Evatt, Elizabeth --- "Reflecting on the Role of International Communications in Implementing Human Rights" [1999] AUJlHRights 20; (1999) 5(2) Australian Journal of Human Rights 20
[*] Elizabeth Evatt is a member of the United Nations Human Rights Committee. She has been on this Committee since 1992 and previously she was on the United Nations Committee on the Elimination of All Forms of Discrimination Against Women. She has also served as Chief Justice of the Family Court of Australia and on the Australian Law Reform Commission.
[1] Article 1 of the Optional Protocol provides: `A State Party to the Covenant that becomes a Party to the present Protocol recognises the competence of the [Human Rights] Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.'
[2] Article 2 of the Optional Protocol provides: `Subject to the provisions of Article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.'
[3] As at 31 December 1998.
[4] Of 293 views adopted by the Committee as at September 1998, approximately 30 per cent were in respect of Jamaica.
[5] Trinidad and Tobago denounced the Optional Protocol on 26 May 1998. It then lodged its instrument of re-ratification (subject to reservation) on the same date. Both these steps took effect on 26 August 1998: HRC Annual Report 1998 A/53/40 p 6.
[6] Pratt and Morgan v Attorney-General for Jamaica [1994] 2 Appeal Cases 1.
[7] Jamaica has not done this, though Trinidad and Tobago did execute someone just before the expiry of the five year period.
[8] Optional Protocol, Article 12.
[9] The Committee published a General Comment in October 1997 on the question of denunciation of the Covenant -- General Comment No 26 (61) -- in which it made clear that denunciation of the Covenant was not permitted.
[10] ICCPR Article 2 provides:
1. Each State party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State party to the
present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such other measures as may be necessary to give effect to the rights recognised in the present Covenant.
3. Each State party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
[11] Article 5(2)(b).
[12] Toonen v Australia 488/1992, views adopted 31 March 1994, A/49/40 Vol II at 226. Note that references to cases before the Committee are numbered consecutively in the order of receipt by the Committee and according to the year in which the case was registered. The second date is the date when the Committee stated its views. These views are found in the Annual Report of the Committee to the General Assembly of the United Nations in the General Assembly Official Records (GAOR) Supplement No 40.
[13] The Human Rights (Sexual Conduct) Act 1994 (Cth).
[14] Part III, Articles 6-27. Lubicon Lake Band v Canada 167/1984, 1990 II, at 1. This case concerned Article 1 of the ICCPR and not Article 2.
[15] Lueye v Zaire 90/1981 (author detained in a cell with no contact with outside world for nearly a year, no hearing). Also in Baritussio v Uruguay 25/1978, 1982, (violation of 2(3) and 9(4)). See also Fanali v Italy 1983 at 160 mentioning the accessory nature of Article 2(3).
[16] Ex-Philibert v Zaire 90/1981, 1983 at 197.
[17] A v Australia 560/1993, April 1997.
[18] There were other grounds not discussed here.
[19] A v Australia, above, note 17, para 9.5.
[20] See for example, Munoz Hermoza v Peru, 203/1986, 1989, at 200. That case involved the failure to provide a fair hearing in regard to the dismissal of the author from the civil service. Three members of the Committee also found a violation of Article 2(3) because the State party had not provided an appropriate remedy.
[21] See Nowak M UN Covenant on Civil and Political Rights; CCPR Commentary (Engel, 1993) p 61.
[22] Kall v Poland 552/1993, 14 July 1997.
[23] See above, note 22, separate opinion of Chanet, Evatt and Medina.
[24] Many Jamaican and Uruguayan cases are of this kind, for example Rodriguez v Uruguay 322 1988, July 1994.
[25] General Comment No 20, Article 7, 44th Session, 1992, para 14.
[26] Article 5(2)(b).
[27] The range of dates on which complaints were registered ranged from 1991 to 1995. In the case of Jamaica, most complaints were initiated in 1995 and 1996, probably because they were on a fast track involving Rule 86.
[28] The 1998 Annual Report of the Committee (GAOR Supp No 40 (A/53/40)), sets out the following figures:
Matters dealt with:
Year Inadmissible Admissible Views Total
1994-1995 13 29 15 57
1995-1996 11 23 29 63
1996-1997 18 21 24 63
1997-1998 12 15 30 57
Matters pending at end of year:
Year Admissible Pre-admissibility Total Registered during year
1994 33 75 108 37
1995 41 91 132 68
1996 42 111 153 56
1997 44 113 157 60
[29] Report on the informal meeting on procedures, CCPR/C/133, 22 December 1997. This report has been somewhat overtaken by a new task force set up by the chairperson to look at reform, especially of Reporting Procedures under Article 40.
[30] Rule 91 ff.
[31] Main sources of complaints for each of these regions are: Western Europe and other: 67 (Netherlands 17); Africa: 28 (Zaire 10); Latin America/Caribbean: 49 -- excluding Jamaica and Uruguay -- (Colombia, Suriname and Trinidad and Tobago eight each); Eastern Europe: nine (Georgia four); Asia: one.
[32] See Bayefsky A `Making Human Rights Treaties Work' in Henkin L and Hargrove J (eds) Human Rights: An Agenda for the Next Century (ASIL, 1994) p 292 and see International Law Association Committee on Human Rights Law and Practice, Report 1996 (Bayefsky Report). Russia and Ukraine now have cases registered.
[33] Wellington District Legal Services Committee v Pauline Eunice Tangiora [1998] 1 NZLR 129, where the Court of Appeal reversed the decision of Gallen J.
[34] 655/1995, 1996, p 76.
[35] The trend towards separate opinions has been formalised by practice rules setting deadlines for members who want to prepare a separate opinion.
[36] Stewart v Canada 538/1991, 1996; Canepa v Canada 560/1993, 1996.
[37] Lavande v Trinidad and Tobago 554/1993.
[38] For example, Toonen v Australia, see above, note 12.
[39] Optional Protocol, Articles 1 and 5.
[40] Article 4(2) of the Optional Protocol authorises the Committee to establish whether the alleged violation has been effectively remedied. There is no violation if a remedy has already been provided.
[41] This is under Rule 99 -- see Annual Report of the Human Rights Committee, GAOR Supp 40, A/49/40, 1994, para 459 ff. Annual Report 1995, para 556.
[42] For example, Colombia's report in 1997.
[43] Communications numbered 202/1986, 203/1986, 263/1987, 309/1988.
[44] States named included Bolivia, Dominican Republic, Equatorial Guinea, Peru, Uruguay, Suriname and Zaire. In 1996 Jamaica, Nicaragua, Panama, Libya and Trinidad and Tobago joined the list. In 1997, Ecuador, Korea, Togo and Zambia were named.
[45] GAOR Supp 40, A/49/40, 1994, para 467.
[46] See 1995 Annual Report, GAOR Supp 40, A/50/40, 1995, para 557 ff.
[47] For example, in Bolanos v Ecuador, the author had been kept in pre-trial custody for six years. Upon the Committee finding a violation, he was released from custody and the State assisted him to find employment; 238/1987, July 1989. See also Vasilikis v Uruguay 80/1980, March 1983 (he was released under an amnesty) and Marais v Madagascar 49/1979, March 1983 (he was released).
[48] In Van Alphen v Netherlands 305/1988 an ex gratia compensation was provided for keeping the author, a lawyer, in detention for nine weeks for refusal to co-operate in an investigation against his clients, violating Article 9(1): HRC 1991 Annual Report, A/46/40 para 705. In Torres v Finland 291/1988, an alien in Finland had been arrested and was subject to extradition but he had been unable to challenge
the legality of his detention before a court. This was found to violate his rights under Article 9(4) of the ICCPR. He was paid compensation and the Aliens Act was revised in order to make the provisions governing detention compatible with the Covenant: HRC 1991 Annual Report, A/46/40 para 705.
[49] For example, in Pauger v Austria 415/1990, March 1992, the discriminatory provisions of the Pension Act were removed; in Vuolame v Finland 265/1987, April 1987, a new law was passed to allow conscripts to have the decision of confinement reviewed by a court; in Zwaan-de Vries v Netherlands 182/1984, April 1987 and Broeks v Netherlands 172/1984, April 1987, the authors, who had been discriminatorily excluded by the law from a pension available to men, were provided with a pension by law; and in Aumeeruddy Ciffra v Mauritius 35/1978, April 1981, the legislation was amended to remove the discriminatory effects of those laws on the ground of sex.
[50] 24/1977, 1981 and 1983.
[51] GAOR Supp 40, A/51/40, 1996, para 455 ff.
[52] The Tasmanian legislature eventually repealed the legislation on which Mr Toonen had based his complaint on 1 May 1997.
[53] 396/1989.
[54] GAOR Supp 40, A/51/40, 1996, para 461.
[55] For example, Sandra Fei v Colombia 514/1992.
[56] These issues are discussed in the Annual Report 1995, para 551. Some States do provide an ex gratia remedy, for example, van Alphen 305/1988 and Coeriel 453/1991.
[57] GAOR Supp 40, A/51/40, 1996, para 92. In the case of Sweden, for example, the Committee recommended that measures be taken for the establishment of a mechanism to implement the views adopted by the Committee under the Optional Protocol to the Covenant.
[58] GAOR Supp 40, A/52/40, 1997.
[59] Optional Protocol, Article 5(3).
[60] Rules of procedure, CCPR/C/3/Rev 5, 11 August 1997, Rule 96.
[61] Optional Protocol, Article 5(1), emphasis added.
[62] See, for example, Senator Rod Kemp, quoted in Joint Standing Committee on Foreign Affairs, Defence and Trade A Review of Australia's Efforts to promote and Protect Human Rights (AGPS, 1994) para 2.28 ff.
[63] See, for example, Mabo v Queensland (No 2) (1992) 175 CLR 1; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[64] For example, the Communist Party Dissolution Act 1952. See also Toonen v Australia, above, note 12.
[65] See above, note 17.
[66] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[67] For example, Ominayak and the Lubicon Lake Band v Canada 167/1984, March 1990.
[68] See Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1.
[69] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1997) 189 CLR 51.