Individual communications: Can they provide effective redress for human rights violations?

Abstract

The International Covenant on Civil and Political Rights (ICCPR), together with its Optional Protocol, enables individuals to allege a violation of their rights by submitting a ‘communication’ to a committee of independent experts nominated to monitor compliance with the ICCPR. This procedure may result in a finding that the State Party has violated the ICCPR, and consequent changes to law and policy which can benefit individuals and groups. However, the procedure has serious flaws, including long delays in making findings, and difficulties concerning enforcement.

International law mainly protects the interests of nation states, rather than people or groups within a state. Further, international law (which includes customary and treaty law) prioritises state sovereignty – the right of states to regulate matters within their own borders. Generally, international law can be enforced only by states and not by individuals or groups (even those affected by treaty violations). ¹

Human rights treaties, such as the International Covenant on Civil and Political Rights (‘ICCPR’ or ‘Covenant’), ² seek to protect the interests of individuals and groups. They are not ‘mere exchanges of obligations between States’ but are ‘for the benefit of persons within [a state’s] jurisdiction’. ³ Human rights treaties have a ‘special character’, ⁴ as they ‘concern the endowment of individuals with rights.’ ⁵ Further, treaties such as the ICCPR seek to hold states accountable for their treatment of individuals, for example by obliging states to provide an ‘effective remedy’ for any violation of rights. ⁶

The Optional Protocol to the ICCPR ⁷ enables individuals to submit a ‘communication’ to a committee of independent experts, alleging a violation of their rights by a State Party. ⁸ This may result in a finding that ICCPR rights have been violated, and consequent changes to law and policy which can benefit individuals and groups. However, the procedure has serious flaws, including long delays in making findings, and difficulties concerning enforcement.

This article examines when and how the individual communications procedure can provide effective redress for violations of the ICCPR by Australia. ⁹ It seeks to promote ‘wider knowledge of the communications procedure’ in order to support individuals seeking to make communications under the Optional Protocol. ¹⁰ The individual communications procedure is regularly referred to in the popular media, ¹¹ however its benefits and flaws are less well known. The first part of this article outlines the communications procedure and its potential outcomes. The second part examines the requirements for submitting a communication. The third section examines flaws with the procedure, including potential delays and non-compliance by Australia. The final part examines the circumstances in which a communication is likely to provide effective redress.

The ICCPR and the individual communications procedure

The ICCPR is an international human rights treaty which has been ratified by 173 states. ¹² It contains a range of universally recognised civil and political rights, such as freedom of expression, right to life, and freedom from torture. Each State Party to the ICCPR

undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the [ICCPR], without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ¹³

Specifically, State Parties undertake to adopt the provisions of the ICCPR in their domestic laws and practices, to give effect to the rights in the ICCPR. ¹⁴ Further, State Parties undertake to ‘ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy’. They also undertake that ‘any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities’, and that ‘the competent authorities shall enforce such remedies when granted.’ ¹⁵

The ICCPR established the Human Rights Committee (‘HRC’ or ‘Committee’), consisting of 18 persons of ‘high moral character and recognized competence in the field of human rights’. ¹⁶ The HRC’s function is to monitor whether states are ‘giv[ing] effect to the rights recognized [in the ICCPR] and … progress made in the enjoyment of those rights’. ¹⁷

The HRC monitors a state’s implementation of the ICCPR in three main ways. ¹⁸ First, it receives periodic reports on measures the State Party has adopted to give effect to the ICCPR. ¹⁹ In response, the HRC provides comments on the state report. ²⁰ Second, the HRC publishes general comments ‘on specific topics addressing aspects of the [ICCPR] or its Optional Protocols with a view to assisting States parties in fulfilling their obligations under the Covenant and its Optional Protocols.’ ²¹ The HRC has published general comments on the scope and nature of various ICCPR rights, and the obligations of state parties. ²²

Finally, the HRC may ‘receive and consider … communications from individuals claiming to be victims of violations of any of the rights’ in the ICCPR. ²³ The HRC’s competence to consider individual communications derives from the Optional Protocol, rather than from the ICCPR. The procedure was introduced to ‘further to achieve the purposes of the [ICCPR] and the implementation of its provisions’. ²⁴

Individual communications differ from the HRC’s other functions in significant ways. First, communications are initiated by an individual rather than by the state or the HRC. ²⁵ Second, communications relate to the circumstances of an identified person, rather than broader policy and legislative measures (which are the focus of state reports and general comments). Significantly, a single violation of one person’s ICCPR rights is sufficient grounds for an individual communication; there is no need to show a serious, widespread or ongoing human rights violation. ²⁶

In relation to federal states such as Australia, a communication may relate to the laws or practices of state or territory governments, or to federal law or practice. This is because the ICCPR extends ‘to all parts of federal States without any limitations or exceptions.’ ²⁷ Further, as Australia is one state in international law, it ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty'. ²⁸

In the Toonen case, a communication resulted in a finding that Australia had violated the ICCPR, and the offending laws were ultimately repealed. ²⁹ This case challenged Tasmanian laws which criminalised consensual sex between adult males. Toonen argued that these laws violated his rights to freedom from discrimination based on sexual orientation, and his right to privacy. The HRC upheld Toonen’s communication and the Commonwealth passed laws invalidating the Tasmanian laws. Therefore, Toonen was successful before the HRC and Australia complied with the HRC’s views. ³⁰ The decision instigated systemic change, as it protected the rights of sexual minorities in Tasmania and not merely Toonen individually. However, as will be explained later in this article, the Toonen case is exceptional as Australia has not complied with many findings by the HRC.

Requirements for making a communication

There are several requirements for a communication to be considered by the HRC. The HRC must consider the admissibility of each communication, and inadmissible communications may be rejected without considering their merits (whether or not a violation has occurred). ³¹ Admissibility requirements are outlined in the Optional Protocol and are summarised below.

First, the state against whom the communication is made must be party to the ICCPR and the Optional Protocol. In March 2023, there were 117 state parties to the OP. ³² Further, the violation complained of must have occurred after the State Party ratified the OP, including any continuing effects. ³³

Second, the communication must be made by a ‘victim[] of [a] violation[] of any of the rights set forth’ in the ICCPR. ³⁴ This means that an individual must be ‘personally affected’ by the alleged violation. ³⁵ An authorised representative may make a communication on another person’s behalf.

Third, the communication’s author must be ‘subject to the State Party’s jurisdiction’. ³⁶ The author need not be a citizen of the state, and several communications have been made against Australia by people in Australia’s migration detention system. ³⁷ The focus is on the state, and its power to either protect or violate rights, rather than on the legal status of the author.

Fourth, the communication must be in writing, and it must identify the author. ³⁸ Further, a communication is inadmissible if the HRC considers it ‘to be an abuse of the right of submission … [or] … incompatible with the [ICCPR]’, ³⁹ such as submitting a communication which has already been rejected, or if there has been an unreasonable delay in making the communication. ⁴⁰

Fifth, the substance of the communication must not currently be ‘examined under another procedure of international investigation or settlement’. ⁴¹ This requirement prevents overlap, and potentially conflicting views, as between various international mechanisms, such as other UN or regional human rights bodies.

Sixth, all available domestic remedies must be exhausted before making a communication to the HRC. ⁴² This requirement supports the sovereignty of states and particularly their ability to resolve matters at a domestic level before international redress is available. In the Australian context, this generally means exhausting all judicial processes for redress. ⁴³

Making a communication commences a new and fresh review of the allegation, rather than an appeal from an earlier decision or a continuation of earlier proceedings. ⁴⁴ The procedure seeks to determine whether ICCPR rights have been violated and, if so, whether an effective remedy has been provided to the victim. ⁴⁵

Finally, the communication must identify the right or rights violated, and it must provide sufficient supporting facts. It must allege violation of the rights listed in the ICCPR, rather than any other rights. This does not prevent the HRC from determining a communication which may potentially be dealt with under another treaty. For example, the HRC has determined several communications regarding Australia’s migration detention system, although these may raise issues under the Convention against Torture, ⁴⁶ and other treaties.

Flaws in the communications procedure

Despite its potential to provide redress, the communications procedure has significant shortcomings. This section examines two significant flaws – delays in making findings, and non-compliance by Australia with findings.

Regarding delays, the OP provides no firm time limit in which the HRC must provide its ‘view’ on a communication. ⁴⁷ When the HRC receives a communication, it is transmitted to the relevant state party, ⁴⁸ and ‘[w]ithin six months, the receiving State shall submit to the [HRC] written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.’ ⁴⁹ The HRC considers this material and ‘forward[s] its views to the State Party concerned and to the individual.’ ⁵⁰

Typically, three to four years is the expected time from submitting a communication to receiving a view. This is due to the large – and increasing – number of communications received by the HRC, and the Committee’s infrequent meeting times. ⁵¹

The Rules of Procedure provide that the HRC

may request that the State party concerned take on an urgent basis such interim measures as the Committee considers necessary to avoid possible actions which could have irreparable consequences for the rights invoked by the author. ⁵²

Interim measures may be requested for example when there is evidence of any immediate risk to a person’s life, such as where a state proposes to deport a person in circumstances where they face possible execution, or torture. ⁵³ The Rules of Procedure state that ‘failure to implement [interim] measures is incompatible with the obligation to respect in good faith the procedure of individual communications established under the Optional Protocol.’ ⁵⁴

There’s truth in the saying that ‘justice delayed is justice denied’, and a person’s circumstances may deteriorate while they await an outcome. Significant delays may compromise the effectiveness of the individual communications procedure. However, delays may be regarded as acceptable, as these are comparable to the delays experienced in domestic court proceedings.

Human rights scholar Henry Steiner has proposed significant reforms to the communications procedure, such as allowing the HRC to choose which communications to give views on, rather than the current requirement to respond to all admissible communications. ⁵⁵ This would assist in reducing the backlog of unresolved communications, and the delay in giving views. However, this proposal could potentially deny redress to victims whose communication was considered less serious.

Even more significantly, the HRC’s views are not binding in the sense that State Parties do not have to comply with them and victims cannot enforce a view in domestic courts. ⁵⁶ The HRC is not a court and, apart from follow up procedures introduced in 1997, no enforcement mechanism exists. States are bound by international law to carry out treaty obligations in good faith. ⁵⁷ However, this duty is enforceable only by other states.

Australia has failed to comply with many HRC views which have found serious violations of the ICCPR. For example, A v Australia ⁵⁸ involved a Cambodian family who were detained in immigration detention in Australia for over four years. In this decision, the HRC

found that Australia’s system of ‘indefinite and prolonged’ mandatory detention constitutes arbitrary detention in violation of article 9(1) of the ICCPR, regardless of its lawfulness domestically. Further, the inability of the family to have their detention reviewed by a court violated article 9(4). The Committee said that domestic review of the lawfulness of detention ought to include consideration of Australia’s obligations under the ICCPR. The HRC found an added breach of article 2(3) (the right to an effective remedy), despite this not being claimed explicitly by the author. ⁵⁹

However, Australia ‘rejected the Committee’s interpretation of the ICCPR and refused to compensate the author’s family’ ⁶⁰ or repeal laws mandating detention for ‘irregular maritime arrivals’. Further, over the last two decades, subsequent Australian governments have refused to comply with the HRC’s views in A v Australia. A favourable view by the HRC is therefore no guarantee that ICCPR rights will be vindicated.

In dualist states such as Australia, the validity and enforcement of domestic laws is separate from any breaches of international law. Australia may therefore enact and enforce domestic laws which do not comply with international treaties such as the ICCPR. ⁶¹ Domestic courts, including the High Court of Australia, have no jurisdiction to determine whether domestic laws comply with international treaties.

In 2008, the HRC published a strong statement regarding States’ compliance with its views. This General Comment highlights the similarities between its views and judicial decisions.

[Views] are arrived at in a judicial spirit, including the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions. ⁶²

HRC views commonly refer to previous views, and to the HRC’s General Comments. Thus, HRC views are similar to court decisions based on general principles and precedents. Following precedents provides a degree of consistency and predictability, that similar cases will be decided alike. Over time, the HRC has generated a substantial body of jurisprudence regarding the nature, scope and basis of ICCPR rights. ⁶³

The HRC regards its views as an ‘authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument.’ ⁶⁴ As mentioned above, the HRC is a body of independent human rights experts with authority to interpret the provisions of the ICCPR and to monitor States’ compliance.

The International Court of Justice has stated that it gives ‘great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty’. ⁶⁵ The Court said that giving weight to HRC views

achieve[s] the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled. ⁶⁶

In 1997, the HRC established follow-up procedures, by ‘designating Special Rapporteurs for follow-up on views for the purpose of ascertaining the measures taken by the States parties to give effect to the Committee's views.’ ⁶⁷ The Special Rapporteur may make recommendations for further action by the HRC as necessary and report to the HRC on follow-up activities. ⁶⁸ The HRC states that, ‘In a number of cases this procedure has led to acceptance and implementation of the Committee’s views where previously the transmission of those views had met with no response.’ ⁶⁹ However, follow-up actions remain recommendations, which state parties can (and do) ignore.

Negative publicity may influence State Parties to comply with HRC views on individual communications. The HRC notes that

failure by a State party to implement the views of the Committee in a given case becomes a matter of public record through the publication of the Committee’s decisions inter alia in its annual reports to the General Assembly of the United Nations. ⁷⁰

Political and diplomatic pressure may influence Australia and other states to comply with their human rights obligations. However, the HRC (and other international bodies) are unable to directly enforce their decisions on Australia, and there is no mechanism for successful complainants to seek redress through courts or other legal avenues.

When will a communication be effective?

As outlined above, Australia does not always comply with HRC views on individual communications. However, HRC views that Australia has violated the ICCPR have been instrumental in achieving individual and systemic redress for violations of this treaty. The successful outcome in Toonen indicates that extensive lobbying and campaigning, particularly of the Federal government, is often necessary to ensure that a favourable HRC view is implemented domestically. Political campaigning can assist in highlighting and explaining the issue to the public and to policy makers.

Particularly when a communication appears to concern state or territory-based matters such as policing, proponents for change must reframe the issue as one of national significance. Further, the HRC’s view must align with widely held conceptions of justice and fairness. ⁷¹ The arguments by Australia – which typically concern sovereignty – must be addressed and neutralised. Favourable media coverage is an important aspect of securing the support of the public. ⁷²

Horvath v Australia involved an assault by police officers against the author of the communication. Initially, she was successful in proceedings against the officers and the State of Victoria for damages. However, on appeal the State of Victoria was held not liable due to common law immunity. Horvath claimed that several rights in the ICCPR were violated, including failure to provide her with an effective remedy. The HRC’s view was that Australia had not provided an effective remedy to Horvath, by failing to compensate her and by failing to discipline or prosecute the police officers. ⁷³

Following this, Victoria Police provided an apology and ex gratia compensation payment to Ms Horvath. After an independent inquiry, charges were laid against the officer in charge of the operation. ⁷⁴ The HRC’s views highlighted the need for legislative change regarding police misconduct and particularly the need for independent external investigation and accountability. This case has been used by community legal centres to campaign for such change.

Conclusion

The individual communication procedure enables individuals to hold States accountable for violation of their rights in an international forum. The procedure has significant deficiencies, including potentially long delays and lack of enforcement. These deficiencies are due to the significance of state sovereignty in the drafting of the Optional Protocol, and in the practice of international law generally.

However, as the Toonen case demonstrates, the communications procedure can be used to achieve individual redress and systemic change. As international obligations are separate from domestic laws, authors of communications must not only achieve HRC findings in their favour, but they must also campaign for domestic laws to be amended to reflect those findings. This will usually involve an extensive political campaign involving the media and grassroots activism.

International bodies such as the HRC are often framed by governments as a threat to state sovereignty and to the authority of elected domestic bodies, such as parliaments. ⁷⁵ However, the HRC should be recognised as an expert international human rights body, as an authoritative interpreter of the ICCPR, and as the protector of individual rights against the ‘huge resources’ of the state. ⁷⁶ This article seeks to provide much-needed awareness regarding the benefits and flaws in the individual communications procedure. Increasing awareness of this procedure may ultimately improve Australia’s compliance with the HRC’s views and enhance the authority of international human rights treaties such as the ICCPR more generally.