Elements of a global alliance against racism: The roles and responsibilities of human rights treaty bodies, national human rights institutions and other relevant institutions
Panel intervention by Dr William Jonas AM, Race Discrimination Commissioner and Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission of Australia
Monday 3 September 2001
I would like to begin by paying tribute to Mrs Mary Robinson, who in her time as High Commissioner for Human Rights has placed great emphasis and importance on the role of national human rights institutions. It is largely due to her efforts and support that national institutions have such a strong voice at this World Conference, and why we are talking today about our role in a global alliance against racism.
I want to emphasise the scope of the role that national human rights institutions should play in a global alliance against racism. There have been significant advances in the recognition of the role of national institutions recently but there is still a long way to go.
In the Bayefsky review of the UN human rights treaty system, the role of national institutions is discussed solely under the heading of 'national follow up partners'. The report notes the important role of national institutions in the effective implementation of human rights and states that 'International institutions should play a secondary role in the protection of human rights standards' .
I agree fully with this proposition but I don't think that the review fully reflects the potential of national institutions to contribute significantly to the strengthening of the human rights system.
The National Institutions' Statement to this World Conference notes in part, "National institutions shall act as a channel between action at the international level - through international treaty bodies, particularly the CERD, … and action at the national level to combat racism" (para 2).
Last year Australia appeared before four of the six treaty committees for consideration of periodic reports. My Commission participated extensively in these processes, through the making of submissions to each committee and providing informal briefings to the committees ahead of their consideration of the reports. We also conducted a number of follow up activities, including making the concluding observations 'programmatically relevant' to use Professor Bayefsky's language.
I want to put to you three propositions based on the Commission's experiences last year about improving the alliance of treaty committees and national institutions.
First, national institutions have a vital role to play in the early warning and prevention of breaches of human rights standards. Some of you may know about the early warning / urgent action procedures of the CERD. Australia was placed under these in 1998, due to concerns about racially discriminatory land practices in relation to Indigenous peoples. My Commission had warned the government that its proposed legislation was racially discriminatory on several occasions in the two and a half years prior to the CERD finding that the Native Title Act amendments were racially discriminatory in March 1999.
Similarly, we had warned the government about other discriminatory practices relating to Indigenous peoples - most notably the failure to overturn discriminatory legislation in one territory of Australia which removed judicial discretion in the sentencing of offenders for petty property crimes - again, several years ahead of the findings by the CERD, the CAT and the Human Rights Committee in 2000 to the same effect.
What this suggests to me is that national institutions could have a larger role to play in bringing matters of serious concern to the attention of treaty committees at an early stage in order to avoid or prevent the continuation of serious violations of human rights. This is potentially a significant tool for addressing systemic and institutional forms of racial discrimination, which are not amenable to individual communication processes.
Second, national institutions have a vital role to play in the consideration of periodic reports. While treaty committees clearly recognise the distinct role of national institutions, particularly compared to NGOs, my proposition is that this should be further recognised by treaty committees and formalised to the greatest extent possible.
This would allow for much greater transparency of the process, and would dramatically increase the quality of the dialogue between the State party and the committee. For example, when considering the native title situation in Australia, the CERD had at its disposal information from my commission, and other bodies such as the peak Indigenous organisation ATSIC, which explained the intricacies of the Australian legal system - such as how the native title amendments had operated to override Australia's domestic incorporation of its obligations under ICERD. The Committee were able to use this information to ask detailed questions which went beyond the generalised answers of the government on this point. This is of course a problem faced in relation to many if not most periodic reports.
I propose that treaty committees should ensure a greater role for national institutions in the processes leading up to the consideration of periodic reports, such as in the development of a pre-sessional list of issues, inviting submissions from national institutions and in allocating sufficient time for independent briefings by national institutions ahead of the consideration of reports. Such matters should become standard practice for committees and be formalised through the rules of procedure of the committees where possible.
Finally, national institutions have a vital role to play in the domestic implementation of concluding observations of treaty committees and making them programmatically relevant. Each year I report to the federal parliament on the enjoyment of human rights by Indigenous peoples. My latest report provides a detailed analysis of the government's appearance before CERD and considers the most appropriate mechanisms for implementing the recommendations in the concluding observations. I am sure many other National institutions focus their work in a similar manner, and where they don't have capacity to, States parties should empower national institutions to undertake such analysis in order to bridge what Professor Bayesfsky calls the 'inexcusable… gap between universal right and remedy' that has emerged in the international human rights system and which requires, with urgency, an effective global alliance against racism.
Thank you.
