Does International Law Matter On Remote Communities?


"Sanctimonious claptrap", "Armchair critic", "UN meddling", "theoretical but not practical". These are some of the strong reactions by politicians and media commentators to the conclusions drawn by James Anaya, Professor of Human Rights Law and UN Special Rapporteur on indigenous human rights, at the end of his recent fact-finding visit to Australia.

What did Professor Anaya say to provoke this ire? It seems he merely stated the obvious: that there are serious disparities between the living standards of indigenous and non-indigenous Australians, and that the Northern Territory Emergency Response (the "Intervention") is discriminatory and stigmatising.

Everyone knows this — even the Federal Government. Why else would the Government speak of "closing the gap", and why else did it suspend the Racial Discrimination Act before sending troops into the Northern Territory? In spite of this, the UN official’s comments were portrayed as the naïve and unrealistic complaints of an uninformed outsider, rather than a timely reminder of Australia’s international commitments.

In the midst of this media ruckus it was overlooked that Professor Anaya also named positive developments in his concluding statement: he especially commended the Australian Government’s decision to endorse the Declaration on the Rights of Indigenous Peoples.

The UN Declaration on the Rights Indigenous Peoples was proclaimed by the General Assembly on 13 September 2007, after over two decades of negotiations. Supported by an overwhelming majority of member states, only four countries voted against it: the US, Canada, New Zealand and Australia. But earlier this year, the Rudd Government decided to endorse the declaration.

The declaration is not often mentioned in the media, and its content is virtually unknown. Here are a few of the things the Government has signed up to: indigenous peoples have the right to self-determination and self-government in internal and local affairs. They have the right to practise and revitalise their cultures and traditions. They have the right to the improvement of their economic and social conditions, and to an equal standard of physical and mental health. They have the right to their traditional lands — or to adequate compensation or redress for traditional lands taken from them. They have a right to environmental protection of their lands, to quick decision-making processes and to financial and technical assistance.

There is a catch, of course, and that is that the declaration is not legally binding. What it does provide is a platform from which human rights abuses against the world’s approximately 370 million indigenous people can be addressed. It is a moral compass, representing a global consensus; and it is a promise to the international community.

So how do you get a government to keep its promises? And why does it matter if they don’t?

Niccolò Machiavelli, the philosopher of power politics, devotes a chapter in his book The Prince to the question of whether rulers should honour their word. "You must understand" he writes, "that there are two ways of fighting: by law or by force. The first way is natural to men, and the second to beasts." Far from advocating due process and the rule of the law, however, he continues that "a prince must understand how to avail himself of the beast and the man". No need, he writes, to keep one’s promises if they are obstacles to your plans.

The advance of human rights is the advance of the rule of law over the rule of force. Individuals now have rights not because they are in positions of power, but because they are human beings. The Universal Declaration of Human Rights, having been shaped by the beastly crime of the Holocaust, states clearly the rights which no government, however powerful, should take away from you. Interestingly, the Declaration of Human Rights is also not legally binding, but it has formed the basis for subsequent treaties, agreements and covenants.

The Declaration on the Rights of Indigenous Peoples is not advocating special privileges. It merely describes human rights as they apply to the particular circumstances of indigenous populations. Australia committed to this document last April. The next step is for the Rudd Government to turn this promise into concrete measures. As Professor Anaya writes:

"Any special measure that infringes on the basic rights of indigenous peoples must be narrowly tailored, proportional, and necessary to achieve the legitimate objectives being pursued."

"In my view, the Northern Territory Emergency Response is not."

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.