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:
- Communications by individuals
- Periodic reports by States, and
- 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
- For Australia’s most recent periodic report, click here.
- For the Committee’s most recent Observations on Australia, click here.
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.
- For information on the Convention, see The International Convention on the Elimination of All Forms of Racial Discrimination
- Further reading: Sarah Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights, The Federation Press, Leichhardt, 1998.
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.
