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Guide to the Law - Monitoring Compliance: The Role of the Committee on the Elimination of Racial Discrimination

Race Race Discrimination
Friday 14 December, 2012

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Monitoring Compliance: The
Role of the Committee on the Elimination of Racial Discrimination

The CERD

The Committee
on the Elimination of Racial Discrimination (CERD)
monitors the
compliance of States parties with the International
Convention on the Elimination of All Forms of Racial Discrimination
.
CERD is composed of 18 independent experts who are elected for terms of
four years by the State parties to the Convention. Each State party
may nominate a citizen for any vacancy. Although they are nationals of
State parties, however, the Committee members serve in their personal
capacities. They do not represent their country in any sense and take
an oath of impartiality upon taking office. The Committee meets twice
each year at the United Nations in Geneva.

Monitoring mechanisms

There are three principal
mechanisms available to the Committee to monitor whether States are implementing
the Convention:

  1. Communications
    by individuals
  2. Periodic
    reports by States
    , and
  3. The
    Early Warning and Urgent Procedure
    . [1]

The opinions, recommendations
and suggestions of the Committee have no binding legal force and there
are no sanctions for failure to comply with them. Nevertheless, due regard
to the Committee’s views is important to the international reputation
of States.

1.
Communications by individuals

Individuals or groups
who claim to be victims of racial discrimination can lodge a complaint
against their State with the Committee. Such complaints are called ‘communications’.
This procedure is only available if the country concerned has declared
that it recognises the competence of the Committee to hear individual
complaints. Australia did so on 28 January 1993, some 17 years after ratifying
the Convention.

Complainant

As a general rule,
organisations cannot submit complaints. However, in exceptional circumstances,
the Committee will consider a communication submitted on behalf of an
alleged victim who is unable to do so himself or herself.

Respondent

A communication must
cite the action of a State party to the Convention. It is not possible
to complain about the actions of another individual, an organisation,
a corporation or a State or Territory government.

Domestic remedies

Before lodging a
communication, the complainant must have exhausted all available remedies
in Australia without success. Domestic remedies may be available through
the Human Rights and Equal Opportunity Commission, the Ombudsman’s
Office, the courts or other means. [2] Generally, the
communication must be submitted to the Committee within six months of
the final rejection of the complaint in the domestic system. Other conditions,
as set out in the Committee’s Rules
of Procedure
, must also be met before the Committee can accept
the communication.

Procedures

Once the Committee
accepts a communication, it invites the State party to respond, considers
all information provided by both parties, debates and then decides the
matter. The Committee’s decisions are forwarded to both parties and
published as ‘Jurisprudence’.

Communications
- Australia

To the date of writing
(March 2002) four communications about racial discrimination in Australia
have been submitted. Two of these were inadmissible because all domestic
remedies had not been exhausted. In the remaining two communications,
no violation of the Convention was found by the Committee to have
occurred. [3]

2.
Periodic reports by States

The Convention
requires that State parties report to the Committee every two years outlining
the legislative, judicial, administrative or other measures that have
been adopted to give effect to the Convention. [4]
In these written reports, States should provide information on government
activities relevant to the Convention, as well as details about
the ethnic, demographic, socio-economic and cultural characteristics of
the country and its population.

Procedures

A member of the Committee
is designated the Country Rapporteur for each State party. The role of
the Country Rapporteur is to undertake a detailed analysis of the State
report and to prepare issues, comments and questions to be presented to
the State’s representative when the report is considered by the Committee
during one of its twice-yearly sessions. The Country Rapporteur may consider
information from any source, including UN agencies, international NGOs,
the State’s national human rights institution and domestic NGOs.

Once the Committee
has scrutinised the report and discussed it with the State’s representative,
it adopts its Concluding
Observations
.
The Concluding Observations critique the State report noting both positive
aspects and matters of concern and making suggestions and recommendations.
The Concluding Observations are public documents.

Since 1995, if States
are very overdue in submitting their reports, the Committee may consider
the situation in that country without the benefit of a State report.

Periodic reports
- Australia

3. The
Early Warning and Urgent Procedure

Rationale

The Early Warning
and Urgent Procedure came into effect in 1993 to enable the Committee
to try to prevent violations of the Convention by intervening before
they became serious. It was developed as an extension of the periodic
reporting process, described above, but the procedure can be initiated
whether or not a State has submitted its reports. The Procedure is used
where there is a serious situation of racial discrimination which is unaddressed,
for example, appeals to racial intolerance by political leaders or significant
patterns of discrimination as evidenced in social and economic indicators.

To date, the Committee
has considered the situation in over 14 countries, including Australia,
under this Procedure. Australia was made subject to the Early Warning
and Urgent Procedure in 1998 (see below).

Procedures

The Procedure is
essentially a request by the Committee to a State for ‘further information’
about a particular issue of concern (as permitted by article 9 of the
Convention). No specific rules of procedure or criteria have been
developed for the Early Warning and Urgent Procedure, but the Committee
is guided by its 1993 Working
Paper
in activating it (Annex III of the report at this site).

After the Committee
considers the State reply and other relevant information, it issues a
formal Decision on the matter. It may bring the matter to the attention
of the UN High Commissioner for Human Rights, the UN Secretary-General
or the General Assembly. With the agreement of the State concerned, the
Committee may also undertake technical cooperation missions (called ‘Good
Offices’) to the country concerned.

Early warning
- Australia

In 1998 the Committee
initiated the Early Warning and Urgent Procedure with respect to Australia
regarding the so-called ‘Wik’ amendments to the Native Title
Act, as well as changes to both Aboriginal land rights policy and the
functions of the Aboriginal and Torres Strait Islander Social Justice
Commissioner. The Committee wished to examine the compatibility of these
changes with the Convention. In its 1999
Decision
the Committee concluded that the native title amendments
breached Australia’s obligations under the Convention, as
did the failure of the government to consult adequately with Indigenous
groups about land rights. Furthermore, the Committee expressed concern
about the proposed abolition of the Aboriginal and Torres Strait Islander
Social Justice Commissioner’s position within the Human Rights and
Equal Opportunity Commission.


1.
A mechanism unlikely to be used is the article 11 mechanism of one State
Party making a complaint about another.

2.
Note that State Parties to the Convention undertake to ensure effective
remedies for victims of racial discrimination.

3.
Z.U.B.S. v Australia Communication No. 6/1995; Barbaro v Australia Communications
Nos. 7/1995 and 12/1998; B.M.S v Australia Communication No. 8/1996.

4.
Australia is due to submit its next periodic Report to the Committee in
November 2002.

Last
updated 22 August 2002.