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.
The second source or type of international law is known as customary international law. If treaties and conventions are democratically deficient in comparison with the statutes passed by parliament, then customary international law comes close to not having a single democratic bone in its body. This is the non-treaty-based sort of international law (though in some instances customary international law can flow on from treaties). It has never been agreed to by any democratically elected and accountable legislators or even members of the executive branch. Its content cannot be found in a treaty, ratified or not, but rather is inferred from the practice of states. Once a consistent and general practice of states has been identified, and this general practice is held to be something that was followed out of a sense of legal obligation, then it becomes part of customary international law.
Who does this identifying and deciding about what states are doing and what their motives are? The answer is: publicists. Many of those falling into the category of publicists are legal academics or law professors. Not all law professors however. You have to be someone who is knowledgeable and writes on international law, so someone with technical mastery of the field. But you also have to demonstrate to those already recognised as being highly qualified publicists that you have what Harvard Law School law professor Mark Tushnet describes as “soundness”.
No one gets to vote for these legal academic publicists. They have no democratic warrant at all. As a group they may well have political and moral views that diverge from those of the general public. Those sceptical of the benefits of international law are excluded. This matters much more today than it may have in the past when customary international law concerned itself solely with the “law of nations”, and when in many ways it was a practical and relatively focused source of law. These days, however, this subsidiary branch of international law has expanded its reach into the realm of how a nation-state treats its own citizens. Hence, when you focus on who makes this sort of law you again might wonder if it is likely to produce better results than what flows from a democratically elected parliament.
That doubt remains as regards the other main group of people who make customary international law, the international judges. Consider the fifteen Justices on the United Nations’ International Court of Justice (ICJ), about a third to a half of whom come from non-democracies. Consider, too, the horse-trading that takes place at the General Assembly to select ICJ judges, a method that can be described as opaque. Or consider that the traditional task in international customary law—the quest to find the actual practices of nation-states—now contends with a newer, “modern” approach that can substitute statements by nation-states for actually engaging in a practice.
This subsidiary sort of international law is on the whole opaque and is considerably more undemocratic than even the treaty-based sort, which itself has far fewer democratic credentials and is less transparent than the domestic law of long-established democracies.
Two final background points are worth making as regards the rights-related international law regime. At the pinnacle of all talk about rights-related international law sits the UN Human Rights Council (UNHRC). The UNHRC currently includes Cuba, China, Saudi Arabia, Pakistan, Venezuela and the UAE, with Kyrgyzstan, Togo, Ecuador and Ethiopia amongst those also elected to three-year terms beginning in October. Saudi Arabia was recently elected as Chair of the Council’s Advisory Committee, and so will be highly influential in the appointing of alleged experts to address various problem areas in human rights. As it happens, there has never been a single UNHRC resolution (or UN General Assembly resolution related to rights-infringement either) against Saudi Arabia for human rights abuses. There have, though, been more of both of those sorts of resolutions against Israel than against all other countries combined. The UNHRC (and the General Assembly) see Israel as more rights-infringing than the combined record of all other countries on earth! All this needs to be kept front-and-centre when criticisms regarding rights-respectingness are levelled against long-established democracies.
The same general point applies, too, as regards the various committees that monitor each of the rights-related UN conventions such as the CRC and CRPD. A good deal of scepticism is warranted when these committees allege that Australia or Britain has fallen short in some rights-related way, or indeed when they make any sweeping rights-related claims. These types of rights issues are inevitably open to reasonable disagreement; the people who staff these committees (and the representatives of the countries on the UNHRC) have no greater moral insights or moral perspicacity than the average voter or parliamentarian, and they have massively less democratic legitimacy than the latter.
That leads on to the second background point to bear in mind. In recent years, what might be described as slippage has taken place in terms of what exactly falls under the aegis of international law. The number and range of treaties keep expanding—more and more claimed rights (of, say, indigenous peoples, the disabled, the environment, to say nothing of social and economic rights) are trading under the banner of rights-related international law. The pseudo-progressive practice of international human rights law has real costs in terms of human rights themselves.
How can international law influence domestic law?
Here I will offer a brief reminder of the ways in which international law might, and occasionally does, influence domestic law. I will arrange these on a spectrum moving from least controversial (that is, most in keeping with orthodoxy) to most controversial. The purpose is to give the reader some basis against which to evaluate the recent judicial developments we will look at shortly.
Starting with the traditional understanding of international law at the orthodox end of the spectrum of influence, we have treaties which have been incorporated into domestic law (that is, explicitly introduced into the legal system by means of a statute). There is nothing controversial about this type of treaty-made-into-statute situation.
Moving along the spectrum, we now push into territory where the focus is on ratified (but not incorporated) treaties that are used by judges to influence their interpretation of domestic law. This, in all its permutations, is more controversial than where a treaty has in fact been incorporated into domestic law. However, the extent of the novelty or breach with orthodoxy varies and is open to reasonable disagreement. Least vulnerable to democratic objections are instances in which regulations or other secondary legislation are being interpreted (or actions by ministers and others reviewed) and there is ambiguity as to the meaning of the legal text (when the normal interpretive approach is adopted). Given the ambiguity of the secondary legislation, and only after a determination of such ambiguity, the judge then turns to the relevant ratified (but not incorporated) treaty to see if it helps resolve the ambiguity. Think of this as possibility 1.
Further along, the same scenario plays out in relation to primary legislation—a statute is being interpreted. Again, there is ambiguity when the usual canons of statutory interpretation are employed and the judge appeals to a ratified (but not incorporated) treaty as a possible determining factor. This is possibility 2.
Next we have instances in which the judge is interpreting regulations or other secondary legislation (or reviewing actions by ministers and others), but here the appeal to a ratified, unincorporated treaty is made without any prior finding of ambiguity when just the usual interpretive resources have been relied upon. Clearly the ratified treaty is now playing a larger (and earlier and more influential) role in determining outcomes as to the meaning of domestic law. This will include instances where the treaty is, in effect, providing enough sway to over-ride (by way of interpretation) an unambiguous domestic regulation. This is possibility 3.
Next is the same scenario but this time it is primary legislation being interpreted. There is no ambiguity as regards the statute here, and yet the judge consults the ratified, unincorporated treaty in reaching a decision about the meaning of the legislation. This is possibility 4.
In possibilities 1 through 4 on our spectrum, we have only considered ratified (but not incorporated) treaties in asking about the influence of international law. Yes, there is some room for debate on whether, in terms of veering from orthodoxy when it comes to the role of international law, we ought to swap or flip possibilities 2 and 3—this would depend upon the priority given to either the lack of ambiguity or the difference between (and therefore the relative importance of) secondary and primary legislation. The above spectrum treats the absence of ambiguity as the weightier consideration, on the basis that this can lead to situations in which it would appear to the outside observer that international law is trumping domestic law. But for the purposes of this discussion, nothing hangs on any rearrangement of the spectrum by flipping these two possibilities.
Notice, though, that thus far we have only considered how treaties might be of indirect effect, that is, how they might influence the interpretation a judge puts on a provision of domestic law. Of course what use judges ought to be able to make of these unincorporated treaties is contentious, contestable and will result in varying indirect effects on the scope of parliamentary decision-making power. Yet thus far there is no overt tension between the use a judge is making of international law and the core constitutional principle that acts of parliament (and indeed common law legal rules) are of a higher standing than any source of international law. Each of the first four possibilities can be criticised on democratic grounds—and to varying degrees on grounds related to orthodoxy. But they make no explicit assertion that international law is of equal or greater standing (or legitimacy) than domestic law.
Possibility 5 makes just that assertion. Here we make a big jump on our spectrum to the claim that unincorporated treaty provisions can be directly enforceable in domestic law—meaning that they are treated as being of the same status or type as treaty provisions that have been passed by parliament into statute. So possibility 5 is certainly nowhere near the orthodox position; it is, instead, somewhat revolutionary and to an extent undermines parliamentary sovereignty (though it leaves open to parliament room to pass statutes explicitly diverging from or countermanding the judges’ interpretation of some aspect of rights-related international law—the issue being why the onus should be on parliament to be explicit and why the default presumption should be in favour of international law in this judicially contrived manner). Nor is it in the slightest bit evident what legitimate basis any judge has for allowing international law to influence—nay, to be directly enforceable as a part of—domestic law in the manner of possibility 5. There is no democratic warrant for it at all.
Enumerating those five possibilities across a “least controversial” to “most controversial” spectrum should help illustrate the ways in which international law might influence the domestic law of Australia or the United Kingdom. And this sort of creeping expansion of the influence of international law is more apparent in the UK than here. Consider four cases, all in the last five years. In some the government prevails; in some it loses; in some the result is mixed. The cases concern deportation, extradition and the provision of benefits of differing types. As a package, these cases provide illustrations of judges invoking possibilities 1 to 5 above. They show how the UK’s top judges might allow international law to influence domestic law. The trend is not encouraging.
ZH (Tanzania) v Secretary of State for the Home Department was an appeal from a failed asylum seeker. At issue was the interpretation of two statutes. The CRC (a ratified treaty but not one incorporated into domestic law) was used by the judges ultimately, if circuitously, to influence the interpretation of the statutory provisions and block the deportation. Notice two of the judicial comments here. First, article 3(1) of the CRC “is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law” (emphasis added). Second, that article’s “best interests of the child” provision is a factor or consideration that, while not of “limitless importance … must rank higher than any other” (emphasis added). Both passages in italics stand for propositions that inflate the reach of international law.
Then there is a case involving three extradition decisions under the European Arrest Warrant system. As with virtually all UK case law, European considerations are involved. Two of the three appeals against extradition were rejected, while one was allowed. And again this unincorporated treaty is central to the judges’ reasoning, this time as regards extradition decisions.
The other two cases involve welfare benefits of one sort or another. The government wins one and loses one. The trend gets worse. More inroads into democratic decision-making are signalled as being likely in the near to medium future. Indeed there are dissenting judgments that clearly opt for possibility 5 above, a radical redrawing of the relations between domestic law and international law.
In R (on the application of SG and others) v Secretary of State for Work and Pensions, the third of our illustrative cases, the Supreme Court splits three-to-two in the government’s favour. The immediate issue was the government’s household benefit cap, introduced by the Welfare Reform Act 2012 and implemented by regulation, namely the Benefit Cap (Housing Benefit) Regulations 2012. Given that this cap disproportionately affected women, and given that women tend to do more of the child-caring duties, a key issue was whether the implementation of this cap (albeit indirectly) breached article 3(1) of the CRC’s “best interests of the child” requirement (as filtered through the European Convention for the Protection of Human Rights and Fundamental Freedoms and a Protocol to it via the Human Rights Act 1998 and jurisprudence from Strasbourg—another instance of European legal instruments providing the means to accentuate the problem). A majority of the court found that the cap was not unlawful. However, a different majority appeared to find that the cap was not compatible with CRC obligations, and there was even obiter criticising the cap. The government narrowly won because the alleged discrimination here was against women rather than directly against children. But in places some of the judges come close to suggesting a new—indeed revolutionary—relationship between domestic and international law. It is not clear to me on what basis any unelected judge has the authority and legitimacy to make such a change.
The final case, Mathieson v Secretary of State for Work and Pensions, again has to do with welfare benefits—only this time the government loses. This time the challenge is to regulations—the Social Security (Disability Living Allowance) Regulations 1991—aimed at preventing the overlapping provision of taxpayer-funded benefits to disabled people. Again it is a discrimination claim, though a subtle one, alleging that some categories of the disabled are being discriminated against vis-à-vis other such categories. This time, however, it is a child whose benefits are being reduced by the regulations. There are genuflections in the direction of judges not being “over-ready to criticise legislation in the area of social benefits which depends necessarily on lines drawn broadly between situations which can be distinguished relatively easily and objectively”. But ultimately, all five judges on the court found that the regulations were unlawful and that the CRC is in effect binding law in the UK where a European Convention right is engaged. As for where on our spectrum to place this last case, on its face it looks like possibility 3, though in substance it may come close to possibility 5.
Those four recent UK cases will suffice to make the point that the role of rights-related international law is being ratcheted-up; its influence is expanding, though luckily for us in Australia that is happening less often here than in the UK. Of course one might well point out that these are all Human Rights Act (or Bill of Rights) cases, and that Strasbourg case-law plays a big role too—which is further grounds for rejecting a bill of rights in this country, if any were needed, and for thanking God we are not part of the European Union.
Creeping international legal rule
In any comparative sense international legal rule—governance by means of treaties and international customary law—has few if any democratic credentials. Voters are overwhelmingly locked out when it comes to resolving debatable social policy issues over which smart, reasonable people disagree. (Think of where to draw the line when it comes to providing welfare benefits in times of austerity, or of who should be extradited or deported and in what circumstances, or more fundamentally still, what is in the best interests of children.) On top of that, this sort of law-making suffers from being opaque in terms of how it is created, and by whom, and certainly in terms of the interpretive method used at the point-of-application under which its reach is expanding. These are important criticisms of rights-related international law in Britain, Canada or Australia, though perhaps rather insignificant in Sudan, Somalia or Saudi Arabia. The problem is growing or advancing not simply because of the judges but because of what, at the beginning of this paper, were described in a quotation as transnational bureaucrats, NGOs and lawyers (and especially human rights lawyers). I would quickly add most legal academics to that list too, many of whom seem deep down not to put much trust in their fellow citizens, the voters.
Consider this example, from the March 2015 House of Lords and House of Commons Joint Committee on Human Rights report. The outgoing UK Children’s Commissioner, Dr Atkinson, was asked about the desirability of incorporating the CRC:
she did not necessarily favour full incorporation of the UNCRC as it would “probably take up too much parliamentary time and not necessarily be realised”. She suggested an incremental process: “What you do—almost by stealth, setting precedents from the High Court and Supreme Court benches—is nibble away. You get people to recognise that the rights of the child are not a scary set of tenets or concepts, but inherent in a civilised society.” [emphasis added]
Stealth and nibbling away. That, alas, is how creeping international law seeks to side-step democratic and parliamentary constraints over debatable social policy line-drawing exercises. There is no self-awareness of the dangers and downsides of “producer capture” by these members of the International Law Party. There is no recognition that they may be living in an echo chamber, where the views they hear daily are out of line with those of the wider public. Perhaps worst of all there is an implicit (but undeniable) assumption that the moral positions that underlie this undemocratic, opaque rights-related international law are better moral positions than those that are reached through counting us all as equal and voting for representatives who will make laws that on occasion embody different moral positions from those of international law. There is no reason to believe that unelected judges, rights-related international law bureaucrats or top NGO officers have any greater moral perspicacity than voters or elected legislators. Indeed the forces of accountability that lie at the heart of democracy give us strong grounds for thinking the International Law Party will adopt morally worse positions when there is divergence. Multilateralism is not a self-evident good for citizens of long-established democracies.
We might also ask (rhetorically, as we know the answer) just who it was who asked top judges to do what some of them are currently doing as regards inflating the role and reach of rights-related international law. Significant inroads are being made into democratic decision-making in Anglosphere democracies. Parliamentarians and those in favour of legislative last-word decision-making need to make clear their unease with this creeping international legal rule.
James Allan is Garrick Professor of Law at the University of Queensland. His latest book is Democracy in Decline: Steps in the Wrong Direction (published by Connor Court in Australia and by McGill-Queen’s University Press internationally).