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Australian Journal of Human Rights |
Sarah Pritchard[*]
This paper is concerned with individual communications procedures under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention Against Torture and Other Cruel, Degrading or Inhuman Treatment or Punishment (CAT). It considers aspects of CERD and CAT procedures that are distinct from those of the Human Rights Committee under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). It examines the relative under-utilisation of these procedures in Australia and elsewhere. Finally, it reflects upon some of the substantive issues that might be pursued under CERD and CAT communications and thus contribute to the development of the jurisprudence of these two human rights treaty bodies.
In 1993 the CERD Committee decided to establish, as one of its regular and principal agenda items, an item on early warning and urgent procedures for the prevention of serious violations of CERD. Early warning measures are aimed at preventing existing problems escalating into conflicts, including confidence building measures to identify and support structures to strengthen racial tolerance and solidify peace.[1] Possible criteria for early warning measures include `a significant pattern of racial discrimination evidenced in social and economic indicators'.[2] Urgent procedures aim at responding to problems requiring urgent attention to prevent or limit the scale or number of serious violations of CERD. An urgent procedure might be appropriate where there is a serious, massive or persistent pattern of racial discrimination, or where a situation is serious and there is a risk of further racial discrimination. A limitation on the potential of these procedures is that the CERD Committee's rules of procedure make no provision for action between sessions. At present, therefore, initiatives such as requesting a State party to take immediate steps to protect a victim must await a formal session of the CERD Committee.[3]
Under the agenda item `Prevention of racial discrimination, including early warning and urgent procedures' the CERD Committee has considered the situation in Algeria, Bosnia and Herzegovina, Burundi, Croatia, Cyprus, the Czech Republic, the Democratic Republic of the Congo, Israel, Liberia, Mexico, Papua New Guinea, the Russian Federation, Rwanda, the former Yugoslav Republic of Macedonia and Yugoslavia. The early warning and urgent procedures should not be dismissed as irrelevant in addressing potential violations of CERD in Australia. The deterioration in relations between the Australian Government and indigenous communities was illustrated in the adoption of an early warning/urgent decision concerning Australia at the CERD Committee's 53rd session in August 1998. In its Decision 1 (53) the CERD Committee asked Australia to provide information on `the changes recently projected to or introduced to the Native Title Act 1993 (Cth), on any changes of policy ... as to Aboriginal land rights, and of the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner'.[4] The CERD Committee wished to examine the compatibility of such changes with Australia's obligations under CERD at its 54th session in March 1999.
While the CAT Committee has not developed early warning and urgent procedures comparable to those of the CERD Committee, it is empowered to request States parties to take steps to avoid possible irreparable damage to a victim of an alleged violation, either at the admissibility or at the merits stage.[5] The CAT Committee has made urgent requests for interim measures to the Governments of Canada and Switzerland where authors indicated that they were likely to be deported to countries in which they believed that their lives would be endangered.[6] A request by the CAT Committee does not imply that any decision has been reached on admissibility or prejudge its final views on the merits of the communication.
This power to request interim measures is comparable to that of the Human Rights Committee pursuant to Rule 86 of the Human Rights Committee's rule of procedure. Rule 86 allows the Human Rights Committee to inform a State party as to the desirability of interim measures to avoid irreparable damage to the victim, prior to forwarding its final views on a communication.[7] A majority of interim measures decisions of the Human Rights Committee have concerned the stay of execution of authors on death row pending the Committee's examination of the merits of a communication. However, the decision in Ominayak v Canada[8] illustrates the potential of interim measures in situations where the irreparable damage to be averted is not necessarily that of execution or death by other means. In that case Chief Ominayak complained that the expropriation of the Lubicon Lake Band's territories for the purpose of granting leases for forestry and for oil and gas exploration violated their rights under the ICCPR. The Human Rights Committee found that: `Historical inequities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of Article 27 so long as they continue. The State party proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of Article 2 of the Covenant.'[9]
CAT also establishes a confidential procedure for the examination of reliable information containing `well-founded indications that torture is being systematically practised in the territory of a State party'.[10] The powers of the CAT Committee in connection with this procedure do not extend to acts of cruel, inhuman or degrading treatment or punishment. The State party concerned is invited to co-operate in the examination of information and to submit observations. The CAT Committee may decide to designate one or more of its members to make a confidential inquiry. Such an inquiry may include a visit to the territory of the State concerned. Originally conceived as mandatory, the visiting procedure can only be invoked in agreement with the State party.[11] In recent years the CAT Committee's annual reports to the General Assembly have included summary accounts of the results of confidential proceedings concerning Egypt[12] and Turkey.[13]
As at 1 December 1998, only 25 of 150 States parties to CERD had made the declaration in Article 14(1) of CERD recognising the competence of the CERD Committee to receive and consider individual communications. These are Algeria, Australia, Bulgaria, Chile, Costa Rica, Cyprus, Denmark, Ecuador, Finland, France, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Peru, Republic of Korea, Russian Federation, Senegal, Slovakia, Spain, Sweden, Ukraine and Uruguay.
The CERD Committee commenced its work under Article 14 in 1984. To date it has adopted four `opinions' on communications. In 1988 in Yilmaz-Dogan v the Netherlands the CERD Committee held that the terms of Article 6 (effective remedies and protection against acts of racial discrimination) did `not impose upon States parties the duty to institute a mechanism of sequential remedies, up to and including the level of the Supreme Court level, in cases of alleged racial discrimination'.[14] In 1991 in Diop v France the CERD Committee held that the rejection of an application by a Senegalese citizen to practice as a lawyer in France did not amount to a violation of Article 5(e)(i) (non-discrimination in the right to work) because Article 1(2) provides that CERD does not apply to distinctions, exclusions, restrictions or preferences between citizens and non-citizens.[15]In 1993 in LK v the Netherlands the CERD Committee found a violation of Article 6 through the State party's failure to prosecute racist actions contrary to Article 4 of CERD.[16] In 1994 in Narrainen v Norway the CERD Committee found that there was no violation of CERD where a criminal trial had been allowed to proceed despite a racist remark of a juror directed towards the applicant.[17]
In addition the CERD Committee has adopted three admissibility decisions. In 1994 in CP v Denmark, the CERD Committee declared a complaint to be inadmissible for failure to exhaust domestic remedies where the author had failed to appeal a court's decision concerning his unlawful dismissal. Moreover, the author was unable to provide prima facie evidence that judicial proceedings had been tainted by racially discriminatory considerations.[18]In 1997 in Barbaro v Australia a complaint concerning employment discrimination was held to be inadmissible for failure to exhaust domestic remedies.[19] In this case the complainant had failed to challenge a decision of the President of the Human Rights and Equal Opportunity Commission (HREOC) under the Administrative Decisions (Judicial Review) Act 1977 (Cth), and a decision of the South Australian Liquor Licensing Commissioner under the Rules of the Supreme Court of South Australia.[20] At its 53rd session in 1998 the CERD Committee declared the case of Sidlo v Sweden to be inadmissible. This case concerned a Swedish citizen of Czechoslovak origin who claimed to have been discriminated against in her search for employment on the basis of her national origin. The State party argued that the author's allegations were inadmissible because of non-exhaustion of domestic remedies, as she could have filed a complaint with the District Court. The CERD Committee concluded that notwithstanding the author's reservations concerning the effectiveness of national legislation to prevent racial discrimination in the labour market, it was incumbent upon her to pursue the remedies available, including the filing of a complaint with the District Court. Mere doubts about the effectiveness of such remedies, or the belief that the resort to them might incur costs did not absolve a complainant from pursuing them.[21]Also at this session, three communications were declared admissible and transmitted to the States parties concerned for comments on the merits.[22]
On balance it cannot be said that the CERD Committee has produced a particularly impressive body of jurisprudence pursuant to the individual communications procedure. A former Secretary to CERD has described its 1988 opinion in \tYilmaz-Dogan v Netherlands as `a rather timid decision' and its 1994 Opinion in Narrainen v Norway as rejecting the applicant's contentions `in a rather summary and thinly argued fashion'.[23] As will be seen, there are signals that changes are afoot with the CERD Committee's recent adoption of a number of procedural innovations and quite far-reaching General Recommendations.
To date 39 out of 105 States parties to CAT have made a declaration under Article 22, recognising the competence of the CAT Committee to receive and consider communications relating to the fulfilment of their obligations under CAT. These are Algeria, Argentina, Australia, Austria, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Finland, France, Greece, Hungary, Iceland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal, Russian Federation, Senegal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Togo, Tunisia, Turkey, Uruguay, Venezuela and Yugoslavia.
The CAT Committee commenced its work under Article 22 at its second session in 1988. A majority of individual communications dealt with by the CAT Committee have concerned the possibility of individuals being exposed to the danger of torture or cruel, inhuman or degrading treatment upon return to another State by way of extradition, expulsion or refoulement. For example, in each of Khan v Canada, Alan v Switzerland, Kisoki v Sweden and Tala v Sweden, the CERD Committee held that the State party was under an obligation to refrain from expelling to another State (Pakistan, Turkey, Zaire and Iran, respectively) the author of the complaint.[24]
The record of individual communications concerning Australia under CERD and CAT procedures can only be characterised as modest. As at 1 December 1998, not a single CERD communication concerning Australia was at the pre-admissibility stage. Two CERD communications were at the merits stage. One of these concerns racial discrimination in employment,[25] the other a quota on overseas trained doctors.[26]
As noted, in 1997 in Barbaro v Australia the CERD Committee declined a complaint concerning employment discrimination as inadmissible for failure to exhaust domestic remedies.[27] The case concerned an Australian citizen of Italian origin whose employment at the South Australian Casino had been terminated because the South Australian Liquor Licensing Commissioner had concluded after vetting the author's background and finding that some of his relatives had criminal records that his continued employment constituted a threat to the institution's operations. Mr Barbaro contended that since he was unaware of the criminal activities of his relatives, the decision amounted to discriminatory treatment of Italians who may have relatives who are criminals. Australia challenged Mr Barbaro's allegations as inadmissible both on the ground of incompatibility with the provisions of CERD, as HREOC had fully reviewed the decision to terminate his employment, and because of non-exhaustion of domestic remedies, as he could have filed an appeal against HREOC's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and against the Liquor Licensing Commissioner's decision pursuant to the Rules of the Supreme Court of South Australia. The CERD Committee dismissed Mr Barbaro's claim that a judgment of the Supreme Court was dispositive of his case and would have made an appeal to the Supreme Court futile. The CERD Committee noted that the judgment of the Supreme Court was not unanimous, that it was delivered in respect of legal issues that were largely unchartered and that it would have been open to the author to appeal to the Federal Court.[28]
As at 1 December 1998, two communications submitted to the CAT Committee complaining of violations of Australia's obligations under CAT were at the admissibility stage. Both of these concern deportation.[29]
By way of comparison with the First Optional Protocol to the ICCPR, as at 1 December 1998:
(1) some 10 communications were at the admissibility stage;
(2) three had been dismissed as inadmissible with reference to Australia;
(3) five had been dismissed as inadmissible without reference to Australia;
(4) one was at the merits stage; and
(5) four had been considered on the merits.[30]
It is noteworthy that a majority of complaints against Australia under the First Optional Protocol to the ICCPR have concerned the question of legal aid, aspects of the administration of the criminal justice system and migration law. Not a single communication has raised issues relating to the rights of women or indigenous peoples. Clearly the number of communications submitted under the First Optional Protocol to the ICCPR far exceeds those submitted under CERD and CAT. I consider that these treaties offer avenues to which authors of communications and their advisers might give some thought.
There are several procedural considerations that might affect a complainant's decision to seek relief under a particular treaty. Two of these will be considered here: the exhaustion of local remedies and the length of time for complaints to be decided.
As with communications under the First Optional Protocol to the ICCPR, CERD and CAT communications procedures are subject to a series of admissibility criteria, in particular the exhaustion of domestic remedies. For many complainants, this is the main hurdle to admissibility before a complaint can be examined on its merits.
Under the rules of procedure of the CAT Committee, a complainant is not required to exhaust domestic remedies `where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief'.[31] Where the State party disputes that all domestic remedies have been exhausted, it `is required to give details of the effective remedies available to the alleged victim in the particular circumstances of the case'.[32] In relation to the exhaustion of domestic remedies, the language of CERD and its rules of procedure are more restrictive in that there is no need to pursue remedies that are unlikely to bring effective relief. Article 14(7) of CERD simply provides that domestic remedies need not be exhausted where `the application of the remedies is unreasonably prolonged'. In practice this difference in language is unlikely to be of significance.[33]
An examination of the decisions and opinions of the CERD and CAT Committees suggests an approach to the exhaustion of domestic remedies that is largely consistent with the Human Rights Committee. In Halimi-Nedzibi v Austria[34] the CAT Committee indicated that a delay of three years in processing a case before a national court constituted unreasonable delay. In REG v Turkey[35] the author argued that he had no hope of justice in Turkey and accordingly had taken no action to seek redress domestically. The CAT Committee found the communication to be inadmissible. In MA v Canada[36] the Committee developed the point further:
In principle, it is not within the scope of the Committee's competence to evaluate the prospects of success of domestic remedies, but only whether there are proper remedies for determination of the author's claim.[37]
In Parot v Spain the CAT Committee noted that a genuine if misguided attempt to exhaust domestic remedies was sufficient `even if these attempts to engage available local remedies may not have complied with procedural formalities prescribed by the law', as the attempts made `left no doubt as to Mr Parot's wish to have the allegations investigated'.[38]
Another procedural consideration concerns the apparent advantages in terms of time that might be gained from pursuing a communication under CERD or CAT. CAT, in particular, generally makes decisions on the merits and on admissibility simultaneously,[39] especially where a State does not dispute admissibility or in urgent cases. It is not unusual for the CAT Committee to dispose of a case in as little as five months. For example, in Mutombo v Switzerland[40] the State party did not dispute admissibility and the whole case was concluded within five months.[41] Despite the paucity of case law it appears that the CERD Committee also deals with cases fairly expeditiously. The decision of CP v Denmark was rendered in about 12 months.[42] The decision of Barbaro v Australia took approximately two and a half years between the date of communication and the adoption of a decision. This delay appears at least partially attributable to the slowness of the State party in responding to the author's submissions (being 12 months).[43]
These statistics are in contrast to those concerning the Human Rights Committee. In the first two Australian cases to be considered by the Human Rights Committee on their merits, Toonen v Australia[44] and A v Australia,[45] the periods between initial submission and adoption of views were about two and a half and four years respectively. Delays in the procedures of the Human Rights Committee are likely to be ameliorated by the amendment of the rules of procedure in August 1997 that enables the Special Rapporteur for New Communications to address both admissibility and merits in its submissions.[46]
Thus in views adopted in ARJ v Australia on 11 August 1997 the Human Rights Committee examined admissibility and merits simultaneously. The period between submission of the communication and adoption of the Human Rights Committee's final views was 17 months.[47] In this case, concerning a complaint against the decision of Australian authorities to deport the author to Iran, the Human Rights Committee found that there was no violation of the ICCPR. Similarly in GT v Australia, at the request of Australia, the Human Rights Committee examined admissibility and merits simultaneously.[48] The period between submission of the communication (also concerning a deportation decision of Australian immigration authorities) and the Human Rights Committee's conclusion that there was no violation of the ICCPR was 18 months. The decision in this case to deal jointly with admissibility and merits provoked a vigorous dissent by Committee member Martin Scheinin. In his opinion the possibility to deal jointly with admissibility and merits should not be resorted to in every case. In GT's case the author had not specified the ICCPR articles she invoked and the merger of admissibility and merits meant that the State party had the possibility to determine in its rejoinder the substantive issues to be dealt with by the Human Rights Committee. In Sheinin's opinion, the communication raised more issues under the ICCPR than those to which Australia had replied. The Human Rights Committee should have taken a separate decision declaring the case admissible and asking Australia to again comment on the merits of the case, at least in relation to Articles 17 and 23 concerning family life.[49]
Virtually all the opinions adopted by the CERD Committee under the individual communications procedure have dealt with issues of racial discrimination in the enjoyment of civil and political rights, notably in judicial proceedings and in employment. I suggest three directions in which the jurisprudence of the CERD Committee might be encouraged to develop.
Economic, social and cultural rights
In Article 5 States parties to CERD undertake `to prohibit and to eliminate racial discrimination ... and to guarantee the right of everyone, without distinction ... to equality before the law'. Article 5 contains a list of rights and freedoms in the enjoyment of which racial discrimination is to be eliminated. These include civil and political rights, as well as economic, social and cultural rights. The economic, social and cultural rights enumerated in Article 5(e) include rights:
(1) to work, to just and favourable conditions of work and to protection against unemployment (Article 5(e)(i));
(2) to housing (Article 5(e)(iii));
(3) to public health, medical care and social security (Article 5(e)(iv));
(4) to education and training (Article 5(e)(v)); and
(5) to equal participation in cultural activities (Article 5(e)(vi)).
In ascribing normative content to the economic, social and cultural rights referred to in Article 5, guidance can be sought in the General Comments adopted by the Committee on Economic, Social and Cultural Rights. These draw on experience gained through examination of a large number of State reports and seek to provide a body of jurisprudence by specifying the content of States obligations with respect to the realisation of economic, social and cultural rights.[50]
Thus CERD individual communications have the potential to be used in efforts to address the discrimination experienced by indigenous communities in Australia in the enjoyment of many of their economic and social rights. In this respect the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner has left a valuable legacy in the form of annual reports that document the discrimination experienced by indigenous Australians in the enjoyment of their human rights, with a particular emphasis on economic and social rights such as health, housing, employment and education.[51] Apart from issues relating to the recognition of native title, other issues of concern raised by the CERD Committee in 1994 in its consideration of Australia's periodic report under Article 9 of CERD, and potential areas for Article 14 communications include:
(1) the continuing disadvantage suffered by Aboriginal people in areas such as education, employment, housing and health services, and in participation in public affairs; and
(2) the situation of other non-English speaking minorities, especially refugees and asylum seekers in relation to the enjoyment of their rights under Article 5.[52]
Measures of positive discrimination
It is also interesting to note the provisions of CERD dealing with affirmative action or positive discrimination. CERD aims to achieve not only de jure but also de facto racial equality. In accordance with Articles 1(4) and 2(2), special measures taken in relation to certain racial or ethnic groups are not considered racial discrimination provided that:
(1) they do not lead to the maintenance of unequal or separate rights for different groups; and
(2) they are not continued after the objectives for which they were taken have been achieved.
There is a significant distinction in the wording of the two provisions. While Article 1(4) allows the continuation of affirmative action programs for groups which have suffered discrimination in the past, Article 2(2) actually imposes an obligation on States parties to undertake such actions. Article 2(2) has considerable potential as a basis for complaints urging the adoption of special measures to address the disadvantage of particular ethnic groups in the enjoyment of their economic and social rights. As a former Secretary to CERD, Michael O'Flaherty, has noted:
This provision is of immense importance for racial or ethnic groups and, given the extent to which it surpasses the obligations in Article 27 of the International Covenant on Civil and Political Rights in creating a regime of minority rights, it is surprising that it has received so little attention from academics and NGOs.[53]
States parties must take Article 2(2) action `when the circumstances so warrant'. According to O'Flaherty, an analysis of the practice of CERD and the wording of the relevant section of the CERD Committee's Guidelines for the Preparation of States Reports suggests that the measure of necessity for taking affirmative action is `an objective one and not dependent on the subjective view of the Government'.[54] In its General Recommendation (No XX), adopted in 1996, the CERD Committee stated:
In accordance with Article 2(2) of the [CERD] and other relevant international documents, governments should be sensitive towards the rights of persons belonging to ethnic groups, particularly their rights to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth and to play their part in the government of the country of which they are citizens. Also, governments should consider, within their respective constitutional frameworks, vesting persons belonging to ethnic or religious groups comprised of their citizens, where appropriate, with the right to engage in activities which are particularly relevant to the preservation of the identity of such persons or groups.[55]
CERD and distinct indigenous rights
The CERD Committee has also confirmed the specific relevance of CERD in securing the distinct rights of indigenous peoples, as indigenous peoples. On 18 August 1997, the CERD Committee adopted a far-ranging and ground-breaking General Recommendation concerning indigenous peoples (General Recommendation XXIII (51)).[56] In this General Recommendation, the CERD Committee reaffirms that the provisions of CERD apply to indigenous peoples and notes that:
in many regions of the world indigenous peoples have been, and are still being, discriminated against, deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial enterprises and State enterprises. Accordingly, the preservation of their culture and their historical identity has been and still is jeopardised.[57]
The General Recommendation calls upon States parties to CERD to take a series of measures, including:
(1) to provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;
(2) to ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent; and
(3) to ensure that indigenous communities can exercise their rights to practice and revitalise their cultural traditions and customs, to preserve and practice their languages.[58]
Of particular significance is para 5 in which:
[t]he Committee especially calls upon States parties to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories.
A number of features of General Recommendation XXIII require comment. First, the CERD Committee has affirmed that the prohibition of racial discrimination is not only consistent with, but actually requires recognition and protection of, indigenous peoples' distinct rights to their culture, history, language, customs and way of life, including the right to own and control their lands and resources. In Australia much discussion of native title, as defined by the High Court in Mabo v Queensland [59] and Wik v Queensland,[60] has been plagued by misunderstandings about the nature of indigenous rights and their relationship to principles of non-discrimination and equality. Some have suggested that indigenous rights are additional rights or special privileges, the removal or narrowing of which would not offend the prohibition of racial discrimination.[61] With its General Recommendation on indigenous peoples the CERD Committee has confirmed that the prohibition of discrimination actually requires specific measures to ensure that indigenous peoples control their own destinies and provide their informed consent to decisions relating to their rights and interests. Second, the CERD Committee has gone further in articulating a framework for the protection and promotion of indigenous rights than the Human Rights Committee in its significant but comparably modest General Comment on Article 27 of the ICCPR.[62] Third, the CERD Committee has drawn on language that is found in the UN Draft Declaration on the Rights of Indigenous Peoples, currently under consideration in a working group of the Commission on Human Rights.[63] The significance of this should not be overlooked. It confirms that the Draft Declaration elaborates norms already contained in international human rights law and does not invent new or special standards. It also lends weight to the view that there is a minimum corpus of customary international law concerning indigenous rights.[64]
As noted, a majority of individual communications dealt with by the CAT Committee have been concerned with the possibility of individuals being exposed to the danger of torture or cruel, inhuman or degrading treatment upon return to another State by way of extradition, expulsion or refoulement. I suggest two ways in which the jurisprudence of CAT under the Article 22 individual communications procedure might be encouraged to develop.
Custodial facilities
There might be greater scope for the submission of complaints of `cruel, inhuman or degrading treatment' by persons subject to any form of arrest, detention or imprisonment, including pupils and patients in educational and medical institutions. In this respect guidance can be found in the General Comments of the Human Rights Committee on Article 7 of the ICCPR.[65] The Committee's General Comments 7 and 20 address a range of requirements arising out of Article 7's prohibition of cruel, inhuman or degrading treatment or punishment, including in relation to:
(1) solitary confinement;[66]
(2) corporal punishment, including excessive chastisement as an educational or disciplinary measure;[67]
(3) prompt and regular access to doctors, lawyers and family members;[68] and
(4) safeguards for the special protection of particularly vulnerable persons.[69]
The discrimination experienced by Aboriginal and Torres Strait Islander people, especially young people, in the criminal justice system has been well-documented, not least by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC).[70] Despite the comprehensive report and recommendations of the RCIADIC the overall rate of Aboriginal custodial deaths has not decreased. A major recent study has confirmed that many of these deaths have occurred because key areas of reform identified by the Royal Commission have not been implemented and significant breaches of its recommendations have occurred.[71] The dramatic over-representation of indigenous youth in the welfare and criminal justice systems is a matter of grave concern.[72] Serious concerns have arisen also in relation to `get-tough' legislation in a number of jurisdictions, including the Young Offenders Act 1994 (WA) and the Sentencing Amendment Act (No 2) 1996 (NT), which provides for the mandatory imprisonment of persons found guilty of a property offence.[73]
It is arguable that the physical conditions and care and treatment provided to detainees in custodial facilities in parts of Australia constitute cruel, inhuman or degrading treatment, contrary to CAT. Amnesty International's 1993 report Australia: A Criminal Justice System Weighted Against Aboriginal People, concluded that conditions in certain detention facilities in Australia might amount to cruel, inhuman or degrading treatment.[74] HREOC's National Inquiry into the Human Rights of People with Mental Illness also highlighted many of the human rights abuses that the mentally ill are subjected to in care.[75]
Violations of women's rights
The second area in which it might be possible to develop the jurisprudence of the CAT Committee is in relation to violations of the rights of women. As Anne Gallagher has noted, CAT has failed to address gender issues despite the increasing attention that other parts of the human rights system are paying to the gendered aspects of torture.[76] To some extent, the capacity of CAT to address violations of women's rights as torture, or cruel, inhuman or degrading treatment or punishment is limited by CAT's concern with acts of public officials and other persons acting in an official capacity. Clearly much of the violence experienced by women is perpetrated by non-State actors. However, rape and sexual abuse are also systematically perpetrated by government agents and in such cases the CAT communications procedure might provide one avenue of international recourse.
For example, in many countries rape is used as a weapon of war and a tool of political repression by military and security forces. Refugee and displaced women are particularly vulnerable to sexual assault by military and paramilitary forces, and by police and security officials.[77] As Amnesty International has commented:
In countries around the world, government agents use rape and sexual abuse to coerce, humiliate, punish and intimidate women. When a policeman or soldier rapes a woman in his custody, that rape is no longer an act of private violence, but an act of torture or ill-treatment for which the state bears responsibility.[78]
In States such as Australia where military and paramilitary activity is not a particular issue, violence against women can occur in prisons and other custodial settings. According to Amnesty International, women are uniquely vulnerable to rape in custody by government agents, and are more likely to suffer sexual abuse and harassment short of rape. In the US Human Rights Watch has identified `a serious and potentially pervasive problem of sexual misconduct by prison officials'.[79]
It is evident that the work of the CERD and CAT Committees has received inadequate attention in Australia. It is hoped that some of the suggestions made in the present paper will aid more strategic use of individual communications procedures and assist efforts to tackle some structural human rights issues affecting racial groups, especially indigenous peoples and women. In relation to CERD, I have suggested the possibility of developing jurisprudence on economic, social and cultural rights, on the obligations of States in relation to affirmative action and on the rights of indigenous peoples. In relation to CAT, there is unexplored potential to address sub-standard conditions in custodial facilities, as well as some gender-specific abuses experienced by women.
On 11 August 1998 the CERD Committee, acting under its early warning procedures, adopted Decision 1(53) on Australia.[80] The CERD Committee received a written reply from the Australian Government[81] and met with a delegation of the Australian Government at its 1323rd and 1324th meetings in Geneva in March 1999. The CERD Committee also received submissions from the Acting Aboriginal and Torres and Strait Islander Social Justice Commissioner, the Aboriginal and Torres Strait Islander Commission, Members of the Australian Parliament and a range of Australian NGOs.
On 18 March 1999 the CERD Committee adopted concluding observations in relation to the `early warning' procedure against Australia.[82] It expressed concern over the compatibility of the Native Title Act 1993(Cth), as amended, with Australia's international obligations under CERD. It noted that provisions that extinguish or impair the exercise of indigenous title rights and interests pervade the amended Act: `[w]hile the original 1993 Native Title Act was delicately balanced between the rights of indigenous and non-indigenous title holders, the amended Act appears to create legal certainty for governments and third parties at the expense of indigenous title'.[83] Four provisions, in particular, were found to discriminate against indigenous title-holders: the `validation' provisions; the `confirmation of extinguishment' provisions; the primary production upgrade provisions; and restrictions concerning the right of indigenous title holders to negotiate non-indigenous land uses. The lack of effective participation by indigenous communities in the formulation of the amendments raised special concerns.
The CERD Committee called on Australia to address these concerns as a matter of utmost urgency, and to suspend implementation of the amendments and re-open discussions with Aboriginal and Torres Strait Islander representatives. In light of its urgency and fundamental importance, the CERD Committee decided to keep the matter on its agenda under its early warning and urgent action procedures to be reviewed again at its 55th session. The CERD Committee's conclusions were rejected by the Commonwealth Attorney-General, Daryl Williams, as an `insult' to Australia. In an interview on ABC Radio he stated: `I don't feel the least bit of embarrassment on behalf of Australia because regrettably the Committee has presented an unbalanced report which doesn't recognise any of the submissions made by the Government'.[84]
[*] Sarah Pritchard is a Senior Lecturer in the Faculty of Law at the University of New South Wales. She is also Director of the Human Rights Centre at the University of New South Wales.
[1] See United Nations, Official Records of the General Assembly, Forty-Eighth Session, Supplement No 18 (UN Doc A/48/18), Annex III (1993).
[2] Ibid.
[3] See O'Flaherty M, `Individual Communications: the Convention Against Torture and the Convention on the Elimination of All Forms of Racial Discrimination', in Pritchard S (ed), Indigenous Peoples, the United Nations and Human Rights (Zed Books/Federation Books, 1997) p 128.
[4] CERD Committee Decision 1 (53) A/53/18 para 22. Please see the Postscript, p 85 of this journal, for the final decision of the CERD Committee.
[5] See Articles 20-22 CAT.
[6] Mutombo v Switzerland CAT Communication 13/1993; Kahn v Canada CAT Communication 15/1994. See Report of the Committee on the Elimination of Racial Discrimination UN Doc A/50/44 (1995), \tAnnex V and O'Flaherty, above, note 3, pp 124-5.
[7] Report of the Human Rights Committee UN Doc A/44/40 (1989) at 179.
[8] ICCPR Communication 167/1984, Report of the Human Rights Committee UN Doc A/45/40 (1990).
[9] Ibid para 33.
[10] Article 20 CAT.
[11] Article 20(3) CAT.
[12] Report of the Committee Against Torture UN Doc A/51/44 (1996) paras 180-222.
[13] Report of the Committee Against Torture UN Doc A/48/44/Add 1 (1993).
[14] CERD Communication 1/1984 (August 1988, 36th session).
[15] CERD Communication 2/1989 (March 1991, 39th session).
[16] CERD Communication 4/1991 (March 1993, 42nd session).
[17] CERD Communication 3/1991 (March 1994, 44th session).
[18] CERD Communication 5/1994 (March 1995, 46th session).
[19] CERD Communication 7/1995. See Report of the Committee on the Elimination of Racial Discrimination UN Doc A/23/18 (1997) Annex III.
[20] Ibid paras 10.4-10.5.
[21] CERD Communication 9/1997. See Report of the Committee on the Elimination of Racial Discrimination UN Doc A/53/18 (1998) Annex III.
[22] Communication 6/1995 (Australia -- discrimination in employment); Communication 8/1996 (Australia -- quota on overseas trained doctors); Communication 10/1997. See Report of the Committee on the Elimination of Racial Discrimination UN Doc A/53/18 (1998) para 484.
[23] O'Flaherty M `Substantive Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination' in Pritchard S (ed) Indigenous Peoples, the United Nations and Human Rights (Zed Books/Federation Books, 1997) pp 181 and 179.
[24] CAT Communication 15/1994 Khan v Canada (views adopted 15 November 1994); CAT Communication 21/1995 Alan v Switzerland (views adopted 8 May 1996); CAT Communication 41/1996 Kisoki v Sweden (views adopted 8 May 1996) and CAT Communication 43/1996 Tala v Sweden (views adopted 15 November 1996). See also the series of complaints against Argentina's Due Obedience Act of 1987: Report of the Committee Against Torture UN Doc A/45/44 (1990) Annex V.
[25] CERD Communication 6/1995.
[26] CERD Communication 8/1996.
[27] CERD Communication 7/1995; UN Doc CERD/C/51/D/7/1995 (1997).
[28] Ibid, paras 10.4-10.5.
[29] CAT Communication 102/1998; CAT Communication 106/1998.
[30] Thanks to Jane Hearn of the Public International Law Branch in the Attorney-General's Department for this information. See Hearn J `Communications to Human Rights Treaty Bodies -- the Australian Government's Perspective' in this collection.
[31] Rule 107(1)(f).
[32] Rule 108(7).
[33] O'Flaherty, above, note 3, p 127.
[34] CAT Communication 8/1991; Report of the Committee Against Torture UN Doc A/49/44 (1994) at Annex V.
[35] CAT Communication 4/1990; Report of the Committee Against Torture UN Doc A/46/44 (1991) at Annex V.
[36] CAT Communication 24/1995; Report of the Committee Against Torture UN Doc A/50/44 (1995) at Annex V.
[37] See also the decision on admissibility in the case of B M/B v Tunisia (CAT Communication 14/1994), adopted on 5 May 1994, para 4.
[38] CAT Communication 6/1990; Report of the Committee Against Torture UN Doc A/50/44 (1995) at Annex V. See also O'Flaherty, above, note 3, pp 121-2.
[39] Rule 110.
[40] CAT Communication 13/1993; Report of the Committee Against Torture UN Doc A/49/44 (1994) at Annex V.
[41] See also Khan v Canada (date of communication 4 July 1994; adoption of views 15 November 1994); Kisoki v Sweden (date of communication 12 February 1996; adoption of views 8 May 1996); Tala v Sweden (date of communication 7 March 1996; adoption of views 15 November 1996).
[42] Date of communication 13 January 1994; adoption of views 15 March 1995.
[43] See text at note 27.
[44] ICCPR Communication 488/1992. Date of communication 25 December 1991; adoption of views 8 April 1994.
[45] ICCPR Communication 560/1993. Date of communication 20 June 1993; adoption of views 3 April 1997.
[46] UN Doc CCPR/C/3/Rev 5, new rule 91(2).
[47] ICCPR Communication 692/1996; UN Doc CCPR/C/60/692/1996. Date of communication 6 February 1996; adoption of views 28 July 1997.
[48] ICCPR Communication 706/1996. Date of communication 10 May 1996; adoption of views 4 November 1997.
[49] ICCPR Communication 706/1996; Report of the Human Rights Committee UN Doc A/53/40 (1998) at Annex XI, p 193.
[50] See Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies UN Doc/HRI/GEN/1/Rev 3 (15 August 1997). See also Rodriguez LV, `The International Convention on the Elimination of all Forms of Racial Discrimination' in United Nations, Manual on Human Rights Reporting (United Nations, 1997).
[51] See Aboriginal and Torres Strait Islander Social Justice Commissioner, First Report 1993 (AGPS, 1993); Second Report 1994 (AGPS, 1994); Third Report 1995 (AGPS, 1995); Fourth Report 1996 (AGPS, 1996); Fifth Report 1997 (Commonwealth of Australia, 1997).
[52] Report of the Committee on the Elimination of Racial Discrimination, UN Doc A/49/18 (1995) paras 45-6.
[53] O'Flaherty M, above, note 23, p 171.
[54] O'Flaherty, above, note 23, p 171.
[55] See Report of the Committee on the Elimination of Racial Discrimination UN Doc A/51/18 (1996) at 125-6.
[56] UN Doc CERD/C/51/Misc 13/Rev 4 (1997).
[57] Ibid para 3.
[58] Ibid para 4.
[61] See Pritchard S, `Native Title from the Perspective of International Standards' [1997] AUYrBkIntLaw 4; (1998) 18 Australian Yearbook of International Law 127.
[62] Human Rights Committee General Comment 23 (50).
[63] See Pritchard S `The United Nations and the Making of a Declaration on Indigenous Rights' (1997) 2 Aboriginal Law Bulletin 4.
[64] See Pritchard S, above, note 61.
[65] See Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies UN Doc/HRI/GEN/1/Rev 3 (15 August 1997).
[66] General Comment 7, para 1; General Comment 20, para 6.
[67] General Comment 7, para 2.
[68] General Comment 7, para 1; General Comment 20, para 11.
[69] General Comment 20, para 11.
[70] See Royal Commission into Aboriginal Deaths in Custody, National Report (AGPS, 1991) Vol 5.
[71] Cuneen C and McDonald D, Keeping Aboriginal and Torres Strait Islander People out of Custody: An Evaluation of the Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (ATSIC, 1996).
[72] The former Aboriginal and Torres Strait Islander Social Justice Commissioner monitored developments in the juvenile justice system and published findings in annual reports in 1995, 1996 and 1997: Aboriginal and Torres Strait Islander Social Justice Commissioner, Third Report 1995 (AGPS, 1995); Aboriginal and Torres Strait Islander Social Justice Commissioner, Fourth Report 1996 (AGPS, 1996); Aboriginal and Torres Strait Islander Social Justice Commissioner, Fifth Report 1997 (Commonwealth of Australia, 1997).
[73] On indigenous criminal justice issues see Aboriginal and Torres Strait Islander Social Justice Commissioner, `Diversion from Custody' in Fourth Report 1996 (AGPS, 1996) pp 19-68; `Juvenile Justice' in Third Report 1995 (AGPS, 1995) pp 13-41; `The Royal Commission into Aboriginal Deaths in Custody: Commonwealth Implementation of Recommendations' in Second Report 1994 (AGPS, 1994) pp 75-98.
[74] Amnesty International Australia: A Criminal Justice System Weighted Against Aboriginal People \t(Amnesty International, 1993) pp 5-6.
[75] Human Rights and Equal Opportunity Commission, Human Rights and Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness (AGPS, 1993) 2 volumes.
[76] Gallagher A, `Ending the Marginalisation: Strategies for Incorporating Women into the United Nations Human Rights System' (1997) 19 Human Rights Quarterly 283 at 303-4.
[77] See cases documented in Human Rights Watch Global Report on Women's Human Rights (Human Rights Watch, 1995). On the prosecution of rape by the International Tribunal for the Former Yugoslavia see Niarchos C `Women, War and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia' (1995) 17 Human Rights Quarterly 649. On refugee women see United Nations High
Commissioner for Refugees, General Recommendation 73, 1993, Refugee Protection and Sexual Violence; reproduced in Center for the Study of Human Rights, Women and Human Rights: The Basic Documents (Colombia University, 1996) p 221.
[78] Amnesty International Rape and Sexual Abuse: Torture and Ill-Treatment of Women in Detention \t(Amnesty International, 1992) p 1.
[79] Ibid p 156.
[80] See text at note 4.
[81] UN Doc CERD/C/347.
[82] UN Doc CERD/C/54/Misc.40/Rev.2.
[83] Ibid para 6.
[84] `Native title laws breach UN race rules' The Weekend Australian March 20-21 1999, p 3.
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