1995 Global Cultural Diversity Conference Proceedings, Sydney

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

Continued, from previous page

Footnotes

1 National Agenda for a Multicultural Australia: Sharing our Future, AGPS, July 1989, p. vii.
2 Charter of the United Nations, article 1 (3).
3 Adopted 1966, in force 1976; ratified by Australia in 1982. See Human Rights And Equal Opportunity Act 1986 (Cth).
4 Adopted 1965, in force 1969; ratified by Australia in 1975. See Racial Discrimination Act 1975 (Cth).
5 Adopted 1979, in force 1981; ratified by Australia in 1983. See Sex Discrimination Act 1984 (Cth).
6 Adopted in 1984; in force in 1987.
7 Adopted 1989, in force 1990; ratified by Australia in 1990.
8 Mc Goldrick p.4.
9 See Nowak 164. Australia was unwilling to support universal and equal suffrage, Nowak 438, and considered that Aborigines were too primitive to be able to be considered as a minority (1961) Nowak 485. Australia did support anti-discrimination measures, Nowak 462.
10 See e.g., ICCPR art 2.
11 UN Charter art 2 (1) and (7).
12 ICCPR, art 28, 40, 41 and 1st Optional Protocol.
13 This also provides an opportunity to interpret covenant principles.
14 See Philip Alston's Interim Report on the study on enhancing the long term effectiveness of the United Nations human rights treaty regime, UNGA A/CONF.157/PC/62/Add.11/Rev.1, 22 April 1993.
15 That issue was not contested by the Australian Government.
16 Rule 99, see Annual Report for 1994.
17 238/1987, 26 July 1989. See also Vasilikis v Uruguay 80/1980 31 March 1983; he was released under an amnesty. Marais v Madagascar 49/1979 24 March 1983; he was released.
18 Van Alphen v Netherlands 305/1988; ex gratia compensation was provided for keeping the author, a lawyer, in detention for 9 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. Colombian case ??
19 Torres v Finland 291/1988 38 Session.
20 HRC 1991 Annual Report, A/46/40 para 705.
21 E.g., Pauger v Austria 415/1990, 26 March 1992. The discriminatory provisions of the Pension Act were removed. In Vuolame v Finland 265/1987 7 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 9 April 1987 and Broeks v Netherlands 172/1984 9 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. In Aumeeruddy Ciffra v Mauritius 35/1978 9 April 1981, the legislation was amended to remove the discriminatory effects of those laws on the ground of sex.
22 167/1984, 26.3. 1980.
23 ICCPR art 41.
24 E.g., article 41 of the ICCPR has never been used, nor has the equivalent procedure under articles
11,13 of CERD. Meron, "Enhancing the Effectiveness of Prohib. of Discrim. against women," 1990 A.J.I.L. Vol. 84, No.1 213 mentions the symbolic importance of this provision.
25 A. Cassese, International Law in a Divided World, Clarendon Press, Oxford 1986, 302. The author argues that the socialist and developing countries had won the upper hand in the formulation of the Covenants, e.g. self-determination, no protection of property, weakened scrutiny. See also The Recognition of Aboriginal Customary Law, para 183.
26 The Recognition of Aboriginal Customary Law, para 183, 185.
27 Copenhagen Declaration, Adopted by the World Summit for Social Development, Copenhagen 6-12 March 1995 para 28. Commitment 1 (n) Commitment 4 (i) calls on States to "recognize and respect cultural, ethnic and religious diversity" at national level.
28 See, e.g., Aboriginal Customary Law para 190.
29 R. Higgins, "The United Nations: Still a force for peace" 1989 52 Mod L R 1, 2.
30 Christian Tomuschat, quoted in Higgins, above.
31 Professor Graefrath, quoted in Higgins, above.
32 Report of HRC to July 1993, Supplement 40 (A/48/40), para 108 ff, 111-112.
33 Nowak p358. Moral standards could deal with such things as nude bathing, prostitution, pornography, blasphemy.
34 Hertzberg v Finland 61/1979, decided 2 April 1982.
35 See criticisms in McGoldrick, pp 467-468 and references.
36 General Comment no 23, on Article 27, was adopted at the 50th Session.
37 General Comment no 23 (50) para 9.
38 General Comment no 23 (50) para 8; Nowak, CCPR Commentary, p 505.
39 General Comment no 23 (50) para 4.
40 General Comment no 23 (50) para 5.2.
41 General Comment no 23 (50) para 5.2.
42 General Comment no 23 (50) para 6.1, Nowak 503.
43 Lovelace v Canada 24/1977 1981 p 166: A person may belong to a minority even though legislation disqualifies that person. It is thus a question for the committee. Legal restrictions on the right of an individual to enjoy the benefits of article 27 must have both a reasonable and objective justification and be consistent with other parts of the covenant. Here the denial of rights was not reasonable or necessary, it was unjustifiable. Kitok v Sweden 197/1985 27 July 1988 p 221.
44 General Comment no 23 (50) para 6.2, Nowak 504 queries this. Blades argues for a positive view.
45 General Comment no 23 (50) para 9.2.
46 Bernard Ominayak, Chief of the Lubicon Lake Band v Canada 167/1984, 26 March 1990: The rights protected by article 27 include the right of persons in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong. [para 32.2]. The committee recognised that historical inequities and more recent developments threaten the way of life and culture of the Lubicon Lake Band and constitute a violation of article 27 so long as they continue. [State party proposed to rectify the situation by a remedy deemed appropriate]. Kitok v Sweden 197/1985 27 July 1988 p 221: Author had been denied membership of the Sami community and the right to carry out reindeer husbandry, by the Sami community. The right of appeal was limited. The reason for allowing limitations was to restrict the number of reindeer breeders for economic and ecological reasons and to secure the preservation and well-being of the Sami minority. This was reasonable and consistent with art. 27. Even though the committee has doubts about the criteria for holding Samis not to be Samis.
47 General Comment no 23 (50) para 7; Ilmari Lansman et al v Finland 511/1992 26 October 1994.
48 Lovelace v Canada 24/1977 1981 p 166: A different result was arrived at in Kitok v Sweden 197/1985 27 July 1988 p 221.
49 511/1992 26 October 1994.
50 Lansman para 7.13.
51 ALRC 31, The Recognition of Aboriginal Customary Law, 1986.
52 para 177, 193.
53 para 184.See para 8 of HRC's general comment on article 18. The right to enjoy culture in community with others is an individual right, and it should not be construed as giving groups authority to override individual rights protected elsewhere in the Covenant.
54 para 209.
55 Mabo v Queensland (1992) ALJR 409, per Mason C J and McHugh J at 410, for the majority.
56 Brennan J at 422. His Honour considered that Australia's ratification of the Optional Protocol to the ICCPR brought to bear on the common law the powerful influence of the covenant and the international standards it imports. "The expectations of the international community accord in this respect with the contemporary values of the Australian people".
57 ALRC 57, Multiculturalism and the Law, 1992.
58 para 1.29.
59 para 1.31.

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