Transcript The Human Rights Committee

The Human Rights Committee
A Final Court of Appeal for Australia?
Professor Ivan Shearer
The Human Rights Committee
• Owes its existence to the International Covenant
on Civil and Political Rights (ICCPR) 1966, art.
28.
• Not strictly a UN body but is serviced by the
Office of the UN High Commissioner for Human
Rights in Geneva,and reports through ECOSOC
to the UN General Assembly.
• Consists of 18 members, who meet three times
each year for sessions each of 3 weeks.
The International Covenant on Civil
and Political Rights (ICCPR)
• The ICCPR is one of the 3 constituent instruments
forming the International Bill of Rights, viz the Universal
Declaration of Human Rights, 1948, the ICCPR, 1966,
and the International Covenant on Economic, Social and
Cultural Rights, 1966.
• Its drafting was designed to elaborate the Universal
Declaration. Its wording also owes much to the
European Convention on Human Rights, 1950.
• Its provisions have been incorporated or adapted in
many national constitutions and bills of rights.
Parties to the ICCPR
• Presently 156 states parties (out of a total
UN roll call of 192).
• Most recent ratifying state is Indonesia
(February 2006).
• All states parties must report on their
implementation of the ICCPR in law and
practice within 12 months of ratification,
and thereafter at intervals of 4 years, or as
determined by the Committee.
Human Rights Organizational
Structure
Functions of the Committee
• 1. To receive and examine the initial and periodic reports
of states parties to the ICCPR (art.40).
• 2. To receive and determine complaints by individuals
that they have been victims of violations of their rights by
a state party (Optional Protocol).
• 3.To receive complaints by a state party that another
state party is violating the ICCPR (art.41, but not yet
invoked in practice).
• 4. To promulgate from time to time General Comments
on the meaning and application of particular provisions
of the ICCPR.
Composition of the Committee
• Consists of 18 members, each nominated by a
state party but thereafter acting in an
independent capacity.
• Serve for 4 years, but are eligible for re-election.
• Composition is intended to be reflective of
different cultures and legal systems and be
geographically spread in an equitable manner.
• Present composition is: Africa 4, Asia, 2, Eastern
Europe 1, Latin America 4, and Western Europe
and Others 7.
• ‘Others’ are Australia 1, and USA 1.
State Party Reports
• At each session of the Committee 4 or 5 states
are orally examined on their previously
submitted written reports.
• The Committee may inform itself on the situation
in each country from public sources, internal UN
reports, and NGO reports (e.g. Amnesty
International, Human Rights Watch).
• At the end of each hearing it issues Concluding
Observations, which may call for necessary
reform action by the reporting state.
• Action to implement recommended reforms is
followed up and monitored by the Committee.
Individual Complaints
• Individuals do not have direct access to the
Committee to lodge complaints of violations of
the ICCPR unless the state against which they
are complaining has ratified the Optional
Protocol to the ICCPR.
• Of the 156 states parties to the ICCPR 105 have
accepted the Optional Protocol.
• Australia accepted the Optional Protocol on 25
September 1991.
Complaints (Communications)
• States parties to the Optional Protocol recognise
the competence of the Committee to receive and
consider communications from individuals
subject to its jurisdiction who claim to be victims
of a violation by that state party of any of the
rights set forth in the Covenant.
• The individual complainant (author) must claim
to be directly affected by the alleged violation.
There is no right of generalised complaint (no
actio popularis).
Complaints Procedure
• There is no formal step to be taken in order to initiate the
procedure. A simple letter in one of the official languages
of the UN suffices. Complaints are directed to the Office
of the High Commissioner for Human Rights (OHCHR) in
Geneva.
• In return the author of the complaint will receive
information regarding the procedure, and a form to be
returned setting out all necessary information.
• The complainant may be assisted by counsel. Many
complainants are unrepresented. No fees are payable.
• Since the institution of the complaints procedure some
8,000 communications have been received.
Essential Conditions
• The complaint must:
– Allege a violation of a specific provision of the
ICCPR;
– Demonstrate that all available avenues of
redress in the allegedly offending state have
been exhausted (the exhaustion of local
remedies rule in international law);
– The same matter is not being examined under
another procedure of of international
investigation or settlement.
Next Steps
• Where a complaint has been received by
OHCHR, and it appears to raise an issue under
the ICCPR, and sufficient details have been
provided, the case file is referred to the
Committee’s Rapporteur on New
Communications.
• The Special Rapporteur may then decide that
the complaint be referred to the state party for a
response.
• Within 6 months the state party must submit
written explanations or statements clarifying the
matter.
Interim Measures of Protection
• The Special Rapporteur on New
Communications has the power, under rule 92 of
the Committee’s Rules of Procedure to request
the state party to suspend any enforcement
measures until the complaint has been
considered by the Committtee. This is used
mostly in cases involving:
• The death penalty
• Deportation
The hearing
• Hearings by the Committee of individual
complaints are heard in closed session.
• No personal appearance by the
complainant, or of counsel for either party,
is permitted.
• Sworn evidence is not required.
• The standard of proof applied by the
Committee is « sufficient substantiation ».
Fact-Finding
• The Committee is not a body suited to
finding facts which are disputed.
• It is not for the Committee to review the
evaluation of the facts and evidence by the
domestic courts, unless that evaluation
was manifestly arbitrary or amounted to a
denial of justice.
The Material before the Committee
• The period of time between the initial receipt of
the complaint and its readiness for hearing
allows for a considerable refinement and
narrowing of the issues owing to the exchanges
of submissions between the complainant and
the respondent state.
• This period is typically 3 or 4 years.
• Facts are seldom in dispute by the end of this
process.
Views of the Committee
• The Committee may find that:
• (a) the complaint is inadmissible by reason
of one of the conditions not being satisfied
(e.g. failure to exhaust domestic remedies,
lack of substantiation, complaint lies
outside the ICCPR)
• (b) there has been no violation;
• (c) there has been a violation.
Where a Violation is Found
• Where the Committee finds a violation it
forwards its views to the complainant and to the
state party.
• The state party is allowed 90 days in which to
inform the Committee of the action it is taking to
give effect to the Views.
• The Special Rapporteur for the Follow-up on
Views approaches the state party where no
response, or an unsatisfactory response, is
received.
• Non-compliant states are listed in the Annual
Report of the Committee to the UN.
Australia’s Record
• Many cases brought against Australia –
approx. 12 a year. Most are dismissed as
inadmissible.
• From 1994 to 2005 the Committee found
violations in 9 cases.
• The first case was Toonen (1994) where
complainant successfully argued that
Tasmania’s sodomy laws were
incompatible with the ICCPR.
Australia’s Reaction
• Positive reaction by Australia to Toonen. Special
Act passed. Tasmania ultimately repealed
incompatible sections of Criminal Code.
• In some other cases Australia has rejected the
Views of the Committee, especially in
immigration matters (e.g. A, Bakhitiyari, Winata).
• Latest case (Faure, 2006) found violation in
case of work-for-the dole scheme as constituting
forced labour. Response is awaited.
Views – Are they Binding?
• Some states parties, including Australia and
Canada, take the position that the Views of the
Committee are advisory only.
• Australia has rejected the Committee’s Views in
several cases, with detailed reasons.
• The Committee takes the position that its Views
are binding in the sense that, by reason of their
duty to carry out their obligations under the
ICCPR and Optional Protocol in good faith,
states parties are not free to disregard them.
Conclusions
• Number of cases likely to increase as procedure
becomes better known.
• Special unit established in Commonwealth AG’s Dept. to
respond to cases.
• Backlog of cases before the Committee is causing
concern. Limited resources of UN
• Possibility of amalgamating the complaints procedures
before the different Treaty Bodies (HRC, CERD, CEDAW
and CAT) into one full-time Human Rights Court. This is
the announced position of the UN High Commissioner
for Human Rights, but is unlikely to be agreed by states
parties.
Conclusions (cont’d)
• Influence of ICCPR and Views of the Committee
on Australian law:
• «The opening up of international remedies to
individuals pursuant to Australia’s accession to
the Optional Protocol to the ICCPR brings to
bear on the common law the powerful influence
of the Covenant and the international standards
it imports. » Mabo, (1992) 175 CLR 1, at 42, per
Brennan J (Mason and McHugh JJ concurring).
Further Information
• See the Website of the Office of the High
Commissioner for Human Rights:
• http://www.unhchr.ch