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Oertly, P --- "Fifteen Years of Individual Human Rights Complaints to the United Nations: The New Zealand Experience" [2005] NZYbkIntLaw 2; (2005) 2 New Zealand Yearbook of International Law 1


Paul Oertly[*]


New Zealand, as many other small States, has always paid particular importance to the international rule of law, both as an equalising value in its own right and as a normative means for peaceful regulation of international relations. In the words of the Phil Goff, Minister of Foreign Affairs and Trade, ‘If the law of the jungle rather than the rule of law were to prevail, small nations such as New Zealand would inevitably lose out to the interests of larger and more powerful countries.’[1] In the field of human rights, as in other areas of international regulation, New Zealand has been forthright in its support for the international treaty regime in question, becoming party in the 1970s and 1980s to six so-called “core” United Nations human rights treaties. As a State party, New Zealand has a very positive record in the reporting procedures established under these treaties, despite the particular burdens of this resource-intensive process on smaller States.

Four of these human rights treaties are augmented by individual complaints procedures currently in force, permitting individuals subject to a State party’s jurisdiction to allege before an international treaty body or committee a violation of individual rights. Perhaps more than any other step, a State’s participation in these regimes demonstrates its commitment to the international human rights framework, opening as it does a very wide array of often sensitive State action (or inaction) to international scrutiny. Three of these four treaty complaint mechanisms have been accepted by New Zealand. These are the mechanisms for determining breaches of the International Covenant on Civil and Political Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Convention on the Elimination of All Forms of Discrimination against Women.

New Zealand’s accession to the Optional Protocol of the International Covenant on Civil and Political Rights in 1989 first opened the door to individual complaints to the United Nations Human Rights Committee. In the fifteen years since, 23 complaints have been registered under that mechanism, providing valuable experience for both the New Zealand Government and the judiciary in interacting with an international complaint mechanism. Under the other two mechanisms, by contrast, no complaints have yet been registered against New Zealand.[2] This article surveys and analyses the New Zealand experience under the Optional Protocol, with comparative reference to Australia, and examines the current position under the other mechanisms.


The general theory and practice of the various complaints mechanisms provided for under the international human rights treaties have been thoroughly addressed in the academic literature, and it is not proposed to dwell on these issues in this paper.[3] For present purposes, it suffices to refer to the four complaint mechanisms currently in force[4] in the order of frequency to which they globally have been resorted.

Complaints to the Human Rights Committee under the first Optional Protocol to the International Covenant on Civil and Political Rights. The Optional Protocol entered into force on 23 March 1976 for the initial ten States parties, and as of July 2004 counts 104 States parties.[5] Over this period, the Committee has registered a total of 1300 complaints, a figure which when contrasted to the other complaint mechanisms constitutes the overwhelming majority of complaints made to the United Nations treaty bodies.[6]

Complaints to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This regime entered into force on 26 June 1987 for the requisite first five States having lodged the necessary declaration under that article. As of May 2004, 56 States parties had lodged the declaration.[7] Over this period, the Committee has registered 242 complaints.[8]

Complaints to the Committee on the Elimination of Racial Discrimination under article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination. This complaint regime entered into force on 3 December 1982 for the requisite first ten States parties having lodged the necessary declaration under that article. As of August 2004, 45 States parties had lodged the declaration.[9] Over this period, the Committee has registered 33 complaints.[1]

Complaints to the Committee on the Elimination of Discrimination against Women under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The Optional Protocol entered into force on 22 December 2000 for the initial ten States parties, and as of 2004 counts 63 States parties.[10] In the short period since the entry into force of the Optional Protocol, four complaints have been registered.[11]


On 3 September 1991, the Optional Protocol to the International Covenant on Civil and Political Rights entered into force for New Zealand, opening up, for the first time, the possibility for individuals to present a human rights complaint against New Zealand to an international body.[12] From that point, in the words of Sir Robin Cooke, it could even be said that ‘the United Nations Human Rights Committee is in a sense part of this country's judicial structure’.[13] The fifteen years since has seen a steady and slowly increasing rate of submission of complaints from New Zealand to the Human Rights Committee, reaching a current total of 23 cases that have been registered. [14] Figure 1 shows the evolution in submission of cases over this period, with the Australian experience of 77 cases registered over a very similar period by way of comparison.

After a gentle beginning, the years 1997 to 1999 showed a dramatic increase, which has not proven since to be sustained. The Australian experience by contrast has shown a surprising steady increase over the same period, with a sharp upturn in the last year. One reason for the gradual rise for New Zealand may be the absence of any conclusion by the Committee of a violation of any of the provisions of the Covenant until last year, in the case of Tai Wairiki Rameka et al v New Zealand.[15] It remains to be seen whether this finding of a violation spurs prospective complainants to resort more readily to the Committee. The same cannot be said for Australia, where the very first case lodged before the Committee, filed on the day the Optional Protocol entered into force, resulted in a somewhat controversial finding of a violation,[16] and violations have not infrequently been found since. An important factor, illustrated by the fact that 29 parties to the Optional Protocol have never had a single case registered against them, is awareness of the procedure amongst legal practitioners in a country. Indeed, it is not uncommon for a single legal practitioner or firm to lodge significant numbers of cases, which can quickly add to the overall caseload for a country.[17] This said, when adjusted for population New Zealand still has a higher overall rate of submission, though the gap is narrowing quickly.

A. Survey of the New Zealand Case Law

This section reviews those fourteen cases that have resulted in a final decision of inadmissibility or Views (the latter being, in whole or in part, decisions on the merits of a complaint). They are ordered in date of submission to the Committee rather than date of decision.

It was two years after entry into force of the Optional Protocol for New Zealand that the first case was submitted to the Human Rights Committee on 3 September 1991. In S.B. v New Zealand,[18] the author claimed that section 70 of the Social Security Act 1964 was discriminatory and in breach of article 26 of the Covenant (non-discrimination and equality before the law) on the basis that it provided for deduction of a foreign pension from a New Zealand pension, while New Zealanders could draw both State and private pensions. The Committee found the author’s claims inadmissible for insufficient substantiation under article 2 of the Optional Protocol, observing that the Act made no distinction between New Zealanders and foreigners and provided for deductions in all cases of relevant foreign pensions. This case is a straightforward example of the reluctance of the Committee to regard routine application of social security/administrative law to raise article 26 issues, in cases where the distinction is not based on one of the enumerated grounds of prohibited discrimination set out in article 26.[19]

A year after submission of S.B.’s case, one of the most important cases in public policy terms to be filed against New Zealand was lodged on 10 December 1992. The communication of Apirana Mahuika et al v New Zealand[20] went on to set a record in the Committee’s history of almost eight years for the time passing until a decision on the merits of the case. In this case, 19 Maori challenged the extinguishment of customary fishing rights (as well as of related litigation) through the passage of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the associated regime of Maori stakes in commercial fishing operations and quota management. The claims centred around an argument of breach of cultural rights protected by article 27, and of rights of access to court, protected by article 14. Issues of self-determination protected by article 1 of the Covenant were also invoked.

In its ultimate Views on the merits of the communication, the Committee applied its familiar approach under article 27 of effectively focusing on the procedure undertaken which resulted in the alleged denial of cultural rights.[21] In the light of the “broad consultation” undertaken prior to legislation and the ‘specific attention [paid] to the sustainability of Maori fishing activities’, the Committee unanimously concluded that the scheme was compatible with article 27.[22] The Committee did point out that the State party continued to be bound by its obligations under article 27 and that this duty should be borne in mind in the course of the further implementation of the Act.[23] On the subsidiary issue of access to courts, the Committee concluded that the discontinuance of litigation ‘in the framework of a nationwide settlement of exactly those claims that were pending before the courts’ did not amount to a violation of rights of access to court.[24] One member of the Committee (Mr. Martin Scheinin, Finland) dissented on this point in a separate opinion, arguing that those individuals whose cases had been involuntarily discontinued had not received an effective remedy.

Just over a year after the submission of Apirana Mahuika et al, the communication of Carla Drake et al v New Zealand[25] was lodged before the Committee on 20 February 1994. The authors, on their own behalf and on behalf of all ‘New Zealand citizens and residents incarcerated during the Second World War by the Japanese, or widows and children thereof’ based their claims on their mistreatment in Japanese camps during the war, coupled with the 1952 Peace Treaty between Japan and the Allied Forces, which extinguished further complaints alongside payment of nominal compensation to veterans of the conflict. They alleged that this agreement breached their rights under article 2 of the Covenant to an effective remedy, and that the New Zealand Government had discriminated against them in a variety of manners, in violation of article 26, through having ‘failed to provide appropriate financial assistance and compensation for the residual disabilities and incapacities suffered’.[26]

In its decision declaring the communication inadmissible, the Committee rejected the claims based both upon the 1952 treaty and acts in reliance thereon, and upon an ex gratia payment made in 1988, on ratione temporis grounds, as they arose prior to the entry into force of the Optional Protocol for New Zealand. The claim of an alleged failure of New Zealand to protect the authors’ right to obtain compensation from Japan was dismissed ratione materiae as outside New Zealand’s Covenant obligations. On the surviving discrimination claims, a specific argument against the Pension Act failed on the grounds that it provided entitlements for disability or death, rather than general compensation and was thus incompatible with the provisions of the Covenant, while the remaining arguments were considered to have been insufficiently substantiated at the personal level by the authors.

Roughly a month after submission of Carla Drake et al, Herbert Potter lodged his communication to the Committee on 6 April 1995.[27] Mr. Potter, who had been tried and convicted for a variety of sexual offences close to the conclusion of an earlier sentence on drug offences, made a variety of claims concerning unfair trial/abuse of process, as well as ill-treatment in detention and discrimination at the hands of the Parole Board. The Committee, declaring the case inadmissible on 28 July 1997, found a number of the unfair trial claims unsubstantiated upon examination of the trial transcript. The claims of prejudicial pre-trial publicity, influencing of witnesses, allegations of ill-treatment and discrimination by the Parole Board were inadmissible for failure to exhaust domestic remedies, as they either had not been raised at trial or otherwise had not been pursued.

The second Optional Protocol case to raise major public policy issues was the communication of Simalae Toala et al v New Zealand,[28] filed on 19 October 1995. Members of two families unlawfully present in New Zealand and thus liable to removal contended that removal would violate their free movement rights under article 12 and family protection rights under article 17 of the Covenant as they contended to be, in fact, New Zealand citizens. This argument was based on the decision of the Privy Council in Lesa v Attorney-General of New Zealand[29] holding that a number of Western Samoans in the order of 100,000 individuals were, as a matter of statutory construction, New Zealanders. This decision was promptly reversed by the Citizenship (Western Samoa) Act 1982. The communication alleged that the Act was invalid as being tainted by racial discrimination in breach of article 26 and contrary to jus cogens. A subsidiary claim of breach of article 14 was made concerning the absence of legal aid for preparation of communications.

In its decision on admissibility, the Committee rejected the notion that the entitlement to legal aid in article 14 of the Covenant extended beyond domestic procedures and dismissed that claim, while finding other claims admissible. On a subsequent review of admissibility,[30] the Committee declared the claims of family life (articles 17 and 23) and personality before the law (article 16) inadmissible for failure to exhaust domestic remedies. In its Views on the merits of the case, dated 2 November 2000, the Committee concluded that in the absence of ties of the authors to New Zealand in 1982 and in the light of their possession of Samoan citizenship, the deprivation of New Zealand citizenship had not been shown to be arbitrary or discriminatory and thus revealed no violation of the Covenant. A separate opinion by four members of the Committee (Mr. Abdelfattah Amor, Tunisia, Mr. Prafullachandra Natwarlal Bhagwati, India, Ms. Pilar Gaitan de Pombo, Colombia, and Mr. Hipólito Solari Yrigoyen, Argentina) would have found violations of articles 17 and 23).

Six months after the submission of Simalae Toala et al, A’s communication[31] was lodged on 19 April 1996. A, who had a series of criminal convictions in part related to mental disability, was committed to psychiatric detention under the Mental Health Act. A pursued a variety of proceedings seeking release, which were unsuccessful. On one occasion, the District Court continued his detention despite not being satisfied that he was mentally disordered. Before the Committee, A initially contended his precise psychiatric status, arguing that he had been arbitrarily detained, notably in the light of the District Court’s finding. He further argued that the review proceedings were unfair and that he had not been able appropriately to participate in them, with documentation being withheld. In subsequent comments, A expanded these pleadings.

In its Views, the Committee declared the majority of the claims inadmissible on ratione temporis grounds, for failure to exhaust domestic remedies, for insufficient substantiation or incompatibility with the Covenant. On the merits of the author’s claims based on arbitrary detention, the Committee found that his committal had followed proper process and that his detention had been regularly reviewed. There was no violation of the Covenant. In a separate opinion, two members of the Committee (Mr. Fausto Pocar, Italy, and Mr. Martin Scheinin, Finland) would have found a violation of article 9, paragraph 4, on account of irregular judicial review.

Some seven months after A’s case was lodged, Mr. Moti Singh submitted a communication to the Committee on 1 December 1996[32]. In connection with a prosecution for theft, the author attacked a large number of alleged inadequacies in terms of provision of legal aid, in the selection of the trial venue, in the conduct of counsel and of the prosecution, in the conduct of the trial itself, including the hearing of witnesses and the judge’s summing-up and sentencing, and in the conduct of the appeal. He further contended that the work he performed by way of sentence and the conditions he performed it in gave rise to the Covenant issues, and that his mother’s Covenant rights were breached through anguish caused by his absence. The Committee, for its part, proceeded to declare each of the author’s claims inadmissible, on grounds of failure to exhaust domestic remedies or failure to sufficiently substantiation.

Six months after submissions of Moti Singh, the communication of Keshva Rajan et al[33] was filed before the Committee on 11 June 1997. Mr. and Mrs. Rajan obtained New Zealand permanent residence permits, which were later revoked, on a fraudulent basis. Separately, Mrs. Rajan and a young child, who also had Australian citizenship, fraudulently obtained New Zealand citizenship, which was also subsequently revoked. Protracted legal proceedings challenging these decisions failed. In the meantime, a second child was born in New Zealand, thus acquiring automatic citizenship. Subsequent applications for the exercise of Ministerial discretion as well as legal challenges to a refusal, on poor character grounds, to apply a favourable “transitional policy” to the authors were without success. The authors argued that their removal to Fiji, which would also entail the children’s departure with them, would violate family protection rights (article 23), children’s rights (article 24) and amount to arbitrary detention (article 9). It was further contended that the processes followed had been improper, that the older child was wrongfully deprived of citizenship, and that the relevant law was tainted by discrimination.

In turn, the Committee declared all the claims inadmissible. In the light of the State party’s moving with reasonable dispatch once the fraud in question became apparent, the careful consideration by the domestic authorities of the interests involved and the attributability to the authors of the delays that arose, the claims concerning protection of the family and children had not been substantiated. As a matter of fact, it was incorrect that either Mrs. Rajan or the older child had been rendered stateless by the revocation of New Zealand citizenship, and this claim was thus inadmissible ratione materiae. Neither had the claim of discrimination been made out, in the absence of comparator cases being provided to the Committee, and thus both this and the remaining claims were also insufficiently substantiated.

The next communication to be lodged was that of Margaret Buckle on 21 September 1998.[34] In this case, the author’s six children, aged between 1 and 8 years old, where removed from her guardianship due to her inability to adequately care for them. Appeals against these decisions were rejected.[35] The author argued that the withdrawal of guardianship breached her family rights under articles 17 and 23 of the Covenant, article 24 rights for the protection of children and her freedom of religion under article 18, as the children had allegedly been withdrawn from her on the basis of her religious beliefs. After declaring the latter claim inadmissible for insufficient substantiation, the Committee found no violation of the Covenant in its Views on the merits. In terms of article 17, it found the action taken neither unlawful nor arbitrary, while nothing indicated a failure to meet the duties of protection of the family under article 23. The claims under article 24, in the Committee’s view, raised no separate issues.[36]

After Margaret Buckle, it was on 20 November 1997 that the communication of David Tamihere was lodged.[37] The author was conducted of double murder of two tourists in a high-profile trial. After exhaustion of appeals, a witness retracted certain evidence, only later to retract the retraction. An independent inquiry found no wrongdoing on the part of the police. The author contended that violations of his rights to an effective remedy (article 2), right to a fair trial (article 14) and equality before the law (article 26) were violated, particularly through the conduct of the police investigation, the use of “secret” witnesses, the trial court’s handling of the case and the treatment of his application for legal aid on appeal. Declaring the case inadmissible, the Committee, paying its traditional deference to domestic findings of fact, found that all claims had been insufficiently substantiated.

On 28 August 1998, the case of Mohammed Sahid et al was submitted to the Committee.[38] The author, a Fijian national with his wife and children in that country, visited his daughter and her family in New Zealand. After expiry of his permit, he became unlawfully present in the country. After prolonged proceedings in objection to his removal were unsuccessful and after submission of the communication, the author was removed to Fiji. The author contended, at the time of submission of the communication, that he, his daughter and her child constituted a “family” for the purposes of article 23, and that this family would be insufficiently protected in the event of his removal in violation of the rights of all three individuals. The author also argued that his grandson, a New Zealand national by birth, would be discriminated against, in violation of article 24, in the event that the author was removed.

The Committee rejected the author’s standing to advance a claim on behalf of his adult daughter or her son in the absence of express assent or other special circumstances not present. On the merits of the author’s own claim under article 23, the Committee referred to its landmark decision in Hendrick Winata et al v Australia,[39] where the Committee had held, in circumstances where both parents of an Australian national were to be deported after prolonged family life in Australia, that special circumstances beyond mere enforcement of immigration law must on occasion be advanced in order to avoid a characterisation of arbitrariness. In the present case, the author’s removal left his daughter, her son and new husband together as a family in New Zealand, and, in the absence of special circumstances as described in Hendrick Winata et al, there was no violation of the Covenant.

The next communication to the Committee was filed by Kenneth Bulmer et al on 15 October 1998.[40] The two authors, criminal barristers, challenged allocation of criminal legal aid. The authors unsuccessfully sought disqualification of a particular judge as well as particularities of the relevant activities of other judges. The Court of Appeal viewed the applications as abusive and forwarded them to the district law society, which found the conduct improper. Further appeals were unsuccessful. Before the Committee, the authors argued that they had suffered violations of articles 2 (right to an effective remedy), 14 (right to a fair trial before an independent and impartial tribunal) and 26 (equality before the law and non-discrimination). The Committee, for its part, understood the “essence” of the claims as being an allegation of bias on the part of the New Zealand courts, being the reason the authors had not pursued further remedies before the New Zealand courts. It viewed the authors as having supplied no substantiation for such a claim, and the communication was thus inadmissible on this ground and for failure to exhaust domestic remedies.

On 30 November 1998, a case with far-reaching social policy implications was filed before the Committee. In Juliet Joslin et al,[4] the authors, two same-sex couples, attacked the limitation of marriage in the Marriage Act 1955, as interpreted by the Court of Appeal, to heterosexual couples. They contended that their inability to marry under New Zealand law violated their rights under articles 2 (right to an effective remedy), 16 (personality before the law), 17 (family life and privacy), 23 (right to protection of family and right of men and women to marry) and 26 (non-discrimination) of the Covenant. In its Views, the Committee observed that article 23, paragraph 2, of the Covenant expressly addressed the issue raised, in specifically referring to the right of “men and women” to marry, a formulation unique in the Covenant. The consistent and uniform understanding of this term in the Covenant had been to impose an obligation to recognise as marriage only heterosexual unions. In the light of this lex specialis, it would be contrary to the scheme of the Covenant to derive the opposite conclusion from any of the more general articles invoked. In a separate opinion concurring in the result, two members of the Committee (Mr. Martin Scheinin, Finland, and Mr. Rajsoomer Lallah, Mauritius) did not exclude the possibility that an issue under article 26 could arise. Undoubtedly, the practical implications of the contrary conclusion were in the Committee’s mind. Whatever the result for New Zealand, a construction of the Covenant finding of a violation in this case would also have meant effectively discerning a Covenant obligation on all States parties to the Covenant, worldwide, to provide for same-sex marriage, a proposition of such breadth and sensitivity that it would have inevitably caused no inconsiderable controversy for the Committee and quite possibly explicit challenges from numerous States parties.

The most recent case decided before the Committee, and to date the only instance in which the Committee found a violation of the Covenant by New Zealand, was lodged on 9 March 2002 on behalf of Tai Wairiki Rameka et al[4] In this case, three authors who had been sentenced for purposes of protection of the public to sentences of preventive detention, at the time essentially meaning a ten-year non-parole period (subject to a Parole Board discretion to consider the case prior to that point), with compulsory annual Parole Board reviews thereafter involving a discretion to direct release. The authors contended that such a scheme exposed them to violations of articles 9 (arbitrary detention and right to judicial review of detention), 7 and 10 (inhuman treatment of prisoners), and 14 (presumption of innocence). Further case-specific claims were also advanced, as well as subsidiary contentions concerning allegedly inadequate timing and content of rehabilitation courses in prison.

The Committee struck out one author’s complaint on the basis of failure to exhaust a domestic remedy in the form of a special appeal open to him at the time of submission of the communication. As to the remaining two, the Committee dismissed the argument that there were no victims yet present in the case, as they had not reached the point of their sentences where the preventive - as opposed to punitive - aspect of their detention would commence. The Committee, observing that it was ‘essentially inevitable that [the two authors] would be exposed, after sufficient passage of time, to the particular [preventive detention] regime, and they will be unable to challenge the imposition of sentence of preventive detention upon them at that time’, found it not inappropriate to consider the challenges at the current earlier point in time.[42] The claims concerning rehabilitation courses in prison by contrast were struck out as insufficiently substantiated on the facts.

On the merits of the general attack on the regime of preventive detention, the Committee considered that the scheme, as such, was consistent with the Covenant. The ‘permissibility, in principle, of preventive detention for protective purposes’ depended on regular independent and impartial review of compelling continuing grounds for detention, once the punitive portion of detention expired.[43] The authors had not shown that the compulsory annual reviews after the expiry of the ten year period by the Parole Board, as constituted by New Zealand law and subject to judicial review, failed to meet that standard. It followed that preventive detention thus reviewed neither amounted to arbitrary detention nor denied the right to review of detention by a court.

Applying these principles to the two admissible cases, the Committee found, with respect to one author, that the punitive component of his detention was to last seven and a half years. The result was that the prisoner would remain in detention for two and a half years, for preventive purposes, before compulsory annual review by the Parole Board would commence.[4] For this period, then, the author’s inability to have his detention for preventive purposes independently reviewed for ongoing justification was a breach of his right in article 9, paragraph 4, to review of detention by a court. For the other author, no such issue arose. On the remaining claims, no issue of presumption of innocence arose as no charges had been laid which would attract the presumption. Nor, as the detention was not arbitrary and did not impose suffering beyond the normal incidents, was there an issue under the remaining articles.

B. Breakdown of the Resolution of the New Zealand Case Law

Figure 2 breaks down current apportionment by status of the cases registered against New Zealand, showing a surprisingly even split amongst the three different outcomes of decision on the merits, decision of inadmissibility or discontinuance. The New Zealand experiences of these various categories of final resolution of a complaint are then individually discussed.

While the overall figures remain relatively low for New Zealand and there are thus difficulties at this relatively early stage to draw general conclusions, it remains instructive to compare these patterns with the results of both Australia and of the total for all (77) States parties against which complaints have been submitted. Chart 1 sets out the relevant data as at 3 August 2004. [4]

These figures provide some readier comparisons. Firstly, while the proportion of decisions decided against New Zealand on the merits is broadly in line with the global proportion of cases so decided, the proportion of violations resulting is very low compared with both Australia and the global figures, where twice as many merits decisions disclose violations as do not. Secondly, a very similar proportion of just under one third of all complaints are struck out as inadmissible, both in respect to Australia and New Zealand and in global terms. Thirdly, in New Zealand a much higher proportion of cases are resolved by discontinuance than in Australia or in global terms. These different categories will be discussed in turn with an emphasis on New Zealand.

1. Views on the Merits of a Communication

It must be observed at the outset that the New Zealand Government’s record under the Optional Protocol has been remarkably successful, with a violation of the Covenant being determined by the Committee in just one of 22 finally decided cases. This record is particularly impressive when one considers that in one of the seven cases decided on the merits, the existence of separate opinions in five of them shows that the complaints brought have often been cases raising difficult questions on which reasonable minds could differ. Similarly, numerous cases have raised novel questions of broad public policy open to attack on a number of different grounds under the Covenant and with little or nothing by way of comparable jurisprudence to guide complainants or the Committee.

It remains to be seen how this record will evolve in the coming years, now that a finding of a violation has recently occurred. Certainly the publicity attaching to this will have raised awareness amongst complainants and practitioners as to the possibilities before the Committee. An aspect of note in the Tai Wairiki Rameka et al case is that the communication was based on an area where the Committee had been critical of New Zealand in its concluding observations on successive periodic reports that it had supplied under article 40 of the Covenant.[45] These concluding observations provide an important guide to the Committee’s thinking and pointers to areas where a communication might be successfully advanced.[46]

Another contribution towards the relatively high numbers of violations found in other States as a proportion of the merits decisions can be identified in the State party’s response. Where a State party rejects the Committee’s findings, it is not uncommon that fresh communications are brought by others invoking the same or a similar issue, with the result that the Committee, following its previous jurisprudence, readily comes to the same conclusion of a further violation.[47] At this point, the question of the effect of the Committee’s Views should be addressed. While the traditional view may remain that the Committee’s Views are merely non-binding recommendations, with the implication that they may freely be rejected, the increasingly accepted modern position is more nuanced. As a current member of the Committee has put it, ‘Yet [the Views of the Committee] cannot be dismissed as being merely recommendatory in character, able to be contested or rejected out of hand by a respondent State party found to be in violation of its obligations under the Covenant. The Views of the Committee represent an authoritative determination of a body established under the Covenant itself as the authentic interpreter of that instrument. States parties are therefore bound by the principle of good faith to respect those Views.’[48] This view is much more consistent with the Committee’s upon finding a violation. First, the Committee states, in boilerplate language, that ‘In accordance with article 2, paragraph 3 (a), of the Covenant, the State Party is under an obligation to provide the author(s) with an effective remedy’, which may be followed by a specific remedy for the case question, and then states that ‘The State party is under an obligation to ensure that violations of the Covenant in similar situations do not occur in the future.’ The Views then conclude with the statement that:

Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognised the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to its Views.

It is also of note that the New Zealand courts have gone further than to regard the Committee’s Views as merely recommendatory, having the following to say on a question of interpretation of the New Zealand Bill of Rights Act 1990: [49]

… our domestic approach to interpretation should be the same as that adopted by the European Court of Human Rights and the Human Rights Committee. First, that is the appropriate construction, simply as a matter of statutory interpretation. Secondly, that interpretation gives effect to our international obligations. It is unnecessary to debate whether strictly it would be open to a New Zealand court to reach a different conclusion. At least a decision of the HRC must be of considerable persuasive authority and given the strength and logic of the international jurisprudence it would be untenable for New Zealand to be seen as striking out in the opposite direction.

In any case, whatever the precise legal situation, adverse Views of the Committee undoubtedly place a significant degree of political pressure on the State party in question emanating from the Committee’s status, such pressure being higher for States that pride themselves on their compliance with international human rights standards. Certainly the degree of compliance with the Committee’s Views, while far from perfect, is significantly more than would be expected of findings that were regarded as mere recommendations.[50]

Applying these principles to the case of Tai Wairiki Rameka et al, the New Zealand Government responded in timely fashion to the Committee’s request, detailing the positive steps taken to remedy the violation found in the individual case and to avoid future repetition.[51] Specifically, with respect to the case in question, the Minister of Justice proposed to designate a class of offenders under the Parole Act 2002 for early consideration by the Parole Board once the nominal punitive portion of a sentence expired, providing what would appear to be a full remedy in the particular case.[52] The Chairperson of the Parole Board was also provided with the Committee’s Views to assist the guidance of the Board’s proprio motu discretion to take up a case for early consideration. As to the future, the Sentencing Act 2002 had been amended since filing of the communication to reduce the non-parole period to five years from ten. Given that it would be hard to imagine circumstances where a sentence of preventive detention would be imposed where the finite sentence would not have been at least five years imprisonment, this change looks to exclude most if not all repetition of the same violation in future. As a result of these positive measures taken in response to the Committee’s Views, Tai Wairiki Rameka et al is unlikely to give rise to identical cases of violations, although it may well encourage other aspects of sentencing may be explored, and the precise legal effect of the Committee’s Views remains, for the time being, a largely academic debate.

At this point, it will be argued that New Zealand’s contemporary governance structure will tend to keep the proportion of cases that reach a merits decision at the relatively low level they have been, and more importantly, maintain the small proportion of merits decisions resulting in a violation. That said, there are some structural weaknesses which will continue to present difficult, perhaps the most difficult, issues to the Committee.

At the outset, the institutional mechanisms which are in place with a view to ensuring that new policy and legislation are consistent with New Zealand’s international human rights obligations are reasonably sound. At the policy level, consideration is given in the relevant Cabinet paper given to the consistency of proposed policy with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (both as amended). [53] In the words of Cabinet documentation: ‘An important aim of this requirement is to provide Ministers with relevant information on the implications of any inconsistency with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 arising in policy proposals before proposals reach the legislative or implementation stage.’[54] Once a policy proposal reaches the legislative or regulatory stage, there are a variety of additional mechanisms to reduce the potential for human rights’ conflicts. First, Cabinet papers accompanying draft bills or regulations detail any inconsistencies with the rights and freedoms contained in the Bill of Rights and Human Rights Acts, along with justifications for any infringement. Second, under section 7 of the Bill of Rights Act, the Attorney-General notifies Parliament - at the time of introduction, in the case of a Government bill - of any provision in a bill that appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights Act. Thirdly, the Regulations Review Committee has the power to draw Parliament’s attention to regulations that trespass unduly on personal rights and liberties, including those set out in the Bill of Rights Act and the Human Rights Act. While it should be noted that there are opportunities for consideration of international obligations in the legislative process,[55] there is a danger that the specific procedures for ensuring human rights compliance, within the express frame of the domestic Bill of Rights and Human Rights Acts, of the domestic legislation will be taken to exhaust the field in this area, with the result that there may be lacunae where certain policy and legislative proposals may not receive the full scrutiny that would be warranted in terms of the Covenant.

While there is real value in these mechanisms which significantly reduce the likelihood that policy and legislation that runs counter to the Bill of Rights and Human Rights Acts will enter into force, there are flaws from the perspective of ensuring consistency with the Covenant, and which accordingly expose an issue before the Committee. Three counter-points should be made. The first and most fundamental is that the Bill of Rights and Human Rights Acts, taken together, do not fully reflect the Covenant in New Zealand law either facially or incidentally. By way of example of facial difference, the prohibited grounds of discrimination in the New Zealand legislation do not cover the following grounds listed in article 26 of the Covenant: language, social origin, “other” opinion (beyond political opinion), property or “other status” (beyond the specific few statuses set forth in the Human Rights Act). There is no overarching right of equality before the law, as required by article 26. There is no reflection in the Bill of Rights Act of the rights in article 25 to take part in the conduct of public affairs or to have equal access to public service, nor of rights to protection of privacy, family and children as set out in articles 17, 23 and 24. By way of incidental difference that may produce a material difference in meaning, section 5 of the Bill of Rights Act describes the general limitation provision theoretically applicable to all rights, whereas in the Covenant some rights are expressed as absolute and non-derogable,[56] while for others the permissible limitations are expressly and variously delineated. While some of these rights may well be protected in other legislation, the difficulty is that the protective mechanisms described above to prevent an inconsistency arising no longer apply. As a result, certain incompatibilities with the Covenant, unless picked up by the much milder scrutiny arising for compatibility with international obligations, may thus become law or policy unnoticed.

The second counter-point is that analyses by the Executive concluding that there are no issues of human rights inconsistency, even against the narrower domestic standard, may prove, in fact, to be in error. Thirdly, a human rights inconsistency that has been determined is no bar to the passage of the law or policy, but simply raises the political price to be paid for it - a price which, for sensitive issues of public policy, the Government and/or Parliament of the day may be willing to pay. In each of these instances, then, policy or legislation which is, actually or potentially, inconsistent with the Covenant may be put into effect without this issue having been appropriately flagged in the policy and law-making process.[57]

Turning to legislation and policy in force, as well as Government acts and omissions based thereon, the institutional machinery available in New Zealand by way of remedy is also reasonably robust. The Human Rights Review Tribunal established by the Human Rights Act has the power to adjudicate issues of discrimination arising by Government or third parties, with subsequent appeals available to the superior courts. The courts for their part apply both the Bill of Rights Act when invoked directly or secondarily in their interpretation of other legislation, as required by section 4 of the Act whenever a Bill of Rights-consistent meaning “can be given”, and of the common law. While these remedies are effective to cure many issues under the Covenant, there remain two major weaknesses: the first is, as observed above, that the domestic human rights legislation does not completely square with the scope of the Covenant. Secondly, neither the Human Rights Review Tribunal nor the courts have the power to disapply primary legislation that on its true construction cannot be reconciled with the domestic human rights legislation.[58] The only existing remedy in such an instance is a declaration of inconsistency of the primary legislation. In both of these cases, therefore, there are issues that are not effectively dealt with before the remedies afforded by the domestic dispute resolution processes and thus may readily be advanced instead to an international body.

Turning to the direct application of international law in the New Zealand courts, it is striking how sharply the New Zealand courts have, over the last twenty years, developed quite routine consideration of international law, particularly international human rights law.[59] This positive openness to international law is of particular interest given the dualist system of international law constitutionally operating in New Zealand that requires a separate act of incorporation into the domestic system of an international treaty. Frequent reference has been made to the instruments themselves, as comprehensively surveyed by Mark Gobbi in this Yearbook,[60] as well as to the views of monitoring bodies established under the relevant bodies.[61] The judicial presumption of interpretation, mirroring that contained in the Bill of Rights Act, has been that, as far as the wording of legislation allows, it should be read consistently with New Zealand’s international obligations.[62] In numerous cases, then, the Courts have, with reference to (and at times creative application of) the Covenant and the Views of the Committee on individual complaints, resolved disputes before them.[63] It is striking that in the single case to date where the Committee has found a violation, a full Bench of the Court of Appeal had on an earlier occasion, in somewhat startling fashion, simply found it unnecessary to address any challenges based on the Covenant to the preventive detention regime, including precisely the claim of insufficient review prior to the 10 year point of sentence which was later successful before the Committee.[64] While of course a court which positively refers to a treaty such as the Covenant and the views of the Committee established under it in reaching its decision will not necessarily arrive at what the Committee will later find to be a Covenant-consistent interpretation, the likelihood is naturally much increased. At a minimum, such reference tends to be seen by the Committee as a good faith exercise in interpretation to which a degree of respect may be accorded, not least in the interests of comity with senior appellate courts. At least in the New Zealand constitutional context, however, the constant caveat will remain that, in the absence of judicial power to disapply primary legislation, properly construed, there will continue to be cases of Covenant violations that lie outside the power of the New Zealand courts to remedy.

A recent example of interest as running contrary to this general trend is the decision of the New Zealand Court of Appeal in Zaoui v Attorney General et al,[65] where McGrath J, writing the leading judgment, rejected a claim of arbitrary detention made by the appellant. His Honour declined to follow the approach of the Views of the Human Rights Committee, which held in Mansour Ahani v Canada[66] by a majority that the similar circumstances in that case did give rise to a finding of arbitrary attention, in violation of article 9.[67] His Honour instead cited with approval the dissenting views in the Mansour Ahani communication before finding: ‘It seems to me that [the observations in dissent] reflect a more realistic acknowledgment of the difficulties faced by states undertaking genuine and thorough review processes in this area.’[68] It may be anticipated that judgments taking such an approach are both more likely to be taken to the Human Rights Committee after final adverse appeal as a communication and then to be regarded more sceptically by the Committee.

To conclude this discussion, it is likely to be that, at least for as long as the New Zealand courts continue to draw real guidance from the international treaties and the views of their monitoring bodies in applying the twin maxims of interpretation both consistent with international treaties and the domestic human rights legislation reflecting much thereof, the majority of claims will continue effectively to be addressed at the national level. Those areas most likely to give rise to international challenge will tend to be in those areas where primary legislation by direct operation applies so as to limit or restrict rights (such as Apirana Mahuika et al and Juliet Joslin et al), while there may also be instances of challenge based on the incomplete coverage of domestic human rights legislation.

It may be expected that with the first successful claim against New Zealand, practitioners may be further encouraged to pursue complaints to the Human Rights Committee. Similarly, there is evidence of an increasing understanding, or at least awareness, of the Committee’s role in the references to the Committee in debates of public policy questions that could be expected to result in complaints to the Committee if a particular course is pursued.[69] The considerable media publicity generated by the Committee’s Views in Tai Wairiki Rameka et al will doubtless stimulate thinking by practitioners and putative victims alike as to the arguments which can be presented to the Committee.

A final comment should be made with respect to the time periods engaged in a merits finding. Chart 2 shows the length of time, in months, from the date of initial submission to the final merits decision in the New Zealand cases.

Across all these cases, the average time runs to some 48 months, amounting to a protracted proposition for would-be authors. It is clear that the combination of admissibility and merits into generally one phase from 1997 has brought the expected reduction in time required for merits decisions. Still, the average of the five cases from 1997 onwards still runs to 37 months, which while a considerable improvement, may still make authors think twice before approaching the Committee.

2. Decisions of Inadmissibility

From the statistics above, it may be observed that exactly half of the cases (7) that resulted in a reasoned decision (that is, other than being discontinued) were declared inadmissible in whole. In the other 7 cases that reached the merits, typically a portion of the claims made are declared inadmissible, leaving a reduced number of remaining claims for decision on the merits. A more accurate picture may thus be obtained by analysing the treatment of the different claims made across all the cases resulting in a reasoned decision. Across all of those cases, exactly 100 claims were made[70] and 71 of these claims were declared inadmissible for one reason or another. Figure 3 shows the bases on which the Committee declared these claims inadmissible.[71]

It is immediately obvious that over half the inadmissible claims were rejected under article 2 of the Optional Protocol, that is, being insufficiently substantiated. The second most ground of inadmissibility was failure to exhaust domestic remedies, as required by article 5, paragraph 2(b), of the Optional Protocol. Well behind these two major grounds, rejection under article 3 (being alternatively labelled inadmissibility ratione materiae, incompatibility with the provisions of the Covenant and falling outside the scope of the Covenant) was the third most likely ground. To conclude, a handful of claims were rejected on article 1 (inadmissibility ratione personae and insufficient standing) and on ratione temporis grounds. What these figures demonstrate above all is that the threshold for making out a claim, both on the facts and the law, that the Committee will accept for decision on the merits is a relatively high one. It is of interest that the highest number of New Zealand claims in fact declared admissible were issues of arbitrary detention under article 9 (7 claims), followed by issues of treatment of prisoners and protection of the family under articles 10 and 23 respectively (4 apiece). While the numbers remain low, this does suggest that in the New Zealand context the Committee has generally applied particular scrutiny in these fields.

It is useful to examine the time taken for disposal of the communications found inadmissible, which are shown in Chart 3.

The average time across all cases is 41 months. The case of Keshva Rajan et al was however uncharacteristically prolonged due to numerous supplementary submissions from the party, which tends to delay the Committee’s consideration. Excepting this case, the average time sinks to 36 months. Such a period is essentially identical to the average of merits decisions post-1997, which would be intuitively expected following the general merger at that time of admissibility and merits consideration.

3. Discontinued Communications

The significant proportion of cases against New Zealand that has been discontinued has been already noted. In terms of the Committee’s practice, there are two classic situations where a case is discontinued. The first is where a case is formally withdrawn by the alleged victim, in person or through counsel. Of course, if there is any indication that an author’s formal withdrawal has been procured by coercion on the part of the State party or other third parties, the Committee regards such a situation with great seriousness and may take other measures such as requesting more detailed reasons for the withdrawal. The general principle, however, is one of respect for party autonomy, and as a result the Committee usually accedes to a formal withdrawal. The fortunately much more common reason for such withdrawal is that a communication has been rendered moot or deprived of object, often through positive action on the part of the State party. The high number of discontinued cases against New Zealand does suggest that the New Zealand Government does not necessarily pursue an aggressive litigation posture from the point that a communication has been filed, but that it more pragmatically examines each case on its merits with a more open mind to taking reasonable steps that may resolve the case ahead of a decision by the Committee. It may well be that, as with the friendly settlement procedures provided for under regional mechanisms such as the European Court of Human Rights, that where the respondent Government judges the chances of a complaint’s success to be significant, it may take specific steps to resolve the case in question and thus remove the case from the Committee’s list.

The second typical case is where the Committee, through its Secretariat, has lost contact with the alleged victim in person or through counsel despite repeated attempts. While there are objections that this may encourage certain governments to seek to frustrate a particular individual’s communication with the Committee if the result is discontinuance of a case, it has nonetheless been the Committee’s long-standing general practice. Needless to say, if there are any indications before the Committee that there has been interference on the part of the State party with communications between an author and the Committee, the Committee also regards this very seriously and may seek to pursue other measures with a view to resuming contact. In the case of New Zealand, discontinuance for loss of contact would not be expected commonly to arise, save for the regrettable cases where counsel for an author has lost contact with his or her client and either advises the Committee accordingly or simply fails to respond to the Secretariat’s communications.

Regrettably, the Committee’s formal record of discontinued cases has been uneven over the years. Three of the eight cases discontinued are reported in the Committee’s Annual Reports. Two of those, Williams v New Zealand (Case No 773/1997) and Schier v New Zealand (Case No 892/1999) are simply listed as having been discontinued over the period of the report, while the third and most recent case, Singh v New Zealand (Case No 924/2000), was described as having been discontinued over the period of the report for the express reason of lost contact with the author (or his counsel).[72] For these cases, in addition to the five remaining for which there is no formal record of discontinuance in the Committee’s Annual Reports, the standard case details of these decisions are, pursuant to Rule 108, paragraph 5, of the Committee’s Rules of Procedure in the public domain.[73] The comprehensive group of cases may thus be collected as follows: Rau Williams v New Zealand,[74] Guenther Schier et al v New Zealand,[75] Geeta Manikam v New Zealand,[76] Gurdip Singh v New Zealand,[77] Saumalu Anaua v New Zealand,[78] Seasomua Fonoilaepa v New Zealand,[79] Bijay Hullia v New Zealand[80] and Paramjit Singh v New Zealand.[81]

C. Procedural Particularities in the New Zealand Case Law

The cases against New Zealand also serve to highlight a number of procedural particularities under the Optional Protocol complaints process. Comprising the only New Zealand experience of international human rights adjudication and given the Committee’s predominance within the United Nations complaints context, these examples are instructive for how the practice evolves to deal with particular difficulties and challenges arising. The cases show the Committee’s approach to the at times competing considerations of, on the one hand, seeking to give effect to the Optional Protocol’s purpose of providing the layperson with a flexible complaints process that is not unduly technical, with, on the other hand, prompt and efficient resolution of cases crowding an ever-increasing docket.

1. Abbreviated Decisions of Inadmissibility

The Committee’s Special Rapporteur on New Communications has the ultimate authority to decide on registration of a communication. Initial complaints usually disclose a variety of admissibility problems, in which case the Secretariat generally responds with a letter outlining the difficulties and requesting additional information on aspects which might be remedied. In the light of articles 1 and 2 of the Optional Protocol however, which provide without qualification that “individuals” have the right to submit a communication, the traditional view has been that there is no discretion to deny any particular author the right to lodge a communication, where an author positively insists on registration. In such a case, rather than burden the State party with compiling a reply to an essentially futile communication, the Special Rapporteur on New Communication directly presents to the Committee a draft decision finding the communication inadmissible. Such a course spares the State party from compilation of a response, the Secretariat from processing and rehearsing the response in the draft decision, as well as the Committee’s case list. Once such an inadmissibility decision is taken by the Committee, it is then transmitted to the author and, for information, to the State party, which will be the first formal advice the State party has of a communication. The two, and thus far only, New Zealand examples of such a case are David Tamihere[82] and Kenneth Bulmer et al[83] Such cases may be recognised only by the absence of any reference to State party argumentation on the face of the decision, otherwise the usual format is followed. The common example of such cases is where a communication is manifestly ill-founded, or, less commonly, that a pure question of law on the construction of a provision is raised.[84] It may be that, upon discussion, there is not unanimity in the Committee to declare a case inadmissible in this fashion, whereupon the case is transmitted to the State party for comment in the usual fashion. Regrettably, there is nothing on the face of the record, either as transmitted to the State party for comment, or on the final decision, that indicates that such a procedural course has been followed.

2. Review of Admissibility Decision

In early years, where the Committee followed a two-step decision-making process, whereby first a decision on the admissibility of a case was taken following submissions of the parties and then, in the event of a claim being found admissible in whole or in part, a separate decision was taken on the merits following a fresh round of submissions. As of August 1997, the Committee changed its Rules to require, as a rule, States parties to supply submissions both on the admissibility and the merits within the standard six-month timeframe, following which a decision on admissibility and, if necessary, the merits of a case would be simultaneously taken.[85]

Today, such so-called “separation” of admissibility and merits only occurs in three circumstances: (i) a case pre-dating the Rule change, where the standard course of soliciting State party submissions only on the admissibility of a case was followed, (ii) the very unusual case where the Special Rapporteur on New Communications registers a case and directs that only admissibility submissions be sought from the State party; or (iii) the case where a State party, having received the modern request for joint submissions on admissibility and merits, files separate submissions on admissibility within a period of two months and is then granted, upon request, a separation of admissibility and merits at the discretion of the Special Rapporteur on New Communications.[86]

In any of these types of cases, once the Committee has declared a communication admissible in whole or in part, the State party has the opportunity in its second round of submissions on the merits to apply under Rule 93, paragraph 4, of the Committee’s Rules of Procedure for a review of the decision on admissibility.[87] Such an application typically may be either on the basis of new facts that have come to light or on an argued misapprehension by the Committee of the factual or legal situation at the time of its admissibility decision. Thus, in Simalae Toala et al which fell within the first category above as a case registered prior to the Rule change, the State party supplied new information on available domestic remedies following the admissibility decision, in the light of which the Committee struck out the claim of the authors under articles 17 and 23, as well as the claim of two authors under article 16, that it had previously found admissible.[88]

3. Waiver by State Party of Inadmissibility Argument

In the past there was considerable debate in the Committee as to whether admissibility criteria, especially those affirmatively set out in article 5, paragraph 2, of the Optional Protocol[89] as being for the Committee to consider were absolute, that is to say had to be considered and applied, if necessary proprio motu, or rather whether they existed for the protection of a State party who in its discretion could accordingly waive them. The modern position has become that all admissibility requirements are for the protection of a State party and thus waiveable by the State party at its discretion.

On two occasions, the New Zealand Government was taken as specifically waiving an admissibility argument open to it. In Juliet Joslin et al, the Government argued that it would have been open for the Privy Council (which had not been petitioned) to interpret the Marriage Act, contrary to the Court of Appeal, in the manner sought by the authors. The Government then declared that it was making ‘no submission as to the admissibility of the communication under article 5(2)(b) of the Optional Protocol’. The Committee understood this “declaration” as a waiver, holding that in the light thereof and in the absence of other objections to admissibility, the case was admissible.[90] No reasons are advanced as to why this argument was waived.

In Keshva Rajan et al, by contrast, the State party ‘explicitly foregoes any challenge to the admissibility of the communication based on the need to exhaust domestic remedies’. This is described as ‘in the interests of finality’ given the decade-long domestic litigation in the case. The position in Keshva Rajan et al is readily understandable – as failure to exhaust domestic remedies is a “recoverable” ground of inadmissibility, that is to say a communication can be re-presented once the admissibility obstacle fell away, the State party would likely be presented with the same, as well as additional refined, claims. The proceedings before the Committee alone having already proceeded almost six years by the time of the State party’s, finality could thus be achieved with the Committee’s decision declaring the communication inadmissible on substantive grounds.

Such considerations are not as apparent in Juliet Joslin et al. The peculiarity of presenting the argument on failure to domestic remedies and then declaring no submission to be made aside, there would have been a single final appeal in the case, on a question of statutory interpretation of particular importance. Arguably, the State party, the authors and the Committee would all have been well served by having before them a decision by the Privy Council as the (then) court of final appeal on the question presented. The reasons accordingly appear to lie within the political realm, so that the State party may have wished to have a substantive ruling by the Committee on the sensitive issue raised, have not wished to be seen to delay prompt access to an international tribunal by the authors, or have preferred the Court of Appeal’s construction of the statute to be the last word as a matter of domestic law.

4. Requests for Interim Measures of Protection

Under Rule 92 (formerly Rule 86) of the Committee’s Rules of Procedure, the Committee has the power to indicate requests for interim measures of protection.[91] In recent years, the Committee’s jurisprudence in this area has substantially developed.[92] While the Committee had for some time been troubled by the failure on occasion of States parties to respect requests for interim measures,[93] it was in Dante Piandiong et al v The Philippines[94] that the Committee held as a matter of law, in the context of a death penalty case, that such a request was a binding obligation arising under the Optional Protocol. There is perhaps some uneven logic in ascribing a legal weight to decisions on interim measures which is greater than that attributed to final decisions on the merits, but nevertheless this holding was affirmed in a subsequent line of cases[95] and held to be of application not simply in the capital context in Sholam Weiss v Austria.[96] The Committee has based its reasoning not on the Rule of Procedure itself, but rather on a more general duty derived from an implication from the fact of a State party's acceptance of the Optional Protocol an obligation to respect the effective exercise of the individual right to communication conferred by it. In particular, the Optional Protocol directly thus requires a State party to refrain from taking steps - or, in exceptional cases, affirmatively to undertake certain steps - which would otherwise render the right of individual communication nugatory or futile as a practical matter.[97] Classically, the irreparable harm in question involves execution of the death penalty or return of an individual to face torture in a third country, prior to the Committee’s decision on a case. A wide range of cases has however arisen, including in indigenous cases where requests for interim measures have operated to prevent execution of measures threatening rights under article 27 of the Covenant. Perhaps aware of the sensitivity engendered by an expansive approach, the Committee has been careful to describe contrary behaviour on the part of States parties as “breach” of the obligations of the Optional Protocol, reserving the language of “violation” for the substantive obligations imposed by the Covenant. Consistent with this, the Committee has also taken care to distinguish its resolution of these issues both in the dispositive part of its reasoning as well as in the final findings of cases where they have arisen.[98]

In the New Zealand cases, there have been two instances in cases which led to final decisions where, on the face of the record, there was a live issue of such a request for interim measures. Firstly, in Simalae Toala et al, the authors sought interim measures to prevent their deportation and thus prevent irreparable harm. A footnote informs that the Committee declined to adopt such measures in the case, which, it may be recalled, largely concerned allegations of interference with freedom of movement and family life in the event of deportation. In Keshva Rajan et al, a month in advance of the case being heard by the Committee, the authors moved for a stay of deportation pending decision of the case, which was granted by the Special Rapporteur on New Communications on behalf of the Committee.[99] It would seem reasonably clear from the decision that the primary factor was the imminent timeframe of the Committee’s decision, and that thus on a balance of convenience test the authors’ argument for interim measures was compelling - any harm resulting to the State party in deferring a deportation for a matter of weeks prior to receiving an eventual decision in its favour was clearly outweighed by the harm which would be suffered by the authors’ being deported immediately prior to receiving an eventual decision in their favour. Nevertheless, while the balance of inconvenience is clear, the case is striking for the absence of any question of irreparable harm, both on the facts and in the light of the jurisprudence. The case did not involve any suggestion of torture or other ill-treatment in the event of a return, resting rather on considerations of family life. Any violation found by the Committee arising from a return of the family to a third State could readily be remedied by New Zealand permitting the return of the family and possibly an award of compensation and costs incurred.[100] Current New Zealand immigration law would provide for a number of methods by such a remedy could be given effect.

The previous jurisprudence of the Committee in plenary on this question is also quite clear: in Charles Stewart v Canada,[101] the Special Rapporteur on New Communications granted a request for interim measures to prevent deportation in the then novel case of an individual claiming consequent violations of rights to family life and freedom of movement. The full Committee, after hearing the parties’ submissions on this issue, explained in the fullest discussion of the issue available that ‘[t]he essential criterion is indeed the irreversibility of the consequences, in the sense of the inability of the author to secure his rights, should there later be a finding of a violation of the Covenant on the merits’ and that thus, in deportation cases, the issue was whether an individual would be able to return to the returning State in the event of a favourable decision.[102] This approach was confirmed shortly thereafter in Giosue Canepa v Canada,[103] where the plenary Committee observed that:[104]

the author's deportation to Italy could not be considered to constitute ‘irreparable damage’ in respect of the rights the author considers violated by his deportation. Should the Committee find in favour of the author and conclude that his deportation was contrary to the Covenant, the State party would be under an obligation to allow the author to re-enter Canada. Accordingly, the consequences of the deportation, however disagreeable they might be for the author in his situation, did not cause ‘irreparable damage’ to the author in the enjoyment of his rights, which would have justified the granting of interim protection under rule [92] of the Committee's rules of procedure.

Since then and prior to Keshva Rajan et al, no requests for interim measures were granted in such circumstances, with an appeal for the Committee to indicate interim measures on a similar basis inter alia being rejected in Simalae Toala et al. By way of contrast, other cases in the immigration context where the Committee has indicated interim measures have all involved factual situations where compelling arguments of real bodily harm had been presented.[105] It thus remains to be seen whether Keshva Rajan et al remains an exception to the Committee’s general practice or presages a move towards a much more flexible test based largely on a balance of convenience rationale. In the writer’s view, the Committee’s standard approach is to be preferred as more consistent with the letter and purpose of Rule 92 and the Committee’s jurisprudence and prior practice, at the same time as avoiding unnecessary international intrusion into the operation of domestic processes on an often limited factual basis.

In two other cases that were discontinued rather than reaching a final decision, the decision on request for interim measures is in the public domain pursuant to Rule 102, paragraph 5, of the Committee’s Rules of Procedure. In Rau Williams v New Zealand,[106] the factual background to the case is extensively set out in the well-known judgment of the New Zealand Court of Appeal in Shortland v Northland Health Ltd,[107] where the Court refrained from disturbing a clinical decision challenged by Mr. Williams’ family that declined provision of dialysis treatment necessary for him to survive. The communication explicitly sought interim measures from the Committee to protect the author’s life, specifically through supply of kidney dialysis, pending resolution of the substantive Covenant claims. The request was rejected by the Special Rapporteur on New Communications, on behalf of the Committee. It may be that the Special Rapporteur was reluctant to direct positive and positively resource-intensive action in as sensitive a field as medical decision-making, and that he was conscious of the length of time that such interim measures would have had to remain in place pending the Committee’s resolution of the case. He may well also have been influenced by the fact that the Court of Appeal had considered the issue against the background of article 6 of the Covenant on the right to life, the Committee’s interpretation of that article in its General Comment[108] thereon and of the corresponding provision of the New Zealand Bill of Rights Act 1990. Nevertheless, at the level of principle as well as in the light of the Committee’s relatively liberal practice when issues under articles 6 (right to life) and 7 (freedom from torture) are at stake, it is difficult to avoid the conclusion that in view of the irreparable harm in the form of death that was at issue, the Committee ought to have been more prepared to take the admittedly difficult step of making a request for interim measures in these circumstances and preserve the subject matter of the case for what would no doubt have been expedited consideration.

If a request for interim measures is not explicitly pleaded, it remains within the discretion of the Secretariat and the Special Rapporteur on New Communications to regard an implicit request as having been made in the context of the arguments pleaded and the subject matter of the case. This arose in Paramjit Singh et al v New Zealand,[109] where the author, unlawfully present in New Zealand, implicitly requested a stay on his removal which would allegedly interfere with his family life in that country. The rejection of this request by the Special Rapporteur on New Communications accords with the traditional view of (absence of) irreparable harm in such a case.

5. Dismissal of Claims in Limine and Reformulation of Claims by Committee

Two final procedural particularities may be mentioned. Firstly, the Committee’s consistent practice is to resolve the various claims advanced - either as pleaded or as reformulated by the Committee - at the dispositive stage of its decision. In rare cases, however, a patently deficient claim may be struck out in limine at the point of pleading. In Herbert Potter, one claim as rehearsed in the complaint section of the decision was an allegation of unfair trial based on an alleged comment made by the trial judge. In the next sentence, the Committee observes that ‘[t]here is nothing in the file to support this allegation which, therefore, remains unsubstantiated’.[110] The complaint being struck out in limine, there is no further reference to the claim later in the decision. This may be contrasted to the traditional approach, shown in Ngoc Si Truong v Canada,[111] where a patently deficient claim was still reserved for resolution in concluding dispositive part of the decision.

The second point is the Committee’s practice, on occasion, to reformulate or advance claims that were not argued by the author in the original application.[112] Such a practice occurs on the basis that the Optional Protocol procedure was designed for laypeople, who cannot necessarily be expected to be aware of the intricacies of the Committee’s jurisprudence, to utilise; and that the overall purpose of the procedure is to ensure broad protection of individual rights in the particular case. As it would be unfair for the Committee to develop pleadings in circumstances where neither party had advanced either the argument or the article in question, and thus enabling the other party to comment thereon, the Committee occasionally raises and reserves an important issue for decision in a future case if there is not an interlocutory stage such as an admissibility decision where the Committee can proprio motu advance a new claim.[113]

In addition, the Committee tends to be reluctant to develop the pleadings in a case where the author is represented by competent counsel, but tends to be more generous in the case of unrepresented complainants or those advancing claims on behalf of, for example, family members. Interestingly, the two New Zealand instances of the practice are an exception to this rule. The case of Simalae Toala et al is an unusual example where a claim was added despite representation by counsel. In its admissibility decision, the Committee found the case to raise issues under article 23 in respect of all alleged victims and under article 16 in respect of two, although no such arguments had been initially raised. Similarly, in Keshva Rajan et al, the Committee observed at the complaint section of the decision, after listing counsel’s specific allegations, that ‘[t]he claims outlined below also appear to raise issues under articles 13, 17, 24, paragraph 1, and 26’, although all claims were subsequently declared inadmissible.


On 9 January 1990, the declaration made by New Zealand under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment entered into force. Surprisingly, no cases have to date been registered against New Zealand in the Committee against Torture (CAT). By way of explanation of the dearth of New Zealand cases, it might be argued that as the prohibition against torture and cruel, inhuman or degrading treatment or punishment is explicitly contained in article 7 of the International Covenant on Civil and Political Rights (as well as in article 10, with respect to detainees), authors are more likely to lodge claims involving such matters under the Optional Protocol as a wide variety of other Covenant claims can be added that would not be possible under the Convention. A survey of the New Zealand cases does not bear out such an approach, however. In only three of the decided cases was an explicit article 7 claim so much as raised,[114] and in only one (Te Wairi Rameka et al) was the issue even found admissible by the Committee.

Nor does the possible argument of CAT redundancy explain the reality of the Australian experience. Since the Australian declaration under article 22 entered into force on 29 January 1993, 19 complaints have been registered against it.[115] In any event, the overwhelming majority of cases presented to CAT, both against Australia and overall, invokes the prohibition on non-refoulement contained in article 3 of the Convention. Classically the authors in question are asylum seekers whose application for refugee status under the Convention on the Status of Refugees and its Protocol - often not founded before the domestic instances on particular fears of torture - has been denied at final instance. Traditionally, CAT takes a more liberal approach to the question of evaluation of facts and evidence than does the HRC. As it explains in its General Comment No. 1 of 21 November 1997 entitled “Implementation of article 3 of the Convention in the context of article 22”,[116] the Committee reserves the right to form its own independent view on the risk of torture an author faces in the event of return, a question of fact - or at least mixed fact and law - that the Committee is arguably ill-judged to determine adversely to a domestic tribunal which, applying the proper legal standard, has heard witnesses and examined comprehensive evidence. Similarly, CAT has historically tended to be more willing to grant applications for interim measures, in particular stays on execution of expulsion orders, in the light of the weight of the fundamental interests raised by a claim alleging expulsion to face torture. There is no apparent reason why these considerations making CAT a reasonably attractive forum for such claims would not also apply to cases stemming from New Zealand, leaving the impression that it is simply a lack of awareness, particularly on the part of practitioners of refugee law, that has resulted in the absence of cases to date.


On 22 October 2000, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) entered into force for New Zealand, opening the way to individual communications to the Committee on the Elimination of Discrimination against Women. The combination of the requirement to exhaust domestic remedies twinned with the expected application by the Committee of a ratione temporis rule, excluding complaints arising prior to the entry into force of the Optional Protocol for the relevant State party, largely explains the paucity of complaints thus far.[1]

At one level, issues arising under CEDAW could have been brought before the Human Rights Committee as, at a minimum, alleged violations of articles 3 and/or 26 of the Covenant. Such communications could have been strengthened with CEDAW provisions being invoked as an appropriate and applicable lex specialis.[1] However none of the complaints to the Human Rights Committee against New Zealand have to date raised such issues. It remains to be seen whether the new ability to directly invoke CEDAW provisions, which are potentially of very great breadth, will lead to more resort to this Committee. Of particular interest is that CEDAW does cover numerous issues traditionally associated with the field of economic, social and cultural rights that have often been considered ill-suited to an individual complaints process.[118] Needless to say against this background, the jurisprudence of the Committee, composed largely as it is of non-jurists, will be closely scrutinised, particularly with respect to its application of the “traditional” admissibility criteria. In the one complaint that has been finally decided to date, the Committee declared the case inadmissible on a number of overlapping grounds.[119] The decision somewhat surprisingly does not refer to the jurisprudence of any other treaty bodies, while the dissenting opinion (signed by two Committee members) is also rare in other treaty bodies in respect of admissibility decisions. These points notwithstanding, the decision does generally suggest the Committee is minded to proceed cautiously in the initial stages of its case law, though this will only be able to be determined with any certainty once a number of the cases on the Committee have been decided.


Interestingly, New Zealand has not made the declaration under article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) providing for complaints to the supervisory Committee (the Committee on the Elimination of Racial Discrimination (CERD). This is the only human rights treaty to which New Zealand is a party where New Zealand has not also accepted the complaint competence. It might have been argued in earlier years that the dearth of the Committee’s jurisprudence made it difficult to assess how the Committee would rule, both on claims generally and on those against New Zealand. It may also have been suggested that the possibility of bringing claims of racial discrimination to an international monitoring body is already provided for under the Optional Protocol and the general terms of articles 3 and 26 of the Covenant to the Covenant. It may also have been thought that Maori issues in New Zealand would produce a flood of claims to CERD.

In the writer’s view, the failure to make the declaration under article 14 has become increasingly difficult to maintain. While it has always been arguable - in the author’s view compellingly - that ICERD (as with CEDAW) represents lex specialis provisions to the general prohibitions on racial discrimination and is thus effectively “incorporated” within the Covenant’s umbrella provisions, the ratification of the Optional Protocol to CEDAW leaves little discernible reason of principle remaining as to why complainants wishing to invoke ICERD obligations should not also have access to the respective specialist monitoring body and the ability to invoke the specific, detailed terms of ICERD in the same way as CEDAW complainants now can. There is also sufficient jurisprudence now on the record, with 28 final decisions on complaints having been decided for informed judgments to be made on the jurisprudential orientation of the Committee.[120] The argument that members of CERD are not, as is the case with the Human Rights Committee, largely jurists from whom a higher standard of legal-decision making can be expected[121] would have applied equally to ratification of the Optional Protocol to CEDAW, where ratification has proceeded. In any case, Australia’s experience with a comparable bi-cultural situation has not shown a flood of complaints to CERD: five cases since its declaration became effective on 28 January 1993 and not one finding of a violation of the Convention.[122]

It may be that one way or another complainants find their way to the Committee. Since 1993, the Committee has moved to develop procedures for quickly and flexibly responding to issues brought to its attention outside the framework of State reporting procedures or individual complaints under article 14 of ICERD.[123] Under these so-called “early warning/urgent action” procedures, the Committee, through a working group of five Committee members,[124] may make a public expression of concern and recommendations to the State party expressed in a formal “Decision” upon receipt of information of sufficient concern being made available to it.[125] The serious threshold at which these procedures theoretically engage may be seen from their characterisation by the United Nations High Commissioner for Human Rights as ‘aimed at preventing or, at least limiting the scale or number of serious violations of the Convention’.[126] In practice, this process can occur exceedingly quickly, with the State party not necessarily having had any opportunity to present its position before international criticism is on the public record. The Committee’s public record discloses that, in August 2004, New Zealand was considered under this procedure in the light of submissions apparently made by Maori groups in respect of the potential impact on Maori of draft legislation to regulate foreshore title.[127] This consideration resulted in a letter from the Committee to the New Zealand Government, seeking further information within a short timeframe in order that the matter could be taken up in further detail at the Committee’s next session.[128] A State party may well consider that it is preferable to allow petitioners seeking to complain against it a formal deliberative mechanism, improved with a measure of due process and reasoned decision-making, such as is afforded by the article 14 mechanism, rather than to leave petitioners no recourse than the quasi-complaint mechanism represented by the much more political early warning/urgent action procedures of CERD.

Finally, it should be mentioned that as at 1 August 2004, 32 countries had become party to all four mechanisms currently in force, including countries with important indigenous or ethnic minority populations such as Ecuador, Finland, Mexico, Norway, Peru, Russian Federation and Sweden. New Zealand’s abstention from this lengthening list is beginning to become somewhat anachronous, particularly in light of its committed record under the other instruments.


Fifteen years of opportunity for complaints to be lodged against New Zealand under a variety of international human rights treaties have not produced the flood of complaints originally feared, nor ready findings that New Zealand has been in breach of its international obligations. On the contrary, only one treaty has given rise to any complaints at all over that period, and in that case in only one instance of the considerable number of cases before the Human Rights Committee has there been a conclusion that New Zealand has acted inconsistently with its obligations under the Covenant. In the single finding against it, the prompt action by the New Zealand Government to resolve the issue in question suggests that the Committee had properly apprehended the facts and the law of the situation before it and come to an appropriate conclusion.

In the light of this experience and the ratification of the Optional Protocol to CEDAW, it would be timely for New Zealand to afford persons within its jurisdiction the full complement of complaint options before the UN human rights treaty monitoring bodies and make the still outstanding declaration under article 14 of ICERD. Thereafter, the longer term challenge for New Zealand and other States parties alike will be to maintain and enhance the quality of carefully and appropriately reasoned decisions of treaty monitoring bodies affecting an ever-widening body of law, policy and practice through the complaints process, notably through the nomination and election of the most competent persons available. In the very practical fashion of engaging in a genuine process of substantive dialogue through the medium of individual complaints, the New Zealand Government can forcefully demonstrate its commitment both to the universality of human rights internationally and to their practical enjoyment at home.


Figure 1

Comparative National Experiences of Evolution of Registered Cases in Human Rights Committee: 1991-2004


Figure 2

Outcomes of complaints registered against New Zealand (1989 -2004)


(8 cases; 35%)


(1 case; 4%)

Views (7 cases of

which 1 violation; 30%)


(7cases; 30% )


Figure 3

Bases of rejection for complaints registered against New Zealand declared inadmissible (1989-2004)

OP5(2) (21)

OP1 (3)

OP2 (38)

OP3 (8)


Temporis (3)


Chart 1

Comparative outcomes of complaints before the Human Rights Committee (up to 2004)

New Zealand
All States Parties
1 (4%)
31 (20%)
270 (21%)
7 (1%)
7 (30%)
24 (31%)
370 (28%)
8 (35%)
7 (9%)
181 (14%)
7 (30%)
15 (19%)
472 (36%)

Chart 2

Passage of time between registration and decision on merits of complaints against New Zealand (up to 2004)

547/1993 Mahuika v New Zealand
675/1995 Toala v New Zealand
754/1997 A v New Zealand
858/1999 Buckle v New Zealand
893/1999 Sahid v New Zealand
902/1999 Joslin v New Zealand
1090/2002 Rameka v New Zealand

Chart 3

Passage of time between registration and declaration of admissibility of complaints against New Zealand (up to 2004)

475/1991 SB v New Zealand
601/1994 Drake v New Zealand
632/1995 Potter v New Zealand
791/1997 Singh v New Zealand
820/1998 Rajan v New Zealand
891/1999 Tamahere v New Zealand
952/2000 Bulmer v New Zealand

[*] The author is a legal officer with the Secretariat of the Human Rights Committee, United Nations Office of the High Commissioner for Human Rights, Geneva. The views expressed are personal and do not necessarily reflect those of the Secretariat, the Human Rights Committee or any members thereof. The law and practice analysed reflects the position on 1 October 2004.

[1] Hon. Phil Goff, New Zealand Minister of Foreign Affairs & Trade, ‘International Institutions and Governance: A New Zealand Perspective’[2004] NZYbkIntLaw 3; , (2004) 1 New Zealand Yearbook of International Law 1.

[2] It should be borne in mind that the cases registered under any mechanism are only a small portion of the correspondence received by the Petitions Unit, UN Office of the High Commissioner for Human Rights, Geneva (for the Human Rights Committee, the Committee against Torture and the Committee on the Elimination of Racial Discrimination) and by the UN Division for the Advancement of Women, New York (for the Committee on the Elimination of Discrimination against Women). The bulk of the correspondence seeking to invoke these procedures is deficient in some manner and does not reach the point of registration.

[3] For an introductory overview of the practicalities of the different mechanisms see ‘Complaint Procedures’, Office of the High Commissioner for Human Rights (2003). For a useful comparative assessment, see Andrew Byrnes, ‘An Effective Complaints Procedure in the Context of International Human Rights Law’ in Anne Bayefsky (ed), The United Nations Human Rights System in the 21st Century, (Kluwer Law, 2000), 139-162.

[4] Complaints to the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families under article 77 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) will be possible once 10 declarations necessary for entry into force of the complaint mechanism are achieved. As of 1 August 2004, no State party had made the requisite declaration.

[5] Report of the Human Rights Committee to the fifty-ninth session of the General Assembly, UN Doc. A/59/40 (Vol.1), [1].

[6] See ‘Statistical survey of individual complaints dealt with by the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights’, published by the Office of the High Commissioner for Human Rights <> (at 3 August 2004, henceforth “Human Rights Committee statistical survey”).

[7] Report of the Committee against Torture to the fifty-ninth session of the General Assembly, UN Doc. A/59/44, Annex III.

[8] See ‘Statistical survey of individual complaints dealt with by the Committee against Torture under the procedure governed by article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, published by the Office of the High Commissioner for Human Rights <

bodies/cat/stat3.htm> (at 30 April 2004, henceforth “Committee against Torture statistical survey”).

[9] Report of the Committee on the Elimination of Racial Discrimination to the fifty-ninth session of the General Assembly, UN Doc. A/59/18, [2].

[10] See ‘Statistical survey of individual complaints considered under the procedure governed by article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination’, published by the Office of the High Commissioner for Human Rights <> (at 31 March 2004, henceforth “Committee on the Elimination of Racial Discrimination statistical survey”).

10 Report of the Committee on the Elimination of Discrimination against Women to the fifty-ninth session of the General Assembly, UN Doc.A/59/38, Part 2, Annex III.

[11] Ibid, Part 2, Annex VII, [10].

[12] The most modern comprehensive survey of jurisprudence accumulated under the Optional Protocol is available in Sarah Joseph, Jenny Schultz and Melissa Castan (eds), The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed, Oxford University Press, 2004), (henceforth Joseph et al). The publication of a second edition of the now dated work traditionally regarded as definitive, Manfred Nowak UN Covenant on Civil and Political Rights :CCPR Commentary (Engel, 1993) is expected imminently.

[13] Tavita v Minister for Immigration [1994] 2 NZLR 257 (New Zealand Court of Appeal), 266, per Cooke P. This does not need imply that the Committee is necessarily a court or “judicial authority” in the general sense, a question left open by the Privy Council in Tangiora v Wellington District Legal Services Committee [1999] UKPC 42; [2000] 1 NZLR 17.

[14] See Human Rights Committee statistical survey.

[15] Case No 1090/2002, Views adopted on 6 November 2003, UN Doc. CCPR/C/79/D/1090/2002. For discussion of the case, see below n 41 et seq., infra.

[16] Nicholas Toonen v Australia Case No 488/1992, Views adopted on 31 March 1994, UN Doc. CCPR/C/50/D/488/1992.

[17] With respect to New Zealand, see below n 77 et seq., infra, and for a further example of this not uncommon occurrence, the cases of C v Australia, Case No 900/1999, Views adopted on 28 October 2002, UN Doc. CCPR/C/76/D/900/1999; Omar Baban et al v Australia, Case No 1014/2001, Views adopted on 6 August 2003, UN Doc. CCPR/C/78/D/1014/2001; and Ali Aqsar Bakhtiyari v Australia, Case No 1069/2002, Views adopted on 29 October 2003, UN. Doc. CCOR/C/79/D/1069/2002, all presented by the same counsel in reasonably prompt succession.

[18] Case No 475/1991, Decision adopted on 31 March 1994, UN Doc. CCPR/C/50/D/

475/1991. In fact the communication was also directed against the United Kingdom of Great Britain and Northern Ireland, a claim which was struck out under article 1 as directed against a non-State party to the Optional Protocol. See Decision, [1].

[19] See, for further examples of this approach, R Brandsma v The Netherlands Case No 977/2001, Decision adopted on 1 April 2004, UN Doc. CCPR/C/80/D/977/2001 (unsubstantiated general article 26 claim); Franz Deisl et al v Austria Case No 1060/2002, Views adopted on 27 July 2004, UN Doc. CCPR/C/81/D/1060/2002 (unsubstantiated general article 26 claim); and Godfried Pohl et al v Austria Case No 1160/2003, Views adopted on 9 July 2004, UN Doc. CCPR/C/81/D/1160/2003 (no violation on general article 26 claim), and on the one hand, with the stricter scrutiny in Cecilia Derksen et al v The Netherlands Case No 976/2001, Views adopted on 1 April 2004, UN Doc. CCPR/C/80/D/976/2001 (impermissible distinction between children born in and out of wedlock) and Michael Müller et al v Namibia Case No 919/2000, Views adopted on 26 March 2002, UN Doc. CCPR/C/74/D/919/2999 (impermissible distinction on basis of sex).

[20] UN Doc. CCPR/C/70/D/547/1993, Views adopted on 27 October 2000.

[21] Ivan Kitok v Sweden Case No 197/1985, Views adopted on 27 July 1988, UN Doc. CCPR/C/33/D/197/1985; Ilmari Länsman et al v Finland (Länsman No. 1) Case No 511/1992, Views adopted on 26 October 1994, UN Doc. CCPR/C/52/D/511/1992; Jouni Länsman et al v Finland (Länsman No. 2) Case No 671/1995, 28 August 1995, UN Doc. CCPR/C/58/D/671/1995; and Anni Äärela et al v Finland Case No 779/1997, Views adopted on 24 October 2001, UN Doc. CCPR/C/73/D/779/1997.

[22] Apirana Mahuika et al, at paragraph 9.8.

[23] Ibid, [9.9].

[24] Ibid, [9.10].

[25] Case No. 601/1994, Decision adopted on 3 April 1997, UN Doc. CCPR/C/59/601/1994.

[26] Ibid, [3.3].

[27] Potter v New Zealand Case No.632/1995, Decision adopted on 28 July 1997, UN Doc. CCPR/C/60/632/1995.

[28] Toala et al v New Zealand Case No. 675/1995, Views adopted on 2 November 2000, UN Doc. CCPR/C/70/D/675/1995.

[29] [1982] UKPC 30; [1983] 2 AC 20 (PC).

[30] See below n 86 et seq., infra.

[31] A [name withheld] v New Zealand Case No 754/1997, Views adopted on 15 July 1999, UN Doc. CCPR/C/66/D/574/1997.

[32] Moti Singh v New Zealand, Case No 791/1997, Decision adopted on 30 July 2001, UN Doc CCPR/C/72/D/791/1997.

[33] Keshva Rajan et al v New Zealand, Case No 820/1998, Decision adopted on 6 August 2003, UN Doc. CCPR/C/78/D/820/1998.

[34] Margaret Buckle v New Zealand Case No 858/1999, Views adopted on 25 October 2000, UN Doc. CCPR/C/70/D/858/1999. It is somewhat surprising that in view of the privacy interests involved the Committee did not withhold the full name of the author as it did in A v New Zealand, see above n 31.

[35] The Committee’s decision describes an extraordinary incident at the highest appellate level at [2.2] thus: ‘The author's request for leave to appeal to the Privy Council against the [Court of Appeal’s] decision of February 1998 was rejected. Notwithstanding this Mrs Buckle travelled to the United Kingdom and secured a hearing in May 1998, before the Judicial Committee of the Privy Council. The application was unsuccessful.’

[36] It is somewhat surprising that the Committee decided any of the claims on the merits, given the curtness of its treatment of the claims and its comparable contemporaneous and subsequent jurisprudence (see, for example, Georg Rogl et al v Germany Case No 808/1998, Decision adopted on 25 October 2000, UN Doc. CCPR/C/70/D/808/1998; F v Australia Case No 832/1998, Decision adopted on 25 July 2001, UN Doc. CCPR/C/72/D/832/1998; and Deborah Laing et al v Australia Case No 901/1999, Decision adopted on 24 August 2004, CCPR/C/81/D/901/1999). It may be that the Committee wished to provide the author, in her difficult personal circumstances, with the particular finality represented by a merits decision.

[37] David Tamihere v New Zealand Case No 891/1999, Decision adopted on 15 March 2000, UN Doc. CCPR/C/68/D/891/1999.

[38] Mohammed Sahid et al v New Zealand Case No 893/1999, Views adopted on 28 March 2003, UN Doc. CCPR/C/77/D/893/1999. The case is noted in brief in ‘International Decisions Involving New Zealand’ (2004) 1 NZYIL, 346.

[39] Case No 930/2000, Views adopted on 26 July 2001, UN Doc. CCPR/C/72/930/2000.

[40] Kenneth Bulmer et al v New Zealand Case No 952/2000, Decision adopted on 22 March 2001, UN Doc. 952/2000.

[4]2 Case No 902/1999, Views adopted on 17 July 2002, CCPR/C/75/902/1999. The case is noted in brief in ‘International Decisions Involving New Zealand’ (2004) 1 NZYIL, 346-347.

41 Tai Wairiki Rameka et al v New Zealand Case No 1090/2002, Views adopted on 6 November 2003, UN Doc. CCPR/C/79/D/1090/2002.

[42] Ibid, [6.2].

[43] Ibid, [7.4].

[4]6 The Committee rejected, at [7.2], the argument that the Parole Board’s powers to review a case of its own motion would be sufficient in such a case, the State party having advanced no case of this having occurred.

44 See Human Rights Committee statistical survey, above n 6. Percentages may not tally to 100% due to rounding.

[45] See Concluding Observations of the Human Rights Committee, dated 17 July 2002, on the fourth periodic report of New Zealand (UN Doc. CCPR/CO/75/NZL), at [10], and Concluding Observations of the Human Rights Committee, dated 5 April 1995, on the third periodic report of New Zealand (UN Doc. CCPR/C/79/Add.47), at [179] and [186].

[46] See, for an instructive example of such an instance, Joseph Kavanagh v Ireland Case No 819/1998, Views adopted on 4 April 2004, UN Doc. CCPR/C/71/D/819/1998, where the Committee found a violation of article 26 arising from the Special Criminal Court regime it had earlier criticised in its Concluding Observations, dated 21 July 2000, on Ireland’s second periodic report (UN Doc. A/55/40), at [436] and [437], and in its Concluding Observations, dated 28 July 1993, on Ireland’s initial report (UN Doc. CCPR/C/79/Add.21), at [11], [12] and [19]. It is interesting that the Committee’s findings of violations on individual communications do not necessarily reflect the same articles invoked by the Committee in its concluding observations on the same issue. A further example may be seen with respect to the Republic of Korea, where a variety of challenges under the Optional Protocol to the National Security Law founded upon criticisms in Concluding Observations: Keun Tae-Kim v Republic of Korea Case No 574/1994, Views adopted on 3 November 1998, UN Doc. CCPR/C/64/D/574/1994, at [3.3]; Tae Hoon Park v Republic of Korea Case No 628/1995, Views adopted on 20 October 1998, UN Doc. CCPR/C/64/D/628/1995, at [2.6]; Yong-Joo Kang v Republic of Korea Case No 878/1999, Views adopted on 15 July 2003, UN Doc. CCPR/C/78/D/878/1999, at [3.3]; and Hak-Chul Shin v Republic of Korea Case No 926/2000, Views adopted on 16 March 2004, UN Doc. CCPR/C/80/D/926/2000, at [3.2].

[47] A useful example of such a “sequential” finding of an ongoing violation based on the same reasoning may be seen in the line of Australian immigration detention cases, where the Committee has identified mandatory immigration detention as arbitrary detention in violation of article 9. See the violations found in A v Australia Case No 560/1993, Views adopted on 4 March 1997, UN Doc. CCPR/C/59/D/560/1993; C v Australia (Case No 900/1999), see above n 17; Omar Baban et al v Australia (Case No 1014/2001), see above n 17; and Ali Aqsar Bakhtiyari et al v Australia (Case No 1069/2002), see above n 17.

[48] Ivan Shearer, in Joseph et al, above n 13, at xiii. For a more detailed discussion, see the Report of the International Law Association’s Committee on International Human Rights Law and Practice on the impact of the United Nations human rights treaty bodies established under the principal human rights treaties <> (at 6 October 2004]), [15] et seq.

[49] Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (New Zealand Court of Appeal), 404 per Eichelbaum CJ (internal citations omitted).

[50] For annual compilations of the follow-up undertaken in response to the Committee’s findings of violations under the Optional Protocol, see chapter VII of the Committee’s Annual Report to the General Assembly (UN Doc. A/[session of the General Assembly]/40).

[51] See ‘Response to the views of the Human Rights Committee under the optional protocol to the International Convenant [sic] on Civil and Political Rights by Messrs Rameka, Harris and Tarawa - Communication No. 1090/2002’, published online by the Ministry of Justice at <> (at 1 October 2004).

[52] This class is defined, in part, by the requirement that ‘a Court has indicated that, had preventive detention not been imposed, the finite sentence that would have instead been imposed on the offender would have been less than 10 years imprisonment’, Response, 2. This appears to leave open the question of the position of prisoners who have not had such an indication, as the Committee’s reasoning on punitive as opposed to preventive detention is not limited to such cases. It may be that the punitive portion of a sentence in such an event would have to be demonstrated by reference to other sentencing case law.

[53] Henceforth “Bill of Rights Act” and “Human Rights Act”.

[54] Cabinet Office ‘Step by Step Guide: Cabinet and Cabinet Committee Processes’, Department of Prime Minister and Cabinet, 2001,

<> , [3.42].

[55] See for example the requirement for Ministers bidding for legislative priority for bills and for approval for the introduction of bills to detail to Cabinet the compliance of the proposed bill with international standards and obligations, Step by Step Guide, ibid, [7.4] and [7.13].

[56] See article 4, paragraph 2, of the Covenant, both taken alone and in conjunction with General Comment 29 on states of emergency (article 4), UN Doc. CCPR/C/21/Rev.1/Add.11, notably at [13] et seq.

[57] For a survey of six instances where (Government) bills were passed without change to a provision impugned by the Attorney-General on Bill of Rights grounds, see Paul Rishworth, Grant Huscroft, Scott Optican & Ricahrd Mahoney: The New Zealand Bill of Rights (Oxford University Press, 2003), 209-213. Rishworth et al argue that the Attorney-General’s view on Bill of Rights consistency is not necessarily correct.

[58] See section 4 of the Bill of Rights Act and sections 92J and T of the Human Rights Act.

[59] For a recent example of a very detailed examination of relevant international law, including as revealed in learned commentary, applied to a question of statutory interpretation, see the judgment of Glazebrook J in Attorney-General v Ahmed Zaoui et al, New Zealand Court of Appeal, CA20/04, judgment of 1 October 2004 (as yet unreported).

[60] Mark Gobbi, ‘Treaty Action and Implementation’ 2004 (1) NZYIL, 283 et seq.

[61] This position may be contrasted with the ongoing debate in Australia to the relevance of international instruments to judicial interpretation, including subsidiary discussions on whether constitutional interpretation should be affected in addition to statutory interpretation and the extent of textual doubt that need exist. See the clear divisions of opinion manifested recently in the High Court of Australia in Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; Al Kateb v Godwin [2004] HCA 37; Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38; and Re Woolley, ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49.

[62] New Zealand Airline Pilots’ Association v Attorney-General [1997] 3 NZLR 269 (New Zealand Court of Appeal), 289.

[63] See Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 and the case law collected in Rishworth et al, 62-65.

[64] See R v Leitch CA195/1997, judgment of 8 October 1997, where Richardson P, for the Court, stated at page 15: ‘Mr Ellis [for the appellant] submitted … (2) that as currently applied in New Zealand, preventive detention is in breach of the International Covenant on Civil and Political Rights: the detainee's position is not regularly reviewed within the 10 year period; the detainee is not provided with treatment until near the end of the 10 year period; and the sentence incorporates punishment for possible future offending. It is unnecessary for present purposes to go into the arguments except to note the response for the Crown: … (2) that the central issue for the court is the appropriateness of the sentence imposed in terms of domestic law, with the complaints machinery via the Optional Protocol to which New Zealand has acceded and the periodic reporting requirements to the United Nations Human Rights Committee being the appropriate mechanisms for addressing the question whether New Zealand is fulfilling its international obligations under the International Covenant.’

[65] CA 166/04, judgment of 17 September 2004 (currently under appeal to the Supreme Court).

[66] Case No 1951/2002, Views adopted on 15 June 2004, UN Doc. CCPR/C/80/D/


[67] Ibid, [94] et seq.

[68] Ibid, [96].

[69] See Audrey Young, ‘Law change to block jail compensation’, New Zealand Herald, 4 October 2004, concerning plans to prohibit compensation payments to prisoners: ‘…If the Government banned the compensation payments outright, it could result in New Zealand being found in breach of international conventions it has signed. Mr Ellis said introducing an element of discretion over prisoners' payouts was preferable to complete denial. “Trying to bring in laws that have an absolute denial are likely to fall foul of international requirements. Ones that have an element of discretion are much more difficult to challenge.” He said that if the Crown won its appeal against the judgment on the five Paremoremo prisoners, he would go to the Supreme Court. “If that didn't go, we would take it either to the United Nations Human Rights Committee or the United Nations committee against torture.”’

<> (at 8 October 2004). For another example, see the publicly expressed readiness to resort to the Committee of Maori indigenous groups concerning proposed legislation by the New Zealand Government regulating the customary status of foreshore, even after the rejection of similar claims by the Committee in the case of Apirana Mahuika et al case, see above n 20. ‘Foreshore Issue May Go Back To UN’, 6 July 2004, <,,3762-3492425,00.html> (at 6 July 2004).

[70] The claims are tallied as understood by the Committee rather than necessarily pleaded by the author. Thus, in Bulmer for example, the Committee treated the case as a single article 14 claim rather than as three claims under articles 2, 14 and 26 as advanced by the authors.

[71] Where the Committee has declared a claim inadmissible on alternate grounds, both grounds have been separately tallied.

[72] UN Docs. A/54/40 (Vol.1), [390], A/55/40 (Vol.1), [538], and A/58/40 (Vol.1), [96], respectively.

[73] Rules of Procedure of the Human Rights Committee (UN Doc. CCPR/C/3/Rev.7 of 7 August 2004).

[74] Case No 773/1997, submitted by representative J Banks, on 2 October 1997, discontinued by the Committee at its 66th session (July 1999); UN Doc. CCPR/C/66/DIS/


[75] Case No 892/1999, submitted by counsel, W Morgan, on 21 August 1998, and discontinued by the Committee at its 69th session (July 2000); UN Doc. CCPR/C/69/DIS/


[76] Case No 894/1999, submitted by counsel, J Petris, on 4 May 1999, and discontinued by the Committee at its 72nd session (July 2001); UN Doc. CCPR/C/72/DIS/894/1999.

[77] Case No 895/1999, submitted by counsel, J Petris, on 14 October 1998, and discontinued by the Committee at its 70th session (October 2000); UN Doc. CCPR/C/70/DIS/895/1999.

[78] Case No 896/1999, submitted by counsel, J Petris, on 1 December 1998, and discontinued by the Committee at its 70th session (October 2000); UN Doc. CCPR/C/70/DIS/896/1999.

[79] Case No 897/1999, submitted by counsel, J Petris, on 22 February 1999, and discontinued by the Committee at its 70th session (October 2000); UN Doc. CCPR/C/70/DIS/897/1999.

[80] Case No 898/1999, submitted by counsel, J Petris, on 7 April 1999, and discontinued by the Committee at its 70th session (October 2000); UN Doc. CCPR/C/709/DIS/898/1999.

[81] Case No 924/2000, submitted by counsel, G Monk, on 7 March 2000, and discontinued by the Committee at its 78th session (July 2003); UN Doc. CCPR/C/78/DIS/924/2000.

[82] See above n 36.

[83] See above n 39.

[84] See, for example, Colin Uebergang v Australia Case No 963/2001, Decision adopted on 22 March 2001 (whether a first instance conviction, reversed on appeal, amounts to a “final decision” within the meaning of article 14, paragraph 6, of the Covenant).

[85] See A/55/40, [536], in conjunction with (present) Rule 97, paragraph 2, of the Rules of Procedure, which provides in limine: ‘Within six months the State party concerned shall submit to the Committee written explanations or statements that shall relate both to the communication's admissibility and its merits as well as to any remedy that may have been provided in the matter, unless the Committee, working group or special rapporteur has decided, because of the exceptional nature of the case, to request a written reply that relates only to the question of admissibility.’

[86] See Rule 97, paragraph 3, which provides, in limine: ‘A State party that has received a request for a written reply under paragraph 1 both on admissibility and on the merits of the communication, may apply in writing, within two months, for the communication to be rejected as inadmissible, setting out the grounds for such inadmissibility.’ The Special Rapporteur’s practice is generally to grant such requests for “separation” where a compelling argument of inadmissibility is made out on procedural or technical grounds (failure to exhaust domestic remedies, insufficient standing, and so on) rather than more fact-intensive grounds (non-substantiation, claim outside scope of the Covenant, and so on). This procedural decision of the Special Rapporteur is reflected in the text of the Committee’s modern decisions. See, for example, Alexander Perera v Sri Lanka Case No 1091/2002, Decision adopted on 7 August 2003, [1.2]. To date, New Zealand has not exercised this option in any decided case.

[87] Rule 99, paragraph 4, provides: ‘Upon consideration of the merits, the Committee may review a decision that a communication is admissible in the light of any explanations or statements submitted by the State party pursuant to this rule.’

[88] See above n 28, [10], headed “Review of admissibility”.

[89] Article 5, paragraph 2, of the Optional Protocol provides: ‘The Committee shall not consider any communication from an individual unless it has ascertained that:

(a) The same matter is not being examined under another procedure of international investigation or settlement;

(b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged.’

[90] Above n 40, [7.3].

[91] Rule 92 provides: ‘The Committee may, prior to forwarding its Views on the communication to the State party concerned, inform that State of its Views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State party concerned that such expression of its Views on interim measures does not imply a determination on the merits of the communication’. For a recent survey of the Committee’s practice, see address of the Special Rapporteur on New Communications, Mr Martin Scheinin, to the Third Meeting with States parties to the Covenant, held at Geneva on 28 October 2004, entitled ‘Requests for interim measures of protection and States parties’ obligation to comply with such requests’ (UN Doc. CCPR/C/SR.2242).

[92] For a useful comparative survey of the case law, see Gino Naldi, ‘Interim Measures in the UN Human Rights Committee’, (2004) 51 International and Comparative Law Quarterly, 445 et seq.

[93] See the description of some of the Committee’s earlier concerns in UN Doc. A/54/40, [420], and in the Summary Record of the Committee’s extraordinary public 1352nd meeting on 26 July 1994, UN Doc. CCPR/C/SR.1352.

[94] Case No 879/1999, Views adopted on 19 October 2000, UN Doc. CCPR/C/70/D/

869/1999, [5.1]-[5.4].

[95] Anthony Mansaraj et al v Sierra Leone Case Nos 839-841/1998, Views adopted on 16 July 2001, UN Doc. CCPR/C/72/D/839/1998; Glen Ashby v Trinidad & Tobago Case No 580/1994, Views adopted on 21 March 2002, UN Doc. CCPR/C/74/D/580/1994; and Barno Saidova v Tajikistan Case No 964/2001, Views adopted on 8 July 2004, UN Doc. CCPR/C/81/D/964/2001.

[96] Case No 1086/2002, Views adopted on 3 April 2003, UN Doc. CCPR/C/77/D/

1086/2002, [7.1], [7.2].

[97] Compare the approach taken by the European Court of Human Rights (6th Chamber)

in Mamatkulov & Abdurasulovic v Turkey, Applications 46827/99 and 46951/99, judgment of 6 February 2003 (currently on appeal to the Grand Chamber), on the basis of Article 34 of the European Convention.

[98] It remains an unresolved question whether other action may implicate a breach of Optional Protocol obligations that can be advanced directly by an author: see Craig Minogue v Australia Case No 954/2000, Decision adopted on 2 November 2004, [6.6].

[99] See above n 32, [6.3], [6.4].

[100] New Zealand courts have also had to weigh issues of interim measures. On occasion, the Government has given formal undertakings to court, where a person contesting removal had also filed a communication before the Committee, to the effect that he or she would be returned in the event of a favourable finding by the Committee. In Manuel v Superintendent of Hawkes Bay Regional Prison (SC CIV 5/2004, hearing application for leave to appeal on 3 August 2004), the transcript of argument on a habeas corpus issue discloses counsel suggesting to the Supreme Court that the appellant could seek interim relief from the Human Rights Committee in the event leave was refused, though the basis for the irreparable harm in such a case is far from clear.

[101] Case No 538/1993, Views adopted on 1 November 1996, UN Doc. CCPR/C/58/D/


[102] Ibid, [7.7]. See also [2.7], [4.1]-[4.5], [9.1] and [10.2].

[103] Case No 558/1993, Views adopted on 3 April 1997, UN Doc. CCPR/C/59/D/558/1993.

[104] Ibid, [7].

[105] See, for example, Ali Aqsar Bakhtiyari et al v Australia Case No 1069/2002, see above n 17, [1.2] and [4.1] et seq., and Francesco Madafferi et al v Australia Case No 1011/2001, Views adopted on 26 July 2004, UN Doc. CCPR/C/81/D/1011/2001, [1.2] and [5.1] et seq.

[106] See above n 75.

[107] [1998] 1 NZLR 433 (New Zealand Court of Appeal), judgment of 10 October 1997.

[108] General Comment 6 on the right to life (article 6) (UN Doc. HRI/GEN/1/Rev.7/, 128 et seq).

[109] See above n 82.

[110] See above n 27, [3.2].

[111] Case 743/1997, Decision adopted on 28 March 2003, UN Doc. CCPR/C/77/D/743/1997, [7.3]: ‘As to the claim under article 6, the Committee notes that the author has not advanced any argumentation whatsoever in support of his claim under this provision, and accordingly finds this claim inadmissible as manifestly unsubstantiated.’

[112] It is not in fact necessary that an author cite specific articles of the Covenant alleged to have been violated. In A v New Zealand, above n 31, the author did not invoke any articles in his original complaint. His subsequent comments did do so, and the Committee’s analysis proceeded on that basis.

[113] See, for example, Dante Piandiong et al, above n 95, [7.3], in fine, where the Committee found: ‘… the substance of the claim appears to raise important questions relating to the imposition of the death penalty to Messrs. Piandiong, Morallos and Bulan, namely whether or not the crime for which they were convicted was a most serious crime as stipulated by article 6(2), and whether the re-introduction of the death penalty in the Philippines is in compliance with the State party's obligations under article 6(1) (2) and (6) of the Covenant. In the instant case, however, the Committee is not in a position to address these issues, since neither counsel nor the State party has made submissions in this respect.’

[114] See A v New Zealand (Case No 754/1997), above n 31, [5.1]; Moti Singh v New Zealand (Case No 791/1997), above n 33, [3.20]; and Rameka et al v New Zealand (Case No 1090/2002), above n 41, [3.6]. In Herbert Potter v New Zealand (Case No 632/1995), above n 27, allegations of ill-treatment were made without citing any article of the Covenant but were declared inadmissible for failure to exhaust domestic remedies.

[115] See Committee against Torture statistical survey, above n 8.

[116] See Report of the Committee against Torture to the Fifty-third session of the General Assembly, UN Doc. A/53/44, at Annex IX.

[1]20 See text accompanying above n 12.

117 Treaty bodies have been reluctant explicitly to acknowledge provisions of other treaties as lex specialis to their own treaty’s provisions, but this has occurred implicitly: see for example the statement of the Human Rights Committee that it ‘consider[ed] that the principle that in all decisions affecting a child, its best interests shall be a primary consideration, [as expressed in article 3 [1], of the Convention on the Rights of the Child] forms an integral part of every child's right to such measures of protection as required by his or her status as a minor, on the part of his or her family, society and the State, as required by article 24, paragraph 1, of the Covenant’ (Ali Aqsar Bakhtiyari et al v Australia (Case No 1069/2002), above n 17, [9.7]).

[118] See the disagreements apparent in the Report of the open-ended working group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights (1st session: 23 February – 5 March 2003), UN Doc. E/CN.4/2004/44, [58] et seq.

[119] B-J v Germany Case No 1/2003, Decision adopted on 14 July 2004, UN Doc. A/59/38, at Annex VIII.

[120] See Committee on the Elimination of Racial Discrimination statistical survey, above n 10.

[121] See, for example, the unacceptable treatment by CERD of Stephen Hagan v Australia Case No 26/2002, Opinion adopted on 20 March 2003, UN Doc. CERD/C/62/D/26/2002, where the Committee, in a step unprecedented in any treaty monitoring body ruling on the merits of a complaint, failed to come to a finding of whether or not a violation of the Convention had occurred. The Opinion was widely regarded, including by informed commentators, as having found a violation (see, for example, Nicholas Poynder, ‘When All Else Fails: The Practicalities of Seeking Protection of Human Rights under International Treaties’, Public Lecture of 28 April 2003, Castan Centre for Human Rights Law and Australian Lawyers for Human Rights, <


(at 5 October 2004)), following which the Committee, in a letter to the Australian Government dated 7 April 2004 confirmed that it had not so found (see UN Doc. A/59/18, [461]).

[122] Ibid.

[123] See the Annual Report of the Committee on the Elimination of Racial Discrimination to the forty-eighth session of the General Assembly, UN Doc. A/48/18, Annex III, section B.

[124] See the Annual Report of the Committee on the Elimination of Racial Discrimination to the fifty-ninth session of the General Assembly, UN Doc. A/59/18, chapter XII, [483]-[484].

[125] For the most recent instances of such Decisions, taken with respect to Darfur and Israel, see ibid, at Chapter II.

[126] Address of Louise Arbour to the sixty-fifth session of the Committee, ibid, [14].

[127] Summary Record of the Committee’s 1671st meeting on 20 August 2004, UN Doc. CERD/C/SR.1671.

[128] Ibid, [16] et seq.

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