human rights news & views

A hard case

I had a dispiriting conversation with two Australian law graduates this week.  They regard international human rights treaties as 'soft law', that is, not imposing real, binding obligations.  In my book (real and figurative), treaties are 'hard law' (ie., conventions, covenants, protocols and the like), while declarations, recommendations, codes, principles and guidelines remain 'soft' law — authoritative, but not binding.  I tried to make a case for the Universal Declaration of Human Rights having hardened into customary law over its 60-year lifespan, but got pitying looks for my trouble.

Sth Australian Deputy Chief Magistrate, Dr Andrew CannonIt is heartening, therefore, to see South Australia's deputy chief magistrate Andrew Cannon (pictured) drawing upon the International Covenant on Civil and Political Rights — be it hard or soft — in his approach to sentencing.

Dr Cannon decided against a custodial sentence for one Michael Bieg appearing before him, on the grounds that South Australia's gaols are overcrowded, and such conditions may infringe Bieg's human rights.  He "listed a whole bunch of precedents in the UK where these sorts of principles would appear to have been implemented," says Damien Carrick of The Law Report.

Dr Cannon was attacked at a press conference in June by the state Attorney-General, Michael Atkinson, who called him 'daft' and 'delusional' and his decision a 'Clayton's judgment.'  Dr Cannon is having none of it; he is suing Atkinson for defamation.

South Australia appealed the sentence to the Supreme Court and won.  This higher court found Cannon's rights-based reasoning unpersuasive.  Elsewhere, Cannon's decision has been criticised as being too 'political' for a judge.

So perhaps my legal colleagues are right.  Without a bill of rights in Australia, international human rights law is Clayton's law.

"Meanwhile . . . about 40 prisoners rioted in a high security compound of the Port Augusta jail [last month]. The state opposition and the prison officers union say the riot was in response to overcrowding. The government says this is just 'plain wrong'."


  1. Brad
    2 December 2008 | 10:02 am

    Unfortunately, though we might wish it to be otherwise, most international treaties cannot be enforced against anyone. We might think of WTO law as ‘hard’ law since it has a binding dispute resolution process, but international human rights law remains soft in the sense that Australia can lose 14 immigration complaints to the Human Rights Committee and not change its policies.

    Though a treaty may be theoretically binding, that is cold comfort for those at the pointy end of human rights violations.

  2. 2 December 2008 | 12:55 pm

    For a defence of the UDHR’s status as customary law (by one of its drafters), see:
    J Humphrey, ‘The International Bill of Rights: Scope and Implementation’ (1976) 17 William & Mary Law Review p527.

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