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The Transformation
of International Law
Darryn M. Jensen
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‘The
task of building a world community is man’s
final necessity and possibility, but also his final impossibility.’
—Reinhold Niebuhr, The Children of Light and the Children of Darkness (1944)
International law has long had its critics. In theory, it
provides an indispensable framework for the stable and orderly
conduct of international relations, a framework created by
states to serve their collective interests. But in practice
the ambit of international law has become so broad that it
now poses a threat to liberal democracy as international
legal regimes come to apply directly to individuals through
links with domestic courts.
International
law or the ‘law of nations’ has undergone
a notable transformation over the past three decades. Thirty
years ago, a discussion of international law could have
been confined to issues affecting the relations between
governments
of different states. British legal scholar Michael Akehurst
began the second edition of his textbook on international
law (published in 1970) by defining it as ‘the system of
law which governs relations between states.’1 While
Akehurst acknowledged that private organisations, corporations
and
individuals might sometimes have rights and obligations
under international law, he insisted that international
law ‘is
primarily concerned with states.’2
Akehurst
had a number of reasons for limiting his definition of
international law in this way. As he put it, there are ‘certain
ideals which are regarded as desirable but not always
practicable’,
and cannot be treated as rules of law ‘because violations
are too common to make enforcement practicable.’3 Akehurst
mentioned ‘human rights’ as an example of such an ideal. This concession,
coupled with recognition that the United Nations is ‘a political body,
not a judicial body’,4 provided
the foundation for a modest account of the ambit of international law.
International
law, according to this account, consists largely of custom—that
is, those norms of conduct in international relations that states obey
habitually and that enable those states to co-exist in relative peace
and harmony. Those
norms of conduct correspond with and provide the content for rules of
law. This law is ‘international’ because it is concerned
with rights and duties that states have towards one another
(as opposed to duties that states
have towards their citizens and that citizens have towards one another).
International
law, so understood, has been largely created by the actions
of states.5 That
law is not static. Its content is being constantly refined, for
novel situations can arise that may justify a state’s contravention of
a norm of conduct or generally-accepted rule, and that may set a precedent
for similar
action by other states confronted by similar situations in the future.6 The content of a rule that a state shall not engage in warfare against
another
state except for the purpose of self-defence is not static because a
novel threat to the security of a state or the safety of its citizens,
which had
not been imagined previously, might require a reassessment of what is
encompassed by the concept of ‘self-defence’.
The
practice of organisations such as the United Nations, insofar
as those organisations represent
states acting in concert, may significantly
affect
the evolution of the rules of international law.7 But
these organisations do not sit above the nations of the world.8 Akehurst
regarded the United Nations,
in particular, more as a forum for cooperation and coordination between
states than as an international legislator or adjudicator.9 This highlights
an important
feature of the law of nations. A norm becomes law because states come
to believe that adopting that norm of conduct is in their own interests.
Its status as
law does not depend upon a central authority commanding that the norm
be adopted and enforcing compliance with that command.
It is
no longer possible to confine a discussion of international
law to relations
between states.
Sir Anthony Mason, a former Chief Justice of the
High Court
of Australia, has referred to ‘that strong continuing trend in domestic
legal systems to reflect rules and regulatory regimes that are international,
regional
or transnational in character.’10 Sir
Anthony drew a sharp contrast between what he described as the ‘old’ and ‘new’ international
orders. The old international legal order was ‘confined to the regulation
of the interests and conduct of nation States and their representatives
in limited matters of mutual concern’ (such
as ‘war and neutrality, extradition, diplomatic matters, shipping,
trade and postal co-operation’).11 The
new international order was heralded by the proliferation of international
conventions on a
wide variety of topics. Sir Anthony referred, in particular, to the
adoption
of conventions
on human rights:
Perhaps
more than any other conventions, they seek to regulate
conduct between State and citizen and between
citizen and
citizen. In that respect, they formulate
universal standards with which nation States are obliged to comply
and enforce compliance. These human rights conventions
marked
a new willingness to formulate
universal standards for general adoption by nation States on matters
which previously would have been thought to lie within
the province of national autonomy.12
The
international legal order is no longer concerned merely
with the rules
and norms that govern relations
between
states. Anything that a
number
of states may agree to make the subject-matter of international
law can become binding
upon those states, even if it relates exclusively to what rules
shall govern the relationships between individuals
within the boundaries
of those states.
International conventions about ‘human rights’ would fall into
this category. A state’s obligations under the International
Covenant on Civil and Political Rights 1966 have nothing to do
with the
state’s dealings with other states.
The subject-matter of these obligations is largely domestic.
The covenant imposes an obligation upon a state party to ensure
that
its domestic law protects individuals
from infringements of their ‘rights’.13 This ‘law’ is ‘international’ only
in the sense that it relies upon an agreement between states
to provide it with whatever moral authority it has. The ultimate
aim
of international
conventions
concerning rights is to change the rights and obligations of
individuals under domestic law.14 The
imposition of obligations upon states
is merely a means
to that end.
It is appropriate to refer to this law—as Sir Anthony did—as ‘transnational’ to
distinguish it from the traditional ‘law of nations’ content
of international law. Sir Anthony acknowledged that supra-national
decision-making on matters
affecting domestic law has the capacity to undermine democratic
processes within the nation state,15 but
he placed the onus upon individual states to ensure
that ‘national democratic decision-making processes’ are able
to ‘play a part’ in
the making of treaties and other international agreements.16 Similarly,
he suggested that it is ‘extraordinary’ that an Australian complainant
must go to an international body in order to raise a complaint
against the Australian
government, but he laid the blame for this anomaly at the feet
of the Australian government for ‘failing to provide a mechanism
for adjudication in the national legal system’.17 The
claim that these human rights conventions make to the allegiances
of states
and their citizens was not seriously questioned.
A disturbing
feature of the new ‘transnational’ law is that
it turns the relationship between norms and law on its
head. Whereas the content of the law of nations
emerges from the norms of conduct that are actually observed
by nation states in their dealings with one another (and
its legitimacy as law is based upon
observance by most nation states most of the time), the new ‘transnational’ law
consists of agreements to change domestic norms of conduct.
While a principle may become ‘international law’ by being articulated
in a treaty or convention, state parties may have to take further
action to ensure that the requirements
of the principle become a norm of conduct within their respective
territories—that
is, a matter of habitual obedience on the part of most states
and their citizens.18
The
Convention on the Rights of the Child, which has been widely
ratified, is a good example of this phenomenon. Two features
stand out. First,
there is a catalogue of very broadly-defined entitlements,
which all children are supposed to have.19 Second,
there are numerous acknowledgments
that action
by individual
states is necessary to provide those entitlements20 and
that state action will often have a central role
a part
in determining
the
precise form of those entitlements.21 These
principles are not strictly matters of ‘international
law’ but
rather aspirations formulated in an international
forum, which may then be used
as a basis for political claims in each individual
nation state.
The
use of the ‘international law’ label
to describe conventions sponsored by the United
Nations has led to the growing assumption that
such multilateral
agreements constitute the only legitimate source of law
in the international legal order. Such a view places
the United Nations at the pinnacle of a transnational
legal order, which in turn derives its legitimacy from ‘the
will of the international community’. This ‘will’ is revealed
primarily through the deliberations of United Nations institutions.
Such an understanding
of international
legal order
has acquired a degree of respectability among some Western
opinion leaders. The President of France, in an address
to the United Nations General Assembly
in September 2003, said:
In
an open world, no one can live in isolation, no one can
act
alone in the name of all,
and no one can accept
the anarchy
of
a society
without rules.
There is no alternative to the United Nations . .
. Multilateralism is the key, for it ensures the participation
of all in
the management of
world affairs.
It is a guarantee of legitimacy and democracy,
especially in matters regarding the use of force
or laying down
of universal
norms.22 (italics
added)
This
view regards ‘universal norms’ as
the product of the will of a representative body rather
than as the product of the regularities of conduct
adopted by nation
states. A similar attitude can be found in the reasoning
of the prominent Australian judge and human rights
campaigner, Michael Kirby. Justice Kirby has suggested
that the extension of human rights in the international
sphere requires us to ‘redouble our effort to secure
the subscription by all countries to the international
treaties on human rights’23 and
to bring ‘the principles
of fundamental rights and the tablets in which they
are enshrined in international instruments
down to application in ordinary cases in the courts
in all parts of the world.’24
The customary law and democratic processes of individual
nation states are being called to accede to the demands
of the ‘will’ of the
so-called international community.
The
dilemma for liberals
The transformation of international law presents a
dilemma for liberals. It is certainly a liberal
aspiration that people in all parts of the world
should
enjoy a generous degree of political, economic and
social freedom. This aspiration can be stated in
negative terms—that is, liberals wish to eliminate the
arbitrary use of power.25 The
coercion involved in a system of law based upon community
custom is non-arbitrary because the rules of that
system reflect what most of the people do most of the
time and are grounded in a broad consensus about
what is just. Those who are required to obey such
rules do so through ‘internal’ volition.
Rules that are not grounded in custom, but abstract
reasoning as to what ought to be, are arbitrary rules
that require some people to accede to the will of
others. Insofar as these rules are backed by coercive
measures, the volition to obey is purely ‘external’.
The
human rights agenda sponsored by the United Nations fails
the test of non-arbitrariness in two main ways.
First, the
United Nations
does
not represent people but rather
states.26 United
Nations delegates (including those from democratic
nations) are not directly accountable
to the
citizens of the
nations which they
represent. Their ‘world’ is populated by other
UN delegates, UN bureaucrats and lobbyists
from various transnational non-government organisations
(NGOs), and it is from
these people (apart from their own
governments) that they are most likely to take
their cues.
It is
difficult to see why the pronouncements of an organisation
comprised of states about
the rights and
freedoms of
individuals should necessarily be
accorded any greater legitimacy than the outcomes
of the legal and political processes in the
individual nation
states in
which the affected people
live and (hopefully) vote. Ultimately,
it is the
interests of states and the representations
of those NGOs sufficiently well-resourced to
have their
voices heard in UN fora which inform the
deliberations of
the UN.
While domestic politics in nation
states may also be influenced and captured by
interest groups, the distance between decision-makers
and the governed
is
smaller so greater scrutiny
and accountability can be expected.27
Second, ‘human
rights’ is a malleable concept.
Western liberals tend to understand
human
rights as individual claims to
a domain of freedom defined in
negative
terms—that one’s body, speech, religious worship
or economic activity not be subjected to undue
interference. The governments of developing
nations, many
of which are anything but model liberal democracies,
have managed to use their voting power in the
United Nations to move the human rights agenda
away from
the protection of traditional Western-style
individual rights towards the recognition of ‘collective
rights’28 and ‘positive
economic and social rights’.29
This
appropriation of the language of rights to assert group-based
or nation-based
claims
against
other
groups or nations represents
a fundamental
shift in
human rights rhetoric. A right of ‘peoples’ to ‘self-determination’30
is less concerned with the domain of freedom
to be enjoyed by individuals than with a
group’s
right to a particular type of outcome. The
pursuit of the desired outcome may involve
the appropriation of the resources of individuals
and, accordingly,
conflict with negatively-defined individual
rights.31 The
same may be said of certain ‘economic
and social’ rights assigned to individuals,
such as the ‘right’ to
work or the ‘right’ to education.
Human
rights conventions consist of potentially conflicting
claims, which reflect the contentious
social visions
of their proponents.
This is a
problem that
will hamper any attempt to enumerate rights.
The selection and definition of those rights
will necessarily
reflect
the practical
preoccupations
and ideological
leanings of the small group of people who
do the selecting and defining.32
International
law as the custom of transnational communities
A system of law that is designed from first
principles cannot hope to pass the test
of non-arbitrariness. Since different
people bring
different
experiences and perspectives to bear
upon the design task, a universally-acceptable
rational justification
for any
particular catalogue of rights and duties
is likely to
be elusive.
The
neo-Thomist philosopher of human rights, Jacques Maritain,
unlike many
contemporary
human rights
advocates, appeared
to realise this.
Maritain thought that human rights
were founded upon ‘natural law’, but suggested
that the post-Enlightenment ‘West’,
while continuing to use the language
of ‘natural law’ and ‘natural rights’,
had departed from the ancient and medieval
foundations of the idea. The post-Enlightenment
view was to accept something as being
rationally justified only when it could
be ‘traced from a ready-made, pre-existing
pattern which infallible Reason had
been instructed to lay down by infallible
Nature, and which, consequently,
should be immutably and universally
recognized
in all places of the earth and at all
moments of time.’33
The
post-Enlightenment exaltation of theoretical reasoning
differs from the view of St Thomas
Aquinas that people come
to know
natural
law through practical
reason—that is, the ability to recognise
that particular
forms of conduct are either compatible
or incompatible
with the good of the human being.34 Maritain
suggested that knowledge of natural
law was ‘first
expressed
in social arrangements rather than
personal judgments’.35 Since
awareness of natural
law is experiential
rather
than the
product of rational deduction
from
agreed principles,
the content
of the
legal order
cannot be deduced
all at once.
Other
scholars, from outside of the Thomist
natural
law tradition,
have articulated
similar
critiques of rational
construction.
The Christian
theologian,
Emil Brunner,
thought
that Christianity
must
stand
on the
side of liberalism
against
totalitarianism,
but that
it
was
bound to
oppose
a modern, rationalistic
form
of liberalism
that sought ‘to
deduce
from first
principles
of justice
a whole
system
of laws
of timeless
validity.’36
Social
custom
was a surer
foundation
for legal order, because it expressed ‘the
wisdom of the generations which
is not consciously the wisdom of
the
individuals’.37 It
was custom that engendered spontaneous
obedience
to norms of conduct that have contributed
to the well-being
of community and, in doing so,
relieved those communities of the
need for
detailed regulation of the minutiae
of daily life and the extensive
use of force to
ensure compliance.38 Brunner
thought that the post-Enlightenment
rationalists
had, by their denigration of social
custom, sowed the seeds of totalitarianism.39 A
similar emphasis upon the imperfection
and provisionality of human constructions
of justice may be found in some
of the later works of Brunner’s
American contemporary, Reinhold
Neibuhr.40
A
discussion of the 20th century
critics of rational construction
would be incomplete
without
mentioning
Friedrich Hayek. One of the central
themes of Hayek’s work was that
human beings are not omniscient
and cannot be expected to have
a detailed plan providing for
all of life’s contingencies.
Since individual humans are not
omniscient,
they need rules to guide their
choices of action.
The orderliness of their lives
and the success of the communities
to which they belong will depend
upon how well those abstract
rules are adapted to the
requirements of human flourishing.
The problem is that an exhaustive
knowledge of these requirements
and of the causal relationships
between observance of
particular modes of conduct and
the fulfilment of these requirements
is beyond the grasp of any single
human mind. Nevertheless, individuals
and groups of
individuals can learn to repeat
forms of conduct that have brought
them success in the past. These
forms of conduct are not rationally
justified, if by rational
justification one means that
it can be demonstrated beforehand
that their observance would lead
to a desirable outcome. There
is
a sense in which ‘the proof of
the pudding is in the eating’:
[Rules
of conduct] are preserved by
proving themselves useful,
but, in
contrast to
scientific theories,
by a proof which no
one needs
to know,
because the
proof manifests itself in the
resilience
and progressive expansion of
the order of society
which it makes
possible.41
The
idea that law ought to be
grounded in custom is not
a ‘conservative’ idea.
Custom, properly understood,
consists of a perpetually
evolving set of social norms.
Hayek
also contemplated that successive
generations could improve
the social norms of their
community.
This could be done ‘by
remedying recognisable defects
by piecemeal improvement
based on immanent
criticism . . . that is,
by analysing the compatibility
and consistency
of their parts, and
tinkering with
the system accordingly.’42
While criticism and revision
of social norms in the light
of particular events
is desirable,
attempts to
reconstruct an entire legal
order are not.
Maritain,
Brunner, Niebuhr and Hayek
were united in maintaining
that it
is the practical knowledge
of the
participants
in a community, as revealed
in
many
successive
human interactions, that
provides the best
evidence of what conditions
are conducive
to the orderly interaction
of the
community’s
members and,
hence, the success
of the community
as a whole. Rules
of conduct (being merely
statements of generally-accepted
norms of conduct) are
forever subject
to revision in
the light of their
successive applications
to novel situations.
The definition
of rights and duties
will always be a work-in-progress.
The
problem of international order
One would expect
practical agreement
about rules
of conduct to arise
most readily in
relatively small
communities where
all members
have frequent contact
with
one another.
Where law
is grounded in
custom,
the emergence
of community
and the
emergence of legal
order are
contemporaneous,
mutually reinforcing
events.
One
would expect an international
legal order to
be much less developed
than
national
and
sub-national legal
orders simply
because the
interaction between
people situated
in different parts
of the world is
relatively infrequent
and the
sense of belonging
to a community
of people
is less strong.
Reinhold
Niebuhr
insisted that
the problem
of international
order
is
one that
has to
be tackled
with a
dose of realism.
World
community,
he wrote,
is our ‘final
necessity’ because
history ‘extends
the freedom of man
over natural process
to the
point where universality
is reached.’43 World
community is, at the
same time, our ‘final
impossibility’ because
we are ‘wedded to time
and place and incapable
of building any structure
of culture or civilisation
which does not
have its foundations
in a particular and
dated locus.’ 44 In
other words, human
interaction on
a global scale—made
possible by technological
innovation—creates
a demand for global
order.
This
has led to the gradual
eclipse
of tribal or nationalist
religious understandings
by religions and
philosophies, which claim
to be universally
valid.45 But
while we should
embrace the possibility
of world community,
we should
take care
that
our attempts to define
the norms of this
community do not
outpace the emergence of a
real, underlying
community.
Niebuhr
thought that ‘the less a community is held together by
cohesive forces in the texture of life the more must
it be held together by power.’46 Power
takes on an importance
in world community that it does not take on in smaller
communities because the shared experience of world community
members is so
slight that it
cannot be relied upon as a basis for cohesion. Only ‘the
preponderant power of the great
nations’ could
provide the basis
for cohesion.47 If
the expansion of legal
order proceeds
hand in hand with the emergence of
community
founded upon shared
customs, the use of power can be the
exception rather
than the rule.
This
type of international legal order would differ from a rationally
constructed
order
in several
ways.
First, it would
speak less of
the ‘international
community’ and
more of ‘transnational
communities’.
These communities
need not be mutually
exclusive groups
of states
or individuals.
States and individuals
may be members
of different
communities
for different
purposes. Just
as we might understand
the nation-state
as an association
between
people who share
a common
language
and cultural
identity
for the purposes
of their mutual
security and
well-being,
we might
understand the
various
forms of transnational
interaction (which
include, but
are
not limited to,
commerce and
intellectual
exchanges
between
citizens of different
nation-states)
as providing
the germ for
the
emergence of
numerous communities
extending across
state boundaries.
Each
of these communities
would possess
its own norms
of
conduct, expressed
as either formal
rules in treaties
and commercial
contracts
or simply unexpressed
mutual understandings.
Such
norms would
enjoy legitimacy
because their
observance facilitates
orderly
interaction between
members of the
community and
because they
represent
the
opinion
of the
many rather
than the rationally
constructed
will
of the
few.
Second,
an international
legal order
grounded
in custom
avoids
centralisation
of authority.
It insists
that
problems
of coordination
between
members of a community
be addressed
within
the community
in
which the
problem
exists. One should
not seek
to
place all
problems
of
international
coordination
and order
under one authority.
This is
not to
deny that
peak international
bodies,
such as the United
Nations,
do not
have
a role
to perform,
but
that
it
should
be limited
to resolving
the
coordination
problems
that exist
among
those member
countries
represented
in
its
decision-making
processes.
The United
Nations
and other organisations
comprised
of nation-states
are proper
fora
for
decision-making
about matters
in
which the
member
states have
a mutual
interest
in their
capacity
as states
(such as
the
security
of nations
from
aggression
by
other
nations and by terrorist
organisations).
Coordination
problems
between
individuals in
different
states
should
not be part of
the brief
of
an organisation
whose membership
is comprised
of
states.
Furthermore,
disputes
between
individuals
within
the territory
of
a single
nation-state
are not
disputes
between
members
of a
transnational community,
and ought
to
be resolved
according
to the
norms
of the
community
to
which
the individuals
belong.
Whether
homosexual
acts ought
to
be
punished
or whether
a landlord
ought
to be able
to
refuse
to rent
premises
to unmarried
couples
are
matters
that
ought to
be resolved
at no
higher
level
than the nation-state
community.
It is
difficult to see
why the
rules
that
prevail
in Bangladesh
on these
matters
ought
not to
differ
from
those in The
Netherlands.
The important
thing
is that
whatever
formulation
of
rights
and
duties
is
adopted,
it reflects
the
opinion
of the
community
of
individuals
whose
rights
and
duties
are defined
thereby.
The relevant
community
may,
in
many cases,
be
a
much
smaller and more
closely-confined
community
than
the nation-state
itself.48
Third,
there
are
limits to the
universalizability
of definitions
of
human rights.
That
is
not
to say that
statements
of ‘universal’ human
rights
are
useless.
Jacques
Maritain
was
a supporter
of the
1948
Universal
Declaration
of Human
Rights,
but
he
understood
that a
statement
of
this
kind could
not be
the
final
word
on
rights
for
all
times and
places.
He
envisaged
an ongoing
discussion
about how
these
rights
could
be exercised
and
how they
could
be
reconciled
to one
another.49
Statements
about human
rights
should
be
understood
as
statements
of
aspirations.
Liberals
may
continue
to
hope that
increased
interaction
between
people
from
countries
with
relatively
illiberal
institutions
and those
of countries
with
relatively
liberal
institutions
will expose
the
former
to the
merits
of
a conception
of
rights
grounded
in individual
freedom
of
action.
If
that
process
is
to occur,
it
should
occur
because
people
from
illiberal
societies
come to
realise
that
their
institutions
(including
their
rules
of
conduct)
conflict
with
their individual
well-being
and that
of
their
community.
The
sheer
improbability
that
almost all people
in all
places
will
be able
to
agree
upon
definitions
of the
rights
of
individuals
in relation
to
all
matters
is
reason
enough
to be
modest in
our attempts
to establish
a transnational
legal
order.
It
is
unfortunate
that
the customary ‘law
of nations’ and
international
conventions
on human
rights
have
become
merged
in one
category
called ‘international
law’,
which
has become
the province
of the
United
Nations.
It is
time
to
end the confusion.
The
definition of the
rights
and
duties of states
in
their dealings
with
other
states
falls
properly
within
the
realm of international
organisations
comprised
of
states. The definition
of
the rights
and
duties of individuals,
if
it
is not
to
be
arbitrary, depends
upon
those
definitions
reflecting
the
opinion of
the
community to which
those
individuals
belong.
The
pronouncements of
the
community of nations—as
represented
by the
United
Nations—should
not be
and cannot
be the
final
word
on that
matter.
Endnotes
1 Michael Akehurst, A Modern Introduction to International
Law, 2nd edition (London: George Allen & Unwin, London,
1970), p.9
2 Akehurst, p.9. The word 'state' is used here to describe
the government of a nation, as opposed to the nation as a
group of individuals.
3 Akehurst, p.12
4 Akehurst, p.15; See also Akehurst's observation (p.98)
that 'human rights' commitments undertaken by states 'are
expressed in such vague and idealistic language that it is
uncertain whether they enunciate legal obligations at all,
as distinct from merely moral aspirations.'
5 Akehurst, p.17.
6 Akehurst, p.18.
7 Akehurst, pp. 56-57.
8 Except in relation to specific matters in which they are
authorized to make decisions that are binding on members.
Akehurst mentions (p.57) questions of the budget, admission
and expulsion of members and the matters in respect of which
Chapter VII of the UN Charter empowers the Security Council
to order states to deal with 'threats to the peace, breaches
of the peace and acts of aggression.'
9 The following passage (Akehurst, p.56) is particularly
telling: '[A] resolution of the United Nations General Assembly
can be evidence of customary law because it reflects the
views of the states voting for it; it would probably have
exactly the same value if it had been passed at a conference
outside the framework of the United Nations, and, if many
states vote against it, its value as evidence of customary
law is correspondingly reduced.'
10 Sir Anthony Mason, The Internationalisation of Domestic
Law, Law and Policy Paper No 4, (Canberra, The Australian
National University, Centre for International and Public
Law, 1996), p.1.
11 As above. One might add air navigation and exploitation
of resources (e.g. fishing, oil drilling) in international
waters to this list of examples.
12 Mason, p.3.
13 International Covenant on Civil and Political Rights 1966
(ICCPR), Article 2(1), says that it is the obligation of
a state 'to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognised in
the present Covenant.'
14 Note that, while there is no enforcement regime, there
is a procedure under Optional Protocol I to the covenant
whereby a citizen of a state may make a 'communication' to
the Human Rights Committee of the United Nations about an
alleged violation of any of the 'rights' mentioned in the
covenant. This might be used as a means of placing political
pressure upon a state to alter its domestic law. An example
of the use of this procedure, referred to by Sir Anthony
Mason, was the Toonen case (The Communication of Nicholas
Toonen concerning Australia: Communication No 488/1992),
in which a resident of the State of Tasmania was able to
persuade the Committee that provisions in the Criminal Code
(Tas), which criminalised sexual contacts between men, were
contrary to the ICCPR (see above). Ivan Shearer, 'United
Nations: Human Rights Committee: The Toonen Case', Australian
Law Journal 69 (1995), p.600.
15 Mason, The Internationalisation of Domestic Law, p.7.
16 Mason, p.14; The establishment by the Australian Parliament
of a Joint Standing Committee on Treaties to examine treaties
and conventions prior to their ratification by the Australian
government is a step in this direction. See Parliament of
Australia, Joint Standing Committee on Treaties, Committee
establishment, role and history, www. aph.gov.au/house/committee/jset/ppgrole.htm
17 Mason, p.10.
18 See Coral Bell, 'Normative Shift', The National Interest,
Winter 2002/2003, p.44, in which Bell suggests that there
is a difference between a 'law' and a 'norm'. The matters
dealt with in UN conventions have 'acquired the status of
international law', but have not become international norms
'because governments have not seriously "expected and
required" themselves and each other to abide by most
of them-at least not until very recently.'
19 For example, 'the right to know and be cared for by his
or her parents' (Article 7), 'the right to freedom of expression'
(Article 13), 'the right . . . to freedom of thought, conscience
and religion' (Article 14) and an entitlement to 'special
protection and assistance provided by the State' in the event
that the child is deprived of his or her family environment
(Article 20).
20 For example, 'State Parties shall take measures . . .
' (Article 11), 'State Parties shall take all appropriate
legislative, administrative, social and educational measures
. . . '(Article 19), 'State Parties shall respect . . .'
(Article 14).
21 The best example is Article 15, which deals with a child's
right to 'freedom of association' and 'freedom of peaceful
assembly'. Article 15(2) says that '[n]o restrictions may
be placed on the exercise of these rights other than those
imposed in conformity with the law and which are necessary
in a democratic society in the interests of national security
or public safety, public order (ordre public), the protection
of public health or morals or the protection of the rights
and freedoms of others.' See also Bernard Robertson, Economic,
Social and Cultural Rights, Time for a Reappraisal (Wellington:
New Zealand Business Roundtable, Wellington, 1997), in which
the author (referring to the International Covenant on Economic,
Social and Cultural Rights) said 'The only binding obligation
under the ICESCR is to fulfil the terms of the Covenant.
The responsibility for determining the meaning of those terms
is on the states parties and not on any international body'
(p.23). I would like to thank Roger Kerr of the New Zealand
Business Roundtable for bringing Robertson's work to his
attention.
22 Jacques Chirac, Address of the President of the Republic
of France at the Opening of the 58th Session of the General
Assembly of the United Nations, 23 September 2003, http://www.un.org/webcast/ga/58/statements/frafre030923.htm
23 Justice Michael Kirby, 'Human Rights: An Agenda for the
Future' in Brian Galligan and Charles Sampford (ed), Rethinking
Human Rights, (Sydney: The Federation Press, 1997), p.18.
24 M. Kirby, 'Human Rights', p.20.
25 It is arguably fear of the arbitrary use of power, rather
than any single theory about what is good for human beings,
which has provided liberalism with its historical vitality.
A modern account of the foundations of liberalism, which
proceeds along these lines, is that of Judith Shklar, 'The
Liberalism of Fear' in Nancy Rosenblum (ed), Liberalism and
the Moral Life (Cambridge, Mass: Harvard University Press,
1989), pp.21-38. Note, however, that there are some scholars
who found their objection to the arbitrary use of power upon
a notion that there are basic goods. A recent example is
found in Samuel Gregg, On Ordered Liberty, A Treatise on
the Free Society (Lanham: Lexington Books, 2003), in which
the following passage appears: '[W]hen people object to totalitarianism,
they are not objecting to the power of law or the State per
se. They are objecting to coercive power being arbitrarily
constituted or exercised, for to treat people inconsistently
with an agreed-upon rule-a rule that is coherent, nonarbitrary,
efficient, and does not facilitate damage of any of the basic
goods-is to act against a basic good: that of practical reasonableness.
Maintaining rule of law is thus always dependent on respecting
this particular basic good (p.64)'. Gregg went on to suggest
that 'the very idea of the rule of law is partly derived
from the conclusion that it is reasonable to limit arbitrary
power (p.64-65)'.
26 Rosemary Righter, in her survey of the history of the
United Nations, observed that 'the meetings of United Nations
organizations are gatherings of "we, the peoples" only
in the most ruthlessly collectivist sense.' R. Righter, Utopia
Lost: The United Nations and World Order (New York: The Twentieth
Century Fund Press, 1995), p.82.
27 One might expect this to be so in the case of all but
the most oppressive states. The ballot box is not the only
means of bringing poor governments to account. Recent history
provides examples of how totalitarian states have to invest
considerable resources in ensuring the personal security
of leaders and discouraging or putting down rebellions (e.g.
Saddam Hussein in Iraq) and preventing emigration (e.g. the
Communist regime in East Germany).
28 Id 86
29 B. Robertson, Economic, Cultural and Social Rights (see
note 21), p.6.
30 International Covenant on Economic Social and Cultural
Rights, Article 1(1).
31 B. Robertson, Economic, Cultural and Social Rights, p.
25.
32 As above, p.7.
33 Jacques Maritain, Man and the State (Chicago: University
of Chicago Press, 1951), p.82.
34 Maritain referred to Summa Theologiae, Ia2ae.94,4, in
which St Thomas said 'The business of the theoretic reason
is with natural truth that cannot be otherwise, and so without
mistake it finds truth in the particular conclusions it draws
as in the premises its starts from. Whereas the business
of the practical reason is with contingent matters which
are the domain of human acts, and although there is some
necessity in general principles, the more we get down to
particular cases the more we can be mistaken.' (Thomas Gilby
OP, St Thomas Aquinas, Summa Theologiae, vol.28, Blackfriars,
Cambridge, 1966, p.87), quoted in J. Maritain, Man and the
State, p.91.
35 J. Maritain, Man and the State, p.92.
36 Emil Brunner, Christianity and Civilisation, 2nd part:
Specific Problems (London: Nisbet & Co, London, 1949),
p.112.
37 E. Brunner, as above, p.102
38 As above.
39 As above, p.105
40 See Reinhold Niebuhr, Christian Realism and Political
Problems (London: Faber & Faber, 1954); and The Children
of Light and the Children of Darkness (New York: Charles
Scribner's Sons, 1944).
41 F.A. Hayek, 'The Errors of Constructivism' in F.A. Hayek,
New Studies in Philosophy, Politics, Economics and the History
of Ideas (London: Routledge Kegan and Paul, 1978), p.10.
42 F.A. Hayek, The Fatal Conceit: The Errors of Socialism
(Chicago: The University of Chicago Press, 1988), p.69. Not
also the more expansive explanation of the process in 'The
Errors of Constructivism' (see above): 'The process of the
evolution of a system of values passed on by cultural transmission
must implicitly rest on criticism of individual values in
the light of their consistency, or compatibility, with all
other values of society, which for this purpose must be taken
as given and undoubted. The only standard by which we can
judge particular values of our society is the entire body
of other values of that same society. More precisely, the
factually existing, but always imperfect, order of actions
produced by obedience to these values provides the touchstone
for evaluation. Because prevailing systems of morals or values
do not always give unambiguous answers to the questions which
arise, but often prove to be internally contradictory, we
are forced to develop and refine such moral systems continuously'
(pp.19-20).
43 R. Niebuhr, The Children of Light and the Children of
Darkness (New York: Charles Scribner's Sons, 1944), p.167.
44 As above, p.187.
45 As above, pp.154-155.
46 As above.
47 As above, p.168.
48 The notion that there could be, within a single nation-state,
many communities, which govern their own affairs, had been
entertained by Alexis de Tocqueville. Consider this passage
from Tocqueville, Democr |
