International law

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Under international law, our rights to protest are held in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).

These rights are better articulated than in Australian/Victorian laws – but more difficult to assert. This is because they are not part of Australian/Victorian (domestic) laws and as such the governments are not obligated to follow them. And the United Nations (where these international laws come from) do not have powers to force Australian governments uphold these rights.

But, these international laws/rights can still be used to support arguments in court. This is because, by agreeing (becoming signatories) to these international laws Australia has given a commitment to upholding them.

Additionally: If a right under the ICCPR has been broken an individual can, after they have gone through all the available domestic processes, lodge a complaint with the UN Human Rights Committee.

Using these international rights can form part of the web of actions to confront state oppression and deter police violence. They can be stated in reports written by Legal or Human Rights Observer Teams, in litigation, and in complaints against the police. They can also be used to inform and strengthen activist legal support structures and the courage of individual activists.

So, what are the international rights to protest?

  • The right to gather in groups, and to do so with the people you choose
    • Everyone has the right to freedom of peaceful assembly and association. And No one may be compelled to belong to an association (UNDHR – article 20)
    • The right to peaceful assembly shall be recognised. 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, the protection of public health or morals, or the protection of the rights and freedoms of others (ICCPR – article 21)
    • Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of their interests (ICCPR – article 22)
  • The right to have your own opinion and to express is publicly
    • 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. (UNDHR – article 19)
  • The right to only be arrested for proper reasons, and to be treated well in custody
    • 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 their liberty except on such grounds and in accordance with such procedure as are established by law.
      • Anyone who is arrested shall be informed, at the time of arrest, of the reasons for their arrest and shall be promptly informed of any charges against them.
      • Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law 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.
      • Anyone who is deprived of their 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 their detention and order their release if the detention is not lawful.
      • Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation (ICCPR – article 9)
    • No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without their free consent to medical or scientific experimentation (article 7)
  • The right to participate in democracy
    • Every citizen shall have the right and opportunity to engage in public life (e.g.: vote, run for office, have a say in public matters, have access to representatives) without unreasonable restrictions (article 25)

A 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’, 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.

Activists using this defence are trying to say that domestic law should be broken by an individual to prevent the state or its agent from violating international law.

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.

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