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The UN Human Rights Committee: impressions of a new member.

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CASTAN CENTRE FOR HUMAN RIGHTS LAW "The UN Human Rights Committee: Impressions of a New Member" Ivan Shearer

The Committee on Human Rights is established under the provisions of article 28 of the International Covenant on Civil and Political Rights (ICCPR), 1966. It came into existence in 1976 when the Covenant received the last of the 35 instruments of ratification required for its entry into force. As at 27 July 2001 there were 148 States Parties to the ICCPR. There are 18 members of the Committee each elected at a meeting of States Parties to the Covenant for a term of four years. Although of necessity members must be proposed for election by their governments, upon election they serve in an individual capacity and are not subject to direction by their national governments.1 They do not participate in the consideration of Reports of their own national States nor of communications made in respect of their own States.2 The principal functions of the Committee are: (a) to receive initial, and thereafter periodic, reports of the State Parties to the Covenant on their progress in achieving compliance with the Covenant in their national law and practice; (b) to receive communications from individuals who allege violations of the Covenant at the hands of a State Party, and to express its views on the merits of such complaints. It is important to note that the second of these two functions of the Committee is dependent upon the acceptance by the State Party, against which a complaint is brought, of the First Optional Protocol to the Covenant. It is not compulsory to subscribe to this Optional Protocol, but a gratifyingly high number of States (98) has done so, including Australia. There are two other functions of the Committee, one presently dormant, the other active. The dormant one is the right of States Parties to declare, under article 41 of the ICCPR, that they recognise the right of other Parties to bring to the Committee a communication to the effect that the State Party is not fulfilling its obligations under the Covenant. Although nearly 50 States Parties have made this declaration (including Australia) the provision has not been utilised. Recourse to the Committee in this way, like recourse to the International Court of Justice, should not in principle be regarded as an unfriendly act. However, the realities of modern diplomacy lead in a contrary direction and dictate that one does not go out of one's way to make enemies unless an important national interest is at stake. The last - and active - function of the Committee is to formulate General Comments on the meaning, scope, and application of the provisions of the Covenant, by way of guidance to States Parties. The Committee has adopted 29 General Comments. This is a function of particular importance in the development of human rights law. The Human Rights Committee has the broadest mandate of the five specialist committees concerned with human rights established under the auspices of the UN. The others are the Committee Against Torture (CAT), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on the Elimination of Racial Discrimination (CERD), and the Committee on the Rights of the Child (CROC). In addition there is the Commission on Human Rights, a political body established under the auspices of ECOSOC. The Commission has a number of working groups whose functions parallel or transcend at the political level the functions of the specialist committees. The Commission has a Sub-Commission on Prevention of Discrimination and Protection of Minorities, the work of which has particular importance for

indigenous peoples, including the indigenous peoples of Australia. The Commission also sponsors a number of special rapporteurs on thematic subjects, such as torture, summary or arbitrary executions, and religious intolerance, as well as country-specific references, such as Human Rights in Afghanistan.3 It is important not to confuse the functions of the Human Rights Committee with those of the Commission. The above is by necessity a very cursory summary of the work of the Human Rights Committee and of its place in the human rights system. For a more detailed overview I would especially recommend the Hon. Elizabeth Evatt's foreword to the recent study of the ICCPR by Sarah Joseph, Jenny Schultz, and Melissa Castan.4 The authors are to be congratulated on the excellence of their book. During the last session of the Committee in Geneva that book was much in evidence in the hands of members and of the Secretariat. I turn now to my topic: impressions of a new member. 1. The frequency and length of meetings. The Committee meets in three sessions in a year. Each is of three weeks duration. Each is preceded by a working group, which meets for one week and attendance at which is voluntary. One of the meetings is held at United Nations Headquarters, New York, the other two in Geneva. It is clear that the severely restricted time available to the Committee is scarcely sufficient for it to perform its work. The Committee has requested approval of extra time in 2002 to enable it to tackle the mounting backlog of individual communications. It is also considering further changes to its methods of work in order to economise on time. There is a real question, however, whether such economies may call into question the fairness and thoroughness with its principal tasks ought to be carried out. 2. The composition of the Committee. The Committee is constituted of 18 members, who serve in their individual capacities. The stated qualifications of membership is that they be nationals of States Parties to the Covenant, and that they be "persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience." In practice, however, the great majority of the members of the Committee since its establishment have been lawyers (although some may not have engaged in practice as such); only one member of the present Committee does not have a legal background. It has often been remarked that the membership of the Committee does not represent as wide a geographical spread as other bodies in the UN system. Of the present membership nine are from the Western European and Others Group (which includes Australia, Canada, Israel, and the United States), four are from Africa, three from Latin America, and two from Asia. Only two of the 18 members are women. The responsibility for these imbalances ultimately rests with the States Parties who nominate candidates for election. A reason for the comparative lack of interest among developing countries for seats on the Committee may have to do with the incompatibility of holding concurrently any national government office or appointment, and with the fact that positions on the Committee are unsalaried.5 Even so, the present number of half the members of the Committee from the Western European and Others Group is striking. This fact may be slightly offset if one disregards the somewhat artificial United Nations grouping of States for electoral and other representational purposes and adopts a broader geographical and socio-economic perspective. Israel is only technically (and very recently) attached to the WEOG. Malta is a definite member but may be thought to represent the interests of smaller states. Australia lies at the intersection of South East Asia and the Pacific. North America is clearly a geographic region of its own. In this way one might more truly count the Western European representation on the Committee as five, or even four. In keeping with the independence of the members from identification with national policies, relations among members are professional and respectful. In the present Committee I am struck by the cordiality and consideration shown by members to one another and by the efforts that are made to reach decisions by consensus rather than vote, so far as possible.

3. The Secretariat. The Committee is serviced by a Secretariat situated in the Office of the High Commissioner for Human Rights. The Secretariat conducts all correspondence on the part of the Committee with States Parties and with individual complainants, prepares the agenda for meetings, prepares summaries of the communications to be considered at each session, and monitors the submission of reports. One of the measures of the importance and range of the work of the Office as a whole, which services also the other Convention Committees, the Commission, and the work of the special rapporteurs, is the fact that its headquarters in the Palais Wilson in Geneva occupies the space which until 1936 housed the entire Secretariat of the League of Nations. The Office employs a significant number of young and enthusiastic officers from many countries, including some who are stagiaires, i.e. on short term contracts for work experience in human rights. 4. Consideration by the Committee of Reports of State Parties. States Parties to the Covenant are required by article 40 of the ICCPR to present a report to the Committee, within one year from the entry into force of the Covenant for that State, on "the measures they have adopted which give effect to the rights [secured by the Covenant] and on the progress made in the enjoyment of those rights." This is called the Initial Report. Thereafter, at intervals to be determined by the Committee (usually five years), the States Parties are to present periodic reports. It is an unfortunate fact that many States Parties have not presented the required reports, or are late in submitting them. As at 27 July 2001 a total of 28 States had not submitted their initial reports for periods ranging up to 12 years. A further 23 States were late in their presentation of second or subsequent periodic reports for periods up to 16 years.6 The Committee noted in its annual report to the United Nations General Assembly in August 2001 that these delays hinder it in the performance of its monitoring function under article 40 the Covenant, notwithstanding the Committee's new guidelines in considering reports7 and other improvements in its working methods. In the same report the Committee noted that Australia was late in the submission of its third periodic report, and that the Committee combined the hearing of the third and fourth periodic reports by Australia at its session in July 2000 in order to save time. The Committee normally hears the initial or periodic reports of five States Parties at each of its sessions. At its last session, for example, it heard reports from Ukraine, the United Kingdom, Switzerland, and Azerbaijan. It had also scheduled Afghanistan, but in view of the situation in that country, and in the absence of a delegation capable of representing that country as a whole, it was decided to defer a consideration until a future meeting. Pursuant to the new working methods of the Committee, States Parties are presented with a list of particular issues arising from their reports which the Committee wishes their delegations to address in detail during their oral presentations before the Committee. This list is prepared by a working group of the Committee during the session preceding that at which the report will be discussed. This practice gives a needed structure to the discussion and alerts the delegation of the reporting State to the matters of most concern to the Committee. The revised guidelines provide for comprehensive initial reports, prepared on an article by article (of the ICCPR) basis, and for focused periodic reports thereafter geared primarily to the Committee's concluding observations on the previous report. The periodic reports are not required to restate material contained in earlier reports but should cover significant developments that have occurred since those reports. A further modification of the Committee's procedures concern the follow-up to the Committee's concluding observations on a State Party's report. The State is now required to respond in writing to the those concluding observations, indicating what steps are being taken to meet the Committee's recommendations. The setting of a time limit for the submission of the next periodic report will be dependent upon the outcome of the follow-up procedure. Notwithstanding these procedures, it is still evident that many delegations adopt an unduly defensive position in answering the concerns of the Committee. There is a tendency on the part

of some delegations to cite provisions of constitutions or laws in answer to those concerns rather than to describe the situation in actual practice. Concessions that things are not as they should be are, however, occasionally made. Where the delegation is frank and seems genuine in trying to make improvements - often against entrenched cultures, past practices hard to eradicate, under-development and poverty - the Concluding Observations of the Committee are inclined to be encouraging rather than damning. It is sometimes said that the Committee "engages in dialogue" with States Parties in relation to their reports. That atmosphere is more often than not the case. A revealing remark was made by one of the delegates of Ukraine at the last session. This delegate was the ombudsman responsible to the Parliament for monitoring human rights. She spoke of the difficulty in attracting sufficient staff and funding for her work. But even more important was her statement that she and the other departments of government represented on the delegation had found the task of preparing the report to have had as much, if not more, value from the point of view of identifying weaknesses and raising consciousness regarding human rights within the national government than of presenting a favourable image abroad. It is to be hoped that more governments will see their reporting responsibilities in this way and not as an exercise in defensiveness or window dressing. Much has been written about the role of NGO's in providing independent information to the Committee on the human rights situation in the State being reviewed. The Committee welcomes this information and has confidence in the work of reputable NGO's in the human rights field, such as Amnesty, Human Rights Watch, the International Commission of Jurists, and many others. This is not to say, however, that all reports are treated as hard evidence; merely that they are used as a source of information against which to test the plausibility of statements made in the official State Party report, and as a basis for the Committee to ask questions. The Secretariat makes available facilities in New York and Geneva for representatives of invited NGO's to meet with members of the Committee informally, usually over a sandwich lunch. I had some initial reservations about this procedure, feeling that one should not hear one side of the case in the absence of all parties. However, I have come to find these exchanges to be valuable, and to believe that fairness is not compromised. It must be said that not all members attend these informal sessions, although that may be for reasons of commitments elsewhere rather than of procedural scruple. Some States, including Australia, involve national NGO's in the task of preparing the State Party's Report to the Committee. This practice is warmly encouraged by the Committee. A delegation is normally given one complete day (two sittings of three hours each) to present its report. This typically consists of a formal presentation, followed by answers to the questions submitted in advance by the Committee. Members of the Committee may then ask supplementary questions. If all 18 members wish to put supplementary questions the delegation is hard put to answer them all in the time available. In a closed sitting to review the Committee's methods of work at the last session a member stated that there was a growing tendency for members to ask questions even if the delegation had already addressed the issue in its answers to the written questions or other members had already asked essentially the same question. It was agreed that this tendency should be resisted in future through a more focused round of supplementary questions, possibly prepared and presented by members of a specially assigned working group. 5. Consideration of individual communications under the Optional Protocol. An increasing amount of the Committee's work consists in the consideration of complaints (termed "communications") brought by individuals (termed "authors") alleging that they are victims of a violation by a State Party (usually their own national state) of their rights under the ICCPR. The hearing of communications occurs in closed sessions of the Committee. Authors, their counsel (if any), and the respondent State Party are not represented at the hearing, but make their submissions in writing in the course of the procedure laid down. An essential pre-condition of bringing a communication (complaint) to the Committee is that the author has exhausted all

available domestic remedies. This rule is understood and applied in the same way by the Committee as in the International Court of Justice, where a complaint has been brought by way of State espousal of a individual's claim against another State. From the time the Committee began hearing cases under the Optional Protocol (1977) to July 2001 the Committee received 1,004 communications made in respect of 69 Parties to the Optional Protocol. Of these the Committee issued views in 368 cases, including 282 in which violations of the Covenant were found. Of the remaining cases, 300 were declared inadmissible, 142 were discontinued or withdrawn, and 194 have not yet been concluded. There is concern at the increasing backlog of cases waiting to be dealt with. The number of pending cases, including those that have not yet been determined to be admissible, has grown steadily from 153 in 1996 to 194 in 2001. The reason for the increase seems to be wider public awareness of the availability of the procedure, especially on the part of lawyers. The processing of cases has been greatly assisted by the establishment within the Secretariat in December 2000 of a petitions team. This team works with the Committee member designated as Special Rapporteur on New Communications, and with the Working Group on Communications, composed of five members of the Committee, which adopts decisions on the admissibility of each communication. (The most frequent grounds for ruling a case out at the admissibility stage is that the complaint relates to a matter not covered by the ICCPR, that domestic remedies have not been exhausted, or that the complaint is manifestly without foundation.) With the upward trend in figures, however, there will come a time when the Committee will no longer be able to cope, unless the Committee's working sessions are lengthened, or some kind of screening procedure - analogous to the special leave procedures of the highest courts of some countries -are adopted. The Committee is not in any sense a court of law, and it does not render judgments in the manner of an international court or tribunal. Instead it formulates "views" on the complaint, declaring whether or not it finds the complaint substantiated and recommending any remedy that the State Party should afford to the author. A member of the Committee is designated the rapporteur for the follow-up on views, and States Parties are put under pressure to report to the Committee what action they have taken in the event that a complaint has been upheld. I must say that, at first, I found the summary nature of proceedings under the Optional Protocol, conducted "on the papers", somewhat disconcerting. How could the Committee be satisfied as to the law and the facts before reaching a decision? However, the Committee overcomes the difficulty inherent in the absence of a fully articulated adversarial procedure by relying on the extent to which the assertions of law and fact of the author and the State Party are contested by the other. This process of contestation may take place over a lengthy period - even of several years - as the author and the State Party correspond with the Secretariat. Uncontested facts are treated as substantiated. This tends to narrow the issues for decision quite considerably. So far as the law is concerned, it is usually not necessary to understand the intricacies of domestic law, since the Committee is applying the ICCPR, whether it is in harmony with domestic law or not. There is a lesson to be learnt by some State Party respondents to complaints brought by individuals to the Committee. It is not enough to make generalised defences or to ignore parts of the complainant's case. Each and every statement in the communication must be either conceded or contested by the State Party or it runs the risk that the complainant's case will be accepted as to the uncontested points. Although not a court of law, the Committee in my experience deals with individual communications with the utmost care. The standard of discussion within the Committee is very high, a number of members having had judicial experience. The Committee tries so far as possible to decide cases by consensus, which may lead to some economy in the expression of reasons. Separate opinions, whether concurring or dissenting, are not uncommon and are not discouraged. 6. Australia and the Committee on Human Rights

I make the following comments with the caution that I am not - as sometimes wrongly stated -"Australia's representative on the Human Rights Committee". As mentioned earlier in this paper, members of the Committee serve in their individual capacities and do not represent their countries. Moreover, they are prevented from participating as a member of the Committee in considering the initial or periodic reports of their countries and from deliberating on individual communications concerning that country. I shall deal first with the recent consideration by the Committee of Australia's third and fourth periodic reports, under article 40 of the ICCPR. These were the subject of the Committee's Concluding Observations, adopted on 28 July 2000. The Committee introduces its observations by recording its appreciation of the quality of the two reports, being considered together. It appreciates the extensive additional oral and written information provided by the Australian delegation during the examination of the report. It also expresses its satisfaction with the publication and wide dissemination of the report. The Committee, however, regrets the long delay in the submission of the third report, which was received by the Committee 10 years after the examination of the second periodic report (i.e. 5 years after the third report became due). From my own experience on the Committee in considering the reports of other countries (I was not involved in a consideration of the Australian report) several important general points arise from these introductory observations. The first has already been mentioned: reports should be related to the actual situation of human rights in the country, and be not merely a recitation of legal texts, which may have little correspondence with reality. Frankness in admitting weaknesses is treated with understanding by the Committee. In the second place, the delegation that represents the country whose report is being considered must be so composed as to represent the departments of government able to answer the questions presented with knowledge of the actual situation. The Australian delegation was so composed. There have been examples in some other cases of unbalanced or ill-prepared delegations from which the Committee has not been able to obtain all pertinent information. Third, the publication and dissemination of the report is properly a matter for satisfaction in the opinion of the Committee, since the report should have as much, if not more, significance in informing and educating the national population than in defending the national reputation abroad. Fourth, the regret at the delay in presenting the report is perhaps more heart-felt than it seems at first sight. The fact that a conscientious and relatively well-resourced country as Australia can be so late in presenting a due report tends especially to undermine the reporting system since it may be thought to send a signal to more poorly resourced states that their delays should be tolerated all the more. It must be conceded that the task of preparing a report for the Human Rights Committee is an onerous one. And of course the Human Rights Committee is not the only body to which Australia and other countries must submit periodic reports. Governments find it difficult to allocate the necessary resources at a time of financial stringency and with other pressing national concerns. It is to be hoped that the new guidelines on reporting procedures, mentioned above, which direct streamlined reports concentrating on recent significant developments, will lift some of the burdens from states and enable them to discharge their obligations within the set time limits. National NGO's active in human rights may also be helpful - as they have been already in Australia - in keeping up the pressure for timely reporting. The Concluding Observations of the Committee then turns to a section headed "Positive Aspects" followed by "Principal Subjects of Concern and Recommendations". This has become a standard feature of the style used by the Committee in setting out its Concluding Observations on a State Party's report. Under "Positive Aspects", the Committee welcomes (a) Australia's accession in 1991 to the Optional Protocol allowing the Committee to consider individual communications to be brought to it; (b) the legislative action taken in order to implement the Committee's Views in the Toonen case8; (c) the enactment of anti-discrimination legislation in all States and Territories of

Australia; (d) the establishment of the Aboriginal and Torres Strait Islander Social Justice Commissioner in 1993; and (e) the improvement of various aspects of the status of women in Australia - although noting that "equality has yet to be achieved in many sectors". Under "Principal Subjects of Concern and Recommendations" the Committee sets out first a number of matters concerning the situation of aboriginals and Torres Strait Islanders. While noting the decisions of the High Court in Mabo and Wik, and the enactment of the Native Title Act, 1993, the Committee is concerned that "in many areas the native title rights and interests remain unresolved and that the Native Title Amendments of 1998 in some respects limit the right of indigenous persons and communities, in particular in the field of effective participation in all matters affecting land ownership and use, and affects their interests in native title lands, particularly pastoral lands." The Committee recommends that "the necessary steps be taken to restore and protect the titles and interests of indigenous persons in their native lands, including by considering amending anew the Native Title Act, taking into account these concerns." The Committee also refers to the "continuing effects" of the past policies of separating aboriginal children from their families. It recommends that Australia "intensify" efforts to address these tragedies "so that the victims themselves and their families will consider that they have been afforded a proper remedy." In entering upon such sensitive matters the Committee has to tread a delicate line. In the case of some countries, manifest injustices continue as a result of government oppression, indifference, or incompetence. It is then a case of the Committee using its weight to urge necessary change, sometimes in emphatic language. In such cases as Australia, however, these matters have been the subject of intensive debate in an open society, in which all interested groups have expressed their views. It then becomes a question of political judgment whether the right decisions have been reached. Moreover, addressing the situation of indigenous Australians is a continuing process, and no legislative or other prescriptions can be said to be final. It would be understandable if a government, such as that of Australia, questioned the capacity of an international committee, such as the Human Rights Committee, to formulate definite views on complex questions that have been the subject of years of free and open debate, on the basis of a report and a discussion extending over six hours. In defence of the Committee, it should be remembered that these are "observations", not decisions as of a final court of appeal. Moreover, the carefully chosen language of the Committee is not that of outright condemnation. While the recommendation that Australia consider the further amendment of the Native Title Act might be regarded as provocative, this should, in context, be regarded as part of the dialogue between the Committee and Australia, not as a directive. Taken in this spirit, the views of a heterodox and expert international committee can be regarded as a disinterested and possibly useful contribution to the debate in Australian society on such questions, not as a high-handed intervention that forecloses further debate. The Committee then turns to the issue of the translation of the ICCPR into the fabric of domestic law. In many legal systems the mere ratification of an international convention or treaty gives that instrument the force of domestic law. That is not so in countries of the common law inheritance, which adopt a "dualist" approach to the relationship between international and domestic law.9 Thus the choice for Australia in giving legal force to the ICCPR within the Australian legal system is to enact a Bill of Rights, or other statute, incorporating the provisions of the ICCPR, or to rely - as it has done hitherto - on the principles and rules of the existing common law, supplemented by particular pieces of legislation. The latter was also the situation in the United Kingdom until 2000, when the Human Rights Act came into force. The choice is complicated for Australia by reason of its federal system of government. Most matters of human rights arise in the States and are governed by State law. In leaving the implementation of the ICCPR to the common law and occasional legislation, Australia is essentially deferring to the States. This was the problem in the Toonen case10, where the conflict between Australian law and the ICCPR arose from the provisions of the Criminal Code of Tasmania. The federal

parliament of Australia has no constitutional power to legislate with respect to the criminal law of the States, nor indeed with respect to human rights generally. Thus it could not override the provisions of Tasmanian law. However, the federal parliament does have power to legislate with respect to "external affairs". The High Court has upheld the extension of this power to include legislation to implement a treaty or convention. The federal government therefore introduced legislation indirectly to override the offensive provisions of Tasmanian law by enacting the Human Rights (Sexual Conduct) Act, 1994, based upon the ICCPR and the views of the Human Rights Committee in interpreting the provisions of the Covenant in respect of consensual homosexual acts between consenting adults. It could go further. Under the external affairs power the federal parliament could validly enact a Bill of Rights or similar Act that would incorporate the ICCPR and any other human rights instrument to which Australia is a party. That it has not done so is attributable to political reasons, rather than to constitutional incapacity. The Committee shows itself to be aware of these features of the Australian constitutional system. It does not, however, advert to the difficulty of constitutional amendment when it notes its concern that "in the absence of a constitutional Bill of Rights, or a constitutional provision giving effect to the Covenant, there remain lacunae in the Australian legal system. There are still areas in which the domestic legal system does not provide an effective legal remedy to persons whose rights under the Covenant have been violated." The Committee's obvious preference, as a general rule, for the constitutional status of human rights in the domestic legal order is understandable: those rights are thereby afforded a status higher than that of ordinary law and to that extent are harder to disregard, or amend by implication. However, courage tends to fail at the thought of a campaign in Australia for the enactment of a constitutional Bill of Rights11, since this would need to go through the highly uncertain processes of a national referendum. A negative vote would present a political obstacle to any alternative enactment at the ordinary level of law. Both New Zealand and the United Kingdom have found ways of enacting human rights legislation without constitutional status which nevertheless are effective in resisting accidental or incidental derogation. I doubt very much whether Australia, if it followed this path, would be criticised for doing so. The Committee is justified in stating that the present division of legislative power between the Commonwealth, the States and the Territories leads to gaps in the protection of human rights in Australia. Although not referred to by the Committee, the recent cases of Collins v. South Australia12 and Minogue v. HREOC13 may be cited as examples. The Committee adverts to what is popularly called the anti-Teoh bill. It expresses its concern at "the government bill in which it would be stated, contrary to a judicial decision14, that ratification of human rights treaties does not create legitimate expectations that government officials will use their discretion in a manner that is consistent with those treaties." The Committee considers that "enactment of such a bill would be incompatible with the State Party's obligations under article 2 of the Covenant and it urges the Government to withdraw the bill." The bill died with the last parliament. It is to be hoped that the government will not see fit to re-introduce it. Having earlier expressed its satisfaction with Australia's response to the Committee's views in the Teoh case, the Committee now expresses its concern over the Government's rejection of the Committee's views in the case of A. v. Australia.15 . It adopts a sterner tone. "Rejecting the Committee's interpretation of the Covenant when it does not correspond with the interpretation presented by the State Party in its submissions to the Committee undermines the State Party's recognition of the Committee's competence under the Optional Protocol to consider communications." It calls upon Australia to reconsider the case with a view to achieving full implementation of the Committee's views. Here again the Committee has to tread a delicate line. In communications brought to it the Committee is not a court of law and it does not hand down binding decisions. On the other hand, States Parties accepting the Optional Protocol recognise the competence of the Committee to consider communications and to express its views. Even if

not strictly binding, those views represent an authentic interpretation of the Covenant by a body designated by the Covenant itself. Those views are therefore not lightly to be disregarded.16 The delicate line is dictated by the diplomatic reality that too emphatic a finding by the Committee of non-compliance in disputable cases may prompt the State Party accepting the Optional Protocol to terminate that acceptance and possibly to discourage present non-Parties from adhering to it. The same proposition applies to Concluding Observations on a State Party's report when the Committee expresses the opinion that the State Party's conduct is not compatible with its obligations under the Covenant. While scrutiny of a State Party's observance of the Covenant by the Committee under article 40 is not optional, and withdrawal from the Covenant is inadmissible[brent1]17, if the Concluding Observations of the Committee contain particular interpretations of the Covenant they must be considered authentic and worthy of the highest respect. In the latter part of its Concluding Observations with respect to Australia the Committee stops just short of making definitive interpretations of the Covenant in respect of the following matters: - legislation regarding mandatory imprisonment under the laws of Western Australia and the Northern Territory; - the reservation to the Minister for Immigration and Multicultural Affairs for personal decision of refugee cases which may raise questions of compliance with the Covenant; - the mandatory detention of "unlawful non-citizens", including asylum-seekers. In relation to the first of these, the Committee "urges" a reassessment of mandatory sentencing laws. In relation to the second, the Committee "is of the opinion" that such questions should be dealt with by law, and not by executive discretion. In relation to the third, the Committee considers that mandatory detention under the Migration Act "raises questions of compliance with article 9, paragraph 1, of the Covenant" [arbitrary detention] and "urges" a reconsideration of Australian policy in this regard. Australia's next periodic report is due on 31 July 2005. It will be required at that time to report on steps taken since 2000 to give effect to the Covenant, including those steps addressing the subjects of concern expressed in the Committee's Concluding Observations on the third and fourth periodic reports. 7. Human rights and terrorism. The opening of the most recent session of the Human Rights Committee (Geneva, 15 October - 2 November 2001) was addressed by the United Nations High Commissioner for Human Rights, Mrs. Mary Robinson. She spoke of her concerns about international terrorism and human rights. On the one hand, terrorism itself was a grievous offence against humanity and all must cooperate in its repression. There were also clear links between terrorism, the drug trade, money-laundering and organised crime. On the other hand one must watch closely any claimed necessity on the part of States to withdraw or suspend the protection of human rights law in order to fight terrorism. She was concerned at the mention of refugees and asylum seekers in the text of the UN Security Council Resolution of 28 September 2001; she thought this was an unwarranted basis for suspicion. Mrs Robinson referred to two initiatives having a bearing on the question. The first was the concept of "human security" in the documents coming out of the Organisation for Security and Cooperation in Europe (OSCE); this was a possible basis for further development of human rights. The second was a project sponsored by the Human Rights Institutes Association addressing non-State authors of human rights violations. Finally, Mrs. Robinson referred to the General Comment No. 2918 of the Human Rights Committee dealing with derogations from the Covenant in times of emergency. She reported that this General Comment had been "well received" by the international community. It is by strange coincidence that the Committee adopted General Comment No.29 on 24 July 2001, just six weeks before the terrorist attacks of 11 September on the World Trade Center

towers in New York City, the Pentagon in Washington, and in Pennsylvania. The General Comment gives guidance to States Parties on their obligations in the event that they wish to invoke article 4 of the Covenant in justification of stated derogations from their obligations. It is necessary to set out here the text of article 4 of the ICCPR: "1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion, or social origin. "2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. "3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made through the same intermediary, on the date on which it terminates such derogation." It should be noted that the non-derogable provisions listed in paragraph 2 of the article relate to, in order: the inherent right to life; the prohibition of torture; slavery and servitude; imprisonment for debt; non-retroactivity of the criminal law; recognition as a person; freedom of conscience. The main point made in General Comment No.29 is that, merely because certain other rights secured by the Covenant are not listed as non-derogable does not mean that they can be suspended at will on the declaration of an emergency. Referring to paragraph 1 of article 4, the General Comment states that "the legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for State Parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation."19 In other words, if a State, having declared a state of emergency, wishes to hold suspects in detention for a period without trial, contrary to article 9 of the Covenant (which is not mentioned in the list of non-derogable provisions set out in paragraph 2 of article 4),, it does not have carte blanche to derogate from this provision, but must justify it in terms of strict necessity based upon objective factors. Another important point made is that the derogable provisions of the Covenant relating to procedural safeguards "may never be made subject to measures that would circumvent the protection of non-derogable rights....Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of articles 14 and 15."20 This General Comment, and in particular the last point, gives rise to two considerations. In the first place, in issuing General Comments the Committee again treads a delicate line between authentic interpretation and unilateral extension of the obligations of States Parties to the Covenant. Care must be taken not to "push the envelope" so as to defeat the legitimate expectation of States that they are bound only by the text of the Covenant within its ordinary meaning. There may be a wish among some members of the Committee to elevate the writing of General Comments into a function of the Committee of equal importance to its other functions. In my view the issuing of such General Comments, which have been helpful and influential in the past, should be sparing and cautious. The second consideration is that this General Comment has obvious implications in the present climate in which the United States, the United Kingdom, Australia and other countries are preparing special legislative measures to deal with terrorism. Australia's legislation has not yet been passed. It would be premature to comment on speculative reports of what kinds of derogation from human rights it might contain. Disturbing accounts have been given of the

provisions of the USA Patriot Act, hurriedly passed by the United States Congress, and there is unease at the invocation of military tribunals for the trial of suspected terrorists, under the terms of an Executive Order issued by the President under war powers. Even conservative commentators have raised serious concerns about some of these provisions. One such commentator, Professor Robert Drinan, S.J., a former member of Congress himself, has stated recently that "academics and advocates of civil liberties do not as yet form a solid phalanx against the new anti-terrorism laws and decrees. They recognise that something has to be done to prevent terrorists from attacking the United States again. But they are nervous at the hysteria, the flag-waving and uncritical support for the Commander-in-Chief."21 General Comment No.29 gives valuable guidance on the criteria by which such legislative and other measures should be judged. 8. Conclusions My impressions of the Human Rights Committee, formed after one year's service, have been overwhelmingly positive. There is no complacency within the Committee or its Secretariat. It is constantly reviewing its methods of work in an effort to discharge its functions as efficiently, but also as fairly, as possible. In this it is assisted by commissioned reviews, such as the recent report by Professor Anne Bayefsky of Canada22, and by the writings of members of the wider human rights community.23 It is assisted too by the comments of governments. I should mention here the initiative of the Australian Government to conduct a review of the Committee system established under the international conventions on human rights. I shall not comment in detail on these proposals, in which I have played no part. But I can say that the reaction in Geneva towards the Australian proposals for reform is generally welcoming. Those proposals are not regarded as "an attack on the UN reporting system", as has sometimes been portrayed here in the press. Rather they are regarded as a positive contribution towards a necessary debate.


A note on websites: Those seeking information on the work of the various human rights bodies of the UN system, and who find the website of the Office of the High Commissioner for Human Rights ( sometimes a little difficult to navigate, might like to try the following two sites: The University of Minnesota. The University of Utrecht. 1 Article 38, ICCPR. 2 Rules of Procedure (Revised, 2001), rules 70(4) (State Party reports), 84 (individual communications). 3 Two current members of the Human Rights Committee also exercise functions as special rapporteurs: Mr. Abdelfattah Amor (Religious Intolerance), and Sir Nigel Rodley (Torture). 4 The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (OUP, Oxford, 2000). 5 Travel and accommodation expenses in relation to the meetings, and a small honorarium, are, however, paid by the UN. 6 United Nations, Report of the Human Rights Committee, Volume I, General Assembly, UN Doc. A/56/40, page 29 (United Nations, New York, 2001). 7 Consolidated Guidelines for State Reports under the International Covenant on Civil and Political Rights, as adopted during the 66th session of the Human Rights Committee (July 1999) and amended at the 70th session, October-November 2000, reprinted ibid., 162 -167. 8 Communication No. 488/92. For the text of these Views see (1995) 69 Australian Law Journal 600-609. 9 For an explanation see I.A. Shearer, " The relationship between International Law and

Domestic Law" In Opeskin, B. R. and Rothwell, D.R., International Law and Australian Federalism, 34, 36-40 (1997). 10 Above, note 8. 11 For the debate, see Alston, P. (ed), Towards an Australian Bill of Rights (Canberra, Centre for International and Public Law, Human Rights and Equal Opportunity Commission, 1994). 12 (1999) 74 SASR 200 13 (1999) 84 FCR 438; 166 ALR 129. 14 This is an obvious reference to Teoh v. Minister for Immigration and Ethnic Affairs (1995) 183 CLR 273. 15 Communication No. 560/1993. The author in that case had exhausted his domestic remedies by appealing unsuccessfully to the High Court of Australia against his continuing lengthy detention under the Migration Act: Applicant A. v. Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 . 16 See the discussion of the weight to be given to the opinions of expert international bodies by Katz J. in the Federal Court of Australia in Commonwealth v. HREOC and Hamilton [2000] FCA 1854. 17 The Democratic People's Republic of Korea acceded to the Covenant on 14 September 1981. It gave notice of its withdrawal on 23 August 1997. It was informed by the Secretary-General of the United Nations, the depositary authority for the Covenant, that withdrawal was inadmissible. Implicit acceptance of this ruling is evidenced by the presentation by the Democratic People's Republic of Korea of its second periodic report in 1999 - 12 years late - and its attendance before the Committee for the oral hearing in July 2001. 18 Report of the Human Rights Committee, above, n.6, volume I, page 202. 19 Ibid., page 203, para. 6. 20 Ibid., page 206, para.15. 21 "Put out Fewer Flags", The Tablet (London), 24 November 2001, 1662. 22 Report: The UN Human Rights Treaty System: Universality at the Crossroads, April 2001. 23 E.g. Alston, P. and Crawford, J. (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge, CUP, 2000).