UN Committee examines NZ government's
UN Committee examines NZ government's
Human Rights Committee, 7 April 2010
On 15 and 16 March 2010, the government's performance in implementing the International Covenant on Civil and Political Rights was considered by the UN Human Rights Committee during its 98th session, which was held in New York.
This page has information about the process, divided into two main sections:
The International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR, or the Covenant) was adopted by the UN General Assembly on 16 December 1966, and entered into force on 23 March 1976 . There are 165 state parties to the Covenant.
As its title indicates, the ICCPR elaborates civil and political rights, including: the right of self determination (Article 1, which is also Article 1 of the International Covenant on Economic, Social and Cultural Rights); gender equality; the right to liberty and security of the person; the right to a fair trial, to equality before the law, and to be presumed innocent until proved guilty; the rights of those deprived of their liberty; the right to privacy, freedom of speech, freedom of association, and of peaceful assembly; the right to freedom of movement; the rights of asylum seekers and other non-citizens; the right to take part in the conduct of public affairs; the right to freedom of thought, conscience and religion; and the rights of persons belonging to minorities to enjoy their own culture, to profess and practise their own religion, and to use their own language.
The ICCPR also contains prohibitions on: all forms of discrimination; genocide; slavery; arbitrary arrest and detention; torture, cruel, inhuman or degrading treatment or punishment; unauthorized medical experimentation; propaganda for war; and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
In addition, there is an obligation on state parties to provide an effective remedy for any violations of Covenant rights within their jurisdiction; and to provide regular periodic reports on their implementation of the ICCPR to the Human Rights Committee (the Committee). The ICCPR also provides a mechanism for inter-state complaints about breaches of Covenant rights.
The ICCPR has two optional protocols - the First Optional Protocol, which entered into force on 23 March 1976, "recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant". There are currently 113 state parties to the First Optional Protocol.
The Second Optional Protocol, which relates to the abolition of the death penalty, entered into force on 11 July 1991, and there are currently 72 state parties to it.
 Except for the provisions of Article 41, dealing with state party allegations of violations of Covenant rights by other states, which entered into force on 28 March 1979.
The UN Human Rights Committee
The Committee is the UN body which monitors the progress of state parties towards fulfilling their binding obligations under the ICCPR. It comprises 18 independent human rights experts, who are each elected for a term of four years by a secret ballot of all state parties to the Covenant. Information about the current members of the Committee is available here.
The Committee usually meets for three sessions every year - each session is three weeks in duration, with the March session generally held at the UN headquarters in New York, and the July and November sessions at the UN Office in Geneva. The Committee reports on its activities to the UN General Assembly via the Economic and Social Council.
Every state party to the ICCPR is required to submit regular periodic reports to the Committee on what legal, judicial, administrative and other steps they have taken to fulfill their obligations under the Covenant.
The periodic reports are examined by the Committee in conjunction with information supplied in parallel reports from NGOs. As well as the texts of the ICCPR and its Optional Protocols, the Committee takes into account General Comments, which it has developed through time to provide more detailed information on specific topics, to assess whether or not a state party is complying with the ICCPR - the Committee's General Comments are available here.
Prior to the session when a periodic report will be considered, a list of issues which the Committee wants more information about is sent to the state party. The list of issues is put together by the Country Task Force (CTF) which comprises Committee members appointed to cover that particular state party during the examination of its periodic report. One of the CTF members is appointed as the Country Rapporteur, and s/he has overall responsibility for drafting of the list of issues. Once the list of issues has been adopted, it is transmitted to the state party concerned. The list of issues is generally adopted at the session prior to the examination of the state's periodic report, which allows the state two to four months to send a written response, and prepare for the dialogue with the Committee.
The examination of state party reports generally begins with the state party's representative introducing the report by way of brief introductory comments, followed by the replies to the first group of questions included in the list of issues. The Committee members then provide comments or further questions in relation to the replies provided. Although all Committee members participate in this dialogue, the members of the Country Task Force have priority when asking questions. The state party's representative is then invited to reply to the remaining questions on the list of issues, which is again followed by comments and questions from the Committee.
The final phase of the Committee's examination of a state's periodic report is the drafting and adoption of Concluding Observations. These generally include an introductory section, a section with positive aspects, and a section with principal areas of concern which includes suggestions and recommendations as to how the state party can improve its implementation of the Covenant. Concluding Observations also include a recommendation requesting the wide dissemination of the Concluding Observations in the state party concerned, as well as a paragraph requesting that additional information be provided to the Committee, within a specified deadline (usually of one year), on specific points.
Examination of periodic reports is one of the ways in which the Committee monitors whether or not states are meeting their obligations under the ICCPR. In addition, the First Optional Protocol provides for the Committee to consider communications from individuals or groups of individuals who have been subjected to one or more breaches of Covenant rights by a state party.
The Committee will hold its 98th session in New York from 8 to 26 March 2010. As well as considering the NZ government's periodic report, the Committee will consider reports from Argentina, Mexico, and Uzbekistan; adopt lists of issues for Belgium, Hungary, Jordan, Poland, and Serbia, as well as on the situation in Côte d'Ivoire (in the absence of a report); consider some of the 400 pending communications; and hold public meetings to discuss draft General Comment 34 on article 19 of the Covenant, concerning freedom of expression.
More information about the Committee, its work, and the complaints mechanism is available here.
The NZ government and the ICCPR
NZ signed the ICCPR on 12 November 1968 and ratified it on 28 December 1978, with several reservations , and a declaration under Article 41 that it recognises the competence of the Committee to receive and consider communications from another State party alleging violations of the Covenant by NZ.
NZ acceded to the First Optional Protocol to the ICCPR on 26 May 1989; and signed and ratified the Second Optional Protocol on 22 February 1990.
The ICCPR was partially incorporated into domestic legislation by the NZ Bill of Rights Act 1990 (BORA). Some Covenant rights are missing from the BORA, for example, the right of self determination (Article 1) and the prohibition on propaganda (Article 20), while others are not fully articulated, for example, the necessity for juvenile offenders to be segregated from adults (Article 10) and other rights as listed in NZ's reservations on the ICCPR.
The Covenant is not able to be fully implemented here because the constitutional arrangements arising from the notion of parliamentary supremacy mean that there is no way to prevent parliament from passing legislation that is discriminatory, or that breaches any of the other Covenant rights, nor to overturn such legislation when it is enacted - even though the ICCPR and all of the international human rights instruments require effective protection and remedies for those whose rights have been violated.
New Zealand has submitted five periodic reports under the ICCPR, the first in 1982, the second in 1988, the third in 1994, the fourth in 2001 and the fifth in 2007 (see the section below for more information about this report). The Committee's Concluding Observations on the 4th periodic report (CCPR/CO/75/NZL) raised concerns about a number of matters including the fact that not all rights guaranteed under the Covenant are reflected in the BORA, the lack of an effective remedy for legislation which violates Covenant rights, the treatment of asylum seekers, NZ's counter-terrorism measures, the lack of full enjoyment of Covenant rights by Maori, and the privatisation of prisons.
There have been a number of communications (individual complaints) to the Committee alleging breaches of Covenant rights by NZ governments over the years. Communications since 1994 are available on the UN treaty bodies database - select 'CCPR' in the Conventions menu, 'New Zealand' in the Countries menu, 'Jurisprudence' in the Type menu, then click the search button.
 NZ's ICCPR reservations: "The Government of New Zealand reserves the right not to apply article 10 (2) (b) or article 10 (3) in circumstances where the shortage of suitable facilities makes the mixing of juveniles and adults unavoidable; and further reserves the right not to apply article 10 (3) where the interests of other juveniles in an establishment require the removal of a particular juvenile offender or where mixing is considered to be of benefit to the persons concerned.
"The Government of New Zealand reserves the right not to apply article 14 (6) to the extent that it is not satisfied by the existing system for ex gratia payments to persons who suffer as a result of a miscarriage of justice.
"The Government of New Zealand having legislated in the areas of the advocacy of national and racial hatred and the exciting of hostility or ill will against any group of persons, and having regard to the right of freedom of speech, reserves the right not to introduce further legislation with regard to article 20.
"The Government of New Zealand reserves the right not to apply article 22 as it relates to trade unions to the extent that existing legislative measures, enacted to ensure effective trade union representation and encourage orderly industrial relations, may not be fully compatible with that article."
The government's fifth periodic report to the Human Rights Committee
In November 2007, the Ministry of Justice sent copies of the draft fifth periodic report to statutory bodies and some NGOs with a letter advising the document was confidential and asking for feedback on it within two weeks. Hapu and iwi were not consulted about the contents of the report. The letter inviting comment said that feedback would be carefully considered, although it might not be possible to incorporate or reflect all the feedback received as the periodic report "is, of course, the responsibility of the government".
We, and others, in our comments on the draft pointed out that while indeed the reporting responsibility is with the government, nevertheless the periodic report should be written in a manner that fully informs the Committee on the topics it covers and there were clearly deficiencies as well as a considerable amount of spin in it. The fifth periodic report (CCPR/C/NZL/5) was submitted to the Committee in December 2007, and when it became available through the UN Treaties database in early 2008, it was obvious that the points made in feedback from NGOs had not been included in the final version.
In addition to the fifth periodic report, the Committee had access to NZ's Core Document forming part of the Reports of States Parties (HRI/CORE/NZL/2006) - the Core Document contains general information about NZ, and is used by all of the treaty monitoring bodies when considering government reports under the international human rights instruments which NZ is a state party to.
Preparation of NGO reports to the Human Rights Committee
In May and June 2009, Peace Movement Aotearoa provided information to other national NGOs about the process for submitting reports to the Committee's 96th session which would adopt the list of issues. From November 2009 through to March 2010, information was provided for NGOs considering submitting an updated report to assist the Committee with its examination of the government representatives and its formation of Concluding Observations during the 98th session.
If your organisation would like information about future NGO reports to UN human rights bodies, please contact Peace Movement Aotearoa.
Initial NGO reports to the Human Rights Committee
To assist Committee members with their initial consideration of the fifth periodic report and the compilation of the list of issues during the 96th session (held in Geneva from 13 to 31 July 2009), four national NGOs submitted reports, as did Tony Ellis, and an international NGO:
The list of issues and the government's response
On 29 August 2009, the Committee issued the list of issues (CCPR/C/NZL/Q/5) to be taken up in the consideration of NZ's fifth periodic report. The list of issues included questions about: the constitutional and legal framework within which the Covenant is implemented; counter-terrorism measures and respect of Covenant guarantees; the principle of non-discrimination; gender equality, violence against women and political rights; the right to life and prohibition of torture and cruel, inhuman or degrading treatment and treatment of prisoners; trafficking in persons; the rights of non-citizens; the right to a fair trial and equality before the law; the right to privacy, freedom of speech and freedom of association; rights of the child; the right to take part in the conduct of public affairs; the rights of persons belonging to minorities; and dissemination of information relating to the Covenant.
The government responded to the list of issues (CCPR/C/NZL/Q/5/Add.1) on 5 January 2010.
Follow up NGO reports
In preparation for the Committee's examination of NZ's fifth periodic report during its 98th session, five national NGOs submitted reports, as did Tony Ellis, and an international NGO:
Who said what in New York
The government sent a delegation of ten, led by the Minister of Justice, to appear before the Committee during its examination of NZ's fifth periodic report.
The Human Rights Committee's Concluding Observations
Concluding Observations on New Zealand, (CCPR/C/NZL/CO/5), 25 March 2010
Useful resources and links
As well as the links in the sections above, other useful resources are: