Backlash Against a Rules-Based International Human Rights Order: An Australian Perspective

This article engages with the question of whether we can identify a recent populist political backlash within some Western democracies against the institutions, instruments and even the ideas of the multilateral (United Nations and treaty-based) human rights system. An associated question concerns what the implications of any such phenomenon might be for the universalist human rights system (or at least Australias participation therein), and perhaps the implications for the wider global legal order of which the human rights project has, for decades now, been such an important part. A second question-bundle is whether we can discern signs recently that Australia may be one of those backlash states, and what systemic implications this may have for Australias oft-repeated fidelity to, and reliance upon, the international rules-based order. Sitting above or behind these questions is the broader issue of whether the concept of backlash is useful at all in explaining or analysing recent developments, and/or what modifications or qualifiers it might need. This article attempts to address these questions, focussing first on exploring ways to approach, unpack refine or re-frame the backlash concept. It then takes the resulting frame(s) to provide a general overview of recent Australian practice and rhetoric. This is so as to advance a useful characterisation of Australias conduct, even if it does not in a Yes/No sense meet Sunsteins definition of systemic-level backlash intended to reject a legal order and remove its legal force.