Chinkin, Christine --- "International Update - Using the Optional Protocol: the Practical Issues" [1993] AboriginalLawB 42; (1993) 3(64) Aboriginal Law Bulletin 6

• International Update-Using The Optional Protocol: The Practical Issues

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International Update -
Using the Optional Protocol: the Practical Issues

by Christine Chinkin

The ratification by the Australian government of the Optional Protocol to the International Covenant on Civil and Political Rights provides human rights lawyers with a new instrument which they must learn to use effectively. They must also recognise its limitations. The International Covenant, as now supplemented by the Protocol, is not a substitute Bill of Rights for Australia. The Covenant has not been incorporated into Australian domestic law and the Protocol does not alter that position. It is not going to provide automatic relief for those who have suffered violations of human rights within Australia. However by ratifying the Optional Protocol, Australia recognises the competence of the Human Rights Committee of the United Nations to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation of the Covenant within Australia. It provides access to individuals to an international forum within which actions of the Australian government can be assessed against internationally accepted standards of behaviour. The aim of the Optional Protocol is to further the purposes of the Covenant, and ratification is open only to parties to the Covenant. Taking this step gives some credence to the claims of the Australian government to be a leader in international human rights, and allows its own behaviour to be subject to international scrutiny at the behest of individuals within its jurisdiction.

Australia ratified the International Covenant in August 1980, thereby making an international commitment to the standards of the Covenant. The Covenant has three separate methods of enforcement which can be characterised as a reporting and supervisory mechanism; an inter-State complaints mechanism; and a mechanism for the receipt of individual petitions. Australia has been subject to the reporting requirements of Article 40 since the entry into force of the Covenant for Australia. Article 41, which provides for interState claims of non-compliance with the Covenant, is subject to separate declarations of acceptance by States parties. Australia has not made such a declaration and the Article has never been used. It is the third enforcement mechanism, the right of individual communication, which is the subject matter of the Optional Protocol.

The ratification of the Optional Protocol means that when an individual approaches a lawyer with a complaint about some violation of human rights, the lawyer should determine whether submitting a communication to the Human Rights Committee is an appropriate action, and the form that any such complaint should take. The right of the individual petition arises automatically once the ratification takes effect (three months after the date of deposit of ratification, Optional Protocol, Article 9 (2)) with no need for implementing legislation. There are a number of requirements for a communication, which, if not satisfied, will lead to it being found inadmissible. These requirements, which are amplified in the Rules of Procedure, attempt to provide protection to governments against investigations into allegations that are vexatious or without substance, to the Committee against wasting its time on a baseless communication, and require the individual to indicate her or his seriousness in making the communication.

First, the complaint must be in written form alleging violation of a right contained within the Covenant (Optional Protocol Article 1). Any form of written communication is permissible and complaints are submitted in many forms ranging from a fully argued and documented case to a brief allegation. The Human Rights Committee has drawn up a model form; this is not compulsory but using it ensures all necessary information is provided. While it is intended to facilitate complaints it may in fact prove complex for many would-be complainants and require legal assistance. A legal adviser must be aware of the provisions of the Covenant and the rights it includes. It will be necessary for lawyers in human rights cases to familiarise themselves with the terms of an international instrument in the same way as they would normally peruse a statute. However a treaty is drafted in a very different way from a statute, with more general language as befits an instrument intended for universal application. It may take Australian lawyers some time to adapt to interpreting and applying its provisions. This will be necessary, as generalised statements of undesirable government behaviour which do not make apparent any violation of the Covenant, are not admissible. The petition must not be anonymous, must not be an abuse of the right of submission of such communications, and must not be incompatible with the provisions of the Covenant (Optional Protocol, Article 3). The same matter must not be under examination through some other procedure of international investigation or settlement (Optional Protocol, Article 5 (2) (a)). It is intended to ensure that there are not conflicting rulings or procedures under the Optional Protocol and the regional human rights treaties.

There are two other requirements which are rather more problematic and have been considered more fully by the Human Rights Committee: the requirement of the exhaustion of domestic remedies (Optional Protocol, Article 2), and the requirement that the petition comes from an individual who is a victim of an alleged violation of the Covenant, or her or his authorised representative (Optional Protocol, Articles I and 2).The requirement of the exhaustion of domestic remedies echoes other Human Rights Treaties (the European Convention on Human Rights and the American Convention on Human Rights), and the jurisprudence of the International Court of Justice.

It is intended to give the State the opportunity to make redress itself before being subject to international procedures. Individuals are intended to use the international enforcement mechanisms as a last resort, and not circumvent local procedures. There is no time limit within which applications must be made after the exhaustion of local remedies, although it has been suggested by some members of the Human Rights Committee that excessive delay could constitute abuse of process. The requirement means that the applicant must first have pursued all legal avenues within the Australian courts. An application must also pursue the avenues that are prescribed under specific legislation, for example State antidiscrimination legislation which requires conciliation proceedings before an Equal Opportunity (Anti-Discrimination Board in New South Wales) before any judicial proceedings are possible.

The Protocol requires that the application of local remedies must not be unreasonably prolonged (Optional Protocol, Article 5 (2) (b)) relieving an individual from being obliged to pursue a remedy that is only available after a long period. The Committee has determined that the local remedy must be effective and available for the particular situation. A State that wishes to argue that an individual has not exhausted local remedies must indicate available remedies that have not been sought.

A number of situations within Australia can be envisaged where the exhaustion of local remedies might be in issue. First, the remedy must be available to the individual to redress the wrong suffered. Thus ability to commence disciplinary proceedings against the wrongdoer, for example, would not affect the local remedies rule if it was not coupled with some form of reparation to the victim. A remedy that lies within the discretion of some government official would probably not have to be pursued as it would not necessarily be actually available to the individual. It seems that an individual would not have first to make a complaint to a federal or State ombudsman since that process does not lead to a legally enforceable remedy, but is rather directed at correcting government maladministration.

There may be questions arising out of the legal process itself. Since Australia does not have a Bill of Rights giving rise to judicial review of legislation as in the United States, passing of legislation which was apparently contrary to the Covenant should allow immediate communication with the Committee without seeking any further remedies. However if the relevant legislation was State legislation that might be struck down under s109 of the Constitution this process should first be attempted. Appeal should be attempted as far as it is allowable; refusal of leave to appeal by the highest available court would demonstrate the exhaustion of local remedies. However applicants must actively seek to gain satisfaction through local remedies. For example, an individual cannot merely wait until the time for an appeal has lapsed and then claim to have exhausted local remedies. Applicants do not have to pursue a remedy where it is evidently not going to be successful.

The exhaustion of domestic remedies rule leads to some particular problems in common law countries with a system of stare decisis. The existence of a decision of the High Court which makes it inevitable that the case would fail i n lower State Courts might appear to excuse an applicant from seeking judicial redress. However this may be rather more complex as it is possible for earlier precedents to be distinguished or over-ruled.

The effect of the doctrine of precedent was considered in a case from Jamaica. Jamaica argued that local remedies had not been exhausted as further appeal should be pursued as an earlier, apparently binding, decision had been made per incuriam.

The Human Rights Committee stated:

"That the local remedies rule does not require resort to appeals that objectively have no prospect of success, is a well-established principle of international law and of the Committee's jurisprudence. A thorough consideration of the [earlier] judgment does not lend itself to the conclusion that it was arrived at per incuriam."[1]

The Committee therefore made its own assessment of the likely operation of stare decisis. It is possible that the High Court itself will respond to the existence of the Optional Protocol procedures. The High Court is aware that an adverse decision by itself on some issue contained within the Covenant can now lead to an applicant making a communication to the Human Rights Committee. As the High Court regards itself as having some flexibility with respect to its own previous decisions, it could reconsider any earlier decision which might appear incompatible with the Covenant.

The High Court does not have to regard the Covenant as incorporated into Australian law to do this, but can treat its own earlier decisions in the usual way. Two consequences would flow from any such inclination of the High Court. First, counsel should argue the Covenant before the High Court in an attempt to persuade it to over-rule or distinguish any earlier decisions that might be contrary to the obligations of the Covenant. Second, applicants might have to take cases to the High Court before local remedies can be said to be fully exhausted. Neither the United States nor the United Kingdom are parties to the Optional Protocol so Australian lawyers cannot look to their experience within the Human Rights Committee with respect to domestic remedies. However Canada and New Zealand are parties and there are other countries, such as Jamaica, with common law legal systems.

In order to anticipate the likely response of the Committee with respect to local remedies, Australian lawyers should familiarise themselves with such claims from those countries, while remaining alert to the differences between procedures and the application of the doctrine of precedent in particular legal systems.

Another issue relevant to the exhaustion of local remedies is that of legal aid. There is no international system of legal aid for communications to the Committee, nor do Australian legal aid systems cover this situation. Must individuals pursue a legal remedy they cannot afford, if legal aid is not available? The requirements of an effective remedy would suggest this should not be necessary.

Another limitation oil the effectiveness of the right of individual communication is the emphasis on individuality. It is important first to notice that the procedure is available to individuals under the jurisdiction of Australia. It is not restricted to nationals but includes aliens and stateless persons within jurisdiction. The procedure is for individuals who have been victims of an alleged violation of the Covenant, in the sense that it has actually affected them in some way. It is not designed for wide attacks on State legislation or government policy without identification of particular individuals who are prepared to pursue the claim. Nor is it intended to give abstract rulings on potential consequences of some government policy or legislation. It is not sufficient for an individual to allege that some government policy might affect her or him at some future date. Two elements are closely connected here: general claims on behalf of groups cannot be made because of lack of personal standing, but an alleged victim can authorise another person (including a Non Government Organisation (NCO)) to act on her or his behalf. Thus particular groups Eke Aborigines, prisoners, homosexuals or migrant women cannot make a general petition to test government policy. For example, the Committee has rejected an application made on behalf of prisoners on the basis that “every prisoner treated unjustly would appreciate further investigation ...”.[2]

However, the Human Rights Committee is currently considering applications against the Australian government including a communication from Nicholas Toonen, a Tasmanian who is challenging sections of the Tasmanian Criminal Code which criminalise all male homosexual acts. The communication alleges that this contravenes the ICCPR Article 17, the right to privacy and the right to non-discrimination (Article 26). It is understood that the Tasmanian Government opposed the admissibility of the communication, but in September 1992 the Australian government announced that it would make no objection to admissibility, so the communication may be considered on its merits.

The Committee has taken a restrictive view with respect to applications from entities rather than individuals. For example Meron cites the rejection of the petition of a NCO which had formed a 'group of associations for the defence of the rights of the disabled and handicapped persons in Italy' and of representatives of the associations who claimed they were themselves disabled, handicapped or parents of such people.[3] The Committee found the petition inadmissible to the extent that it emanated from the NGO because of lack of personal standing. The claims made by representatives on their own behalf were admissible with respect to standing, but were rejected as inadmissible because they did not present substantiated claims of having been victims of violation of the Covenant. Where petitions are submitted on behalf of a victim, the authority of the author to make the claim must be justified. Such authority could be legally established, for example, by appointment of a legal representative, or by power of attorney appointing some other representative, or can be created by close family ties. Communications have been rejected where the requisite authority cannot be demonstrated. The Committee has accepted communications on the same issue from a number of individuals, for example, members of the same family or a particular group, providing each one can substantiate a claim as an individual victim.

The role of representatives has been to draft the original communication, to supply further information and comments where requested to do so, to collect and supply supporting documentation and evidence, and to respond to government submissions. The Human Rights Committee has not held oral proceedings so there has been no direct advocacy role for representatives. The requirement that a communication come from the victim can be constraining when the allegation is precisely that the individual has no access to the Courts or other outside bodies. The Committee may therefore accept a communication submitted on behalf of a victim where it appears that it cannot be submitted personally. The admissibility of each communication must first be established. While the Optional Protocol and Rules of Procedure lay down the main procedural steps there are obviously problems of screening and a number of measures have been taken to attempt to streamline admissibility decisions. The United Nations and its various organs receive literally thousands of communications alleging violations of human rights every year. The Secretary-General as an administrative matter makes the first sifting of communications and refers to the Centre for Human Rights those which appear directed to it. Where necessary the Secretary-General may seek clarifications on certain points of the communication. The first screening within the Centre for Human Rights is by the communications section which decides whether communications should be treated as 'mere contact letters' or registered as communications tinder the Optional Protocol. Within the Human Rights Committee itself communications are considered by a working group of five persons, and since 1989 a Special Rapporteur has been appointed to consider communications for admissibility. The Special Rapporteur examines the communications and can ask for further information relating to admissibility (but not on the substance of the complaint) from the individual, or can submit it to the State party with a similar request. Time limits are imposed for the submission of further information and for comments by the other party on such information. A communication cannot be found admissible without the State receiving the text of the communication and having an opportunity to respond. The Special Rapporteur may also make a recommendation of inadmissibility to the Human Rights Committee without seeking further information. After any further information that has been requested has been examined, a decision on admissibility is made by the Human Rights Committee. The Committee decided in 1989 that a decision that a communication is admissible could be taken by unanimous decision of the Working Group, but a decision of inadmissibility must be taken by the full Committee.

The Human Rights Committee comprises 18 members who are nationals of States parties to the Covenant. They are persons of high moral character and recognised competence in the field of human rights who serve in their personal capacity and not as representatives of their countries. There is no provision for an ad hoc member where a communication comes from a country with no member on the Committee. It is important to realise that the Human Rights Committee is not a Court, nor under the Optional Protocol does it function as a conciliation body. Its function is to determine the admissibility of petitions and to investigate the allegations made in those petitions which are found admissible. Throughout its investigatory stage it treats the individual and the State government equally, allowing each to comment on the arguments and representations of the other. Although it must investigate the factual allegations in a communication the Committee has no formal fact finding mechanisms. It must rely upon all the written information submitted by the individual and the government, as well as all supporting documentation. Whatever documentation the individual or the State party considers appropriate to support the case is likely to be accepted by the Committee. Supporting documentation may include for example: statements from witnesses, family members, government officials, or other people who can cast light on the matter; medical or psychiatric evidence; courts judgments; detention orders; legislation or administrative decrees;and/or personal correspondence.

The Committee determines the probative value of the evidence submitted to it. The Committee does not make field trips to examine the conditions complained of for itself. Since there are no oral proceedings there have been no issues of acceptance of evidence under oath, rights of cross-examination, or legal representation. The Committee has determined that the burden of proof does not rest solely on the individual but also on the government. For the case to be found admissible the individual must show at least a prima facie case of violation of a provision of the Covenant. The Committee has determined that the State party has a duty to investigate in good faith a complaint that has been found admissible, and to furnish further information and observations to the Committee.

Where the informant has supplied satisfactory and supported evidence the Committee may find the complaint substantiated unless the State supplies satisfactory evidence to refute the allegations. In particular the government cannot simply make a general denial of a complaint of violation of the Covenant.

The final stage in the process is for the Committee to forward its views to the State party concerned and the individual. Thus, unlike the position of the European Commission on Human Rights, submission to the Committee is not a first stage which may precede public judicial proceedings. Under the enforcement mechanism of the International Covenant there is no possibility of a binding adjudication between the individual and the government in question. Nor does the Committee attempt to achieve a friendly settlement between the government and the individual through conciliation which again is one of the functions of the European Commission on Human Rights and which technique has been replicated within State discrimination legislation within Australia. The Human Rights Committee adopts a view on a case which it delivers to the State and to the individual, and includes in its Annual Report to the General Assembly. This opinion includes measures the Committee considers appropriate for the State to undertake. It is hoped that the pressure of publicity will make the State accept and comply with that opinion, although there have been complaints that findings of the Committee are ignored by the State in question.

The Committee has recently taken two steps to attempt to improve the level of compliance. First, it has given States six months within which to respond to its findings and lack of any response will be indicated in the Committee's Annual Report. The second is an attempt to link the Covenant's supervisory procedure with the individual complaints mechanism. In 1990 the Committee amended its guidelines for the submission of Reports by State parties wider Article 40 by requiring that:

"When a State party to the Covenant is also a party to the Optional Protocol, and if in the period under review in the Report the Committee has issued views finding that the State party has violated provisions of the Covenant, the Report should include a section explaining what action has been taken relating to the communication concerned. In particular the State party should indicate what remedy it has afforded the author of the communication whose rights the Committee found to have been violated."

In 1990 the Human Rights Committee also appointed a Special Rapporteur for Follow Up on Views to receive information from State parties on the steps they have taken in response to the views of the Committee.

By allowing individuals to communicate with the Human Rights Committee, the Australian government is accepting that its actions will be compared and assessed against the standards of the Covenant as interpreted by the Committee in other cases from a number of States. It has not accepted the jurisdiction of a human rights court to make binding judicial decisions upon allegations made by individuals as has, for example, the United Kingdom under the European Convention on Human Rights. Although there is no requirement that members of the Human Rights Committee be lawyers, it is building up a body of jurisprudence on the provisions of the Covenant. Thus lawyers in Australia who may be considering advising an individual to petition the Committee should familiarise themselves with this jurisprudence in the same way as they would with the case in a relevant area of Australian law. Using the Optional Protocol will require Australian lawyers to become aware of and familiar with new reference materials which are not strictly sources of law in the sense of legislation or binding precedents, but which will be essential to predicting the likely response of the Committee.

There is a growing literature on the Optional Protocol including two volumes of selected decisions which are available from the United Nations Information Centre in Australia and the Centre for Human Rights in Geneva. The Annual Reports of the Committee also contain extracts of cases and discussions of important issues. However, lawyers need to relate those opinions to the Australian legal scene. For example, a discussion about local remedies may be irrelevant where the particular remedy discussed does not exist in Australia. Not only is familiarity with the Covenant and its interpretation by the Human Rights Committee required, but also some understanding of the legal processes in other countries from which communications have emanated.

Although the Committee has been prepared to denounce violations of the Covenant, its jurisprudence has been essentially conservative. It has not made far-reaching decisions under the Covenant and has been less willing to extend the scope of the Covenant than has the European Commission and Court, or the similar bodies in the Americas in their short period of existence with respect to the regional human rights treaties. 'There has as yet been no parallel in the Human Rights Committees jurisprudence to the 'dynamic approach' to interpretation under the European Convention on Human Rights in accordance with which the institutions have identified their role as a protector of human rights in accordance with the changing perceptions of them in Western Europe as social values and attitudes evolve."[4] The Committee has not been prepared to consider whether domestic law has been properly applied in particular cases, nor whether an executive discretion has been properly exercised. It seems that the Human Rights Committee is very aware of its status as the only global and generalist human rights body and does not consider that it will increase its authority and effectiveness by broad, and almost certainly, controversial interpretations of the Covenant. It apparently sees itself as providing a "general supervision of national implementation of the Covenant, leaving a wide margin of appreciation to individual countries in this task."[5] It guards its reputation for impartiality, objectivity, reasonableness and fairness from which it acquires much of its authority.

Other limitations on the effectiveness of the Covenant must also be briefly mentioned. The procedure is slow and there is a considerable time delay between commencement of an application (which itself cannot be done until after the exhaustion of local remedies) and the expression of opinion by the Committee. The Committee sits each year for only three sessions of three weeks each. It usually takes about a year to declare a case admissible or inadmissible and the investigation of the substance of the complaint may take another year or two (or even longer), depending upon such matters as the degree of co-operation by the government in question, the complexity of the matter, and the availability of the information. Thus by March 1991 the Committee had examined 445 communications from individuals in 33 States. The Committee had concluded its investigations and made its views known in 119 cases and in 93 cases considered there had been a violation of the Covenant. The backlog of cases will only increase as more States become parties to the Optional Protocol and therefore the procedure is open to more individuals. In some cases of alleged human rights abuses time is of the essence and to avoid action being taken within countries that would render a final opinion useless the Committee has on occasion assumed the power to ask States to take interim measures, for example to allow some urgent medical treatment, or to implement safety measures within a prison or to refrain from some action such as expulsion of an individual, or carrying out of the death penalty. Such interim measures may be requested before die decision on admissibility, but without prejudice to any opinion on the merits of the case. There is also the possibility of a streamlined procedure where the State in question agrees. On the other hand, States may challenge a decision on admissibility thus increasing the time before the substance of a complaint is addressed.

The ratification of the Optional Protocol provides a challenge to lawyers in Australia who are not accustomed to thinking of making use of international machinery. The Human Rights Committee is an unfamiliar institution which it is not easy to accommodate within one's approach to clients. Further, to explore effectively the potential of the right of individual communication there is a need to read and absorb the Committee's jurisprudence. This inevitably puts individual lawyers at a disadvantage compared with government departments where access to foreign materials is easier and expertise can be more readily developed. Lawyers need to think imaginatively about the provisions of the Covenant to develop arguments that can be made about its interpretation, and to this end to examine arguments that have been made in cases from other jurisdictions. Perhaps what is most needed as a response to the ratification of due Optional Protocol is the development of a pool of expertise through co-operation among a number of lawyers willing to devote time to this task. Such people could take it upon themselves to assist in making the terms of the Optional Protocol known to appropriate groups, in offering to assist in research and in preparing arguments. This might be appropriate for law schools which have student and research resources, or for specialist law groups. For example, the Committee on Gender and International Law of the International Law Association (Australian Branch) would be willing to offer such services to women's groups where there might be women who have suffered from some violations of the Conversant and where petition to the Committee might be appropriate. It must be remembered that a group such as an NGO can act on behalf of a named victim provided that authority to do so can be shown. This could be used with effect within Australia. A concerted effort at informed publicity to appropriate targetted groups, and a willingness to invest some time and work on developing expertise in this country, would assist in making the Optional Protocol have a reality in Australia and not merely sink into obscurity.

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[1] Pratt and Morgan v. Jamaica, UN Doc A/44/40 p222.

[2] Cited Meron, T., Human Rights Making in the United Nations, OUP 1986.

[3] 'Group Association for the Disabled v. Italy', UN Doc A/39/40, p.197.

[4] 4. McGoldrick, D., The Human Rights Committee, its Role in the Development of the International Covenant at Civil and Political Rights, OUP, 1990, p.159.

[5] Charlesworth, H., "The First Optional Protocol", Law Institute Journal, Nov.1991,1018.