Is a World Court of Human Rights a Better Choice?

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Reflecting Australia’s Immigration Detention Issue in relation to Article 9 of the ICCPR

Introduction

This essay aims to examine the pro and cons of implementing a World Court of Human Rights (WCHR) mechanism within the current global human rights system dominated by the United Nations. It argues that the WCHR represents a new utopia in the legal field. Furthermore, the essay illustrates Australia’s immigration detention issue from both national and international legal perspectives. It also uncovers the implications of a system with strong political power and weak judicial power. Ultimately, it concludes that unless a culture of human rights permeates every corner of the world, the WCHR cannot resolve the clash between national interest and international ‘good faith’.

UN vs. World Court of Human Rights

For a WCHR – “A right ought to have a judicial remedy’’

The very basic premise, also a legal principle, behind such a proposal is that ‘human rights imply that rights-holders must be able to hold duty bearers accountable and must have a right to reparation’. ^[1] This is clearly linked to the issue of implementation.

Jesse conducted a structural review of the current Human Rights system. Then Jesse pointed out that such a deficient mechanism without implementation is the key reason why we need a WCHR. Jesse explained that two of the three groups tasked with different proposals for drafting the International Bill of Human Rights had achieved their goals respectively. Only the third working group, focusing on the implementation of human rights, didn’t succeed. ^[2]

As the UN plays a vital role in devising, interpreting, and monitoring human rights issues, it’s reasonable to advance our analysis by framing the UN as a ‘nation’ with the separation of powers, namely, legislative, executive, and judicial power. ^[3]

Against a WCHR – “A New Utopia’’

Top 1 Can one treaty unite a broken and divided world?

Jesse Kirkpatrick argues that a new WCHR overcoming the above deficiencies will be one of the most effective courts, as ‘a world standing court with increased scope of jurisdiction and uniformity across regions and States’ will have the capability to fix the current system.^[13]

However, according to Manfred, the current HR system, as the legacy of the Cold War, was born in a world divided by different ideology. From the West to the socialist countries, the flaw is obvious.

What Jesse might overlook is the hidden fact that behind this current treaty system, particularly the two dominant treaties ICCPR and ICESCR, actually two different ideology systems are still fighting and have already separated the West and the East based on their different ‘favorites’. The West favors ICCPR which defends individual liberty and freedom, such as ‘natural rights’ given by God; the East accepts ICESCR, which promotes economic, social and cultural such ‘artificial rights’ given by the government.

If we ought to have ONE court, will we have ONE treaty to guide the entire world?

Whether we need a Constitutional Law of Human Rights to unite this broken and divided world is out of the scope of discussion in this essay. But without a unified legislation of HR, it is basically impossible to realize the ‘uniformity’ under a WCHR, even though it speaks true that an effective court may enforce a more ‘legalized HR system’ to hold duty bearers accountable, instead of keeping an ‘’over politicalized HR system’’.

Top 2 Political Feasibility

Although many prominent scholars embrace such an idea as a fundamental legal principle that is difficult to confront, Judge Antonio Cassese has criticized it ‘less on principle’ yet more on ‘a realpolitik assessment of how far governments could be expected to go in limiting their own sovereignty’. ^[14] He went further to paint it as pure ‘naive to think that States will submit domestic HR violations on their own territory to binding international judicial scrutiny’. ^[15]

Philip illustrated several possible scenarios:

‘Deep reluctance from States’
‘Regional Human Rights systems incapable of exercising such power’
‘Unlikely coalition of States willingly to push a global initiative‘^[16]

He also argues that three significant concerns would place such global judicial power at a disadvantage: scale, power, and vision. ^[17] With respect to the scale, the WCHR’s competency would be questioned based on how to deal with such varied and vast domestic legal issues in addition to the cost incurred; pertaining to the power, as WCHR presumes the procedure increases the number of individual complaints, the eternal conflict between domestic power and international authority will be unavoidable. This is largely because of the fact-finding works or the requirement of exhaustion of domestic remedy, etc., and without the cooperation of internal power, WCHR can hardly push its agenda. ^[18]

Philip’s third concern is related to the vision, on how WCHR maps out its entire elite judicial system regarding hierarchy and universality.^[19] Philip is right that such a vision, both horizontally and vertically, may impose Orwellian fear onto this world – who wants a dictator-style court with ‘all mighty’ power?

Top 3 Binding power

WCHR argues that its advantage relies on ‘smooth introduction Court without Treaty Amendments’, as there will be a new treaty for WCHR. The Australian government used to contend that it doesn’t accept HRC’s view on Australia’s violation against ICCPR 9 because no ‘legislative history’ indicates the original intent within ICCPR including the emphasize on the compliance with ‘international law’, so the old treaty doesn’t have binding power over Australia’s conduct. It is easy to imagine the difficulty to create and ratify a new treaty. ICCPR was luckily signed before the Cold War started.

In the current global political landscape where Cold War 2.0 is emerging just as globalization almost went bankruptcy, and the reputation of the UN is also under scrutiny; it would be very hard to assemble States to unite again under a new treaty as the concept of Sovereignty will be placed as priority.

My Position with World Court of Human Rights

Based on the above arguments, both the current UNHR system and future WCHR represent a shared concern over the implementation issue within the worldwide HR system. This uncovers some much more fundamental frustrations probably out of the scope of legal discussion. I am personally against the proposal of WCHR, mainly due to its shortage of feasibility, and ‘in a nutshell, a culture of human rights needs to be nurtured at all levels’.^[20]This also holds true in the case of Australia’s contentious immigration issue from both national and international perspective.

Australia in the Perspective of WCHR

Immigration detention has long been the focal point of debate. As a party to the core treaty ICCPR, Australia also has the non-refoulement obligations regarding Human Rights. This is the dilemma of Australia’s migration detention.

Art 9 of ICCPR and Australia’s Immigration Detention

Arbitrary arrest or detention vs. Art 9 (1) & (2) –

Arbitrary arrest may refer to ’depending on individual discretion and not fixed by law’. ^[21]Section 189(1) of Migration Act 1958 gives an officer absolute power to detain the person so long as s/he ‘knows’ or ‘reasonably suspects’ someone is an unlawful non-citizen. ^[22] ‘Knowing’ or ‘reasonably suspecting’ falls within the scope of individual discretion, as this is not the result of public trial; the arrest or detention is arbitrary.

Although the Australian government would justify it as a ‘lawful’ conduct, UNHRC still finds that such ‘arbitrariness’ is not absolutely “equated with ‘against the law’ (particularly against domestic law) but be interpreted more broadly to include elements such as inappropriateness and injustice”. ^[23] UNHRC also expresses that ‘remand in custody pursuant to lawful arrest must not only be lawful but reasonable and necessary in all the circumstances’. ^[24]

Another procedure in violation of Art 9(2) of ICCPR is ‘’not to inform the reason for the detainee’s arrest’’. In line with s 194 of the Migration Act 1958, the detainee is only to be told of the consequences of detention, yet not the ‘’reason’’. Reason, as a cause, should not be confused with ‘consequence’.

Administrative detention and Criminal Charge vs. Art 9 (3) –

Administrative detention is a special form which is ‘in general less regulated by law’._[25] ‘The objective is to guarantee that another measure, such as deportation or expulsion, can be implemented’. _[26]

Usually, Immigration detention adopts administrative detention, and the length only last until deportation. However, historically the duration for mandatory detention is prolonged and punitive, thus it’s no different with punitive criminal detention. From the viewpoint of UNHRC, Australia has breached Art 9 of the ICCPR. UNHRC stresses that the basic prohibition of discrimination stipulated in the paragraph 2 of Art 1 under the Convention,^[27] is also applied to non-citizens as the rights recognized in ICCPR, etc. ^[28]

HRC suggested that a ‘time limit’ should be introduced on the overall duration of detention because ‘deprivation of liberty should never be indefinite’. ^[29] Also, Australia cannot use detention process as a general deterrent against unlawful entry. Without reasonable ground to justify the detention, the detention can still be regarded as arbitrary, ‘even if entry was illegal’. ^[30]

OHCHR believes that ‘infractions of immigration laws and regulations should not be considered as criminal offences’, also, ‘detention of migrants on the ground of their irregular status should under no circumstance be of a punitive nature.^[31]

Unfortunately, in Australia, the obscure between administrative detention and criminal detention is caused by ‘the high degree of discretion and the broad power to detain accorded to immigration and other law enforcement official’.^[32] One is because of the ‘absolute power’ of the officials given by s 189(1) of the Migration Act 1958; another is due to anti-terrorism legislation.^[33]

Judicial Review vs. Art 9 (4) –

Judicial review is a vital turning point for any victims. Considering that ‘the real tension lies in their interpretation and application’, ^[34]a World Court of Human Rights is supposed to be a further choice for such a contentious issue.

However, ‘the history of immigration law reform over the last decade has been dominated by attempts to restrict judicial review of decision making’.^[35]Detainee in the mandatory detention cannot seek judicial review on the legitimacy of the detention; this has obviously breached Art 9(4) of ICCPR.^[36] As a world court, the precondition to declare a complaint admissible is, according to Art 9(1) of WCHR’s Statute, the court may only deal with any individual complaint already submitted to the highest competent domestic court…^[37]

Although according to Art 9(2) of WCHR’s Statute, the World Court also is entitled to exercise its discretion on the special case where there is no relevant domestic remedy or due process of law… ^[38] This is where the WCHR may step in but the resistance from Australian political system is possible.

Political Resistance

Tough political stand of denying or excluding court’s jurisdiction on migration issues will put WCHR in an adverse position. Particularly, the coalition government has intentionally imposed ‘restraints on judicial review by use of an ouster clause or privative clause’.^[39] Often, minister’s personal discretionary power will finalize a detainee’s case.

Section 474(1) of the Migration Legislation Amendment (Judicial Review) Act 2001 provides that ‘a privative clause decision’ is final, conclusive, and unchallengeable…^[40] Decisions that are not privative clause only cover detentions centers or detention of vessels, still leaving detainee issues ‘irrefutable’.

Art 14(3) of WCHR Draft Statute sets out that the State Party ‘shall grant access to all places of detention and other facilities while carrying out a fact-finding mission’,^[41] while the Australian government might improve the living condition of detention centers as this is not covered by ‘’privative clause’’, but for the detainees, the ‘luxurious prison’ is still the ‘prison’ where ‘the right to liberty’’ has been deprived.

In the case like F.J. v Australia, when the adverse security assessment denies the due process of law and the complainant doesn’t even have ‘statutory basis for challenging the substantive necessity of detention’, ^[42] can a WCHR help the author find a solution?

Procedure

First, based on the Art 7 of WCHR Draft Statute, the Court may ‘receive and examine complaints from any individual claiming to be the victim of a violation to any human right provided for in any human rights treaty…’^[43]

Second, according to Art 9 of WCHR Draft Statute, while the submission to the highest domestic court is the pre-condition to lodge a complaint with the World Court, the exception may apply if ‘the relevant domestic remedy does not afford due process of law’ in line with the Art 9(2) of WCHR Draft Statute. ^[44] If the complaint is admissible, WCHR shall carry out investigation including to the places of detention, etc.

Unfortunately, under Art 50 (1) of WCHR Draft Statute:

“Each State may, at the time of ratification of this Statute or accession thereto, declare that it does not recognize the jurisdiction of the Court in relation to certain human rights treaties or certain provisions thereof.“

F.J. v Australia

With this entitled right for reservation, Australia can still escape its responsibility when ratifying the WCHR Draft Statute. Furthermore, Australia may argue that the arrest or detention is ‘’lawful’’. In response to the view of the HRC to the case F. J. v Australia, Australia robustly pushes back against HRC’s view by using extrinsic materials:

‘…In Australia’s view, there can be no doubt that the term ‘lawfulness’ refers to lawfulness according to the Australian domestic legal system.’^[45]

‘There is nothing apparent in the terms of the Covenant that suggests that ‘lawfulness’ was intended to mean ‘lawfulness at international law’ or ‘not arbitrary’. Where the terms ‘law’, ‘lawful’ and ‘lawfully’ are used in other provisions of the Covenant they clearly refer to domestic law: …In Australia’s view, if the drafters of article 9(4) intended the concept of ‘lawfulness’ to be interpreted broadly to include lawfulness under international law, this would have been reflected in the debate preceding the settlement on the form of words contained in this article. Instead, the negotiating history indicates that ‘the principle enunciated in paragraph 4…did not give rise to much discussion’. Accordingly, Australia does not accept the Committee’s view that Australia has breached article 9, paragraph 4. ‘^[46]

Enforced judicial remedy vs. Art 9 (5) –

The underlying logic of WCHR, initially promoted by H.V. Evatt, stressed that ‘where there is a right there ought to be a judicial remedy’.^[47] In contrast to ICC, we might have an ‘’International Tort Court’’ to deal with any Human Rights complaints which cannot be accepted by ICC due to its level of less severity.

If a domestic remedy is not available, WCHR may exercise its discretion to investigate what internal remedies related to reparation are available. In the meantime, according to Art 39 of WCHR Draft Statute, the Trust Fund may be used for supporting States Parties to improve their domestic judicial remedies…

However, even though Art 39 of WCHR’s Draft Statute stipulates that a Trust Fund shall be used to assist victims and States Parties to improve domestic judicial remedies, it is in accordance with Art 9 of WCHR’s Draft Statute.^[48]

Art 9 of WCHR’s Statute emphasizes the importance of exhaustion of domestic remedies but offering the optional choice to State Party to identify during the ratification the correspondent judicial remedies which must be exhausted within domestic system, ^[49] weakens the binding power of such provision. This is a dilemma for a World Court, particularly for Human Rights which are not ‘absolute’. But if WCHR raises the bar to formulate mandatory clauses it will scare away State Parties too.

If everything is acceptable, this direction may help safeguard the rights of victims under Art 9(5) of ICCPR.

Implications of World Court of Human Rights

In an age where sovereignty is a concept emphasized by the government, a tough border security law would naturally seem to be very necessary, particularly after examining Australia’s status quo. If WCHR wants to push its agenda, it must face tough resistance.

Strong political power, weak judiciary power

Australia is a country where ‘’the protection of human rights has been largely left to the political realm’’. ^[50] As Australia’s Human Rights system is under the full control of the government rather than answering to the judicial power. Hence, to legalize or to politicize modern HR system is a real question.

In fact, the reasoning behind Australia’s border policy can be explained as such: if you want to give ‘everyone’ equal ICCPR rights, then ‘everyone’s cost to protect human rights will have to rise because of the risk factor involved. Take America as an example. America has open border policy; illegal immigrants are acceptable in the States, so it’s an indispensable necessity for every American to defend its Second Amendment as ‘everyone’s freedom (human rights) is threatened by crimes potentially brought by illegal immigrants who enter America due to ‘equal human rights’. As an individual, American takes the same amount of freedom and risk.

If Australia chose to follow America’s immigration model, then every Australian citizen would need to take back gun rights and defend it. Obviously, this was not Australia’s choice. We can argue Australia’s government is ‘bigger’ than America’s, it’s a society not that ‘individualistic’, but this is the way Australia chose to be.

Regarding mandatory detention, just like MP Andrew Wilkie argues that ’whenever the federal court rules against the government, the government just keeps changing the law until it finds a workaround for the federal court’.^[51] This is for sure a fighting, but as Coleman stated, ‘the role of the Court is to resolve legal questions so that a political solution can be found’. ^[52]

Conclusion

The ongoing debate about the advantages and disadvantages of WCHR has helped us understand the Human Rights system in an anatomical way, yet the more practical questions such as implementation remain unsettled. Due to the different political choice, Australia’s approach to immigration detention is contentious from the viewpoint of international human rights system in relation to the Article 9 of the ICCPR. However, unless human rights as a culture and value deeply cultivated in our humanity, even a more advanced WCHR cannot straighten out the complex between national interest and international interference.

(END)

Footnote

Part 1

[1] Manfred Nowak, ‘The Need for a World Court of Human rights’ (2007) 7(1) Human rights Law Review 251, 254.

[2] Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human rights’ (2014) Journal of Human Rights 230, 231.

[3] Separation of powers: Parliament, Executive and Judiciary , https://peo.gov.au/understand-our-parliament/how-parliament-works/system-of-government/separation-of-powers/ .

[4] Monitoring the core international human rights treaties, https://www.ohchr.org/EN/HRBodies/Pages/Overview.aspx .

[5] Monitoring the core international human rights treaties, https://www.ohchr.org/EN/HRBodies/Pages/Overview.aspx

[6] Strengthening and Enhancing the Effective Functioning of the Human Rights Treaty Body System, GA Res 68/268, UN Doc A/RES/68/268 (21 April 2014, adopted 9 April 2014).

[7] Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human rights’ (2014) Journal of Human Rights 230, 234.

[8] Manfred Nowak, ‘The Need for a World Court of Human rights’ (2007) 7(1) Human rights Law Review 251, 253.

[9] Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human rights’ (2014) Journal of Human Rights 230, 235.

[10] Ibid.

[11] Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human rights’ (2014) Journal of Human Rights 230, 236.

[12] Ibid, p238.

[13] Ibid.

[14] Philip Alston, ‘Against a World Court for Human Rights’, p201.

[15] Ibid, p200.

[16] Ibid, p201.

[17] Ibid.

[18] Ibid.

[19] Ibid, p205.

[20] Ibid, p210.

[21] Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/arbitrary.

[22] Migration Act 1958 (Cth) s 189.

[23] A. v. Australia, CCPR/C/59/D/560/1993, UN Human Rights Committee (HRC), 3 April 1997, para 9.2. Available at: https://www.refworld.org/cases,HRC,3ae6b71a0.html [accessed 3 June 2021].

[24] Hugo van Alphen v. The Netherlands, Communication No. 305/1988, U.N. Doc. CCPR/C/39/D/305/1988 (1990), para 5.8.

[25] Administrative Detention of Migrants, p2, also see the report E/CN.4/2003/85 of the Special Rapporteur on Migrants.

Part 2

[26] See for example reports on the Special Rapporteur on the human rights of migrants on visits to Spain

(E/CN.4/2004/76/Add.2) and Italy (E/CN.4/2005/85/Add.3).

[27] International Convention on the Elimination of All Forms of Racial Discrimination, para 2, Art 1.

[28] General Recommendation No. 30, 01/10/2004, para 2. Article 1, paragraph 2 of the Convention on the

Elimination of Racial Discrimination provides for the possibility of differentiating between citizens and

non-citizens.

[29] Administrative Detention of Migrants, p4. This paper heavily relies on report E/CN.4/2003/85 of the Special Rapporteur on Migrants

[30] CCPR/C/D/59/560/1993 para. 9.4 and C. v. Australia (900/1999), ICCPR/C/76/D/900/1999 (28 October

2002) at para. 8.2.

[31] Administrative Detention of Migrants, p13. This paper heavily relies on report E/CN.4/2003/85 of the Special Rapporteur on Migrants.

[32] Ibid, p8.

[33] Ibid.

[34] Gabrielle Appleby et al, Australian Public Law (Oxford University Press, 3rd ed, 2019) 436.

[35] J. Basten, ‘Revival of procedural fairness for asylum seekers’, Alternative Law Journal, vol 28, no. 3, June 2003, p.114. See also J. McMillan, ‘Controlling immigration litigation a legislative challenge’, People and Place vol 10 no 2, 2002, pp 16-28, at http://parlinfoweb.parl.net/parlinfo/Repository1/Library/Jrnart/QO7761.pdf

(link not available outside Parliament).

[36] ICCPR art 9(4).

Part 3

[37] WCHR Consolidated Draft Statute, art 9(1).

[38] Ibid art 9(2).

[39] Bills Digest No. 118 2003-04, Migration Amendment (Judicial Review) Bill 2004, At https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0304/04bd118#Main [accessed 3 June 2021].

[40] Migration Legislation Amendment (Judicial Review) Act 2001, s474.

[41] WCHR Consolidated Draft Statute, art 14.

[42] F.J .v Australia, p5.

[43] WCHR Consolidated Draft Statute, art 7.

[44] WCHR Consolidated Draft Statute, art 9.

[45] F.J. v Australia, para. 8, p2.

[46] Ibid, para. 9, p2.

[47] Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human rights’ (2014) Journal of Human Rights 230, 232.

[48] WCHR Consolidated Draft Statute, art 39.

[49] WCHR Consolidated Draft Statute, art 9(1).

[50] Gabrielle Appleby et al, Australian Public Law (Oxford University Press, 3rd ed, 2019) 436.

[51] ‘’New law allows Australian government to indefinitely detain refugees’’, https://www.theguardian.com/australia-news/2021/may/13/new-law-allows-australian-government-to-indefinitely-detain-refugees-with-criminal-convictions

[52] Andrew Coleman, ‘The International Court of Justice and Highly Political Matters’ (2003) 4 Melbourne Journal of International Law 29, 74.

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