Just who asked top judges to inflate the role and authority of rights-related international law? Parliamentarians and those in favour of legislative last-word decision-making need to make clear their unease with this ever-broadening presumption to interpret, expand and impose.
If national democracy is to be maintained in any recognisable form within self-sustaining states, the power and claims of international rule-making will have to decline. —Harry Gelber, Quadrant, October 2015
… since the end of the Cold War the notion of global governance has emerged as an intellectual orthodoxy with powerful support in the academy, the media, the law, the foreign policy establishment, the corporate world, and the bureaucracies that serve international institutions and non-governmental associations.
Global governance is a reversal of our existing political arrangements. It aims to take power from democratically elected parliaments and vest it in courts, NGOs and transnational bodies. Voters would increasingly find their representatives beholden to international treaties, international legal conventions and precedents, transnational bureaucrats and lawyers. Government policy would be decided less by open debate in the national media and more in the comparatively closed world of international conferences, academic seminars, consultant reports, learned journals and legal judgments. —Keith Windschuttle, Quadrant, May 2012
The expanding reach of a fuzzy sort of rights-related international law is enervating democracy in long-established democracies such as Australia, Canada, New Zealand and the United Kingdom. And the courts are playing a significant role in advancing this agenda of global governance, or creeping international legal rule. We should be more sceptical about international law when it deals with human rights, considerably more so than when it deals with more traditional subject matter (such as international trade law and the law of diplomatic immunity).
It is worth beginning by recalling just what the sources of international law are and how this sort of law is made. In a long-established democracy such as Australia or New Zealand or Britain it is also worth considering whether international law or domestic law is likely to be the one that gets things right and lays down the preferable course of action when the two conflict or are in some way inconsistent.
There are two sources or types of international law. The first is treaties (sometimes called conventions). This is what most people, including most lawyers, think of when one talks of international law. Now focus for a moment on rights-related treaties such as the United Nations Convention on the Rights of the Child (CRC) or the United Nations Convention on the Rights of Persons with Disabilities (CRPD) or any of the various other rights-related treaties. All treaties are entered into under the prerogative power which is exercised by the executive branch of government. Accordingly, even with some newish modifications that give the legislature a tiny bit of say in some Westminster countries, the democratic input into treaties is far less than it is into statutes.
That is true of all treaties. But as we are focused on rights-related treaties, notice that these treaties are framed in vague and amorphous terms (just compare either of the above rights-related conventions to a trade-related treaty such as the General Agreement on Tariffs and Trade (GATT). This makes sense in a world in which a Britain or a Canada is seeking to encourage a Sudan or a China or a Zimbabwe to enter into a treaty about standards of treatment for children or women or the disabled. There needs to be room to finesse disagreement between countries with such different histories and standards of treating their own citizens, and that is precisely what the language of these rights-related treaties and conventions delivers—scope not only for disagreement over meaning between countries that exist in such different moral galaxies but, as a result, also scope for reasonable disagreement between people living in a long-established democracy as to what the provisions mean and require.
If such rights-related treaties went into the sort of prescriptive detail one finds in, say, a trade-related treaty, then the chances of any rights-related treaty ever coming into existence would be slight. So room has been left in rights-related treaties for countries to manoeuvre around disagreements, and this is achieved through open-textured provisions that leave it to future interpreters to add detail and specifics at the point of application—at the further cost of democratic input and legitimacy when this interpreting is done. And if the interpretive approach adopted proves to be of an expansionist, “living tree” type, divorced from the original intentions of the drafters, then the problem of lack of democratic input will be further magnified—possibly substantially so. Put simply, if you believe that democratic input tends to make laws better, on average, over time, then you are likely to think that the domestic law of an Anglosphere country is better than any rights-related international treaty or convention when the two conflict or are inconsistent. (You can hold this belief while also believing that it will not be true as regards the world’s authoritarian regimes. In their cases, international law is better. And you can hold all of the above to be true and also accept that the world’s United Kingdoms and Australias care deeply about the content of rights-related treaties.)
Put bluntly, the domestic law of Britain, Canada, Australia, New Zealand, the United States and other such long-established democracies is democratically better and in practice more rights-respecting than is rights-related international law, a claim that seems to me to be as patently true as it is unlikely to be heard in polite company. For me, democracy is to be understood in procedural terms. Count us all as equal and give everyone a more or less equal say over contested social issues, including rights-related ones. On that procedural understanding of democracy, the domestic laws of the world’s Britains and New Zealands and Australias clearly score higher than any rights-related international laws.
