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Australian Journal of Human Rights |
This issue of the Australian Human Rights Journal covers a range of important issues which explore some of the challenges to the implementation of the human rights framework. The papers examine the problems which arise when governments either blatantly disregard, or challenge the interpretation of human rights instruments, or when the implementation of human rights does not produce the intended results. These papers highlight the influence of political influence in the ways in which states regard their obligations under human rights and International law and points to the nexus between the rhetoric of the human rights discourse and its application
One of the most controversial countries in terms of human rights violations since mid the 1960’s is Burma. The paper by Russell Thirgood argues that current regime in Burma is a product of its authoritarian history. It starts with a moving eyewitness account of a massacre and asks the question as to what happens when governments and armies do not serve and defend their people. To understand why Burma has developed into a country with no civil society and no legal framework to protect individual rights, Thirgood examines its history and shows that, since 1044, except for a brief period in the middle of the twentieth century, Burma has always been ruled by an authoritarian regime. The paper documents in depressing detail the current situation highlighting the continuing abuse of basic rights. The military argues that the suppression of ‘western’ civil and political rights is necessary to promote the economic growth that will allow it to provide adequate nourishment, health and shelter. Thirgood provides counter arguments to this well-known position, and shows that, in any case, the military have not succeeded in achieving the economic objectives, since food scarcity and inadequate health remain severe problems.
The second article, by Anthony Hague, is also concerned with Burma, in particular with the nature of its relationship with Japan. Japanese aid to Burma, in the form of its Overseas Development Assistance has been strongly linked to Japan’s economic interests, and has continued despite the human rights violations noted in the previous article. The importance of this aid from Burma’s viewpoint is apparent given its “Least Developed Nation” status. Hague outlines a number of important relations at the personal, economic and military level, which may help explain Japan’s continued relationship, although it is fuelled by a belief that democracy will result from economic development. The article also considers the argument that the Japanese position should be evaluated not in terms of western notions of human rights, but in terms of incompatible “Asian values”. In rejecting this position, Hague notes that cultural relativism is usually raised specifically to justify violations of rights by autocratic regimes.
The article by Hudson examines proposals for reform of the United Nations Human Rights Committees, in particular by streamlining them in order to make the system more efficient and consolidated and to increase its efficacy. The article argues that, while some moderate reform of the committee system is desirable, problems may result if the process is taken too far. It makes a strong case against more radical consolidation proposals finding them to be inherently flawed and unlikely to improve the efficiency of the committees. At the same time such reforms are likely to compromise the integrity of the human rights regime by reducing the diversity of perspectives that are brought to bear on a state’s human rights record, by facilitating the abuse of the human rights system by states downgrading their obligation, in essence withdrawing from the system and by reducing reporting requirements.
The Hudson paper cites the Australian Governments recent involvement with the United Nations in support of its call for radical reforms, asserting that these calls often contain a hidden agenda related to disengagement from human rights commitments. Joanne Kingslor’s paper focuses on the theme of that disengagement and on the reasons behinds Australia’s calls for reform. It focuses on the fear of the government that the UN human rights treaty system may intensity domestic tensions and challenge its authority. Focusing on the Convention Against Torture and the (Protocol to the ???) Convention on the Elimination of All Forms of Discrimination Against Women, it explores the rationale for Australia’s refusal to sign of ratify them. In particular, the ability of individuals to bring complaints against the state to the United Nations Committees has some influence on the domestic balance of political power. Although United Nations Committees only have voluntary authority in Australia, nevertheless, Kinslor demonstrates the importance of that authority in term of influencing domestic rhetoric. In order to undermine UN authority, the Federal government has established a narrative that criticises the UN committees as being undemocratic, and therefore attempt to undermine their legitimacy.
The paper by Marianna Brungs appraises the effectiveness of Australian legislation for dealing with child sex tourism, particularly in the Asian region. After discussing the factors contributing to the rise of child sex tourism in the region, Brungs dismisses the economic argument that sees the children as “entrepreneurs” making a rational decision to engage in sex work. In recognition of the need to protect children from prostitution, the United Nations has adopted the Convention on the Rights of the Child, as well as the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. The importance of these conventions was recognised in 1994 with legislation criminalising child sex tourism in Australia. However, it is argued that although this was a step in the right direction, procedural and evidentiary deficiencies have reduced the effectiveness of the legislation. The treatment of child witnesses has proved to be problematic, and has led to the legislation being amended on that point. Although it has achieved many of its objectives, Brungs argues that it has not been sufficiently effective in protecting the victims, nor insignificantly influencing the child sex tourism industry, and she suggest some alternative initiatives.
The question of what happens when different rights clash is the theme of Chesterman’s paper, which considers the relation between the principle of non-discrimination as manifest in anti discrimination legislation and the rights of Indigenous people. In particular, how do the rights to self-determination and native title co-exist with, what Chesterman calls “civil rights”, that is rights possessed by all Australians. In response to this question, the paper presents a number of instances where indigenous rights seem to conflict with civil rights and considers whether this implies a significant challenge to the “rule of law in Australia.” In arguing that this is not the case, the paper contends that non-discrimination does not imply identical treatment for everyone, but, rather that racial grounds are not used as a basis of denial of rights. In the light of this, a more complex definition of racial discrimination allows for differential treatment as long as it is not “invidious”, as well as allowing for special measure including positive discrimination.
The final paper, by Duma Boko examines Botswana’s Remote Area Development Program, which is an attempt to alleviate poverty and deprivation suffered by the Basarwa (commonly referred to as the Kalahari Bushmen). Unfortunately, the effect of the program has been to assimilate the Basarwa, endangering their cultural identity and heritage, in breach of a number of United Nations conventions.
We hope that you will find this issue of the Australian Human Rights Journal a useful and informative addition to the ongoing debate regarding important areas of Australian and international Human Rights law and policy.
Peter Kriesler, Eileen Pittaway and Steven Freeland