News that the East Asian state of Brunei has introduced laws that permit authorities to stone LGBTQI people to death has sparked outrage in the international community.
A spokesperson for Amnesty International labelled the new laws as “vicious”. The UN High Commissioner for Human Rights, Michelle Bachelet, has criticised the “draconian” laws in an emphatic press release urging the Government of Brunei to reconsider their position.
The situation in Brunei has shone a light on the difficulty of enforcing human rights obligations within the international community.
The laws
Under the new laws, sodomy is punishable by being stoned to death or whipped by 100 strokes. Adultery attracts the same punishment.
The penalties can only be imposed if an accused either admits to the offence or evidence is put forward by at least four witnesses.
The penalty for women who engage in sexual activity with other women may involve a public whipping and/or imprisonment for up to 10 years.
Brunei’s penal code also permits the amputation of an offender’s right hand for robbery offences and allows for a public flogging by way of punishment for abortion.
The laws apply to all those in the country, including foreign visitors.
Brunei is one of eleven countries in the world that still penalises homosexuality with the death penalty. The other ten nations are Afghanistan, Iran, Iraq, Mauritania, Nigeria, Pakistan, Saudi Arabia, Sudan and Yemen.
A violation of international law
International human rights law prohibits corporal punishment in all its forms. Whipping and stoning fall under the category of “torture or other cruel, inhumane or degrading punishment” which is prohibited by various international human rights instruments, including the Convention Against Torture. Brunei is a signatory to the Convention Against Torture but has not ratified it.
International law and state sovereignty
While international law has the potential to govern relations between states, it is only effective to the extent that a country is committed to enforcing it. The complex nature of attempting to enforce international law emerges from the issues posed by state sovereignty.
State sovereignty refers to the idea that all states possess the independence to govern their own affairs, free from external interference. Essentially, this means that states are free to make their own laws, and their conduct cannot be controlled by other states.
Ratification
The international community has produced a number of conventions, treaties and declarations which attempt to safeguard human rights.
In Australia, international laws are only enforceable when they are ratified. The ratification process involves enacting domestic legislation that reflect treaty obligations.
Once the laws have been ratified, the state is obliged to protect, promote, respect and fulfil the obligations.
Key Takeaways
- Brunei introduced laws permitting the stoning to death of LGBTQI people, sparking international outrage.
- The laws include severe punishments for sodomy, adultery, and other offenses, applicable to both locals and foreigners.
- International human rights organizations and the UN have condemned these laws as violations of human rights.
- The controversy highlights the challenges of enforcing human rights obligations internationally, due to the principle of state sovereignty.
- Australia requires ratification of international laws through domestic legislation to enforce them.
Enforcement
A number of mechanisms have been established in an attempt to ensure that states abide by their obligations. The UN takes an active role in monitoring human rights violations, and the Security Council may impose sanctions where they determine a threat to peace, or an act of aggression exists.
However, state sovereignty ultimately impinges on the international community’s ability to hold states to account for human rights violations.
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Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
