The Values of Rule of Law and Human Rights


In response to the principles identified by Eva Cox, and the questions that she and Ian McCauley have posed, I would place greater emphasis on the primary principle of respect for the rule of law and for human rights. Many of the principles outlined in her paper are, as I see it, ways of expressing human rights, both civil and political as well as economic and social.

Of course, the principles of human rights do not provide immediate answers to all the difficult issues of social justice, such as the boundary between what we should provide for our whole community and what people should be encouraged to provide for themselves, or how to ensure equal access to the minimum public standards which human rights instruments require. Nor do human rights principles give clear answers to the problem of balancing economic development with environmental sustainability or to the social accountability of corporations (an area now under increasing scrutiny). Nevertheless, the principles of human rights provide a framework of ideas within which conflicting issues can and should be resolved.

The principle of the rule of law is that ‘those who make and enforce the law are themselves bound to adhere to it’. Respect for it and human rights, by governments and by all citizens, would be a major contribution to a fair and just society. The absence in our laws or human rights principles means, for example, that we cannot challenge laws providing for indefinite detention, whether directed against ‘unlawful non-citizens’ or persons suspected of having information ASIO wants. It is unlikely that, in comparable circumstances, we could take here the action that has been taken in the US courts on behalf of David Hicks. Recent events involving the Department of Immigration and Multicultural and Indigenous Affairs show just how dangerous it can be to leave decisions about liberty to the bureaucracy and the executive without independent court scrutiny.

I do not think it is possible to maintain a fair and just society in the absence of effective respect for the human rights of all. This was recognised by the founders of the United Nations 60 years ago. The organization was dedicated to the peaceful resolution of disputes to the economic and social progress of all and to the observance of human rights. (Environmental concerns were added in later.) Yet Australia’s record is not perfect in regard to any of these commitments. Not only have we made war without clear authorisation of the United Nations, we have withdrawn from the jurisdiction of the International Court of Justice in respect of maritime boundaries. In the name of fighting terrorism, ever increasing inroads are made into long standing liberties; it has been said that the laws passed in Australia following September 11 are more extensive than those passed to combat communism. In this, our failure to implement human rights is shown up starkly. Despite our prosperity, we have failed to meet our development aid target of 0.7% of GDP. Our commitment to environmental sustainability sits uneasily with our refusal to support Kyoto. Eva Cox’s point about being a good international citizen is well taken and could be adopted as an independent policy category.

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