Skip to main content

Response to Dr Alison Broinowski: Dr Sev Ozdowski, OAM (2005)

Rights Rights and Freedoms

Response to Dr Alison Broinowski oration

"Adolescent or geriatric? The future of the
United Nations?"

Delivered by Dr Sev Ozdowski, OAM, Human Rights
Commissioner and
Acting Disability Discrimination Commissioner at
the
Sydney Peace Foundation
and AIIA, Sydney University,
19
May 2005


Acknowledgements

I would like to acknowledge the traditional owners of the land on which
we stand, the Eora People, and pay my respects to their elders both past
and present.

It is my pleasure to be asked to provide short commentary on the address
and propose a vote of thanks to Dr Alison Broinowski.

My congratulations to Alison for her elegant and thought provoking
address. I would have expected no less from my esteemed colleague. It
should also be noted at the outset that in most respects any discussion
between Alison and I on this subject would be characterised by furious
agreement. Nevertheless I do believe that in the area of "emphasis",
we may exhibit some subtle, but important differences of opinion. Perhaps
I am more optimistic when it comes to the future of UN and see America"s
and Australia"s critiquing roles in a more benign light. But more on
that later.

Sydney Peace Prize

Before commenting on Alison"s speech, I would like to acknowledge the
United Nations Under Secretary-General for the Protection of Children
in Armed Conflict Mr Olara Otunnu from Uganda who is the winner of this
year"s Sydney Peace Prize. Mr Otunnu has been hailed for his commitment
to human rights and efforts to protect children in times of war.

Children in Immigration Detention Inquiry (CIDI)

My congratulations to the Sydney Peace Foundation. The award winner
is a good choice and the award is timely in the context of our discussion
tonight about the future of the UN.

This year"s winner has also touched my heart because of his work for
children - work with which I am quite familiar. As you would know this
month is the first anniversary of the National Inquiry into Children
in Immigration Detention ("A
last resort?
")
being
tabled in Federal parliament.

Last week I called on the Federal government to urgently review Australia"s
system of mandatory immigration detention, in response to these revelations
of wrongful detention and deportation of Australian citizens and also
in response to ongoing concerns over the mental health of detainees.

The recent revelations concerning the mistreatment of adult Australians
reinforce the findings that were made one year ago in the Commission"s
report on children in immigration detention.

The report detailed numerous and repeated breaches of the human rights
of children in our immigration detention centres.

The report found that Australia "s mandatory detention system breaches
human rights because it fails to ensure that detention is the last resort
and for a short period only, and fails to make the best interests of
the child a primary consideration. It has also drawn attention to the
connection between prolonged detention and mental health issues.

The Inquiry found that DIMIA"s failure to implement repeated recommendations
by mental health professionals to remove certain children from detention
with their parents was cruel, inhumane and degrading treatment of those
children in detention.

There are still 69 children behind razor wire (including in Nauru).
Some of those children were in detention when the report was tabled a
year ago.

It is undisputed that the detention environment is either the cause
of mental health issues for long term detainees and/or exacerbates existing
conditions - the recent Federal Court decisions for the two Baxter detainees
reinforce this assertion.

CIDI findings: backward looking?

When responding to"A last resort?" one year
ago, the government rejected the major findings and recommendations,
dismissing them as "backward looking'.

The facts revealed so far in the Cornelia Rau and Vivian Alvarez cases
suggest that our findings were far from backward looking - rather they
were tragically prophetic. When there is no provision for an independent
individual assessment of each and every person, and no requirement for
judicial oversight, the risk of serious mistakes becomes unacceptably
high.

The mandatory detention laws and the oversight regime that causes so
much difficulty are still in place. We all need to continue our work
to ensure that the recommendations of "A last resort?" are
implemented.

Turning now to the UN and Alison"s address. And it is here that "emphasis"
becomes a point of minor departure from Alison"s views of the future
of the UN, and mine.

As I mentioned earlier, I am more optimistic and believe that change
is needed, especially in the way UN deals with human rights issues. In
my response I will therefore focus on three issues only:

  • The reform of the UN Human Rights Commission which I know best out
    of many UN agencies, because I have dealt directly with it over many
    years.;
  • The role of US in the UN reform;
  • The contribution to UN reform by Australia.

But first let us acknowledge the UN"s Record

It is only fair, if I"m going to support change, that I first itemize
some of the UN"s undoubted achievements. To list but a few without trying
to be exhaustive:

  • The UN"s unique contribution out of the ashes of WWII to international
    community and peace; as a child in Communist Poland I vividly remember
    the contributions made to our well-being by UNRA in the post WWII years;
    and the opportunities to learn about the world provided by UNESCO;
  • Codyfying, enhancing and publicising fundamental human rights. My
    current research project in high schools of Australia suggests that
    the UN"s role in protection of human rights is well known among high
    school students;
  • Enlarging of the concept of a "civil society" and
  • Continuing efforts to further advance the universality of human
    rights. And I am delighted to have opportunity to work on a new UN
    Convention protecting rights of people with disabilities.

From my personal point of view, without the UN we would not have universal
human rights standards. We would not have the Convention on the Rights
of the Child. We would not have had my Inquiry into Children in Immigration
Detention. And possibly we would not have HREOC. Australia"s work in
East Timor was undoubtedly made easier for being pursuant to a UN mandate
and our policing work in Cyprus, over many, many years the same.

So let us acknowledge the UN"s role in the past as an important secular
standard setter and advancer of democratic institutions.

So what has changed in recent times? What is it about the operation
of the United Nations Human Rights Commission that has attracted such
trenchant criticism from the United States, and in a slightly less aggressive
tone, from Australia? Why is it that UN Secretary-General Kofi Annan
has recently flagged the need for reforms?

Kofi Annan"s 7 April 2005 speech to the UN Human Rights Commission
(UNHRC) on the need for reform

In this speech Kofi Annan criticised UNHRC for the "politicization
of its sessions and the selectivity of its work" to the extent that "the
Commission"s declining credibility has cast a shadow on the reputation
of the United Nations system as a whole, and where piecemeal reforms
will not be enough". He then went on to suggest that a new "Human Rights
Council" should be more accountable and representative with members elected
by a two-thirds majority of the UN General Assembly and that they should
have a solid record of commitment to the highest human rights standards.

This move by Kofi Annan addresses one of the key complaints of the
US and Australia against the way the UNHRC currently operates; namely
that members of that body, with very poor domestic human rights" records
use membership of the UNHRC to avoid criticism of their domestic human
rights" abuses. The Secretary General then went on to suggest other reforms
of the UNHRC which are beyond the scope of this piece. But this brings
me back to one of my small points of departure from Alison"s talk tonight;
namely to what extent have the US and Australia been motivated by a genuine
desire for reform of the UN in their previous utterances or are they
merely respectively pursuing national self interest? Do their own records
on human rights issues make them well qualified to stand in judgement?

The role of the US in UN reform

It is certainly true that domestically the United States presents as
a strong civil society. It has a significant body of human rights legislation,
institutions and culture - specifically a solid tradition of functioning
democracy, a robust Bill of Rights and affirmative action laws, a vibrant
civil society and transparency of operation of the Executive arm of government.

In its international persona its record is more complex. As a long
established superpower - currently occupying that pinnacle alone - it
variously pursues unilateral, bi-lateral and multilateral policies depending
upon the circumstances, the degree of self interest involved and the
magnitude of the stakes. The choice is often pragmatic and/or opportunistic.
Notwithstanding this, a dispassionate analysis would acknowledge that
the US nevertheless has an impressive record in international human rights:
a very significant role in the establishment of the United Nations, substantial
financial and in-kind contributions to a wide variety of bona fide pro-democracy
movements - Solidarity springs to mind - and a lively involvement and
interest, in the United Nations Human Rights Committee.

But equally it is undeniable that at times there will be a conflict
between America"s superpower status, with all the associated trappings
of unilateral economic and political considerations and the purity of
its motives when it comes to international human rights advocacy and
calls for democratic regime change. Recent history shows that there have
been occasions when America has used the banner of democracy to also
advance its unilateral interests. Consequently - as with all other countries
- care needs to be taken when dealing with America"s stated goals in
the realm of international human rights agendas. A case by case approach
is advisable.

The US calls for reform of the UN, and the solutions it offers must
therefore be considered in light of the comments above.

The contribution by Australia to UN reform

Australia has a demonstrated capacity to punch above its weight in
its involvement with international affairs, and the UN and human rights
is no exception. Its domestic credentials in this regard are solid without
being spectacular: a human rights culture, embodied by the "fair go"
ethos has given rise to a well rounded and vigilant civil society anchored
by an appropriate menu of anti-discrimination laws. However this positive
picture is somewhat marred by the absence of domestic laws protecting
civil and political rights in contradistinction to other mainstream industrial
countries.

On the international stage, Australia"s status made it heavily reliant
on multilateral arrangements which in the past induced it to prioritise
"good international citizen" behaviour as evidenced by its support for
the UN. Recently however, there has been a shift in emphasis towards
bilateralism, of which Australia"s trade agreement with the US is the
most obvious example, but other alliances are also important: Japan,
Britain and of course China. However the UN still provides Australia
with a clearing house for multilateralism with regard to the rest of
the Asia-Pacific region and other countries.

In fact from a regional perspective, while Australia is supportive
of democratic evolution and the strengthening of human rights mechanisms,
this manifests itself more in the form of technical assistance; rather
than proselytising amongst our northern neighbours on the virtues of
human rights and the need to strengthen their record in this respect.
Even when the Solomon Islands was experiencing wide-scale human rights
abuses, as it began its slow but steady descent into the chaos of a failed
nation-state, Australia waited until it had the backing of other Pacific
nation states such as Fiji and Papua New Guinea (to name but two) before
engaging constructively with the crisis. It must be recognised however
that the ensuing "Regional Assistance Mission Solomon Islands (RAMSI)"
has done an excellent job in curtailing human rights" abuses and re-establishing
a working democracy.

US and Australian concerns about the operation of the UNHRC

Leading on from this necessarily brief analysis of the US and Australia"s
stance regarding human rights, I believe it is fair to say that both
countries have strong human rights traditions and interests. In fact,
very few other countries can match their achievements in the field of
human rights. When it came to their engaging with other countries in
the UN on this issue, it was a source of frustration that many of these
countries had no human rights tradition, and limited interest in it as
a concept except as a slogan and/or political device.

This inevitably caused irritation and friction, especially on the UNHRC
when countries with appalling records of domestic human rights abuse
would criticise other countries with good records. Australia especially
found such behaviour, when directed against itself, particularly galling.
Also, when countries with a bad human rights record criticize the human
rights record of democracies like the US or Australia, it generates an
inevitable criticism of the entire role and function of the United Nations.

However I believe Australia, in criticising the current system, is
genuinely interested in reform, with the aim of making the UN system
work more effectively. I believe this for two principle reasons. Firstly,
I think the government and the majority of Australians believe that states
function more effectively when they do so within a bona fide democratic
framework.

This is not only important from those countries own HR perspective,
but it provides the possibility of dramatic improvement in living standards.
As the May 9 2005, World Bank press release on global progress on "governance"
1996 to 2004 explains:

  • "Good governance standards can deliver significant improvements
    in living standards for people in developing countries.....";
  • "A key finding is that a realistic (one standard deviation)
    improvement in, for example, the Rule of Law (or in other dimensions
    of governance, such as Voice or Accountability, or in Control of
    Corruption) in a country can be expected to result, on average, in
    about a 300% increase in per capita incomes in the longer term.....";
  • "The research finds that improved standards of living are in
    fact the result of improved governance - and not the other way around.....";

Secondly, in international terms Australia is a very small player and
our economic lifeblood is almost totally regulated by the extent to which
our trading partners adhere to the letter and "spirit" of a whole raft
of international trade agreements. Therefore we can"t afford to "cherry
pick" between those treaties we want observed and those we would rather
ignore. Treaties implying obligations towards UN inspired human rights"
standards, using this criterion, become just as important for our long-term
future as those which help secure our economic and trading interests,
emanating from the WTO. Therefore we would want to see the UN bodies
that help set those standards acting in a manner that is beyond reproach,
so that countries feel obliged to heed their call.

Conclusion

In conclusion therefore I agree with Secretary General Kofi Annan that
the UNHRC needs urgent reform and that we should reserve judgement on
the likely efficacy of his proposals to give them a chance to work.

I believe that Australia"s criticisms have been motivated by a real
desire to see the UN system function better, because it is in Australia"s
long term interests for that to be the case; coincidentally Australia
also believes that outcome will also be of benefit to the rest of the
world.

In America"s case I"m prepared to suspend judgement on the motives
behind her support for Kofi Annan"s reform agenda, but at the very least,
whatever the motive, American support is very important if the reforms
are going to be given a chance to develop and flourish.

Reflecting finally on where this leaves Alison and I on the UN"s future;
it means we both believe it is a very important body that must be given
the chance to demonstrate that it can function efficiently in helping
the world develop peacefully. Our difference of emphasis lies only in
what it means when countries like America and Australia constructively
criticize in order to improve UN performance.