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International law

Under international law our rights are better articulated but more difficult to assert in Australia. The rights of freedom of assembly, speech, expression and association are embodied in both the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (ICCPR) (1966). These are not enforceable under Australian law, but may be usefully cited and relied on in broader argument in court. As Australia is a signatory to the ICCPR, Australian governments are required to comply with its Articles and report to the UN on how they have met its obligations.

In Australia, any individual is also able to lodge a complaint under the International Covenant of Civil and Political Rights directly (albeit through a long process) with the UN Human Rights Committee once they have exhausted domestic remedies in Australia.

A right to freedom of assembly and association

A right to freedom of peaceful assembly is part of international law under the UN Declaration of Human Rights , Article 19 and 20 which states that:

“Everyone has the right to freedom of peaceful assembly and association.”

No one may be compelled to belong to an association.

The International Covenant on Civil and Political Rights includes Article 21which states:

“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order.”

Article 22of the ICCPR states that:

“Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”

The right to participatory democracy

ICCPR Article 25 acknowledges the right to engage in participatory democracy

“without unreasonable restrictions”.

The right to freedom of opinion and expression Article 19 Universal Declaration of Human Rights states that:

”Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Rights around arrest and detention include:

ICCPR Article 7 states that:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

ICCPR Article 9 also states that:

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
  3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
  4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
  5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

The duty to protest

Another useful international precedent is the 1946 Nuremberg trials which, in rejecting the Nazi war criminals' defence of ‘only following state orders', also recognised the necessity for individuals to act according to the dictates of their own conscience, and to retain the capacity to defy the state where serious conflict occurs between conscience and legal systems. These activists who engage in civil disobedience and seek to use the defence assert, through the defence, that domestic law should be broken by an individual to prevent the state or its agent from violating international law. The Nuremberg Defence is sometimes raised as a defence to prosecutions such as trespass. Although the defence has not been recognised in Australian law it has been used, sometimes successfully, in the USA. The Nuremberg principles outline what to many of us would be common sense. Some actions are plainly wrong, and every one of us has a responsibility to prevent genocide. The principles specify that to act on the orders of your government does not relieve you of this responsibility in the eyes of international law. It provides a legal adjunct to Martin Luther King's remark, "One has moral responsibility to disobey unjust laws." (Letter from Birmingham Jail) It is for these reasons that the Nuremberg Principles are key to Citizen's War Crimes Inspections around the world and many anti-nuclear actions such as those held at Pine Gap in the Northern Territory in Australia since the 1980s. In various anti-nuclear actions around the world, activists have maintained, when stopped by police, that they are acting on a higher authority than theirs  not just their consciences, but international law itself.

The Nuremberg tribunal gave a strong impulse to the human rights movement, and established important, innovative principles that form the core of international criminal law today. In particular, it established the principle of individual responsibility for crimes, with no immunity from prosecution or punishment for Heads of State or Government officials, and allowing of no pleas of superior orders in mitigation. It also established that a government could commit crimes against humanity against its own nationals as well as against aliens, and that these crimes could be committed by civilians as well as by combatants, in 'peace' time as well as war.

Also see Nuremberg Defence

Further reading on international law:

  • The (Il)legality of Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice, by John Burroughs. Lit 1997, ISBN 3-8258-3516-2
  • The Nuremberg Defence in Courts, by Francis A. Boyle, edited by Merja Pentikainen. IPB 1984, ISBN 951-9193-40-5
  • The Modern Nuremberg Defense: International law transferred to the domestic arena Perrin Reid