Indigenous Law Bulletin
Communicating with the Human Rights Committee - A Guide to the
International Protocol to the International Covenant on Civil and
by Sarah Pritchard and Naomi Sharp
Australian Human Rights Information Centre
Sydney, July 1996.
Petitioning the CERD Committee - Individual Complaints under the
Racial Discrimination Convention
by Sarah Pritchard, Naomi Sharp and Sandrine Rodrigues
Australian Human Rights Information Centre
Sydney, August 1998.
Reviewed by Alison Duxbury
Communicating with the Human Rights Committee and Petitioning the CERD Committee are the first two booklets in a series produced by the Australian Human Rights Centre to commemorate the United Nations Decade for Human Rights Education. The booklets are designed to provide an introduction to the First Optional Protocol to the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination (CERD) respectively, and the procedures that enable individuals to complain about violations of the rights protected by each treaty.
Both publications begin with a brief introduction and overview of the United Nations human rights system, including the Charter-based bodies and the committees established to consider the implementation of individual treaties. A helpful diagram of this often confusing system is provided in each volume. Communicating with the Human Rights Committee then outlines the basic provisions of the International Covenant on Civil and Political Rights (ICCPR) and highlights the significance of the First Optional Protocol and Australia’s accession to this instrument. This is followed by a section on the establishment of the Human Rights Committee and its functions in relation to interstate and individual communications. Petitioning the CERD Committee is modelled on this same basic outline, but includes a more detailed examination of the relationship between CERD and Commonwealth laws, in particular the Racial Discrimination Act.
The main feature of both booklets is the section devoted to the right of individual petition under each of the treaties. The guides deal with both the admissibility and merits stages under CERD and the Optional Protocol - in the case of the Human Rights Committee, the importance of admissibility being highlighted by the fact that 213 of the 636 communications submitted to the Committee failed at this initial stage. Petitioning the CERD Committee also includes a list of the eight individual communications received as of 4 November 1997, giving some guidance as to potential fact scenarios which may lead to a breach of CERD. A useful feature of each guide is the use of detailed diagrams to enhance the reader’s understanding of the stages through which an application must pass before it can be considered by the respective committees.
The guides conclude with a number of appendices setting out the full text of the relevant treaties and the rules of procedure for the Human Rights and CERD committees. More importantly, a “Model Communication” is provided, indicating the relevant questions to be addressed by an applicant or their legal adviser in a communication. While the guides provide a simple and well set out introduction to both procedures, a potential applicant or their legal adviser would need to delve into many other sources in order to determine whether a successful application could be launched. The guides do not attempt to provide an explanation of the substantive articles in the two treaties or, in the case of Communicating with the Human Rights Committee, the interpretation of the rights provided in previous views of the Committee.
The sections on “Australia’s Experience to Date” under each procedure highlight the difficulties for an applicant, but also the potential for a successful outcome. At the time of writing the first booklet only one communication from Australia had been considered on the merits by the Human Rights Committee (in the Toonen Case). Since then, the Committee has found Australia in violation of Article 9 of the ICCPR in relation to its detention procedures for asylum seekers (with a less positive response from the federal government). The fact that this most recent decision and the government’s response has not been widely reported in the media supports the authors’ claim that there is little awareness of the individual communications procedure. In providing such a readable introduction to the work of the two Committees these guides help in remedying that lack of knowledge.
Alison Duxbury is a Lecturer in Law at Monash University