By Professor Patrick Keyzer (Head of La Trobe Law School) and Darren O’Donovan (Senior Lecturer in Law at La Trobe Law School, from June 2016)
In our previous blog we discussed the Australian Government’s response to UNHRC decisions in a number of communications and critically analysed the enforcement matrix underlying the United Nations human rights petition system. We considered these questions:
- What factors operate to prevent or support national compliance with the HRC’s recommendations?
- Can advocates counter the allegation that the findings of the HRC are ultimately shibboleths invoked by a discrete human rights community but ultimately unpronounceable by other social actors?
In order to address the relatively trivial rates of compliance with UNHRC decisions, we examined the recurring patterns of states denying, refuting or ignoring decisions of the UNHRC in our recent book chapter, ‘Visions of a distant millennium’? – The effectiveness of the UN Human Rights Petition System’, published in Access to International Justice (Routledge).
We identified three ‘clusters’ or types of enforcement resources which could be employed to encourage states to comply with UNHRC decisions.
The first cluster of enforcement mechanisms relies on coercion and incentives to encourage Australia and other states to adhere to UNHRC findings. As the UNHRC does not have any direct coercive power, material inducements and threats to international reputation are two methods which may be employed to ‘coerce’ states to enforce decisions. An emphasis on reputation is commonly used to influence state compliance. However, a state may be more concerned with upholding a reputation of toughness rather than a reputation for ensuring human rights. This issue is particularly relevant to the Australian Government’s treatment of asylum seekers. We pointed out that a failure to uphold human rights often does not affect a state’s reputation as a good trading partner, and therefore breaching human rights does not usually have an economic impact. This makes enforcing compliance difficult.
The ability of coercion or material inducements to encourage compliance with HRC findings also depends on the compatibility of international legal obligations with the domestic legal system. One of the most significant issues relating to Australia is that the domestic system, either via the courts, the legislature or the executive, remains largely resistant to the internalisation of international law. This first cluster of enforcement methods may not, therefore, be very effective.
The second cluster of enforcement mechanisms relies on persuasion, which in this context means using claims of the legitimacy of international law to persuade states to adhere to international decisions. Many academics, states and even the International Court of Justice have recognised that UNHRC decisions represent authoritative interpretations of ICCPR. However, despite the perceived legitimacy of the United Nations human rights petition system, consecutive Australian governments have continually ignored its findings. Our chapter in Access to International Justice discusses one of the most significant reasons why the perceived legitimacy of the UNHRC fails to persuade the Australian state to follow its decisions, which is the presence of negative attitudes towards human rights in many parts of the Australian community. Many Australians are indifferent, if not hostile, towards claims for human rights and law reform. Accordingly, for persuasive enforcement resources to be effective in Australia, the legitimacy of the UNHRC must be recognised by both the government and the community.
The final cluster of enforcement strategies refers to methods of socialisation. Even when the methods of coercion and persuasion are not effective, a state can still adopt beliefs and practices that are compatible with human rights through pressures to assimilate with the human rights culture. Queensland’s recent steps toward the development of a charter of human rights hold promise, though perhaps the restoration of the more modest parliamentary scrutiny approach that was repealed by the Newman Government might be a politically palatable first step, particularly for a minority government.