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Australian Journal of Human Rights |
Elizabeth Evatt [*]
These observations on the role of international communications in implementing human rights relate almost exclusively to the Optional Protocol procedure under the International Covenant on Civil and Political Rights (ICCPR), as this is the most important procedure for Australia, and the most widely used individual procedure under United Nations human rights instruments. There are individual procedures under the Convention Against Torture and the Convention Against Racial Discrimination. The jurisprudence under those instruments is growing slowly and should not be completely ignored. Communications procedures are also being developed for the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of All Forms of Discrimination Against Women, though these are not expected to come into force for quite some time.
The Optional Protocol to the ICCPR gives individuals who claim to be victims of a violation of rights the opportunity to challenge their government by initiating a procedure before the Human Rights Committee (the Committee).[1] If the Committee accepts the claim as admissible, the State is obliged to respond and to co-operate with the Committee. The Committee can, however, proceed to deal with the matter even if the State fails to co-operate. If the facts support this, it can reach a determination of violation. Victims can use the communications procedure to seek an individual remedy for an alleged violation or to obtain changes in laws and policies that may affect large numbers of people.
There are several procedural hurdles to jump before the Committee can find a case admissible. There must be an identified victim claiming a violation of a specific right protected by the ICCPR. All available domestic remedies must have been exhausted.[2] The events complained of must have occurred since the State undertook its international obligation under the relevant instrument. This is important for Australia, as it only became a party to the Optional Protocol on 25 December 1991. The main procedural requirements are set out in the Optional Protocol and in the Committee's Rules of Procedure.
In assessing the role of the Optional Protocol, it is necessary to not only look at the decisions of the Committee but also at the outcomes of those decisions, the actual results for the victims and the impact on laws and policies of the State. The Optional Protocol is an important tool for monitoring State compliance with the ICCPR but it by no means displaces the need for the examination of State reports in accordance with Article 40 of the ICCPR. So far only 93 out of 141 States which are parties to the ICCPR have accepted the right of individual petition.[3]
In recent years, Jamaica has been the most prolific source of communications, and has generated between 25 per cent and 30 per cent of the Committee's work under the Optional Protocol.[4] In October 1997, however, Jamaica denounced the Optional Protocol. This happened while the Solicitor General of Jamaica, Mr Ken Rattray, was in Geneva presenting his State's second periodic report to the Committee. The event occurred with the maximum drama. Mr Rattray announced to the Committee that the Jamaican Ministry of Foreign Affairs had advised him that they had decided to lodge with the Secretary General in New York at 11 am that very day (5 pm Geneva time) an instrument of withdrawal from the Optional Protocol. In this way, Jamaica became the first and only State to withdraw from the Optional Protocol.[5] Not even Uruguay took this drastic step at the height of the military dictatorship.
The reasons for Jamaica's departure are complex. Capital punishment still applies in Jamaica, and prisoners on death row use the Optional Protocol communications procedure as a remedy of last resort. They hope thereby to gain the benefit of a `Rule 86', under which the Committee may convey to the State its view that interim measures are desirable to avoid irreparable harm to the victim of the alleged violation. In practice, the Special Rapporteur for New Communications has authority to address a request to the State to not carry out the execution (or other action threatened) until the Committee has decided the matter. Sometimes this has to be done at very short notice, to avoid an imminent execution.
Jamaica has respected the Committee's requests for interim measures of protection. However, because of the Committee's backlog of work, there are sometimes delays in dealing with particular cases. This delay is at the heart of the problem because under the Pratt and Morgan decision of the Privy Council,[6] the execution of a person who has been held for more than five years on death row is held to be inhuman or degrading punishment. It is therefore precluded as a violation of rights. The five year period is set in order to allow for domestic appeals, including the Privy Council proceedings, as well as the proceedings under the Optional Protocol. I may add that the Committee has some doubts about the Pratt and Morgan decision. The dominant view in the Committee is that fixing a time limit of this kind is an invitation to the State to carry out the execution before the time is up.[7] On the other hand, it must be conceded that the Privy Council decision did at the time lead to many commutations of sentence of prisoners who had been held for many years on death row.
The Government of Jamaica had come to see the communications procedure, together with its inevitable delays, and the Privy Council's five-year rule, as amounting to a de facto abolition of the death penalty. Jamaica tried to avoid this effect by forcing a timetable on the Committee. Under this timetable, if the Committee's views were not delivered within six months of the State's submissions, Jamaica would not defer carrying out the sentence of death any longer, regardless of whether the Committee had requested interim measures. The Committee rejected this startling threat, which would, if carried out, inevitably lead Jamaica to violate the right to life.
Jamaica's denunciation of the Optional Protocol took effect on 23 January 1998. All cases registered by that date can be dealt with by the Committee in accordance with the Optional Protocol procedures.[8] It may take two or three years before all the cases from Jamaica are completed. Jamaica will, of course, remain bound by the ICCPR. Its obligation to respect and ensure the ICCPR rights and to provide effective remedies is unaffected by its denunciation of the Optional Protocol. The views of the Committee in Jamaican cases, past and present, will retain their validity. The Committee reminded Jamaica of this as forcibly as possible. The ICCPR itself cannot be denounced, despite the efforts of the Democratic Peoples' Republic of Korea to do so.[9]
The Secretariat of the Committee might welcome the easing of their burden with the loss of this major client. But the Committee will certainly regret Jamaica's action in withdrawing from the Optional Protocol. It sets an unfortunate precedent and it takes away a significant and interesting part of the Committee's work. The Jamaican cases have enabled the Committee to develop the principles of the ICCPR in relation to fair trial, the right to legal representation and delays in being brought to a judge and to trial. Jamaica's action was particularly unwelcome, in that the Committee put a great deal of effort into working with Jamaica and to smoothing out some of the procedural delays and other misunderstandings which have affected Jamaican cases over the years. Jamaica had a bad record of inadequate or non-existent responses to the communications and to the Committee's requests for follow-up information. The Special Rapporteur for Follow-up visited Jamaica in 1995 in what appeared at the time to be a successful attempt to improve the situation. For the prisoners on death row in Jamaica, one avenue of hope has been removed.
An aspect of the ICCPR highly relevant to the Optional Protocol procedure is the obligation under Article 2 of the ICCPR to respect and to ensure rights and to ensure effective remedies for persons whose rights are violated.[10] Under these provisions, States have an obligation to adopt the measures necessary to ensure that the ICCPR is implemented through national legal systems and through national courts and institutions. If States fulfilled these obligations, the requirement that domestic remedies must be exhausted before the Committee will consider a communication[11] would leave the Optional Protocol as a back up remedy in cases of uncertainty or conflict concerning the application of Covenant rights. The Committee would not have to deal with so many cases as a primary fact-finder but could spend more time examining the finer points of each right protected by the ICCPR and ensuring consistency in the application of those rights.
Unfortunately, as the Committee finds so often in examining State reports, and in the communications procedure, many legal systems do not guarantee ICCPR rights and individuals have no recourse to domestic legal remedies to enforce those rights. Domestic remedies either do not exist at all or they are ineffective or unattainable because of delay, expense or other reasons. In Jamaica, for example, there is a Constitutional Court, but no legal aid is provided for prisoners to have recourse to that Court and its decisions do not have direct effect on the outcome of cases.
Australians are only too well aware of the lack of domestic remedies to enforce ICCPR rights. For example, in Toonen,[12] the author's claim that Tasmania's anti-gay laws violated his right to privacy could not be taken to the Australian courts. The only remedy available to Mr Toonen was to take his case to the Committee under the Optional Protocol. The Australian Government did not and could not argue that the author had failed to exhaust domestic remedies; there were no effective remedies. In that respect, Australia had not fulfilled its obligations under Article 2(3). The Australian Government's response to the finding of violation in the Toonen case was to do what should have been done already, that is to introduce legislation to provide a remedy enforceable in the courts for any arbitrary interference with the privacy of sexual conduct between consenting adults.[13] Had that remedy been available in the first place -- as one might reasonably expect if Article 2(3) were taken seriously -- the Committee might not have needed to consider Mr Toonen's case, and the Australian Government could have avoided a finding by the Committee that his rights had been violated.
Mr Toonen did not, however, claim that the failure to provide him with an effective remedy (other than recourse to the Committee) was a violation of his rights. Perhaps he should have. Of course, he may have taken into account that the Committee, in its wisdom, has determined that a communication must be founded on the alleged violation of a specific right of an individual.[14] In general, this means the rights set out in Articles 6-27 of the ICCPR.
There are several cases where a violation of Article 2(3) has been claimed and cases in which the Committee has found a violation of that provision. In all these cases the Committee also found that a specific right under the ICCPR had been violated.[15] For example, where a person had been arbitrarily detained, a violation of Article 2(3) was found in conjunction with a violation of Articles 9(1)-(4) and 10.[16] The failure of the State to provide a remedy or recourse at national level was seen as necessarily linked to the violation of the right in question.
The question of a violation of Article 2(3) arose in a case from Australia: the case of A.[17] The author was one of a group of Cambodian boat people who arrived in Australia without prior leave. He had been detained for more than four years while interminable procedures were undertaken in relation to his application for asylum. His complaint was that his detention was arbitrary, contrary to Article 9(1) of the ICCPR and that he had been denied the right to judicial review of the lawfulness of his detention, contrary to Article 9(4). The complaint to the Committee argued that, after the enactment of the Migration Amendment Act 1992 (Cth) of 5 May 1992, the courts' control and power to order the release of an individual was limited to an assessment of whether the individual was a `designated person' within the meaning of the Migration Amendment Act 1992.[18]
The Committee's view was that every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed and that the detention of an individual should not continue beyond the period for which the State can provide appropriate justification. Australia did not advance any grounds particular to the author's case that would justify his continued detention. The Committee concluded that the author's detention for a period of over four years was arbitrary within the meaning of Article 9(1). The Committee concluded further that the right of a detainee to seek court review of the lawfulness of detention under Article 9(4) is not limited to the question of whether the detention complies with domestic law. The court's review must include the possibility of ordering release if the detention is not in accordance with Article 9. A court's review of administrative detention must, for the purposes of Article 9(4), be real and not merely formal:
By stipulating that the court must have the power to order release `if the detention is not lawful', Article 9, para 4, requires that the court be empowered to order release, if the detention is incompatible with the requirements in Article 9, para 1, or in other provisions of the Covenant.[19]
As the court review available to A was limited to a formal assessment of the self-evident fact that he was indeed a `designated person' within the meaning of the Migration Amendment Act 1992, the Committee concluded that his right under Article 9(4) to have his detention reviewed by a court, was violated.
In the result, the Committee found violations by Australia of Article 9(1) and 9(4). It also found that Article 2(3) of the ICCPR had been violated because no remedy was available to the author under Australian law. Unfortunately, the Committee has not included in its written decision its reasons for adding Article 2(3) to the findings; it was not part of the author's original claim. It is clear however, that on the facts `A' did not have an effective remedy in Australia.
The decisions of the Committee have established that where a finding has been made that a particular ICCPR right has been violated, the failure of the State to provide an effective domestic remedy can be part of the same complaint and the same finding of violation.[20] The question that arises is whether it is possible to complain of a violation of Article 2(3), that is of the lack an effective remedy, in a case where it has not been finally established that a substantive right has been violated. Does Article 2(3)(a) mean that the obligation to provide a remedy arises only where it is clearly established that a substantive right `enumerated in the Covenant' has been violated or, having regard to Article 2(3)(b), is the intention that a person's right to a remedy should be determined in the same proceedings in which the actual violation is itself considered? If the latter is the intention of Article 2(3), then the State would be obliged to provide a procedure under which both the question of violation and the question of remedy could be considered. On this view, the right to claim an effective remedy and to have it determined arises whenever there is a tenable allegation that a substantive right has been violated.[21]
In the case of Kall v Poland,[22] the author claimed that he had lost his employment in the public service (in a restructuring which was part of the democratisation process) and been denied re-employment because of his political opinion. Although it was clear that the State had acted partly for political motivation, the majority of the Committee found that there was not enough information to sustain a finding of a violation of right under Article 25. Three members of the Committee wrote a separate opinion focusing on Article 2 and on the State's obligation to ensure rights. Their view was that if Article 2(3) requires States to provide for a remedy only when the Committee has found a violation, this would render that provision useless.
What Article 2 intends is to set forth that whenever a human right recognised by the Covenant is affected by the action of a State agent there must be a procedure established by the State allowing the person whose right has been affected to claim before a competent body that there has been a violation.[23]
The absence of such a procedure had denied the author an opportunity to ventilate the issues at national level and may incidentally have contributed to the absence of information that might have enabled the Committee to find a violation of rights. The separate opinion was that since the author had no chance to have his claim heard (a claim which raised an issue on the merits), that he had been dismissed arbitrarily and on the basis of political considerations, his rights under Article 2(3) were violated.
If a victim of an alleged violation of ICCPR rights has no right to claim a domestic remedy in accordance with Article 2(3), he/she may be hindered in pursuing a complaint before the Committee, for example because material which he/she could have required to be produced in the domestic jurisdiction is not available to help establish the violation. The absence of domestic remedies in respect of violations of ICCPR rights means that the Committee may have to draw conclusions about the facts of the case, as well as assessing the laws and procedures without any prior assessment of these matters at domestic level.
The cases reported in the Committee's Annual Reports contain numerous examples of allegations of torture or inhuman treatment where the State has simply failed to make inquiries or to send information to the Committee.[24] The Committee has made it clear in its decisions and in a General Comment that States must establish mechanisms to deal with complaints of torture and that they must investigate complaints promptly and impartially to make the remedy effective.[25] Where the State does not investigate in good faith, the Committee gives such weight as it can properly give to what the author says. The Committee uses this form of words:
It is implicit in the Optional Protocol that a State party provides the Committee, in good faith and within the imparted deadline, with all the information at its disposal. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.
To summarise, the communications procedure very often is resorted to because domestic remedies are not available or are not effective. The failure of States to ensure effective remedies means that, in addition to a violation of a specific right, there may also be a violation of Article 2(3).
The Optional Protocol provision that requires a complainant to exhaust all available domestic remedies before the Committee can consider the case does not apply where the application of the remedies is unreasonably prolonged.[26] However, it may be wise not to compare the delays in domestic proceedings which the Committee considers unacceptable under this rule with the delays that have developed in the Committee's own procedures. The Committee's delays are unacceptably long, a factor that undermines the effectiveness of the procedure.
Urgent cases, if they are identified as such, are given urgent attention by the Committee but other cases go down the slow track. For example, in the year 1996-1997 most of the views adopted by the Committee, excluding the Jamaican cases, were registered in 1993.[27] The one exception was a case registered in 1996 where interim measures had been requested, so that it went forward on the fast track. For the rest the average time taken from the initiation to the conclusion of a case was about three years. For example, in July 1997, 45 communications had been declared admissible but were not yet concluded and another 100 were pending at the pre-admissibility stage.[28] That is about two year's work still to do.
Yet this is only part of the story. About 40 to 50 cases are registered each year but many cases are in the system awaiting registration, some for up to a year. There is also a growing backlog of correspondence, some of which may relate to cases that will be registered in future if further information is provided. The main cause of these delays is that the number of professional staff available for communications work has reduced over the last few years. Let me illustrate the problem with a story that caused me some embarrassment at the October session in 1997. Members of the Committee met with non-governmental organisation (NGO) representatives from Belarus for informal discussions about the situation of human rights in that State. Belarus is now under the control of an increasingly authoritarian regime which has focussed power in the executive and imposed many heavy-handed restrictions on freedom of expression and assembly, among other abuses. The government had arrested one of the NGO representatives shortly before she was due to leave for Geneva. I mentioned in discussion that the Committee had not received any communications from Belarus, although it was a party to the Optional Protocol. The sad reply was that they had written to the Secretariat some time before but had not yet received a reply. Regrettably, the Secretariat has too few professional staff and there is no-one who can deal with communications in Russian. Despite the clear violations of rights in the laws themselves and in their application, and despite the lack of domestic remedies for the people of Belarus, the Optional Protocol procedure is not able to meet their needs.
The Committee has done a great deal in recent years to improve its procedures and to speed up the process. In 1996 the Committee held a special meeting to discuss working methods. The Report of that meeting has been adopted by the Committee in principle and is a public document.[29] It is part of a process of reviewing and reforming the Committee's procedures and practices. One objective of this review is to make the best use of resources and to overcome the delays in the Committee's work but wider issues of principle have also been addressed. New rules have been drafted to implement some of the agreed reforms. Under the new rules,[30] the procedure in most new cases is to ask the State party to respond on both admissibility and merits at the same time and to deal with these issues together. This is to avoid each case taking up the time of the working group, and sometimes the plenary, twice over. It will still be possible to deal with admissibility separately where that seems more appropriate.
An examination of the pattern of States from which communications emanate suggests that access to the Optional Protocol procedure by individuals is a problem. Up to mid-1998, the Committee had adopted views in 293 cases. Nearly 50 per cent of these cases were from only two States: Uruguay and Jamaica. Of the 46 decisions in the Uruguay cases, the vast majority arose in the 1970s and 1980s during the period of the military dictatorship. Of the remaining matters which have resulted in views of the Committee, about 45 per cent came from western States, including Australia, 30 per cent from Latin America/Caribbean, 20 per cent from Africa and only five per cent from Asia and Eastern Europe.[31]
If cases from Uruguay and Jamaica are set to one side it may seem paradoxical that almost half the Committee's cases have come from States which apparently enjoy the rule of law and legal protection of human rights. There appears to be little connection with the rate of violations we might expect in certain States which have reported to the Committee and the number of applications from those States. An analysis in 1994 showed that many States, including Algeria, Belarus, Libya, Nepal, Niger, Russia, Somalia and Uganda, did not have a single communication registered.[32] The lack of secretariat staff competent in Russian is part of the problem but only part. Take Peru, for example. The Committee has made determinations in only six cases from Peru and five of these are 10 years old. Yet there must be hundreds of potential cases that could be brought from that State. Perhaps the victims of abuse are reluctant to challenge their government in the Committee for fear of reprisals or perhaps they do not see the usefulness of the communications procedure unless their government has a basic respect for the rule of law, is willing to engage in the procedure, provide remedies and take corrective action where necessary.
It seems likely that, in addition to the factors mentioned, many of the victims have no knowledge of the international human rights procedures or of how to use them. This is despite the fact that the Committee continually asks States parties to carry out information and education programs to inform the community and the legal profession about the ICCPR and the Optional Protocol procedure. It is also likely that many possible complainants lack resources to secure legal advice. The Jamaican cases are usually handled by an NGO in Jamaica and by London lawyers acting on a pro bono basis. So far as I know, New Zealand is the only State where legal aid was held to be available for the communications procedure. It was rather short lived, however, as the Appeal Court reached a different view.[33]
Despite the rather gloomy picture presented here about the traps and difficulties in using the Optional Protocol procedure, there are some positive aspects that should not be overlooked. The fact is that the Optional Protocol procedure is a potentially powerful human rights mechanism. It allows the individual to challenge the State in an international forum. The claimant can, where necessary to avoid irreparable harm, ask for interim protection pending the outcome of the case.
When a complaint is accepted, the State is obliged to engage in the process and to co-operate with the Committee. The State has a duty to investigate the case in good faith. This should lead it to consider whether to maintain its position. In one case, Australia did reassess its position before the matter reached the admissibility stage. The complainant was given a resident visa and the Committee expressed its satisfaction that a remedy had been provided.[34] But even if the State does not co-operate, the Committee can proceed to deal with the matter. It may find a violation and recommend a remedy, either a particular remedy such as release or compensation, or an appropriate and effective remedy. The Committee may call for the repeal of laws, for investigation of violations, for action to prevent further violations, or to bring to justice persons responsible for the violations.
The jurisprudence of the Committee and the way in which the Optional Protocol procedure contributes to and strengthens the other work of the Committee in monitoring compliance with the ICCPR is another positive aspect. The ICCPR protects universally recognised human rights. It is a global instrument, with 141 States parties. The Committee is responsible for interpreting the ICCPR in a way which maintains its objectives and purposes and which commands respect throughout the world. The membership of the Committee, though somewhat imbalanced in favour of western States at present, nevertheless represents all regions and major legal systems. The members bring to the Committee their combined experience in national, regional and international human rights systems. The interplay of different personalities and value systems among members take place in the context of a collegiate approach and a common commitment to the full implementation of the ICCPR in all States parties. The Committee insists that the standards of the ICCPR must apply in the same way to all States and to all groups. There is no room for relativity, though there must always be room for future development in an instrument that is intended to endure.
The communications procedure is, perhaps, the favourite task of members. In the reporting procedure there tend to be solo performances and one is forced to listen as politely as one can to some quite appalling whitewashing by State representatives. When dealing with communications, members talk to each other in private session without an audience. Members listen to each other, learn from each other, adjust their own prejudices and assumptions and try to reach an agreed position. But it is not always possible to agree. In the last few years, there has been a tendency among members of the Committee to adopt individual opinions. This is sometimes the result of a difference of opinion, sometimes because members may want to have their own reasoning set out in detail or because the proposed consensus draft is unsatisfactory.[35] Some decisions of the Committee appear rather obscure or brief because of amendments and deletions carried out in order to arrive at consensus. While consensus is desirable and maintains the collegial approach and the anonymity of decisions, in some cases the price of consensus is too high. In those cases it is better for different shades of opinion to be separately presented rather than to undermine or truncate the reasoning of the majority.
The issues that have divided the Committee in recent times include the question whether the `right to enter his [or her] own country' under Article 12 is necessarily limited to nationals or whether the term `own country' may be given a wider meaning.[36] Another contentious issue is whether detention on death row for a lengthy period could be considered cruel or inhuman treatment, in violation of Article 7.[37] The Committee is not always unanimous in discrimination cases; there have been lengthy debates as to whether the reasonableness or unreasonableness of a distinction made on prohibited grounds is a merits issue or an admissibility issue. The decision by the Committee to join admissibility and merits may help to overcome this problem.
An issue that troubled some members of the Committee in recent years was the absence of any indication as to which members have taken part in a particular decision. In the past, only those who withdrew for particular reasons or who prepared separate views were identified. But this left it uncertain whether every other member took part in the decision. To meet this uncertainty, the Committee has adopted a new practice under which the names of members who have actually participated in a particular decision will be listed with that decision. Only those who are present during the discussions can be listed as participants. Under new guidelines, members should refrain from participation in any communication from their own State.
The work of the Committee under the Optional Protocol procedure strengthens it in dealing with State reports. It was obvious when the Committee was dealing with the report from Jamaica in October 1997 that it had gained a great deal of understanding of Jamaican law and procedure through its handling of the communications and that the questions and observations were more precise and directed because of this. Experience of State law and practice gained in the communications procedure also contributes to the development of General Comments. The same is true in reverse: General Comments are sometimes quoted in communications in order to support the Committee's views.[38]
The ICCPR is legally binding as a matter of international law but it is often said that the views of the Committee under the Optional Protocol are not legally binding. Though literally true, this statement should be approached with caution. The Committee is not a court but its views are not without legal consequences. In ratifying the Optional Protocol, the State has recognised the competence of the Committee to receive and consider communications from individuals and to express its views as to whether there has been a violation of the rights set forth in the ICCPR.[39] This alone suggests that the State must co-operate with the Committee and respond to the Committee's views. In addition, there are the obligations of the State under Article 2 of the ICCPR to respect and to ensure rights, to give effect to rights through legislative or other measures and to ensure that any person whose rights or freedoms are violated shall have an effective remedy.
Basing itself on these obligations, the Committee in recent years, has included a standard paragraph in each finding of a violation, asking the State party to respond to its view that there has been a violation of rights. This paragraph states:
Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognised the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to Article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days information about the measures taken to give effect to its views.
The Committee is saying that States have an obligation to respond to the Committee's finding of violation. If the Committee, as the body competent to do so, has found a violation, then under Article 2 of the ICCPR the State has a legal obligation to provide a remedy. This remedy need not necessarily be the remedy proposed by the Committee but it must be an effective remedy of some sort. The Committee itself determines whether a particular remedy is effective within the meaning of Article 2(3) of the ICCPR.[40] This approach is the basis of the Committee's follow-up procedure.
Until recently little was known about the level of implementation of Committee decisions under the communications procedure. In recent years however, the Committee decided to seek information on a systematic basis about the action taken by States to implement the Committee's views and recommendations. Information is requested at regular intervals from States and from author and NGOs sometimes provide information. There is a Special Rapporteur for Follow-up (Mr PN Bhagwati currently holds this position) and the Committee makes public its follow-up activities and has identified those States which have co-operated and those which have not co-operated in the follow-up process.[41]
One way to get follow-up information from a State is through the reporting procedure. The State representatives meet with the Committee at intervals of about five years. The Guidelines for Reports require that, where relevant, State Reports should explain what action has been taken relating to communications including what remedy has been afforded to the author of a communication whose rights the Committee found to have been violated. Sometimes reports provide this information.[42] If not, the Committee asks the States questions about the action they have taken to give effect to the Committee's views. The Committee may include a statement about these issues in its concluding observations. For example, in its concluding observations on Peru, the Committee observed that Peru had failed to respond to requests for information concerning certain communications.[43] A common problem is that States have not established legal procedures to deal with the Committee's views.
The main way in which the Committee informs itself about the action taken by States in response to its views is by addressing a systematic series of requests for information to each relevant State party. If there is no satisfactory reply to these requests, the Committee invites the representatives of the State party to meet with the Special Rapporteur for Follow-up during the Sessions of the Committee in New York or Geneva. In 1997 about a dozen such consultations took place. These consultations are intended to impress on the permanent representatives the importance of making a proper response and of providing information to the Committee. This process is repeated as long as the State is in default.
States that neglect for a long time their obligation to respond are named in the body of the Annual Report of the Committee. France came into the list briefly in 1995 but this seemed to bring about a change of heart. By 1996 France had informed the Committee that it had taken action to reduce the differential between the pensions given to former soldiers of Senegalese nationality and those of French nationality. States which have failed to provide information over a considerable period include Peru, Uruguay, Jamaica, Equatorial Guinea and Zaire (now the Democratic Peoples' Republic of Congo).[44] In 1994, of the 77 cases in which no information had been provided, no less than 43 had come from four States -- Jamaica, Madagascar, Suriname and Zaire[45] -- and these States had failed to reply to at least four requests for information. The Committee had put considerable effort into its dealings with Jamaica and the Special Rapporteur on Follow-up visited Jamaica in 1995 with a member of the Secretariat.[46]
As at July 1997, the Committee had found violations in 199 cases. Replies had been received from the State party in about half of these cases. However, only about 30 of these replies are considered satisfactory, that is about 15 per cent of the total number of violations. Replies are considered satisfactory if they show that the State is willing to implement the Committee's views or to offer the applicant an appropriate remedy. In some cases, a victim had been released from custody[47] or received compensation.[48] In some cases, legislation incompatible with the ICCPR had been amended or new local remedies had been introduced.[49] In Sandra Lovelace v Canada,[50] Canada reported that it had taken substantial steps to amend the Indian Act s 12(1)(b) to overcome the exclusion of the author from the enjoyment of her cultural rights. Canada also considered that the Charter of Rights was a response to the findings of violation of the ICCPR, since s 15 of the Charter of Rights would provide an effective remedy for anyone who alleged that his or her rights to equality before the law and the equal protection of the law have been violated. Some other positive results of the follow-up are set out in the 1996 report.[51] They include the Australian Government's response to the Toonen decision informing the Committee that it had enacted the Human Rights (Sexual Conduct) Act 1994 (Cth). The Committee was satisfied with this response, especially as the legislation made reference to Article 17 of the ICCPR.
Yet up to one third of replies provided by States were not considered satisfactory. For example, a State simply informed the Committee that the victim has failed to apply for compensation within the statutory deadline. Other replies do not address the Committee's recommendations or challenge the Committee's findings on factual or legal grounds. Some States reply by attempting to make a late submission on the merits or to promise to investigate the matter. There are also instances where no reply is received or no information is provided at all.
A result that is satisfactory to the Committee may not be sufficient in the eyes of the victim. For example, Mr Toonen persisted with his campaign against Tasmanian anti-gay laws until the laws in question were finally repealed.[52] Another example of this kind is the case of Kone v Senegal.[53] Mr Kone came to the Committee in 1989 to complain of events surrounding his arrest in 1982 and his detention for over four years until 1986. He complained of torture, of prolonged detention and of arrest for the expression of political opinions. The Committee determined in October 1994 that his lengthy detention violated his rights under Article 9(3). Mr Kone was entitled to an appropriate remedy, including compensation, and the State was under an obligation to ensure that similar violations do not occur again. The Committee asked Senegal for information and was informed that an ex gratia payment of 300,000 francs would be made to compensate the author for his pre-trial detention. This was considered by the Committee to be a satisfactory outcome.[54] The Committee does not try to assess an amount of compensation but was willing to accept that the State had discharged its responsibility. Later it was learned that Mr Kone thought the compensation inadequate. His agitations proved successful. When Senegal presented its report in October 1997, the representatives of the government informed the Committee that the president had directed that 500,000 francs be paid to Mr Kone and that he be given a lease of land and receive medical treatment from State services.
In some situations the Committee has no choice as to the remedy that should be provided. If a person had been imprisoned as a result of an unfair trial or has been detained arbitrarily or contrary to the principles of the ICCPR, the Committee must recommend release. But there are other situations where it is more difficult to define what should be the appropriate remedy. Yet if the Committee leaves the remedy open, the State may find itself uncertain as to what action to take and so the Committee will not be able to determine easily if the remedy is effective.[55] However, if the Committee defines a precise remedy then the legal system of the State may not be able to provide that remedy recommended by the Committee.[56] For example, there are States which have no legal provisions enabling them to provide compensation or other remedies in response to the Committee's findings. This is an issue frequently taken up in the reporting procedure. States are asked whether they have established procedures to ensure that the Committee's views will be given proper consideration and that action will be taken to implement those views. If not, the Committee may make recommendations to that effect.[57] In contrast, the Committee welcomed the fact that Colombia had adopted legislation which establishes a mechanism for the compensation of victims of human rights violations in accordance with decisions adopted by the Committee under the Optional Protocol to the ICCPR and by the Inter-American Commission on Human Rights.[58]
The Committee has waited a very long time to ask Australia questions about the procedures in place to respond to, and to ensure, implementation of the Committee's views. This is because Australia only provided its report in 1998, even though it ratified the Optional Protocol in 1991.
It is clear from this overview that there is a huge and growing burden on the Committee to keep account of each and every case that it has determined and to engage States in positive discussions about the implementation of its views. Resources for follow-up, as for all other activities, are meagre, especially when set against the great expectations which people have of the Committee. This is another area where NGOs can provide support to the Committee, and to the victims of violations of rights.
States parties to the Optional Protocol have an obligation to respond to the Committee's finding of violation and to provide a remedy, either the remedy recommended by the Committee or another that is appropriate and effective. It does appear, however, that not all States are willing to implement fully the obligations they have accepted. The Committee has adopted procedures that make it harder, or at least somewhat more uncomfortable, for States to avoid their responsibilities under the ICCPR. If public opinion, being the opinion of the body of States and the world community, stood behind the Committee then its work might be more effective. Regrettably, there is little publicity given to the Committee's work and little active support at the political level.
One of the most significant changes as a result of the review process mentioned above is that the Committee has decided to abandon confidentiality in regard to the communications procedure, except to the extent that the Optional Protocol requires this. Under the Optional Protocol, the only restriction is that the Committee must hold closed meetings while considering communications.[59] The Committee has introduced new rules[60] under which confidentiality will apply only to the discussions of the Committee and the working group and to the working documents prepared for the Committee. In other instances it will be possible to publish the fact that a communication has been initiated. The author of a complaint will not be precluded from making public the fact that a case has been taken to the Committee or the details of the case. The Committee expects that this new approach will make it easier for people to be informed about the Committee's work under the Optional Protocol. There are, of course, cases where a party may for special reasons seek confidentiality or where the Committee or a working group may decide to require confidentiality in the particular circumstances.
The Optional Protocol does not provide expressly for an oral hearing, though this possibility is not necessarily excluded. The Committee has to consider communications `in the light of all written information made available to it by the individual and by the State party concerned'.[61] The absence of any provision for oral hearings by the Committee has caused some concern to commentators in Australia.[62] The Committee has agreed in principle to explore the possibility of holding oral hearings in some cases, though only if all parties and the Committee agree to this. If an oral hearing were required in every case it would make the procedure less accessible and more expensive. But there may be some cases where an oral hearing could help to clear up misunderstandings or help to unravel complex facts. It might also satisfy those who are suspicious of proceedings conducted on written submissions alone. While no rules have been developed for oral hearings as yet, it is a possibility in the future.
The ICCPR and the jurisprudence of the Committee have had influence on the decisions of Australian courts even though the ICCPR itself has no binding force.[63] Although the ICCPR may be influential, it cannot be directly enforced in Australia. There is no Australian Bill of Rights and no comprehensive constitutional protection of rights. In respect of many of the rights protected by the ICCPR, effective remedies are not available in Australia. Australia has not fulfilled its obligations under Article 2(3)(b) to ensure that an individual's claim to a remedy is determined either by judicial, administrative or legislative authorities. There are some exceptions, such as the anti-discrimination laws, and the Constitution and the High Court protect some specific rights.
The protection of rights that the founders of our Constitution thought would come from a strong democratic tradition cannot always be relied on. Some of the worst infringements of human rights are perpetrated by the legislature itself.[64] As seen in A v Australia,[65] Parliament rendered ineffective the remedy of habeas corpus for certain asylum seekers by designating them as persons who could not be released. As well, the Government has shown itself willing to legislate to overrule even the very modest effect given to the Convention on the Rights of the Child by the judicial application of the principle of legitimate expectation in the Teoh case.[66] There are also proposals to legislate in respect of native title in a manner that may well prove inconsistent with international standards against racial discrimination.
In the absence of a comprehensive Bill of Rights which would allow the Australian courts to defend human rights against legislative encroachment, it can be expected that there will be increasing resort by Australians to the communications procedure under the Optional Protocol. I suspect that the main reason this has not yet happened is that lawyers and the community do not know enough about the process. As for the kind of cases which might come forward from Australia, as yet there have been no cases in respect of Aboriginal Australians, though Canada, New Zealand, Sweden and Finland have all generated communications in respect of the rights of indigenous peoples.[67] In regard to the stolen generation, it is likely that the potential violations would have taken place before the coming into force of the ICCPR or the Optional Protocol.[68] There are several issues relating to juvenile justice, police use of firearms and discrimination, in so far as it is not covered by legislation, which could give rise to a communication to the Committee. The Kable case could have been brought under the ICCPR.[69] Issues concerning asylum seekers, deportation and immigration arise in a number of Western democracies and these are likely to give rise to communications from Australia. Yet there remain problems of implementation, especially in the context of the federal system. Violations, as in Toonen, may emanate from state law and practice and yet action may be required at federal level to provide a remedy.
The burden of the Committee's work under the Optional Protocol is growing but its resources are not keeping pace. Without experienced staff and without adequate time to consider cases, the Committee will be hampered in its task of developing a jurisprudence which is both forward looking and which commands respect for its consistency, comprehensibility and integrity. The Committee needs the support of the international community to ensure the effective continuation of its work. The community and the legal profession need to be better informed about the work of the Committee. Governments need to take seriously their obligations under the ICCPR and the Optional Protocol and to consider what action is needed to implement fully Article 2, being the obligation to respect rights and to ensure appropriate remedies for their violation. There is also clearly a role for the NGO movement in promoting wider knowledge of the communications procedure and in supporting individuals seeking to make communications to the Committee.
[*] Elizabeth Evatt is a member of the United Nations Human Rights Committee. She has been on this Committee since 1992 and previously she was on the United Nations Committee on the Elimination of All Forms of Discrimination Against Women. She has also served as Chief Justice of the Family Court of Australia and on the Australian Law Reform Commission.
[1] Article 1 of the Optional Protocol provides: `A State Party to the Covenant that becomes a Party to the present Protocol recognises the competence of the [Human Rights] 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. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.'
[2] Article 2 of the Optional Protocol provides: `Subject to the provisions of Article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.'
[3] As at 31 December 1998.
[4] Of 293 views adopted by the Committee as at September 1998, approximately 30 per cent were in respect of Jamaica.
[5] Trinidad and Tobago denounced the Optional Protocol on 26 May 1998. It then lodged its instrument of re-ratification (subject to reservation) on the same date. Both these steps took effect on 26 August 1998: HRC Annual Report 1998 A/53/40 p 6.
[6] Pratt and Morgan v Attorney-General for Jamaica [1994] 2 Appeal Cases 1.
[7] Jamaica has not done this, though Trinidad and Tobago did execute someone just before the expiry of the five year period.
[8] Optional Protocol, Article 12.
[9] The Committee published a General Comment in October 1997 on the question of denunciation of the Covenant -- General Comment No 26 (61) -- in which it made clear that denunciation of the Covenant was not permitted.
[10] ICCPR Article 2 provides:
1. Each State party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State party to the
present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such other measures as may be necessary to give effect to the rights recognised in the present Covenant.
3. Each State party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
[11] Article 5(2)(b).
[12] Toonen v Australia 488/1992, views adopted 31 March 1994, A/49/40 Vol II at 226. Note that references to cases before the Committee are numbered consecutively in the order of receipt by the Committee and according to the year in which the case was registered. The second date is the date when the Committee stated its views. These views are found in the Annual Report of the Committee to the General Assembly of the United Nations in the General Assembly Official Records (GAOR) Supplement No 40.
[13] The Human Rights (Sexual Conduct) Act 1994 (Cth).
[14] Part III, Articles 6-27. Lubicon Lake Band v Canada 167/1984, 1990 II, at 1. This case concerned Article 1 of the ICCPR and not Article 2.
[15] Lueye v Zaire 90/1981 (author detained in a cell with no contact with outside world for nearly a year, no hearing). Also in Baritussio v Uruguay 25/1978, 1982, (violation of 2(3) and 9(4)). See also Fanali v Italy 1983 at 160 mentioning the accessory nature of Article 2(3).
[16] Ex-Philibert v Zaire 90/1981, 1983 at 197.
[17] A v Australia 560/1993, April 1997.
[18] There were other grounds not discussed here.
[19] A v Australia, above, note 17, para 9.5.
[20] See for example, Munoz Hermoza v Peru, 203/1986, 1989, at 200. That case involved the failure to provide a fair hearing in regard to the dismissal of the author from the civil service. Three members of the Committee also found a violation of Article 2(3) because the State party had not provided an appropriate remedy.
[21] See Nowak M UN Covenant on Civil and Political Rights; CCPR Commentary (Engel, 1993) p 61.
[22] Kall v Poland 552/1993, 14 July 1997.
[23] See above, note 22, separate opinion of Chanet, Evatt and Medina.
[24] Many Jamaican and Uruguayan cases are of this kind, for example Rodriguez v Uruguay 322 1988, July 1994.
[25] General Comment No 20, Article 7, 44th Session, 1992, para 14.
[26] Article 5(2)(b).
[27] The range of dates on which complaints were registered ranged from 1991 to 1995. In the case of Jamaica, most complaints were initiated in 1995 and 1996, probably because they were on a fast track involving Rule 86.
[28] The 1998 Annual Report of the Committee (GAOR Supp No 40 (A/53/40)), sets out the following figures:
Matters dealt with:
Year Inadmissible Admissible Views Total
1994-1995 13 29 15 57
1995-1996 11 23 29 63
1996-1997 18 21 24 63
1997-1998 12 15 30 57
Matters pending at end of year:
Year Admissible Pre-admissibility Total Registered during year
1994 33 75 108 37
1995 41 91 132 68
1996 42 111 153 56
1997 44 113 157 60
[29] Report on the informal meeting on procedures, CCPR/C/133, 22 December 1997. This report has been somewhat overtaken by a new task force set up by the chairperson to look at reform, especially of Reporting Procedures under Article 40.
[30] Rule 91 ff.
[31] Main sources of complaints for each of these regions are: Western Europe and other: 67 (Netherlands 17); Africa: 28 (Zaire 10); Latin America/Caribbean: 49 -- excluding Jamaica and Uruguay -- (Colombia, Suriname and Trinidad and Tobago eight each); Eastern Europe: nine (Georgia four); Asia: one.
[32] See Bayefsky A `Making Human Rights Treaties Work' in Henkin L and Hargrove J (eds) Human Rights: An Agenda for the Next Century (ASIL, 1994) p 292 and see International Law Association Committee on Human Rights Law and Practice, Report 1996 (Bayefsky Report). Russia and Ukraine now have cases registered.
[33] Wellington District Legal Services Committee v Pauline Eunice Tangiora [1998] 1 NZLR 129, where the Court of Appeal reversed the decision of Gallen J.
[34] 655/1995, 1996, p 76.
[35] The trend towards separate opinions has been formalised by practice rules setting deadlines for members who want to prepare a separate opinion.
[36] Stewart v Canada 538/1991, 1996; Canepa v Canada 560/1993, 1996.
[37] Lavande v Trinidad and Tobago 554/1993.
[38] For example, Toonen v Australia, see above, note 12.
[39] Optional Protocol, Articles 1 and 5.
[40] Article 4(2) of the Optional Protocol authorises the Committee to establish whether the alleged violation has been effectively remedied. There is no violation if a remedy has already been provided.
[41] This is under Rule 99 -- see Annual Report of the Human Rights Committee, GAOR Supp 40, A/49/40, 1994, para 459 ff. Annual Report 1995, para 556.
[42] For example, Colombia's report in 1997.
[43] Communications numbered 202/1986, 203/1986, 263/1987, 309/1988.
[44] States named included Bolivia, Dominican Republic, Equatorial Guinea, Peru, Uruguay, Suriname and Zaire. In 1996 Jamaica, Nicaragua, Panama, Libya and Trinidad and Tobago joined the list. In 1997, Ecuador, Korea, Togo and Zambia were named.
[45] GAOR Supp 40, A/49/40, 1994, para 467.
[46] See 1995 Annual Report, GAOR Supp 40, A/50/40, 1995, para 557 ff.
[47] For example, in Bolanos v Ecuador, the author had been kept in pre-trial custody for six years. Upon the Committee finding a violation, he was released from custody and the State assisted him to find employment; 238/1987, July 1989. See also Vasilikis v Uruguay 80/1980, March 1983 (he was released under an amnesty) and Marais v Madagascar 49/1979, March 1983 (he was released).
[48] In Van Alphen v Netherlands 305/1988 an ex gratia compensation was provided for keeping the author, a lawyer, in detention for nine weeks for refusal to co-operate in an investigation against his clients, violating Article 9(1): HRC 1991 Annual Report, A/46/40 para 705. In Torres v Finland 291/1988, an alien in Finland had been arrested and was subject to extradition but he had been unable to challenge
the legality of his detention before a court. This was found to violate his rights under Article 9(4) of the ICCPR. He was paid compensation and the Aliens Act was revised in order to make the provisions governing detention compatible with the Covenant: HRC 1991 Annual Report, A/46/40 para 705.
[49] For example, in Pauger v Austria 415/1990, March 1992, the discriminatory provisions of the Pension Act were removed; in Vuolame v Finland 265/1987, April 1987, a new law was passed to allow conscripts to have the decision of confinement reviewed by a court; in Zwaan-de Vries v Netherlands 182/1984, April 1987 and Broeks v Netherlands 172/1984, April 1987, the authors, who had been discriminatorily excluded by the law from a pension available to men, were provided with a pension by law; and in Aumeeruddy Ciffra v Mauritius 35/1978, April 1981, the legislation was amended to remove the discriminatory effects of those laws on the ground of sex.
[50] 24/1977, 1981 and 1983.
[51] GAOR Supp 40, A/51/40, 1996, para 455 ff.
[52] The Tasmanian legislature eventually repealed the legislation on which Mr Toonen had based his complaint on 1 May 1997.
[53] 396/1989.
[54] GAOR Supp 40, A/51/40, 1996, para 461.
[55] For example, Sandra Fei v Colombia 514/1992.
[56] These issues are discussed in the Annual Report 1995, para 551. Some States do provide an ex gratia remedy, for example, van Alphen 305/1988 and Coeriel 453/1991.
[57] GAOR Supp 40, A/51/40, 1996, para 92. In the case of Sweden, for example, the Committee recommended that measures be taken for the establishment of a mechanism to implement the views adopted by the Committee under the Optional Protocol to the Covenant.
[58] GAOR Supp 40, A/52/40, 1997.
[59] Optional Protocol, Article 5(3).
[60] Rules of procedure, CCPR/C/3/Rev 5, 11 August 1997, Rule 96.
[61] Optional Protocol, Article 5(1), emphasis added.
[62] See, for example, Senator Rod Kemp, quoted in Joint Standing Committee on Foreign Affairs, Defence and Trade A Review of Australia's Efforts to promote and Protect Human Rights (AGPS, 1994) para 2.28 ff.
[63] See, for example, Mabo v Queensland (No 2) (1992) 175 CLR 1; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[64] For example, the Communist Party Dissolution Act 1952. See also Toonen v Australia, above, note 12.
[65] See above, note 17.
[66] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[67] For example, Ominayak and the Lubicon Lake Band v Canada 167/1984, March 1990.
[68] See Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1.
[69] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1997) 189 CLR 51.
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