Australian Journal of Human Rights
Mobilising international human rights norms to reduce violence against Australian indigenous women: a way ahead
The international community recognises violence against women as the most pervasive human rights violation: all cultures are affected; none provide adequate protection or redress for victims. Moreover, the world’s indigenous peoples are deemed especially vulnerable to violence. In Australia’s indigenous communities, levels of violence constitute a ‘national crisis’; indeed, reports of new sinister forms of violence — child and group rape — are emerging, despite the comprehensive range of programs developed to address this issue. This paper argues that international human rights law is essential but limited as a strategy for managing indigenous family violence. But, international human rights norms or ‘soft law’ could be better utilised as a ‘mobilising force’ to strengthen local indigenous institutions: cultural, social and economic. As just institutions promote an ethic of non-violence, so too will the ‘national crisis’ diminish.
Introducing a ‘national crisis’
In 2003, two politicians pledged reform on hearing that violence had reached intolerable levels for Australia’s indigenous people: the Aborigines — the Murris, Koories, Yolngu, Anangu, Nyungahs, and Nungas, among others — and the Torres Strait Islanders (Memmott et al 2001: 6). First, the Western Australian Premier described events at the Swan Valley Nyungah Community, an indigenous settlement on Perth’s periphery, as a ‘horror story’ riddled with ‘ruination and despair’ (Gallop 2003). At least five people, mostly young, had died in the past five years. But it was a teenage girl’s suicide that was the catalyst for the Gordon Report, a government inquiry into allegations that resident women and children were victims of physical, sexual and emotional abuse (Gallop 2003). As a consequence of these understandings, the Western Australian government closed the settlement and granted a ‘$75 million package of initiatives to increase police and child protection resources in Aboriginal communities’ (Gallop 2003). Second, Prime Minister John Howard heard stories from Aboriginal leaders of a 40-year-old woman ‘struck mute’ since, as a five-year-old, she watched her mother stabbed to death by a relative as she lay by her side, of terrified children locked up on ‘pay nights’ to protect them from people clambering to get at them, of neglected children who turned to sniffing paint or solvents to deaden their cold and hunger (The Weekend Australian 26-27 July 2003: 4). Many more stories were told. Thus, that day in July at the landmark summit, the Prime Minister declared the situation in indigenous communities a ‘national crisis’ (The Weekend Australian 26-27 July 2003: 1).
A sample of statistics on violence against indigenous women confirms that a national crisis exists: 90 per cent of families in some Aboriginal communities are affected by violence; Aboriginal women are six and a half times more likely to die a violent death than non-Aboriginal women; family violence was reported to be widespread, increasing and 45 times higher in places than for non-indigenous women (Partnerships Against Domestic Violence 2001b). It is well established, however, that such figures underestimate the extent of indigenous violence as episodes are often repeated and non-homicidal violence unreported. Nevertheless, statistics have become a legitimate tool for measuring social problems, for making comparisons between groups possible and for aiding administrative decisions about resource allocation. These statistics are also signposts to serious dysfunction in indigenous communities that can no longer be overlooked.
This paper describes how the international and national legal systems have sought to manage violence against women. It argues that international human rights law, despite its essential role in criminalising violence against women, has failed to turn the tide of violence plaguing Australia’s indigenous communities. A brief discussion of reasons for indigenous violence is followed by a description of Australia’s international legal obligations relevant to indigenous people. This is followed by a critique of therapeutic jurisprudence: an innovative legal development. The final part discusses how international human rights norms might be employed to strengthen indigenous institutions. It shows that international human rights norms, or ‘soft law’, now largely invisible on social policy and reform agenda, provide a credible authority and guide to promote an ethic of non-violence for all Australians.
Racial and sex discrimination: prerequisites for indigenous violence?
Analyses of indigenous violence usually begin by identifying colonial practices that have discriminated against indigenous people on racial grounds. In the words of an Aboriginal woman, discrimination materialised in the ‘massacres, removals, dormitories, [and] dispossession’ (Atkinson 1990: 20, quoted in Brady 1996: 20), the authority for which appeared in Commonwealth and state policies, statutes and regulations. Enforcing discriminatory social policies was found to undermine indigenous elders’ power and authority, and weaken indigenous people’s autonomy and control. No longer did elders have authority over marriages and ceremonies, for example, as mission managers banned such practices (Memmott et al 2001: 12). Also, indigenous institutions, languages, religions, cultural values and kinship systems were severely undermined, the detrimental effects of which are felt today (Memmott et al 2001).
As indigenous institutions crumbled, so too have people’s psychological, social and economic wellbeing been adversely affected. Many indigenous people lack self-esteem; feel powerless, depressed and angry; and are apathetic (Memmott et al 2001: 13). On all key social indicators, including health, education, employment and housing, indigenous people are the most disadvantaged group in Australia. Common corollaries to social and economic disadvantage include welfare dependency, high imprisonment, child neglect, community disintegration, alcohol abuse, violence and numerous other problems (13). In particular, alcohol abuse has been blamed for indigenous violence (26); thus, regulating alcohol consumption has been variously successful in reducing violence (The Weekend Australian 26-27 July 2003: 1). But, as Judy Atkinson (1991: 4–6) pointed out over a decade ago, alcohol abuse is symptomatic of disorder; it neither causes violence nor provides a defence for perpetrators or communities (4–6). Instead, a high level of violence is a symptom of severe disadvantage. It is clear that now ‘the majority of violence being committed on indigenous people today is not inter-racial violence but violence committed by indigenous people on other indigenous people and upon themselves’ (Crime Prevention Branch 2001: 17).
Thus, the unequal power relation between non-indigenous people and indigenous people, and the discriminatory practices that follow, is one explanation for violence; another is the unequal power relationship between indigenous men and women. According to Partnerships Against Domestic Violence (2001a: 10), ‘male structural power — patriarchy — has led to women’s oppression and violence against women’; thus, ‘domestic violence is an abuse of power’. As a consequence of these understandings of structural inequality, national and international legal responses have taken into account both forms of discrimination, racism and sexism in a bid to guarantee equality, address disadvantages and reduce violence.
Racial discrimination and international treaties
The international community has criminalised all forms of discrimination against indigenous people. Race and sex are prohibited grounds in the three treaties that Australia ratified in 1980, 1976 and 1975: the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), respectively. Each treaty requires legally enforceable guarantees of non-discrimination on the basis of race, colour and sex. For example, the ICESCR stipulates:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (art 2 para 2).
The ICCPR is worded similarly. Thus, the ICCPR establishes in art 3 that ‘States Parties to the present Covenant undertake to ensure that equal right of men and women’ to the enjoyment of the rights set forth in the Covenant. Article 23(a) requires states ‘to ensure that any person whose rights and freedoms as herein recognised are violated shall have an effective remedy’. Australia has established the Human Rights Committee that is willing to scrutinise allegations of discrimination in violation of rights recognised by, for example, the Covenants and the Convention on the Elimination of Discrimination Against Women (the Women’s Convention). Further, Australia ratified the Optional Protocol 1 to the ICCPR in 1991 that made available a complaints procedure that has been used successfully, but not for domestic violence.
In a similar vein, CERD stipulates:
In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life (art 1 para 1).
The Committee on the Elimination of Racial Discrimination provides an important forum for raising issues of discrimination against women belonging to racial minorities (Cook 1993: 254). After Australia ratified CERD, its legal bid to redress discrimination against indigenous people began with the enactment of the Racial Discrimination Act 1975 (Cth), followed by the Racial Hatred Act 1995 (McRae et al 2003). Thus, it is well established in international human rights law and Australian domestic law that all forms of discrimination, in particular racial discrimination, are outlawed. As discriminatory practices are addressed, we can expect levels of violence to decline.
International law and family violence
In addition to its legal commitment to eliminate racial discrimination, the international community of states parties has turned its attention to discrimination against women. With 25 million women across the globe abused annually (Annitto 2000: 786), violence against women is now constituted as a serious human rights violation. The last two decades have seen a dismantling of various dichotomies, including female/male, public/private, traditional/non-traditional, state/non-state actors, upon which international law was based and had rendered women’s plight invisible to international scrutiny. For example, international human rights law was founded on the dichotomy of state/non-state actors where, for acts of domestic violence to qualify as a human rights issue, it is necessary to show that domestic criminal law against murder or assault was not enforced or was enforced in systematic, discriminatory ways (Thomas and Beasley 1993). Whether state actors provide adequate and appropriate services to guarantee equality has been the focus rather than whether non-state actors or private individuals were harming women. This focus on service provision has produced conceptual blind spots that have served to protect perpetrators of private, family violence. But, as these dichotomies are being dismantled, international human rights law has shifted its focus to violence against women by ‘private’ non-state actors (Slye 2001: 69, 71). The test for international human rights law is whether indigenous people are able to seize this change to achieve peaceful co-existence and respect for the dignity of all persons in their ‘private’ lives.
Australia’s international legal obligation to criminalise discrimination against women
In addition to anti-racial discrimination legislation, Australia has adopted legislative guarantees of equality and non-discrimination found in the Women’s Convention, which it ratified in 1983. Thus, Australia has also an international legal obligation to ‘adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all forms of discrimination against women’ (art 2 (b)). Consequently, the Women’s Convention has been described as ‘the definitive international legal instrument requiring respect for and observance of the human rights of women; it is universal in reach, comprehensive in scope and legally binding in character’ (Cook 1990: 643; quoted in Larson 1996: 699). The Preamble to the Women’s Convention notes that the states parties are ‘concerned, however, that despite these various instruments, discrimination against women continues to exist’; other international human rights instruments have not been applied effectively to eliminate sex discrimination.
The Women’s Convention extends the international community’s concern about sex discrimination by emphasising the need to confront the social causes of women’s inequality. It requires states parties to exercise due diligence in implementing treaty provisions, while the Preamble concludes with a note of determination: ‘to adopt the measures required for the elimination of such discrimination in all its forms and manifestations’. The Women’s Convention is extremely broad; its focus is on discrimination against women:
[A]ny distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field (art 1).
Further, the Women’s Convention states that:
The States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women (art 2).
The Women’s Convention requires states parties to ‘take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women’ (art 2(f)). The duty of states parties is to:
Modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women (art 5(a)).
Although CERD and the Women’s Convention provide guidelines for broad sweeping reforms within a comprehensive legal framework, neither indigenous women nor domestic violence are mentioned in their provisions. Further, the feminist movement in Australia that has led the crusade against discrimination has been criticised for its focus on concerns about reproductive rights, sexuality, equity in employment, childcare and sexual harassment that are often irrelevant for Aboriginal women, many of whom are denied opportunities to work in paid employment (Andrews 1997). Nevertheless, the Women’s Convention is a powerful statement of women’s human rights, despite often being ignored and having more reservations to its provisions than any other United Nations convention (Human Rights and Equal Opportunity Commission 2004).
Further, as with the ICCRP, not all of the provisions of the Women’s Convention have been incorporated into Australian law (Brennan 1997). The Sex Discrimination Act 1984 (Cth), the Commonwealth’s first response to the Women’s Convention, fails to address comprehensively Australia’s obligation under the Convention (Charlesworth 1995a). Its major objective is to address discrimination against women on rather limited grounds: sex, marital status, pregnancy, sexual harassment in employment, education and housing. Further, according to Byrnes (1992), s 5(2) of the Act has proven difficult to apply because it is ambiguous.
Despite these legal limitations, Australia’s attempts to reduce family violence in indigenous communities were commended in 1991 by the international community (Women and Violence 1996). However, constant vigilance is required as this commitment was not maintained. By 1998, the Committee on the Elimination of Discrimination Against Women (CEDAW), which monitors states parties’ compliance with the Women’s Convention, ‘was critical of Australia’s apparent shift in attention and commitment to the human rights of women and the achievement of gender equality’ (Reynolds 1998).
An added set-back for indigenous women is that Australia is not currently a party to the Optional Protocol to the Women’s Convention. If it were, individual women or groups of women would be permitted to submit claims of violations of rights to CEDAW that could initiate inquiries into situations of grave and systematic violations of women’s rights. For instance, a woman or a group of women may ‘lodge a complaint about the poor effectiveness of State or Territory domestic violence orders’ to CEDAW that would require the Australian government to give ‘due consideration’ to the problem if available domestic resources had been exhausted (Della Torre 2000: 191). The Optional Protocol does not create new rights; instead, it is an enforcement mechanism for rights enshrined in the Women’s Convention: health, education, marriage, conduct in families, political participation. The Optional Protocol is an important achievement in empowering women by fostering a better understanding of their rights and how to achieve their rights because the Women’s Convention is strong in language and weak in effect (Larson 1996: 712). However, for international human rights law to have relevance for indigenous women, communication procedures must be available for women to bring their issues to the world stage before an independent panel of experts (Della Torre 2000). Hence, the value of the Optional Protocol lies with Australia becoming party to it, as have 21 other states parties.
Violence in indigenous communities
In contrast to the approach to understanding violence outlined above, other commentators do not conceptualise indigenous violence as a product of discriminatory practices, but rather as a part of Aboriginal people’s cultural heritage, a social control strategy or legitimate punishment for rule breakers. Over two decades ago, an anthropologist watched displays of ‘moral violence’, ‘inflictions’ that were ritualised and regulated, for which community members shared responsibility. The writer describes how a woman, in the presence of onlookers, was kicked and punched for breaking a social rule. Only when the attacker reached for an axe did another woman intervene (Sansom 1980; quoted in McRae et al 2003: 121). Such ‘inflictions’ were viewed as deserved punishments, not assaults (Sansom 1980; quoted in McRae et al 2003: 118). More recently, however, indigenous informants warn that cultural values or practices have been used inappropriately to justify acts of violence (Partnerships Against Domestic Violence 2001b: 7). Other anthropologists found that an ‘ethic of completely restraining those individuals in a dispute [is lacking] so as to prevent a fight from escalating’ (Memmott et al 1990: 23). Thus, episodes of violence pass unchallenged (8; quoted in Memmott et al 2001: 23). Violence against women and children — culpable, random, inexplicable violence — then, is commonplace enough to be considered normal, providing the blows are not fatal (see Memmott et al 2001: 19). But for many indigenous people, family violence is not a legitimate social control mechanism; it is far too destructive to be tolerated at current levels. It is now well established in international human rights law and locally that violence against women cannot be justified on the grounds that violent behaviour is derived from cultural traditions.
During the 1990s, indigenous family violence has become a topic much discussed, researched and theorised (Viano 1992). Unlike that of more powerful groups, indigenous behaviour is highly visible. But we seem no closer to unravelling the complex interplay between a people’s cultural, social and psychological experiences that incline some individuals to violence, but not others. As noted above, violence against women is prevalent, though variable, in all cultures, rich and poor, possibly for all time. Thus, no clear link exists between a people’s poverty, their social and psychological pathologies and their capacity for family violence. Indeed, some individuals are capable of transcending their anger and suffering to reach out to vulnerable others. Their social disadvantage is no hindrance to achievement. But it is reasonable to conclude that a people for whom physical violence has been a legitimate form of punishment, whose institutions are in disarray, whose authority structures are undermined, who are unable to make full use of educational opportunities, who suffer chronic physical and mental illnesses, who have lacked consistent and supportive parental guidance, and for whom the future holds little promise are more likely than others to resort to physical violence. These types of understandings are beginning to drive the family violence reform agenda, as discussed below. But too little is made of promoting non-violence as part of a universal, secular morality grounded in consensus, cooperation, solidarity and self-regulation.
Criminal justice intervention as a means for managing indigenous violence
Australia’s adversarial legal system is an essential strategy for managing violence against indigenous women, in enforcing legislation such as the Domestic Violence Act 1986 (ACT). Convicting and punishing perpetrators of violence empowers victims by endorsing their decision to lay charges as responsible. Australia’s legal system is also confirmed as a just institution in the eyes of victims and other citizens. Most importantly, non-violence is reinforced as socially desirable behaviour. According to Slye (2001), it also legitimates a nation’s legal system internationally, which is essential given its international legal obligations.
However, where violence is tolerated or considered ‘normal’, too common to be reported unless people are seriously injured, prosecuting all perpetrators is not possible. Further, some indigenous people are reluctant to involve the police when violence erupts because external intervention brings costs and problems ranging from ‘overzealous’ policing, to uncaring and unsympathetic police attitudes, to further violence inflicted from a legal system that does not understand their needs (Office of the Director of Public Prosecutions 1996: 29). It is now well established that the criminal justice system, with its rules and procedures, its vision and ethics, and its practice, has treated indigenous people in ways that non-indigenous people have not been treated (Johnston et al 1991: 160–1, quoted in McRae et al 2003: 430). Unless employees of institutions are trained to identify practices that discriminate, such racist practices will continue. More could be made of documenting such practices to establish a case against state agents who allegedly are carrying out discriminatory practices (Thomas and Beasley 1993). Increasingly, though, inroads are being made into exposing institutional racism in the criminal justice system since the Royal Commission into Aboriginal Deaths in Custody in the late 1980s.
Local strategies to address these problems
As the legal response to indigenous violence has proved inadequate for dealing with violence against women, additional expertise has been called on. For example, regional magistrates in Western Australia have applied ‘therapeutic jurisprudence’ as a way of overcoming tensions between indigenous people affected by alcohol and violence and officers enforcing the law. The Geraldton Alternative Sentencing Regime (GASR) offers Transcendental Meditation (TM) courses to offenders and community corrections officers alike (King 2003). Officers enforcing the law are required to reflect on their part in exacerbating the stresses and strains on indigenous people. Issues of wellbeing are seen as the underlying reasons for offending behaviour. Together with the offender, experts develop a rehabilitation program.
But tackling criminal actions and grave social problems with treatment programs, for example, provides only limited relief, if any. At least a century ago, an American model of individualised treatment was attacked for its theoretical faults, its discriminatory administration, and its inconsistence with ‘some of our most basic concepts of justice’ (American Friends Service Committee 1971: 12). A basic assumption underlying therapeutic jurisprudence is that it is possible to ‘remake’ offenders with expert help via therapy and meditation, an achievement offenders are incapable of accomplishing on their own. Further, the therapeutic jurisprudence movement has been accused of challenging the legislative function by overlooking ‘the principles of free will and individual responsibility upon which the criminal law rests’ (Hoffman 2002: 2096). Finally, we do not know how the intricate balance between social and psychological factors produces individuals capable of injuring vulnerable family and community members. But if we accept that the range of social and environmental factors such as poverty, parenting skills, lack of education and unemployment predispose individuals to violent behaviour, then expecting offenders to maintain meditative skills and interact without violence on return to dysfunctional communities seems a tall order.
In addition to meditation, Aboriginal elders or authority figures in Wiluna and Yandeyarra, Western Australia, have been recruited to apply the law in ‘culturally sensitive ways’ and to account for the intersection between the criminal justice system and Aboriginal traditional law (King 2003). Alone, the legal response to indigenous violence is no longer considered adequate. The Yandeyarra project seeks not only to rehabilitate Aboriginal offenders, but also to strengthen the Yandeyarra community (King 2003). Whether penal policies that incorporate community development strategies are capable of making a difference and reducing violence remains to be seen. As discussed below, much more could be made of international human rights norms to develop communities.
Mobilising the Women’s Convention, the CERD, the ICCPR and the ICSECR
Although international human rights treaties do not address domestic violence specifically, issues of equality and non-discrimination for indigenous women are firmly on the international agenda. But too many indigenous people remain under-educated, unemployed, unhealthy both mentally and physically, poverty-stricken, addicted and abused. In general, Australian governments have failed to provide basic human rights for many indigenous people (Cunneen 1997). For an economically successful and politically stable state, this situation is no longer acceptable.
To transform the social, economic and cultural inequalities of indigenous people, together, the Women’s Convention and the Covenants present a comprehensive guide to human rights norms and a reference for judges where no legislation exists (Kirby 1999). Achieving rights in one area has positive ramifications in other areas of people’s lives. The Women’s Convention, for example, ‘spells out the routes to reach goals that include achieving a number of economic and social rights’ (Steiner 1998: 29). It also outlines a state’s duty to modify or transform existing cultural patterns and underlying beliefs in areas such as education, employment, rural life, and family life (Steiner 1998). Article 14 of the Women’s Convention advocates that women participate at all stages of development and states that, in the Preamble, ‘the welfare of the world and the cause of peace require the full participation of men and women’. The Convention emphasizes equality, but overlooks, for the most part, the way that equality ought to translate within a specific communal context.
Together with the Women’s Convention, the ICESCR and the CERD provide support for policy makers advocating indigenous peoples’ social, economic and cultural development. Social policies to address indigenous people’s political powerlessness and economic marginalisation require immediate attention. Taking this broader approach ensures violence against women will not be relegated to the margins, destined to remain a women’s issue only. Much more could be made of the overlap between international instruments. Together, these treaties constitute a powerful ‘mobilising force’ for state action to ensure social justice is achieved and indigenous people’s quality of life is improved (Steiner 1998: 33–4). Thus, the task ahead is to put in place processes to achieve rights and plans to evaluate the costs and benefits of outcomes (see Steiner 1998). The concept of self-determination has a part to play in this task.
Self-determination as a legal and political concept
Repeated calls in Australia for indigenous people’s right to self-determination, to protect and/or develop ways of life that differ from those of non-indigenous people, have been made for 10 years or more (Memmott et al 2001). A major recommendation of the Royal Commission into Aboriginal Deaths in Custody (1991) was that negotiation and self-determination were needed in designing and delivering services (Memmott et al 2001). Further, participants at a Ministerial Council for Aboriginal and Torres Strait Islander Affairs meeting in September 1999 agreed that a concerted national strategy should be developed to address family violence in indigenous communities, for which individual communities should have prime responsibility for developing (Queensland Government 2000). Self-determination provides a conceptual frame, an international reference point, for limiting unwelcome and unwarranted intervention by governments and other authorities, as well as providing a basis for affirmative action at the local level. Few would dispute that for success, indigenous people need to participate in reform programs and initiatives. But departments vary in the way they consult with local communities, with global, profit-orientated, privatised, third party involvement in service provision adding another possible difficulty in negotiation processes.
The right to self-determination is recognised in the first articles of the United Nations (UN) Charter and both International Covenants on Human Rights, where not only do people have a right to their own cultural, economic, social and political institutions, but also their right to land is embraced by this concept (Barsh 1988). Both 1966 International Covenants declare that:
All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development (art 1 para 1).
However, the possibility of indigenous people reaping tangible benefits from the legal principle of self-determination, circumscribed in the Covenants, is far from clear. Indigenous peoples do not have a right currently to self-determination under positive international law (Higgins 1994). Strictly speaking, as a minority group, indigenous Australians are not ‘all people’ of the state of Australia for purposes of the international legal right of self-determination under arts 1 of the Covenants. Whether indigenous Australians constitute a minority and whether all minorities are ‘peoples’ for the purposes of self-determination is arguable (Higgins 1994: 126). Gana (1995) suggests that who is or what is the ‘self’ that is entitled to self-determination has been at the core of the debate. However, the concern for ‘peoples’ succeeded in shattering the rigid concept of statehood and raised the possibility that self-determination could be applicable to and expedient for more than just a right to independence or a benign right to statehood (Gana 1995: 142). The right to internal self-determination exists, but it is a right by peoples, not an individual; yet, only individuals may bring communications under the Optional Protocol to the ICCPR (Higgins 1994: 127).
In her analysis of the debate, Iorns (1993) argues that the world system of state sovereignty poses a major obstacle to recognising the right to self-determination. She compares the positive view of international law, that states decide what they want to recognise or incorporate in international law, with the natural law tradition where indigenous people have an inherent right to self-determination. Iorns concludes that an inherent right of self-determination need not be recognised or conferred by states to exist.
Thus, within the UN acceptance is growing for the principle of self-determination for indigenous people (Berkey 1992). As a political and moral force, self-determination may be an effective means to improve social conditions and regulatory systems (Berkey 1992). It offers a guiding principle not only for indigenous people and activists, but also for indigenous leaders and policy makers who advocate strategies to promote social, economic and cultural development, the right to be different and to participate in all Australian affairs (Hannum 1993). As a motivating force, self-determination represents the right of making choices freely, and creating and changing institutions (Barsh 1988). The right to self-determination must be ‘exercised freely under international supervision and not in a way that simply terminated the separate identity of the people’ (Barsh 1988: 79). An important feature is that self-determination continues to revitalise indigenous groups fighting for independence or autonomy (Gana 1995: 142). How indigenous people interpret that right and set about relying on the principle when developing programs is where the challenge lies.
Mobilising declarations or soft law instruments
Because treaty provisions are legally binding, they are enforceable if incorporated into domestic law. But not all human rights instruments have legal authority. As Boyle (1999) points out in another context, although the relationship between treaties and non-binding instruments is complex and complementary, declarations are no less important; indeed, they have considerable practical relevance. Where treaty ‘rules’ involve clear and reasonably specific commitments, the ‘norms’ or ‘principles’ of declarations are open-textured or general in their content and wording (Boyle 1999: 901–2). In effect, ‘soft’ law instruments might prove less restrictive, more adaptive to local conditions in the reform process for indigenous people than legal rules. Thus, reaching agreement might be easier without the constraints, limitations and consequences of legally binding treaties (Boyle 1999). Declarations avoid the domestic treaty ratification process, although without legal endorsement, support for a norm might not be forthcoming.
Declarations also fill gaps left by treaties. They extend the rules of treaties into new areas for consideration and together form a comprehensive set of principles that are flexible and malleable, adaptable to local conditions. But identifying problems is the first step only. Each move forward requires the state to commit to development, communities to be prepared to act with solidarity, and each individual responsible and accountable for their decisions to appear at the forefront of the reform process. Treaties and soft law instruments can be vehicles for focusing consensus on rules and principles, and mobilising a consistent, general response on the part of states (Boyle 1999). Together, the Declarations, the Women’s Convention and the 1966 Covenants express important international standards that can be mobilised as powerful norms without legal enforcement.
The Declarations give added weight to the reform agenda
Although human rights law remains marginalised in international law where international order commands the higher priority, ‘the international community has begun to recognise violence against women in the home as a serious violation of human rights’ (Annitto 2002: 788). For example, in 1992, the Committee on the Elimination of Discrimination Against Women (CEDAW), which monitors how states parties implement the Women’s Convention, adopted Recommendation 19 on violence that emphasises ‘the close connection between discrimination against women, gender-based violence, and violations of human rights and fundamental freedoms’ (No 4). The recommendation is, however, not strictly binding (Charlesworth 1995b: 255). Moreover, the links between these concepts is not specified, and as Charlesworth (256) points out, ‘it is not clear what type or level of state involvement in gendered violence is necessary before a state must account for this behaviour internationally’. However, states under international law may be ‘responsible for private acts if they fail to act with due diligence to prevent violations of rights or fail to investigate and punish acts of violence, and for providing compensation’ (Recommendation 19, No 9).
In addition to Recommendation 19, the UN formalised its position in the Declaration on the Elimination of Violence Against Women (the Declaration): a springboard for micro-level reform. It directs nations to hold perpetrators accountable for their injurious conduct; to ensure domestic criminal justice systems do not ‘re-victimise’ the victims; and to rehabilitate all victims, including child witnesses, in a bid to change entrenched, destructive attitudes and heal abused individuals.
The Declaration defines violence as:
any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private (art 1).
The Declaration does not impose uniform solutions. Australia’s response to international moves has been to establish a National Committee on Violence Against Women to coordinate ‘the development of policy, legislation and law enforcement nationally as well as provide community education on violence against women’ (Women and Violence 1996). But the Declaration has relevance for indigenous women: ‘States should condemn violence against women and should not involve any custom, tradition or religious consideration to avoid their obligations with respect to its elimination’ (art 4). As alluded to earlier, violence, therefore, cannot be excused by an argument that relies in principle on cultural relativism.
Notwithstanding its worthy agenda in recognising indigenous women as ‘especially vulnerable to violence’, the Declaration has two main failings. First, a tension exists between being affirmative on behalf of indigenous women, and singling out indigenous women as the ‘other’ that reinforces stereotype casting (Culliton 1994). Second, the Declaration does not circumscribe a plan for structural change; it is neither legally binding nor enforceable; nor does it stipulate a national or institutional financial commitment (Chinkin 1997). At best, the Declaration’s norms provide guidelines, imbued with supra-national authority, upon which policy makers can draw for developing rehabilitation and education programs, its main focus.
In addition to the Declaration, the Draft Declaration of the Rights of Indigenous Peoples, an international instrument specifically for indigenous people, is an important statement protecting the rights of indigenous people. For example:
Indigenous peoples have the right to participate fully, if they so choose, at all levels of decision making in matters which may affect their rights, lives and destinies through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions (art 19).
Indigenous peoples have the right to participate fully, if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them (art 20).
States shall obtain the free and informed consent of the peoples concerned before adopting and implementing such measures:
States shall take effective measures, in consultation with the indigenous peoples concerned, to eliminate prejudice and discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all segments of society (art 16).
Over time, these two Declarations could represent jus cogens, as has arguably the Universal Declaration of Human Rights (Piotrowicz and Kaye 2000). But for now, vulnerable groups in Australia face two additional hindrances to having their rights legally enforced. First, Australia is the only Western democracy without a bill of rights (Kirby 1999). Second, Australia’s Constitution does not automatically incorporate legally binding human rights, a power granted to the Commonwealth Parliament in s 51 (Kirby 1999). Given this discretion, legislation provides limited protection for human rights; thus, violations remain largely without effective remedy in Australia’s legal system (Charlesworth 1995a). However, as the Honourable Justice Kirby (1999) noted, the High Court in several cases has examined international treaty law and other opportunities could arise. Explanations for this situation suggest that international law has hitherto been deferential to domestic law and custom, and a conservative form of federalism remains (Kirby 1999). As a consequence of these historical impediments, most international human rights law remains outside the consciousness of policy makers who are unfamiliar with the concept and language of human rights (Kirby 1999). An exception arguably is the Convention on the Rights of the Child.
Implementation: engaging the local with the global
Fears that international human rights law and norms could be another form of ‘cultural colonisation’ are reasonable, given Australian indigenous people’s historical experiences as recipients of unwelcomed policies. But because universal standards of behaviour cross all cultural boundaries, human rights provisions are deemed fundamental to all human beings, regardless of their nationality or ethnicity (Wilets 1997). In any event, indigenous peoples the world over have common problems involving political and economic oppression, as well as lost lands, cultural traditions and institutions. International human rights norms, therefore, could be seen as a benchmark for comparative purposes, as a neutral authority to call on, and as a sounding board for indigenous leaders deciding between courses of action (Tonts and Larsen 2002). Importantly, international human rights norms provide an ‘emancipatory vocabulary and institutional machinery’ for social policy developments to effect change (Kennedy 2001: 248). Efforts to improve indigenous peoples’ housing, education levels and economic circumstances would be greatly enhanced if international human rights discourse, still largely absent from policies and reports, is given due prominence. As a guide to instituting changes, human rights instruments have ‘generated authoritative rules or guidelines’ for establishing baselines, and placing both ‘restraints and affirmative duties on governments’ (Steiner 1998: 35). Moreover, human rights norms could be used as a check not only to ensure that negotiations for social, economic and cultural reform are conducted fairly, but also to guard against the potential for indigenous responses to prove stereotypical or too narrow (Kennedy 2001).
Mobilising international human rights norms is all the more imperative given multinational intervention in providing services. International human rights law represents the views of an international authority upon which to hold governments accountable for developing legislation and addressing structural disadvantages when their priorities lie elsewhere. More could be made of Australia’s international human rights obligations through legislation and during the political and social planning process. But, as Charlesworth (2000: 69) reminds us, ‘rights, such as the right to food and shelter, have often been regarded as particularly difficult to protect because they require positive action rather than restraints on government action’.
Conceptualising indigenous violence in light of social, economic and cultural reform brings women’s human rights issues onto the local and national agenda. In doing so, the common ‘add women and stir’ approach, which does not require developing gender-awareness or radical rethinking, is avoided (Chinkin 1997: 23). Most programs focus on women’s rights in isolation from the context in which they live; thus, a grassroots approach involving both women and men in developing just institutions is imperative. While implementing programs to rehabilitate victims and perpetrators has doubtful benefits, only with structural change that transforms people’s lives at a broader social, economic and cultural level will the current situation of endemic violence be turned around.
Also, for international human rights law to be effective, individuals must know their rights and have access to mechanisms to enforce them when they are not met. The Queensland Government has developed a ‘Know Your Rights’ campaign that seeks to alert people of their rights and how to access appropriate remedies (Miller 1999). Thus, the process is underway. But it is clear that the time is ripe for indigenous people to invoke international human rights norms to achieve their reform objectives. That might mean developing an indigenous-centred jurisprudence based on an Indigenous Bill of Rights; making both the Draft Declaration of Indigenous Rights and the Declaration on the Elimination of Violence Against Women legally binding; and for Australia to sign the Optional Protocol to CEDAW. International human rights norms are now well established, ready to be utilised in social policy making. In so doing, new possibilities will open for indigenous Australians that will undoubtedly have unpredictable costs, but considerable benefits.
The human rights movement is in many ways moving ‘beyond’ rights, broadening its engagements and terms of reference to include other social factors (Kennedy 2001). This focus is essential given that pursuing self-determination, as a political response to colonial rule, has rarely resulted in terminating oppression and domination of one section of society by another (Charlesworth et al 1991: 643). What will be strengthened, weakened, liberated, lost, divisive, assimilatory or aspiratory poses challenges to be addressed at the local level.
Including international human rights norms in the reform agenda opens, rather than diminishes, space for policy development, for pragmatic approaches and for action. Links are being established between grassroots initiatives to planning, where priorities, policies and programs are developed by communities and negotiated with governments. While local programs are essential, promoting peaceful or non-violent behaviour must also be framed in broader terms of social reform. Devolving responsibility to those who are the most disadvantaged Australian population is not a solution; the state has a significant part to play in the process.
Although some Australian Aboriginal groups have used global networks without success (Nulyarimma v Thompson  FCA 1192), ‘soft law’ holds promise for indigenous people seeking an external authority or reference point, and for a state with the will to see change rather than pay lip service only to such a serious problem. Human rights norms provide a comprehensive, definitive and defensible set of moral principles on which indigenous people could draw to strengthen their cultural, social and economic institutions. Identifying and instituting specific solutions must be left to local leaders, but with state involvement. Where local issues are tackled as global concerns, new ways of thinking about complex social problems become possible, particularly since equality and non-discrimination for women are firmly on the international human rights agenda. As do all legal systems, international law plays an important part in constructing reality (Charlesworth et al 1991). For levels of violence to decline, non-violence as a human rights issue must become a part of Australian culture: indigenous and non-indigenous people. Non-violence must be promoted through state institutions and movements at the grassroots level.
Australia has begun to address discrimination in all its forms, including race and sex, in response to its international legal obligations. Thus, essential legal requirements to hold perpetrators accountable for violence against women are in place. But the capacity of the criminal justice system as a tool to reduce family violence is limited. Instead, structural change is required to address social, economic and political inequalities that indigenous people experience. A way forward is mobilising soft-law norms in policy development that are currently under-utilised. People in situations where they are housed, educated, healthy and employed, in whatever form that takes, are more likely to live lifestyles where non-violent behaviours prevail. Without these essential, inter-related improvements, indigenous women will remain ‘especially vulnerable to violence’ (the Declaration).
Calls must be heeded for promoting the ways indigenous people want to live, for involving women and men in all decisions affecting their lives, and for holding accountable those charged with instituting and evaluating processes of change. At the same time, governments and non-government organisations nationally and internationally must work with indigenous people in ways that enable their institutions to promote quality of life, respect and dignity.
Violence against indigenous women and children will decline once indigenous men and women develop an ethics of behaviour circumscribed, promoted, enforced and reinforced by just social, economic and cultural institutions. Institutional practices that incorporate people into communities by fostering interdependence, co-operation and reliance will reduce unproductive and harmful behavioural styles. An attitudinal change is required that accepts and promotes non-violence as a fundamental code of conduct. Promoting an ethic of non-violence via state and non-state environments, institutions, the arts and cultural practices must become the responsibility of all Australians. Individuals and communities need to work towards promoting behaviour that fosters self-disciplined individuals who seek to live according to an ethics of non-violence and to foster non-violence in others.
Nulyarimma v Thompson  FCA 1192
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[*] Dr Ann-Claire Larsen is Justice Coordinator, School of Law and Justice, Edith Cowen University.