Engaging with the United Nations treaty bodies: a fruitful dialogue?

• Author: Low, Jo En

Abstract

There are seven core United Nations international human rights treaties under which committees of independent experts have been established to monitor their implementation. These committees produce a body of reports, concluding observations, comments/recommendations and views/decisions. The use of this output by national courts and tribunals contributes significantly to the development of international human rights law as it establishes the agreement of States parties on the interpretation of a treaty and facilitates the production of subsequent State practice. This paper examines the use of treaty body output by Australian courts and tribunals. It demonstrates that while Australian courts and tribunals are increasingly resorting to treaty body output as an aid in the interpretation of statutes and development of the common law as well as in the exercise and judicial scrutiny of administrative discretion, they have yet to engage in a 'fruitful' dialogue with the treaty bodies.

Introduction

There are seven core United Nations ('UN') international human rights treaties (1) under which committees of independent experts have been established to monitor their implementation. (2) With the exception of the Committee on Economic, Social and Cultural Rights, (3) these treaty bodies are established pursuant to provisions of the respective treaty. (4) Their monitoring procedures include reporting procedures; individual (5) and inter-State complaint procedures; (6) and inquiry procedures. (7) These committees produce a body of output consisting of General Comments or Recommendations adopted by the committees; Concluding Observations (or comments in the case of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee) on the reports of individual countries; Views or Decisions adopted in a case submitted under an individual complaints procedure; the results of an inquiry; and the discussions between the Committee and State parties during the examination of State periodic reports ('treaty body output'). This body of practice has become significant in the interpretation and application of the treaties by the Committees, governments, courts and tribunals, lawyers, non-governmental organisations and others. (8)

There exists a great deal of commentary regarding the impact of the work of the UN human rights treaty body system on national courts and tribunals. The approaches taken by scholars have varied from the theoretical case-study analysis of Martin Scheinin on the Nordic and Baltic experiences, Yuji Iwasawa on the Japanese experience and John Dugard on the South African experience; (9) to the empirical, data-based work of Christof Heynes and Frans Viljoen. (10) Of these, the International Law Association Human Rights Law and Practice Committee Reports of 2002 and 2004 ('ILA Reports') represent the most comprehensive study undertaken on the impact of treaty body output on national courts, tribunals and institutions around the world. (11)

This literature demonstrates that by utilising the work of the UN human rights treaty system, national courts and tribunals effectively engage in a 'fruitful dialogue' (12) with the treaty bodies, contributing significantly to the normative development of the human rights movement. This dialogue generates a considerable body of doctrine in relation to the human rights treaties and in so doing assists with the domestic implementation of international human rights norms while clarifying the status of treaty body output as a source of international law. It ultimately facilitates the production of subsequent State practice in the application of the treaty, thereby establishing the agreement of the parties regarding its interpretation. (13)

Australian courts and tribunals have yet to engage in a 'fruitful' dialogue with the UN treaty bodies. Courts and tribunals are increasingly resorting to treaty body output as an aid to the interpretation of statutes and development of the common law as well as in the exercise and judicial scrutiny of administrative discretion. It is evident that by referring to the relevant international standards, domestic decision-making is better informed. However, this emerging practice of referring to international human rights norms and the treaty body interpretation of these norms is still in its early stages of development.

The use of treaty body output remains on the periphery of mainstream Australian judicial discourse; much discretion lies with individual judges to determine the significance to be attached to the international instruments and jurisprudence. The evidence indicates that only a few individual judges are willing to exercise this discretion in support of international human rights law and that where they do, treaty body output seldom plays a decisive role, as it is used primarily to support conclusions reached on other grounds. Furthermore, the use of treaty body material is limited; it is usually drawn upon to confirm existing common law rights and principles. Courts and tribunals rarely use these materials to develop the scope of such principles or to explore international human rights norms that may not have a common law equivalent.

The Australian courts' use of treaty body jurisprudence to inform judicial interpretation of international human rights norms may be compared with the approach of the New Zealand courts. The New Zealand case law demonstrates that the use of treaty body output is not limited to a few key individuals; discussion of this material is extensive and features in the judgments of majority and dissenting judges. Furthermore, the courts effectively engage in a fruitful dialogue with the treaty body on developing and determining the scope of such norms while exploring the legal status of treaty bodies and their output.

The extent to which the courts and tribunals are willing to draw upon the treaty body material in the decision-making process is inhibited by the limited circumstances in which Australian courts and tribunals may legitimately refer to treaty body material. Yet it appears that even where they may do so, the courts and tribunals remain reluctant to fully utilise the available resources. A number of factors, including the utility of the treaty body material, could explain this reluctance but no one factor appears to be determinative.

Part I of this paper briefly outlines the research methodology adopted and makes some general observations regarding the use of treaty body output by Australian courts and tribunals. These observations focus on the frequency of reference to treaty body material. Part II considers the factors influencing the willingness of the courts and tribunals to refer to treaty body output and assesses the quality of the references.

PART I: THE DATA

1. Research Methodology

   The existing international law literature concerning the impact of the work of the UN human rights treaty body system on national courts and tribunals has not addressed the Australian experience in any detail. Joanne Kinslor (14) and Devika Hovell, (15) for example, have provided an Australian perspective on the UN treaty bodies with a focus on the relationship between the UN treaty bodies and the Australian Government rather than the relationship of these bodies with Australian courts and tribunals. The International Law Association Human Rights Law and Practice Committee has produced two reports (16) which assessed the impact of the UN human rights treaty body output on national courts and tribunals around the world. However, it was an international survey that did not purport to be an exhaustive study of any particular jurisdiction and hence only briefly discussed Australia. The only study that has been conducted specifically into the use of treaty body output by Australian courts and tribunals is non-exhaustive and only provides examples of the use of treaty body output in Australian case law and public for a from 2001-2003. (17) Accordingly, this paper is based on a review of the relevant primary sources, that is, the case law and other adjudicative decisions of Australian courts and tribunals from the late 1970s to mid-2006 where there were references to the UN human rights treaty bodies or their output.

2. General Observations

   The results indicate that there has been a substantial increase over the last four decades in the level of frequency with which courts and tribunals refer to international human rights norms and jurisprudence.

   References to international human rights treaties in the Australian courts and tribunals have experienced a marked increase over the last four decades. A total of approximately 655 cases were found to have referred to international human rights treaties between 1979 and 2006. After the International Covenant on Civil and Political Rights ('ICCPR') came into force in 1976, only three decisions were handed down in the 1970s that referred to the ICCPR. However, this gradually increased with approximately 60 cases found to have referred to the ICCPR during the 1980s. The frequency of the references increased considerably during the 1990s with some 296 cases referring to the ICCPR and from 2000-2006, the references have become quite numerous. This pattern is more or less reflected in the references to the other treaties, taking into account their respective dates of ratification and entry into force.

   Similarly, references to the treaty bodies and their output have increased over the same period. In the 1980s, only three relevant cases were found to have referred to treaty body output, none of which were at the state level. (18) This use began to increase during the 1990s with 30 cases found on both the Commonwealth and state level. Ultimately, over half of the relevant references across Australia were made in decisions handed down within the period 2000-2006.

   However, viewed in context, the number of references to treaty body output has been...