One means of international ‘judicial settlement’ is the International Court of Justice (ICJ). The ICJ was established in 1945 as the principal judicial organ of the United Nations. The Court, based in The Hague, is comprised of 15 judges elected for nine year terms by the UN General Assembly and the Security Council. Unlike a domestic court’s mandatory jurisdiction, the ICJ’s jurisdiction is dependent on the consent of States. This means it cannot hear any case involving a State which has not submitted to its jurisdiction. Article 36 of the ICJ Statute sets out the circumstances in which the Court has jurisdiction: where the parties agree to refer a dispute to the Court; where the UN Charter, or a relevant treaty, confers jurisdiction on the Court; or where the parties to a dispute have made formal declarations (‘optional clause declarations’) recognising the Court’s jurisdiction as compulsory. These declarations may be unconditional or they may contain exceptions that limit the Court’s jurisdiction. Australia’s present optional clause declaration was lodged in 2002. The conferral of jurisdiction on the ICJ to hear disputes arising under treaties is especially relevant as numerous human rights treaties expressly provide for States to refer treaty disputes directly to the ICJ. Examples include the Slavery Convention, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women. Another example of a treaty that confers jurisdiction on the ICJ is the Genocide Convention. Article 9 of the Genocide Convention allows parties to refer to the ICJ disputes concerning the interpretation, application or fulfilment of the Convention. In 1993, Bosnia-Herzegovina relied on article 9 to bring an action against the Federal Republic of Yugoslavia (Serbia and Montenegro). The Court granted provisional measures, requesting that the Federal Republic of Yugoslavia take all measures within its powers to prevent the commission of genocide. There are several features of the ICJ that are distinctive. First, it is not a supreme court of appeal from other national or international judicial bodies. Second, the Court is not bound by its earlier decisions, although in practice it treats them as persuasive. Third, under article 94 of the UN Charter, UN members undertake to comply with any ICJ decision in any case to which they are a party; failure to do so allows the other party to seek recourse to the Security Council which may make recommendations or decide upon measures to give to the ICJ judgment.
There is no singularly authoritative of ‘indigenous peoples’ under international law. Articles 9 and 33 of the Declaration state that indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned, and that they have the right to determine their own identity. CHAPTER 4 The United Nations System and Human Rights We the Peoples of the United Nations determined to faith in fundamental human rights, in the dignity and worth of the human person in the equal rights of men and women and of all nations large and small. From the Preamble of the Charter of the United Nations From its founding in 1945, the promotion and protection of human rights and fundamental freedoms has been central to the purpose and operation of the United Nations. Steeled with the belief that human rights are universal, indivisible and inalienable, the international community ensured the United Nations, as the apex of the new international system, had a clear mandate to promote the international observance of
Committee on the Elimination of Discrimination against Women – Convention on the Elimination of all forms of Discrimination against Women Mandate and composition: the Committee is made up of 23 experts who serve four-year terms (article 17). The Committee meets in Geneva. Periodic reports: State parties must report on the legislative, judicial, administrative or other measures adopted to give effect to the CEDAW within one year of becoming a party to the treaty and every four years thereafter (article 18). Australia’s periodic reports under the CEDAW are prepared by the Office for Women in the Department of the Prime Minister and Cabinet (). Individual communications: the Committee may consider complaints from individuals or groups where the State party concerned has become a party to the Optional Protocol to CEDAW (see articles 1 and 2, Optional Protocol). The criteria for admissible communications are detailed in articles 3 and 4 of the Optional Protocol. Australia became a party to the Optional Protocol in 2008 and therefore recognises the competence of the Committee to consider individual communications. State complaints: article 29 establishes a process for resolving disputes between States over the interpretation or application of the CEDAW. The process starts with negotiation or arbitration and, absent a resolution, can be referred by one of the parties to the International Court of Justice. States can opt out of this procedure by making a declaration at the time of or accession. Inquiry procedure: the Optional Protocol gives the Committee the right to inquire into grave or systematic violations of the rights protected under the Convention (article 8). A State can declare that it does not recognise the Committee’s competence to undertake inquiries at the time or ratification or accession (article 10). Committee against Torture – Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Mandate and composition: the Committee has 10 experts who serve four-year terms (article 17). Periodic reports: an initial report is due within one year of becoming a party to the CAT
machinery. States and individuals may refer alleged violations of rights guaranteed in the Convention by States parties to the European Court of Human Rights in Strasbourg. The position of Human Rights Commissioner was created in 1999. The Commissioner does not have legal powers but provides advice and information on the protection of human rights and the prevention of human rights abuses. In addition to the Convention regime that places particular emphasis on civil and political rights, the European human rights framework has been supplemented in the economic and social rights sphere by the 1965 European Social Charter. The Social Charter’s impact has been in the area of social security rights and, while it does not have individual enforcement measures, its impact in the area of labour and union rights is important. Though many of the over 180 conventions drafted by the Council deal with human rights issues, the two other main human rights instruments are the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (entry into force 1989) and the Framework Convention for the Protection of National Minorities (entry into force 1998). For more detail about these instruments and the Council of Europe generally, refer to: . The European Union While neither the Treaty of Paris nor the Treaty of Rome have express human rights provisions (apart from rules relating to non-discrimination on the basis of nationality and equal remuneration and free movement of workers), increasingly detailed statements of the EU’s commitment to human rights are set out in the 1987 Single European Act, the 1992 Maastricht Treaty on European Union and the 1997 Treaty of Amsterdam. The Maastricht Treaty, as amended by the Treaty of Amsterdam, states that ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law’ (article 6) and includes a mechanism for suspending a Member State’s rights under the Treaty in the event of a ‘serious and persistent breach’ of those principles by that Member State (article 7). The EU’s external policies are also guided by human rights considerations. In accordance with the Charter of Fundamental Rights of the European Union (2000), the promotion of freedom, democracy, rule of law and respect for human rights and fundamental freedoms constitutes one of the core objectives of the EU’s external policies. Since the early 1990s, the EU has used a standard set of human rights provisions for inclusion in treaty-status cooperation agreements between the EU and third countries. The standard provisions enable one party to take ‘appropriate measures’
The Racial Discrimination Act 1975 (Cth) implements domestically many of Australia’s obligations under the CERD. The Sex Discrimination Act 1984 (Cth) implements domestically many of Australia’s obligations under the CEDAW, as well the ICCPR, the ICESCR, the CROC, ILO Conventions 100 (Equal Renumeration for Men and Women Workers for Work of Equal Value), 111 (Discrimination in respect of Employment and Occupation), 158 (Termination of Employment at the Initiative of the Employer) and 156 (Workers with Family Responsibilities). The Disability Discrimination Act 1992 (Cth) predated the CRPD but nonetheless implements some of Australia’s obligations under the Convention. The Age Discrimination Act 2004 (Cth) makes it unlawful to discriminate against people on the basis of age in areas of public life. The Human Rights Commission Act 1986 (Cth), which established the Australian Human Rights Commission, authorises the Commission to inquire into and conciliate complaints of discrimination in employment on the basis of sexual preference, criminal record, trade union activity, political opinion, religion or social origin, implementing obligations under ILO Convention 111 on Discrimination (Employment and Occupation). The Privacy Act 1988 (Cth) gives effect to aspects of the right to protection against arbitrary and unlawful interferences with privacy in article 17 of the ICCPR, protecting personal information collected and held by Australian Government agencies and many private sector organisations. The Workplace Relations Act 1996 (Cth) includes a range of provisions intended to help prevent and eliminate discrimination in the workplace on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. A comprehensive anti-discrimination legislative framework also exists in all states and territories. Additionally, the Australian Capital Territory and Victoria have passed versions of a Bill of Rights. The ACT Human Rights Act 2004 establishes a ‘dialogue model’ which seeks to ensure that human rights are taken into account when developing and interpreting ACT law. The Victorian Charter of Human Rights and Responsibilities