The Human Rights Committee

1. The Human Rights Committee A Final Court of Appeal for Australia? Professor Ivan Shearer

2. The Human Rights Committee • Owes its existence to the International Covenant on Civil and Political Rights (ICCPR) 1966, art. 28. • Not strictly a UN body but is serviced by the Office of the UN High Commissioner for Human Rights in Geneva,and reports through ECOSOC to the UN General Assembly. • Consists of 18 members, who meet three times each year for sessions each of 3 weeks.

3. The International Covenant on Civil and Political Rights (ICCPR) • The ICCPR is one of the 3 constituent instruments forming the International Bill of Rights, viz the Universal Declaration of Human Rights, 1948, the ICCPR, 1966, and the International Covenant on Economic, Social and Cultural Rights, 1966. • Its drafting was designed to elaborate the Universal Declaration. Its wording also owes much to the European Convention on Human Rights, 1950. • Its provisions have been incorporated or adapted in many national constitutions and bills of rights.

4. Parties to the ICCPR • Presently 156 states parties (out of a total UN roll call of 192). • Most recent ratifying state is Indonesia (February 2006). • All states parties must report on their implementation of the ICCPR in law and practice within 12 months of ratification, and thereafter at intervals of 4 years, or as determined by the Committee.

5. Human Rights Organizational Structure

6. Functions of the Committee • 1. To receive and examine the initial and periodic reports of states parties to the ICCPR (art.40). • 2. To receive and determine complaints by individuals that they have been victims of violations of their rights by a state party (Optional Protocol). • 3.To receive complaints by a state party that another state party is violating the ICCPR (art.41, but not yet invoked in practice). • 4. To promulgate from time to time General Comments on the meaning and application of particular provisions of the ICCPR.

7. Composition of the Committee • Consists of 18 members, each nominated by a state party but thereafter acting in an independent capacity. • Serve for 4 years, but are eligible for re-election. • Composition is intended to be reflective of different cultures and legal systems and be geographically spread in an equitable manner. • Present composition is: Africa 4, Asia, 2, Eastern Europe 1, Latin America 4, and Western Europe and Others 7. • ‘Others’ are Australia 1, and USA 1.

8. State Party Reports • At each session of the Committee 4 or 5 states are orally examined on their previously submitted written reports. • The Committee may inform itself on the situation in each country from public sources, internal UN reports, and NGO reports (e.g. Amnesty International, Human Rights Watch). • At the end of each hearing it issues Concluding Observations, which may call for necessary reform action by the reporting state. • Action to implement recommended reforms is followed up and monitored by the Committee.

9. Individual Complaints • Individuals do not have direct access to the Committee to lodge complaints of violations of the ICCPR unless the state against which they are complaining has ratified the Optional Protocol to the ICCPR. • Of the 156 states parties to the ICCPR 105 have accepted the Optional Protocol. • Australia accepted the Optional Protocol on 25 September 1991.

10. Complaints (Communications) • States parties to the Optional Protocol recognise the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that state party of any of the rights set forth in the Covenant. • The individual complainant (author) must claim to be directly affected by the alleged violation. There is no right of generalised complaint (no actio popularis).

11. Complaints Procedure • There is no formal step to be taken in order to initiate the procedure. A simple letter in one of the official languages of the UN suffices. Complaints are directed to the Office of the High Commissioner for Human Rights (OHCHR) in Geneva. • In return the author of the complaint will receive information regarding the procedure, and a form to be returned setting out all necessary information. • The complainant may be assisted by counsel. Many complainants are unrepresented. No fees are payable. • Since the institution of the complaints procedure some 8,000 communications have been received.

12. Essential Conditions • The complaint must: • Allege a violation of a specific provision of the ICCPR; • Demonstrate that all available avenues of redress in the allegedly offending state have been exhausted (the exhaustion of local remedies rule in international law); • The same matter is not being examined under another procedure of of international investigation or settlement.

13. Next Steps • Where a complaint has been received by OHCHR, and it appears to raise an issue under the ICCPR, and sufficient details have been provided, the case file is referred to the Committee’s Rapporteur on New Communications. • The Special Rapporteur may then decide that the complaint be referred to the state party for a response. • Within 6 months the state party must submit written explanations or statements clarifying the matter.

14. Interim Measures of Protection • The Special Rapporteur on New Communications has the power, under rule 92 of the Committee’s Rules of Procedure to request the state party to suspend any enforcement measures until the complaint has been considered by the Committtee. This is used mostly in cases involving: • The death penalty • Deportation

15. The hearing • Hearings by the Committee of individual complaints are heard in closed session. • No personal appearance by the complainant, or of counsel for either party, is permitted. • Sworn evidence is not required. • The standard of proof applied by the Committee is « sufficient substantiation ».

16. Fact-Finding • The Committee is not a body suited to finding facts which are disputed. • It is not for the Committee to review the evaluation of the facts and evidence by the domestic courts, unless that evaluation was manifestly arbitrary or amounted to a denial of justice.

17. The Material before the Committee • The period of time between the initial receipt of the complaint and its readiness for hearing allows for a considerable refinement and narrowing of the issues owing to the exchanges of submissions between the complainant and the respondent state. • This period is typically 3 or 4 years. • Facts are seldom in dispute by the end of this process.

18. Views of the Committee • The Committee may find that: • (a) the complaint is inadmissible by reason of one of the conditions not being satisfied (e.g. failure to exhaust domestic remedies, lack of substantiation, complaint lies outside the ICCPR) • (b) there has been no violation; • (c) there has been a violation.

19. Where a Violation is Found • Where the Committee finds a violation it forwards its views to the complainant and to the state party. • The state party is allowed 90 days in which to inform the Committee of the action it is taking to give effect to the Views. • The Special Rapporteur for the Follow-up on Views approaches the state party where no response, or an unsatisfactory response, is received. • Non-compliant states are listed in the Annual Report of the Committee to the UN.

20. Australia’s Record • Many cases brought against Australia – approx. 12 a year. Most are dismissed as inadmissible. • From 1994 to 2005 the Committee found violations in 9 cases. • The first case was Toonen (1994) where complainant successfully argued that Tasmania’s sodomy laws were incompatible with the ICCPR.

21. Australia’s Reaction • Positive reaction by Australia to Toonen. Special Act passed. Tasmania ultimately repealed incompatible sections of Criminal Code. • In some other cases Australia has rejected the Views of the Committee, especially in immigration matters (e.g. A, Bakhitiyari, Winata). • Latest case (Faure, 2006) found violation in case of work-for-the dole scheme as constituting forced labour. Response is awaited.

22. Views – Are they Binding? • Some states parties, including Australia and Canada, take the position that the Views of the Committee are advisory only. • Australia has rejected the Committee’s Views in several cases, with detailed reasons. • The Committee takes the position that its Views are binding in the sense that, by reason of their duty to carry out their obligations under the ICCPR and Optional Protocol in good faith, states parties are not free to disregard them.

23. Conclusions • Number of cases likely to increase as procedure becomes better known. • Special unit established in Commonwealth AG’s Dept. to respond to cases. • Backlog of cases before the Committee is causing concern. Limited resources of UN • Possibility of amalgamating the complaints procedures before the different Treaty Bodies (HRC, CERD, CEDAW and CAT) into one full-time Human Rights Court. This is the announced position of the UN High Commissioner for Human Rights, but is unlikely to be agreed by states parties.

24. Conclusions (cont’d) • Influence of ICCPR and Views of the Committee on Australian law: • «The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the ICCPR brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. » Mabo, (1992) 175 CLR 1, at 42, per Brennan J (Mason and McHugh JJ concurring).

25. Further Information • See the Website of the Office of the High Commissioner for Human Rights: • http://www.unhchr.ch