In the recent case of Tajjour v New South Wales  HCA 35, the High Court was asked to consider whether New South Wales laws prohibiting ‘consorting’ with convicted offenders infringe the right to freedom of association, protected by an inferred right in the Australian Constitution or by the application of the International Covenant on Civil and Political Rights (ICCPR).
A certain predictability has developed in the public exchange on the human rights situation in Sri Lanka. In keeping with this predictability, the UN Human Rights Commission recent report on Sri Lanka’s continuing serious human rights abuses is yet another expression of deep international concern which, almost certainly, will end up gathering dust.
The Human Rights Commission report lists a litany of egregious human rights violations perpetrated by the Government of Sri Lanka or its agents dating back to the end of that country’s ethnic war in 2009. In response, the Government of Sri Lanka continues to deny all such accusations, claiming there is an international conspiracy against it and that the evidence is manufactured, falling back on the argument that its actions were predicated on crushing terrorism.
With the backing of states less sympathetic to human rights issues, Sri Lanka has, since 2008, been immune from expressions of international concern. Attempts to impose an internationally driven solution to its human rights situation or the fate of its ethnic Tamil minority have been blocked in the UN Security Council by Sri Lanka’s main international guarantor, China.
China’s interest in Sri Lanka is part of its so-called ‘String of Pearls’ strategic push into the Indian Ocean. However, with China making inroads into India’s strategic sphere of influence, India has also been keen to try to keep Sri Lanka on side following its troubled relationship.
As an initial gesture towards the West, Sri Lanka did allow a circumscribed ‘Lessons Learnt and Reconciliation Commission’ investigation into the vast scale of atrocities that occurred in the period to May 2009. It was at that time that some 40,000 people were killed by intense government army attacks against civilians sheltering on a sliver of land in Sri Lanka’s north- east coast.
Yet even the innocuous report that came from this tame commission was effectively ignored, reflecting the government’s distaste for anything that does not accord with its brutally hard line on Sri Lanka’s ‘Tamil question’. So it was with the just released UN Human Rights Commission report on ‘Promoting reconciliation and accountability in Sri Lanka’.
UN Human Rights Commissioner Navi Pillay found that, despite previous recommendations, there had been no action by the government on issues of enforced ‘disappearances’, hate speech, witness protection or improved ‘truth seeking’ processes. She noted that there remained several outstanding human rights problems to be addressed by the Sri Lanka government.
Among continuing human rights problems identified by Ms Pillay were continued limitations on freedom of peaceful assembly and association, freedom of opinion and expression, extrajudicial, summary or arbitrary executions and enforced or involuntary disappearances. In this, she expressed concern over the role and security of human rights defenders, the independence of judges and lawyers and discrimination against women both in law and in practice.
Overall, Ms Pillay said, there had been little movement towards addressing issues of truth about human rights abuses, issues of justice and reparation for victims, and guarantees of non-recurrence of human rights violations. All of these issues have also been highlighted by civil society organisations in Sri Lanka such as the Centre for Policy Alternatives.
In response to the report, Sri Lanka’s Permanent Envoy in Geneva, Ravinatha Aryasinha, ran the government’s usual line, claiming that the details of Ms Pillay’s report ‘reflect the preconceived, politicised and prejudicial agenda which she has relentlessly pursued with regard to Sri Lanka’. He accused Ms Pillay of ‘double standards’ and paying ‘scant or no regard to the domestic processes ongoing in Sri Lanka’.
He also criticized Ms Pillay’s report for arriving at conclusions in a ‘selective and arbitrary manner’ while ignoring requests from the Sri Lankan government to provide factual evidence to substantiate allegations and to otherwise not make ‘general comments’.
Yet Ms Pillay is not alone in the concerns expressed in her report. A petition signed by leading international figures, headed by South Afrca’s Archbishop Desmond Tutu, has called for an independent international investigation in the form of a Commission of Inquiry. ‘Only this will help to put the country on the path to justice and reconciliation’, the petition says. Similar comments have been expressed by the International Crisis Group and Human Rights Watch.
Underpinning the culture of impunity which informs Sri Lanka’s poor human rights record is a heightened sense of ethnic chauvinism and religious intolerance that has increasingly characterised Sri Lankan politics. This is now institutionalised under the Rajapaksa government, which has enjoyed massive ethnic Sinhalese support following the military defeat of the Tamil Tigers.
Since coming to office, President Rajapaksa’s government has been intolerant of dissent or opposition and has fostered a climate of fear. This initially focused on the country’s ethnic Tamil population, but has since spread to ethnic Sinhalese uncomfortable with the direction of Sri Lanka’s politics.
Sinhalese journalists are now regularly intimidated, occasionally abducted and sometimes murdered. Reporters Without Borders has consequently ranked Sri Lanka at 165th of 180 countries assessed. This shift away from plural politics towards a closed chauvinist ethno-politics has increasingly closed the distinction between the individual and the state, giving Sri Lanka an distinctly authoritarian hue.
For Tamils, despite the wars’ formal end, they remain second-class citizens in their country of birth. The north and east of the country, where most Tamils live, continues to function under military occupation, in which Tamil civilians do not know from day to day whether they will be subject to an arbitrary search, rape, torture or disappearance.
Despite concerns expressed by more liberal sections of the international community, and Ms Pillay’s report and others like it, the Sri Lanka government refuses to budge. With the backing of China, Russia and Pakistan, it is under little real pressure to do so.
Once relatively free, Sri Lanka has now firmly joined that list of authoritarian states that primarily acknowledge basic human rights in the breech. Despite the Human Rights Commission report, and others like it, there appears little the West can now do.
Sri Lanka’s hosting of the Commonwealth Heads of Government Meeting has gotten off to a troubled start, with Indian Prime Minister Manmohan Singh withdrawing his participation over the host country’s human rights record. This follows a decision by Canadian Prime Minister Stephen Harper to also boycott the event due to human rights concerns.
British Prime Minister David Cameron is attending the event but has called for an independent international investigation into Sri Lanka’s human rights record if there is no meaningful progress by the Sri Lanka government. This marks an escalation of British pressure on Sri Lankan government, as it is the first time that the UK has called for an international investigation into the deaths of some 40,000 people in the closing stages of Sri Lanka’s Tamil separatist war.
While Australian Prime Minister Tony Abbott is attending, his own visit has been overshadowed by the detention of Greens Senator Lee Rhiannon and New Zealand Greens MP Jan Logie. The two Greens politicians were attending pro-democracy meetings when they were detained and questioned, before being deported.
The Sri Lankan government’s somewhat brittle responses to human rights concerns was only highlighted to journalists covering CHOGM. The Sri Lankan Government handed out to visiting journalists a 222-page book attacking reports by the UK’s BBC Channel 4 on human rights issues in Sri Lanka. Channel 4 has issued a rebuttal.
Singh withdrew from the CHOGM under pressure from Indian politicians, in particular from the large Tamil Nadu state in south-eastern India. While Sri Lanka’s Tamils are largely separate, the two groups have retained close cultural contacts, and the Tamil Nadu government provided support to Tamil Tiger rebels in the 1980s.
India is also concerned about the growing influence of China in Sri Lanka, given Sri Lanka’s strategic proximity to India. China helped arm the Sri Lankan army for its final push against the Tamil Tigers in 2009 and has since invested heavily in the country, including helping to build a port in the south of the country.
Since the Sri Lankan government crushed the Tamil Tigers, there have been increasing concerns about broader human rights issues. These have included forced disappearances, sexual violence against Tamil women, attacks on Sri Lanka’s media and what is said by critics to be an increasing closure of Sri Lanka’s democracy.
Abbott will attend CHOGM, in part not wishing to offend a government that has been quite willing to assist with stopping asylum seekers leaving Sri Lanka for Australia by boat. However, the conditions that compel at least some Sri Lankans to leave their homes for the risky journey to Australia will now receive closer attention by the international media.
The Sri Lankan government had hoped to showcase the country’s development since the end of the Tamil separatist war. Increasingly, however, the international media is focusing on stories a little more critical than an otherwise largely anodyne meeting in a country that has such a bloody recent history.
The two trips by Prime Minister Tony Abbott to Indonesia have started to give a distinctive shape to a shift in Australian foreign policy. In keeping with Abbott's assertive political style, Australia is on the diplomatic front foot, promoting his pro-Asia policy agenda.
But the forcefulness of the way in which this agenda is being pushed may leave Australia exposed to uncomfortable outcomes. We generally have good regional relationships, but the interests of our neighbours are not necessarily the same as our own interests.
Abbott's overture to China to reach a free trade agreement within 12 months is ambitious and intended to secure a long-term economic relationship with our largest trading partner. Similarly, Abbott's unambiguous message to Indonesia is that Australia will be an even more loyal friend, with less tolerance for dissent around human rights issues.
Both cases are intended to secure different aspects of Australia's national interest and being the diplomatic initiator signals Australia's positive intentions. But initiating the further development of relationships then requires that gesture be taken up by the counterpart country.
In both cases, Abbott's eagerness gives China and Indonesia greater scope for setting the terms of the relationship. Australia thus becomes the supplicant, with China and Indonesia bestowing the favours.
By placing a 12-month timeline on a free trade agreement with China, Abbott has signalled a willingness to accept previously problematic Chinese conditions. These include investments in Australia by Chinese state-owned enterprises, a lower threshold for scrutiny by the Foreign Investment Review Board, and allowing more Chinese workers into Australia.
China's plan is to secure for itself continuing access to resources over the longer term, and to do so at a good price. Its foreign direct investments, including in Australia, achieve both those goals. Similarly, the greater its direct control over resources, the stronger its bargaining position over those resources that it does not directly control.
Abbott's recent visit to Jakarta reaffirmed Australia's commitment to Indonesia's territorial integrity. In this he was, perhaps, even more insistent than his predecessors.
In significant part this reflects the deep concern that Indonesia had with the Coalition's policy of returning asylum seeker boats to Indonesia and attendant plans to pay locals for intelligence on boat departures. That signature policy in opposition now looks to be in the process of being quietly abandoned in government, replaced by a slightly stronger version of the existing policy of bilateral co-operation.
But part of Abbott's ''total respect'' for Indonesia's territorial sovereignty and integrity was code for endorsing the status quo in the territory of West Papua. This has played out recently with the return of seven West Papuan asylum seekers to Papua New Guinea and the ''voluntary'' departure of three West Papuan protesters from the Australian Consulate-General in Bali.
The seven returned to PNG would likely have qualified for refugee status had they been processed in the usual manner. Despite what could be fairly understood as a plea for asylum, the three are now in hiding from the Indonesian police.
The drivers for Abbott's foreign policy push are not explicit. But they can be divined from his political history. Abbott is a classical free trader, pursuing a policy in which markets are self-regulating and find their own equilibrium. An open door policy towards trade with and investment from China fits perfectly into this framework.
On Indonesia, one can detect a sensibility that reflects the strong pro-Indonesia (and anti-communist) position of his political training ground in the National Civic Council. At the time, this included opposition to East Timor's independence, and West Papua's continued incorporation.
Three decades on, Australia's interests in Indonesia are more complex. Indonesia's economy is growing, soon to overtake Australia's in total size, and it is in both countries' interests to seek and develop economic complementarities.
But Indonesia is potentially also a major strategic and diplomatic partner for Australia. It provides Australia with entree into ASEAN and can help facilitate some of its wider regional interests. How Indonesia views Australia has major implications for Australia's strategic positioning.
The relatively benign relationship that Australia has enjoyed with Indonesia over much of the past decade can be attributed to the reformist, pro-Western preferences of President Susilo Bambang Yudhoyono. However, within a year, Yudhoyono will leave office. Abbott's commitment to Indonesia is unlikely to change, but the successor may be more assertively nationalistic. This could include requiring Australia to even more strongly oppose West Papuan activism, despite the conflict this will engender with more pro-human rights sections of Australian society.
China, too, will ultimately be concerned over its own interests and much less those of Australia. Local discomfort, if of a different type, may have to be accepted in the push and shove of competing understandings over what a more open economic relationship might entail.
The conventional approach to diplomatic relations is to take them slowly, consider their implications deeply and to proceed cautiously. This does not, however, accord with Abbott's political style.
Abbott's international agenda is appearing to be about achieving much quickly. In his rush, however, such enthusiasm for making agreements and pushing policy on the run may miss some of the implications, much less the nuances, embedded in the detail.
Australia needs stronger international linkages, not least with major trading and strategic partners. But it does not need such arrangements at any price. No agreement is better than a bad agreement.
A more cautious and considered approach to international relations will produce results less quickly. But they may be results that Australia is more easily able to live with, with fewer negative consequences, over the longer term.
The government of Sri Lanka has been embarrassed over its human rights record by a call for a boycott campaign being run by respected Australian sports writer Trevor Grant. Grant has been using the Sri Lanka cricket team’s current tour of Australia to highlight what the UN believes were war crimes committed in Sri Lanka in 2009 and a subsequent campaign of human rights abuse against the country’s Tamil minority.
The campaign is the first politically driven proposed boycott of sports in Australia since the anti-apartheid boycotts of South African sporting teams in the 1970s and '80s.
While touring Australia, the Sri Lankan cricket team, self-proclaimed ambassadors for their country, have been touting a holiday resort on their country's north-east coast. Grant says the military built-and-run resort is situated at the site where some 40,000 Tamil non-combatant men, women and children died at the hands of the Sri Lanka military.
As the world celebrates Human Rights Day on 10 December, it is a good time to pause to reflect on the status of human rights in Timor-Leste. 13 years after the end of Indonesian rule and after ten years of independence, the question arises as to whether Timor-Leste’s aspirations to respecting notions of human rights, as outlined in its Constitution, have been successful.
Notions of human rights are broadly located in two categories; civil and political rights and social, economic and cultural rights. It is conventional to regard these respective categories of rights as being equal in value and mutually dependent.
At a time of bipartisan support for renewing the Pacific Solution, it is deeply disturbing to see the asylum seeker issue taking a turn for the more extreme. In a world of dog-whistle politics, it appears that further punishing victims is acceptable if it can score domestic political points.
Despite the opposition’s success in the government adopting its Pacific Solution, Deputy Opposition Leader Julie Bishop’s call to return Sri Lankan asylum seekers to Sri Lanka without processing their claims reduces policy debate to moral abandonment. Backing her, Opposition Leader Tony Abbott has displayed either ignorance or denial of the facts on the ground in Sri Lanka and Australia’s legal obligations.