Foreshore and seabed information   |   Indigenous peoples' rights

Reputation for human rights under scrutiny

28 March 2005

Although New Zealand is not a major economic or military power, it nevertheless has managed to "punch above its weight" in international affairs, largely because of its reputation as a good international citizen and particularly for its exemplary human rights record.

It therefore must have come as a shock to the New Zealand Government to be given a black eye by the United Nations Committee on the Elimination of Racial Discrimination (CERD) over its enactment of the Foreshore and Seabed Act 2004.

This being an election year, the Government has sought to downplay the significance of the decision. This article does not deal with the rights and wrongs of the legislation, but merely puts the CERD decision in its international law context.

CERD was established under the International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted by the United Nations General Assembly in 1965.

This treaty has been ratified by 170 states, including New Zealand. The convention provides that, among other things, states must not racially discriminate, and they must review government policies and amend or repeal laws that create or perpetuate racial discrimination.

International law is notorious for its lack of "teeth", a problem that is particularly evident when states are held to account for their international human rights obligations.

As in the case of other human rights treaties, the convention has a number of mechanisms to promote compliance: periodic reporting by states, individual and inter-state complaints processes, and oldfashioned exhortation and persuasion, with the principal sanction for non-compliance being "naming and shaming".

CERDís job is to administer these supervisory mechanisms under the convention. Unlike the membership of UN Charter-based bodies, CERDís membership (like that of other UN treaty bodies) consists not of political appointees, but elected independent experts who serve in their personal capacities. For example, the US member of CERD was chief of the civil rights division of the Department of Justice, and thus had been in charge of all civil rights law enforcement in the US. Another member headed Indiaís National Human Rights Commission. The British member ó who, as a special rapporteur, ended up investigating the complaint against New Zealand ó is an eminent international human rights law academic. These, and the other CERD members, are hardly rank amateurs or political hacks.

In July and August 2004, three Maori organisations petitioned CERD to invoke its "early-warning measures and urgent procedures" in order to have New Zealand withdraw the proposed foreshore and seabed legislation.

Their petition was successful, doubtless because CERD was convinced of the importance of the issue for Maori and of the matterís urgency, given that the legislation was to be enacted within months.

The procedure itself was established by CERD in 1993 to prevent existing situations from escalating into conflicts, and to address problems requiring immediate attention to prevent or limit the scale or number of serious violations of the convention.

It is a procedure that is not often invoked. Over the past two years, the procedure has been invoked for situations in Darfur (Sudan), Israel, Guyana, Laos, the Ivory Coast, and Suriname. The Maori petition followed in the footsteps of a successful 1999 Aboriginal and Torres Strait Islander procedure against Australia for its amendments to the Native Titles Act 1993.

After submission of the Maori petition, CERD requested additional information from the New Zealand Government. The Government responded in September, and answered the allegation of discrimination.

The foreshore and seabed legislation was enacted in November, and the following month two of the Maori organisations responded to the Government submission.

On February 17, 2005, the Government submitted an additional detailed response to the Maori submissions. On February 25, a New Zealand Government delegation made a presentation on the issue to CERD in Geneva, following which the delegation was questioned by several CERD experts. The New Zealand Government therefore had a fair opportunity of presenting its case.

After considering all of this information, CERD issued its decision on March 11.

The result was that CERD expressed a number of "concerns" about the Foreshore and Seabed Act.

Firstly, it was concerned about the political atmosphere behind the legislation, and expressed the hope that, consistent with articles 2(1)(d) and 4 of the Convention, the various parties in New Zealand should avoid exploiting racial tensions for their political advantage.

CERD was also concerned at the apparent haste with which the legislation was enacted, and that insufficient consideration might have been given to alternative responses to the issue.

Finally, CERD found that "the legislation appears . . . on balance to contain discriminatory aspects against the Maori, in particular in its extinguishment of the possibility of establishing Maori customary title over the foreshore and seabed and its failure to provide a guaranteed right of redress, notwithstanding the State partyís obligations under articles 5 and 6 of the Convention".

As far as action on the domestic level was concerned, CERD recommended the New Zealand Government, together with Maori, "seek ways of lessening [the Actís] discriminatory effects, including where necessary through legislative amendment". It also asked the government to monitor closely the implementation of the Act and to minimise any negative effects, "especially by way of a flexible application of the legislation and by broadening the scope of redress available to Maori".

As for action required on the international level, CERD requested New Zealand to report fully on the implementation of the legislation in its next biennial periodic report, due at the end of this year.

While the language of the CERD decision is conciliatory in tone, this reflects CERDís preference to engage with states through "constructive dialogue".

Notwithstanding the diplomatic language, the CERD decision has two important consequences for New Zealand.

Firstly, in so far as New Zealandís championship of human rights is its leading "claim to fame" in the international arena, the countryís position has been somewhat diminished.

Secondly, New Zealand is now tangled in a veritable web of international human rights accountability processes. It will now figure on CERDís agenda for the indefinite future.

Moreover, it will not only have to report on how it has addressed the issues flagged by CERD in each biennial periodic report to CERD fo some time to come, but those concerns will also be taken up in the parallel periodic report procedures of the two major human rights treaty bodies, which also have jurisdiction over race discrimination issues.

These are the Human Rights Committee (established under the International Covenant on Civil and Political Rights), and the Committee on Economic, Social, and Cultural Rights (established under the International Covenant on Economic Social, and Cultural Rights).

New Zealand is thus going to have to address CERDís concerns indefinitely in three different UN forums, and it will only be let off the hook once these bodies are satisfied New Zealand has dealt satisfactorily with those issues.

The CERD decision will therefore stand as a constant reminder to the international community that there are race discrimination concerns with the Foreshore and Seabed Act.

Whether or not New Zealand will address those concerns will be a political decision involving a calculation of the domestic and international costs of its present policy.

Paul Roth,
Professor of Law, University of Otago
Published in the Otago Daily Times

'Race', 'Privilege', and 'The Treaty'   |   Peace Movement Aotearoa