations to the Law of the Sea Treaty, from the Children's Rights Convention to the International Criminal Court. This is not a world that any of the American Founders looked back on with nostalgia. But it seems to appeal very much to the champions of global civil society. It remains unclear whether the Constitution can still keep the United States from joining it".

An important movement which has been occurring in the courts of domestic jurisdiction in many countries of the common law needs to be mentioned in this context. I refer to the movement which has grown out of a series of conferences amongst leading judges of common law countries. This series has been sponsored by the Commonwealth Secretariat in London and by Interights, the International Centre for the Legal Protection of Human Rights also based in London. The first meeting in the series was held in 1988 in Bangalore, India.

I attended the first Bangalore meeting, as did the Honourable Ruth Bader Ginsburg. Neither of us was at that time a member of the ultimate court of our country. I went to the meeting with the usual predilection of a lawyer brought up in the dualist school which teaches the strict divorce between domestic and international law²⁸. The meeting adopted the Bangalore Principles²⁹. According to these principles³⁰:

"There is a growing tendency for national courts to have regard to these international norms [of human rights] for the purpose of citing cases where the domestic law whether constitutional, statute or common law - is uncertain or incomplete. It is within the proper nature of the judicial process and well established judicial functions for national courts to have regard to international obligations which a country undertakes - whether or not they have been incorporated into domestic law - for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law".

When I returned to Australia, convinced that the Bangalore Principles provided a means of helping to reconcile the growing body of international human rights law and domestic law, I was met with scepticism on the part of most members of the legal profession. I faced a view on the part of some of my judicial colleagues that I was indulging in legal heresy³¹. So it remained for a time. But in one of the most important decisions of Australia's highest court in recent years, in which the land rights of the indigenous Aboriginal peoples were recognised for the first time by the common law, Justice F G Brennan (later Chief Justice of Australia) perceptively outlined the growing influence which international law in the field of human rights would inevitably have on the development of Australia's domestic common law³²:

"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights, brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration".

Although this is probably the clearest statement in an ultimate court of the Commonwealth of Nations of the way in which (as the Bangalore Principles had taught) international human rights law will increasingly come to influence domestic judicial decisions, there are other like statements in several other countries. These include the United Kingdom³³, New Zealand³⁴and later decisions of Australia³⁵.

This is not to say that, especially in federal countries where power is divided and in societies where the Executive subscribes to treaties which may or may not have legislative backing, care must not be taken to respect the separate constitutional law-making roles of the several actors in the law-making drama. But there can be little doubt that the process set in train by the Bangalore Principles will continue to have its impact on the legal systems of the world, especially those which follow the common law methodology. In my own Court, in a case concerning the law on compulsory acquisition of property by federal authorities³⁶and another case concerning the race power³⁷, I have suggested that constitutional interpretation will also, in contemporary conditions, legitimately embrace the Bangalore approach³⁸:

"Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of fundamental rights rather than an interpretation which would involve a departure from such rights. Australian law, including its constitutional law, may sometimes fall short of giving effect to fundamental rights. The duty of the Court is to interpret what the Constitution says and not what individual judges may think it should have said. If the Constitution is clear, the Court must give effect to its terms. Nor should the Court adopt an interpretive principle as a means of introducing, by the back door, provisions in international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law. However, the inter-relationship of national and international law, including in relation to fundamental rights, is 'undergoing evolution' [I]nternational law is a legitimate and important influence on the development of the common law and constitutional law, especially where international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia's Constitution, as the fundamental law of government accommodates itself to international law, including in so far as that law expresses basic rights".

More recently, I put it this way³⁹:

"[T]he Australian Constitution which is a special statute, does not operate in a vacuum. It speaks to the people of Australia. But it also speaks to the international community as the basic law of the Australian nation which is a member of that community. If there is one subject upon which the international law of fundamental rights resonates with a single voice it is the prohibition of detrimental distinctions on the basis of race".

Many and varied have been the instances where the international norms of fundamental human rights, and the jurisprudence which has gathered around those norms, have been invoked in court decisions in Australia involving ambiguities in legislation or gaps in the settled principles of the common law. We now have a new source of intellectual stimulation to nudge our municipal law in a direction which conforms to fundamental human rights. This is a movement wholly in keeping with the forces of globalism and regionalism that are at work at an economic level and in technology. The question is whether the law and its practitioners can keep up.

The Bangalore Principles, when first formulated, recognised that the whole burden of this change of thinking cannot be left to the judiciary alone. Sometimes individual members of the judiciary, or even perhaps a majority of judges, may be resistant to new ideas of this kind. It will depend upon lawyers in their advocacy to press forward the universal norms. In 1988, the judges meeting in Bangalore observed⁴⁰:

"It is essential to redress a situation where, by reason of traditional legal training which has tended to ignore the international dimension, judges and practising lawyers are often unaware of the remarkable and comprehensive developments of statements of international human rights norms. For the practical implementation of these views it is desirable to make provision for appropriate courses in universities and colleges, and for lawyers and law enforcement officials, provision in libraries of relevant materials, promotion of expert advisory bodies knowledgeable about developments in the field; better dissemination of information to judges, lawyers and law enforcement officials; and meetings for exchanges of relevant information and experience".

In pursuance of these objectives, the Commonwealth Secretariat, Interights, the International Commission of Jurists, IBA and other bodies have been assiduous in promoting knowledge of the Bangalore movement and its lessons. The meeting in 1988 has been followed by a succession of similar meetings⁴¹. The most recent such meeting, held in Bangalore in December 1998, reviewed the progress which had been made. A key provision in the 1998 statement repeats the fundamental idea of the series⁴²:

"It is the vital duty of an independent, impartial and well-qualified judiciary, assisted by an independent, well-trained legal profession, to interpret and apply national constitutions and ordinary legislation in harmony with international human rights codes and customary international law, and to develop the common law in the light of the values and principles enshrined in international human rights law".

One point made in the 1998 statement needs to be brought home to practising lawyers. It is the indivisible inter-relationship of economic, social and cultural rights with the more familiar categories of civil and political rights that lawyers know well⁴³. A glance at the large number and wide variety of cases throughout the world where courts have been persuaded to adopt the approach of the Bangalore Principles should reinforce practising lawyers in every jurisdiction in a determination to enter the new millennium with a new legal principle that will help their legal systems to a more harmonious relationship with international human rights law⁴⁴. This is an exciting change. It requires a leap of imagination and a new way of thinking on the part of our judiciary and lawyers. It needs a new legal and judicial culture. There is no doubt that this will occur in every jurisdiction in the coming century. But in every jurisdiction there is a need for judges and lawyers who will act as change agents as the old thinking is discarded and new approaches taken which acknowledge the growing impact of international human rights norms on domestic law. the tide is coming in. It cannot be reversed. OTHER WAYS OF ACTING So far I have been concerned to describe the way that lawyers in court rooms may influence decisions by helping to ensure that they conform to human rights standards. Not every case will present a human rights question. Not every case which does so will permit of a solution that conforms to the applicable international jurisprudence. The law may be clear. Constitutional doctrine may be settled. The legislation may be unambiguous. The precedents of common law may be unarguable and binding.

But lawyers, including judges, are not confined to the courtroom. Most legal problems never end in a contested trial. That still leaves a great mass of lawyerly activity to be influenced by human rights principles and attitudes. Attitudes of respect to the dignity of clients, including prisoners, opponents and the clients of opponents. Attitudes of respect to other human beings outside the legal office. Respect for legal colleagues and court officials.

Lawyers can contribute to the advance of human rights, and community education in human rights, by involving themselves in civil society organisations. This includes involvement in bodies of lawyers such as the IBA, the ICJ, the International Lawyers' Group and so on. And bodies which lawyers have helped to found and to flourish, such as Amnesty International, the Human Rights Watch organisations, the United Nations Association and so forth. It may be that judges have to be more careful in participating in such organisations, lest demands are made that they recuse themselves from participating in cases for ostensible bias⁴⁵. However that may be, such limitations do not affect the practising Bar. They should not affect most judges in most circumstances. It has long been traditional and accepted for judges to be associated, in proper ways, with bodies of lawyers and other citizens concerned with human rights and the rule of law.

When, at home, the fundamental rights of individuals are breached, it is the duty of lawyers to lift their voices. And they should always remain alert to the fact that the catalogue of human rights is not closed. When I was a young lawyer, few indeed were those, including in the legal profession, who spoke up for the fundamental rights of women, of blacks and Asians and of Aboriginal Australians. Absolutely no one spoke up for the fundamental rights of homosexual, bisexual and trans-gender people. We must learn from these silences of the past to be alert to the contemporary issues of human rights which, because of our mindset, we may not see clearly enough. The human rights of people living with HIV/AIDS. The human rights of drug dependant people, occasional small users and the families of these citizens. The human rights of people with so-called "defective" genes. The human rights of all to privacy in cyberspace.

It is the responsibility of every lawyer in the contemporary world to keep abreast of developments in human rights and of the challenges which abuses of human rights present in every land. Judges and practising lawyers in Northern Ireland will undoubtedly face many challenges in the years immediately ahead. But I have no doubt that they will face these challenges with integrity and great legal ability. The purpose of this contribution is to provide a setting for the developments of human rights law in Northern Ireland. These are global changes. No jurisdiction on earth will be immune from them.