1995 Global Cultural Diversity Conference Proceedings, Sydney

The Role of the United Nations in the Protection of Civil and Political Rights: a Personal Perspective

The Hon. Elizabeth Evatt AO
Member, United Nations Human Rights Committee, Australia

Introduction: From Tolerance to Human Rights

Fifty years ago this week the work of drafting the United Nations Charter began at San Francisco. The Charter calls on the peoples of the United Nations "to practice tolerance and live together in peace with one another as good neighbours." This theme has been taken up by naming 1995 as the year of tolerance.

To be tolerant is to accept that just as you may hold to one truth, so may others, and that it is not for you to impose your own beliefs, but to accept that others may hold different opinions and have different beliefs without interference, even opinions and beliefs with which you profoundly disagree. To be tolerant is to accept that our common humanity transcends differences of sex, race, nationality, language or religion. Intolerance lies at the heart of many massive violations of human rights which have occurred in this century. To arrive at a state of tolerance would be a huge advance.

Tolerance, however, while essential to a just society, is not enough alone to create that society. Tolerance has a passive face. It does not ensure that each person has the equal right and the equal opportunity to participate fully in society. Nor does it enable us to make the hard choices necessary if we are to respect diversity and difference while also expressing the common values and ideals which hold society together.¹

Above all, it does not tell us which things may be tolerated, and which should not in any circumstances be tolerated. For this we need to turn to other standards, and, in particular to the standards of human rights.

This paper discusses the role played by UN human rights instruments in promoting justice in a multicultural society. My argument is that to ensure a free and democratic society, a society of unity and diversity, we should look beyond tolerance to the legal standards of human rights instruments developed in the United Nations system. Under those instruments governments are called to account for the application of legally defined and legally binding principles which have universal validity and acceptance.

The principles that appear in United Nations human rights treaties did not materialise from outer space. Nor were they invented by anonymous bureaucrats of the United Nations. The foundations for the human rights instruments were laid down in the United Nations Charter. The Charter was a response to the economic rivalry, racial, religious and ethnic hatred, oppression and other factors which led to war. The Charter establishes structures for global co-operation between states. It also makes the individual a centre of its concern by declaring as one of its purposes the promotion of respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.²

The Universal Declaration of Human Rights, adopted in 1948, expressly recognises the need of each individual, to freedom, equality and to minimum standards of living. The Declaration remains a great and powerful statement of principles, which are now universally accepted as a common standard of achievement for all peoples and all nations. The Declaration was followed by a series of human rights treaties adopted by the General Assembly which create legally binding obligations for states to ensure and protect specific rights. These include:

• The International Covenant on Civil and Political Rights, 3
• The International Covenant on Economic Social and Cultural Rights,
• The Convention on the Elimination of All Forms of Racial Discrimination, 4
• The Convention on the Elimination of All Forms of Discrimination Against Women, 5
• The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 6
• The Convention on the Rights of the Child. 7
  
  

These instruments were drafted by representatives of the governments who have ultimately agreed to be bound by their provisions, in hotly contested drafting sessions. In the case of the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights those drafting sessions extended over nearly 20 years, from their beginning in 1947 to the adoption of the Covenants by the General Assembly in 1966. They came into force in 1976, thus completing the International Bill of Rights,8 which includes the two Covenants and the Universal Declaration.

The International Covenant on Civil and Political Rights draws on many sources, including the United States Bill of Rights. Many of the rights it recognises, such as the right to habeas corpus and the right to freedom of expression and religion, were already accepted in many countries. The states that took part in the drafting of the Covenant included all the states of the UN at that time, including Australia,9 the United States, the United Kingdom, the USSR, the Netherlands, India, Brazil, the Philippines.

Indivisibility of Human Rights

This paper principally addresses the International Covenant on Civil and Political Rights. I would emphasise, however, that despite structural differences in the two covenants and in their supervisory mechanisms, there are close links between the rights set out in each covenant. No society can flourish without respect for the rule of law or without provision for the basic needs of people. As much suffering in the world results from the failure to ensure economic, social and cultural rights as from the denial of civil and political rights. However, while poverty may impair the ability of people to enjoy civil and political rights, lack of resources cannot excuse violations of those rights by governments.

Why are the rights protected by the the International Covenant on Civil and Political Rights important, and how do they contribute to the goals of multiculturalism? The issues considered are the international accountability machinery and the problems of universality and diversity.

States are Legally Accountable for Human Rights

Human rights treaties, like other treaties, are legally binding for states that ratify them. Those states are obliged to give effect to the rights and freedoms set out in the treaty and to ensure that remedies are available to persons whose rights have been violated. What is special about the principal United Nations human rights treaties is that states are required to account for their actions, to report on what they have done to make human rights effective. The major UN human rights treaties have reporting mechanisms; some also have individual complaints procedures. States have to face a committee of experts whose members are independent of any government. They represent a small dent in the armour of non-intervention in the domestic jurisdiction of sovereign states.¹¹

Supervision of the the International Covenant on Civil and Political Rights is carried out by the Human Rights Committee, an independent body of experts established by the Covenant.¹² The eighteen members of the committee are elected for four year terms by the states parties (there are about 129 at present). Once elected, the members of the committee serve in their personal capacity and act according to conscience. They are not answerable to their own states but to the covenant itself. In that regard the committee can be compared with independent courts and tribunals whose duty is to the constitution and the law, though I stress that the committee does not have the legal status or powers of a court.

The members of the Human Rights Committee are legally trained, and experienced in human rights. They have experience as academics, judges and legal counsel. They come from all regions of the world, and represent different legal and social systems.

Reporting Procedures

States' parties are obliged to submit written reports to the Human Rights Committee every five years, explaining what they have done to give effect to covenant rights and the progress made in the enjoyment of those rights. The committee studies the reports in the presence of representatives of the government concerned, over one or two days. The committee members ask many questions, probing into laws and practices to ascertain whether they comply with covenant standards. Non-governmental organisations, such as Amnesty International and Human Rights Watch, assist in this process by providing the committee with written information about laws and practices from their own point of view. Sometimes the picture this alternative material presents is considerably less flattering to the state than their own report. It is likely to record the names of people who are alleged to have been tortured in police custody, or to give details of other abuses.

It is difficult to explain to anyone who has not seen it, the way in which members of the Human Rights Committee use their knowledge of the situation in a particular country and of the legal standards which states are required to meet under the covenant to put probing questions to the government representatives. Though the language may be polite, the message is sometimes devastatingly clear. The process often leads states to respond frankly and to reveal far more of their problems than appears in their written reports.

After the dialogue, the committee prepares a written assessment, or "concluding comment" about the state, which includes recommendations to the state to revise those aspects of law and practice which fall short of covenant standards.¹³ This provides a bench mark for the next report, five years later. The countries which presented reports to the committee in the session just ended in March-April 1995, were the United States, New Zealand, Argentina, Paraguay, Haiti and Yemen. It was the first time the United States had ever been exposed to international scrutiny of this kind. Although the US contributed significantly to the drafting of the covenant, it was only in 1991 that the Senate was persuaded to muster the two-thirds majority necessary for the United States to ratify the covenant.

Observations on Reporting

The reporting procedure has been evolving over nearly 20 years, and some states have reported three times. It is not an enforcement procedure; its effectiveness comes partly from the competence of the Committee and partly from the fact that it is an open and public procedure which engages the interest and support of non-governmental organisations, and sometimes of delegations of citizens from the states in question. The committee is able to give time to each state and to look at key issues in some depth. Some states take seriously the preparation of their reports, and look to the committee to identify areas of concern. The long term influence of the reporting procedure depends on the willingness of states to consider and take action on the committee's recommendations and on the ability of the committee to maintain high standards of impartiality in its analysis, thus ensuring that its observations and comments will command respect.

There are weaknesses in the system. Both reporting and follow-up are essentially voluntary. The Human Rights Committee, and all the other treaty bodies, experience delays in the submission of reports, and lack of time and resources to keep up with the consideration of the reports that are submitted. Increasing numbers of human rights instruments and ratifications put strains on the systems and on the states to fulfil their reporting obligations.¹⁴ The increasing willingness of states to ratify human rights treaties and to expose themselves to critical analysis has not been matched by any addition to the committee's resources.

Recourse for the Individual: the Complaints Mechanism

The second accountability mechanism under the International Covenant on Civil and Political Rights is the individual complaints procedure established by the first Optional Protocol to the Covenant on Civil and Political Rights. The protocol is a separate but related treaty. It is "optional" in the sense that states who ratify the covenant may choose whether or not to ratify the protocol. Seventy-nine states out of 129 parties to the covenant have now done so. Australia ratified the protocol in 1991. States who ratify the protocol recognise the competence of the Human Rights Committee to deal with claims by individuals that their rights under the covenant have been violated by a state. The procedure provides a valuable safety net for those who cannot obtain a remedy for the violation of rights in their own country.

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