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Devereux, Annemarie --- "Australia and the International Scrutiny of Civil and Political Rights: An Analysis of Australia's Negotiating Policies, 1946-1966" [2002] AUYrBkIntLaw 2; (2002) 22 Australian Year Book of International Law 47

Australia and the International Scrutiny of Civil and Political Rights: An Analysis of Australia’s Negotiating Policies, 1946-1966

Annemarie Devereux[∗]

In recent years, the Australian federal government’s relationship with international human rights monitoring bodies has been marked by increasing suspicion and defensiveness. Aspersions have been cast on the conclusions and credibility of specialist treaty bodies such as the Human Rights Committee and reports by United Nations (UN) human rights envoys and Special Rapporteurs.[1] In addition to rejecting specific criticisms of Australian policies, the federal government has spearheaded a campaign for reform on UN treaty bodies. In August 2000, a joint Ministerial statement was released stating that:

UN human rights treaty bodies need a complete overhaul especially …
• To ensure adequate recognition of the primary role of democratically elected governments and the subordinate role of non government organisations (NGOs);
• To ensure that committees and individual members work within their mandates …[2]

The subtext of such statements is that human rights treaty bodies have become hijacked by ‘unrepresentative NGOs’ and are exercising inquisitorial powers beyond their mandate. It is alleged that such bodies are failing in their primary duty to provide assistance to states and not giving sufficient regard to the fact that states are seeking to fulfil their human rights obligations in good faith. International human rights academics have noted the downturn in Australia’s relationship with the treaty bodies and labelled the federal government’s responses as a retreat, even a movement to ‘exceptionalism’.[3]

Rather than being evidence of a novel, aberrant attitude towards the UN, the Howard government’s reactions closely mirror the conservative Australian policies adopted during much of the negotiations of the International Covenant on Civil and Political Rights (ICCPR) and its first Optional Protocol (1946-1966).[4] While Australia’s participation in the negotiations of the International Bill of Rights was consistent from 1947 until 1966, its support for international enforcement mechanisms was not. This article seeks to contextualise current debates by analysing the early history of Australia’s policies towards the international scrutiny of civil and political rights,[5] looking in particular at the lack of consensus amongst Australian political actors surrounding the proper role of the UN, states and individuals/NGOs in the enforcement of human rights norms.

The time period chosen in this study, 1946-1966, correlates with the period in which the International Bill of Rights was being drafted and negotiated by the UN Commission on Human Rights and the General Assembly.[6] In 1946, the Economic and Social Council (ECOSOC) discussed the formation of the Commission on Human Rights to draft an International Bill of Rights. From 1947 until 1966, the international community finalised first the Universal Declaration of Human Rights (1948) (UDHR),[7] and then in 1966, the twin human rights Covenants: the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR).[8] While Australia signed both Covenants in 1966, it was not to ratify either Covenant until a further ten years had elapsed.[9] In a scholarship dominated by ‘post-ratification’ analyses,[10] this article deliberately chooses to study the debates during the formation of the international norms and systems, what might be termed the ‘pre-ratification’ history.[11] This history is interesting in that it reveals the dominant assumptions, aspirations, ideals and tensions of Australian decision-makers in a manner that is not so public in the ‘post-ratification’ period.[12] It also has potential utility in helping to understand contemporary debates. Despite the emphasis on ‘objective’ meanings of treaties incorporated within the Vienna Convention on the Law of Treaties,[13] the parallels that emerge between trends in the ‘pre-ratification’ and ‘post-ratification’ periods suggest that the diverse ‘subjective’ assumptions, beliefs and understandings of human rights manifested during negotiations of the International Bill of Rights are not completely eschewed or jettisoned, but remain influential in shaping subsequent interpretations of treaty obligations. Studying the way in which domestic and international forces shaped Australia’s understanding of draft clauses is thus not only of intrinsic historic interest, but also offers some further insights as to the site of likely future tensions and trends.

Within the 20-year period chosen for investigation, ‘Australian policy’ was not formulated by one person or one political party. At a political level, there were six Ministers for External Affairs bearing ultimate responsibility for Australia’s public stance: H V Evatt (1946-1949), P C Spender (1949-1951), and R G Casey (1951-1960), R G Menzies (1960-1961), G Barwick (1961-1964) and P Hasluck (1964-1969). Dr Evatt was the sole Labor Minister, with the remaining Liberal Ministers holding office during the ‘Menzies period’. However, not all Ministers were equally active in the formulation of policy. By the second or third year of Casey’s term in office, the responsibility for policy development shifted to the bureaucratic level. H F E (Fred) Whitlam[14] and K H Bailey played a particularly important role in shaping policy during what can be termed the ‘Bureaucratic period’ (early 1950s-1966).[15] The variety of actors involved in policy development, the differing political commitments and the changing international context thus become an essential part of understanding the articulated stances.

The narrative that emerges from this study is one of marked contrasts. Under the leadership of Dr Evatt, Australia entered the debates on international implementation as a strong advocate for international, judicial forms of international scrutiny of rights. The late 1940s thus see a blossoming of Australian support for strong international implementation. Once Labor was defeated in 1949 and P C Spender became Minister for External Affairs, a greater wariness of the UN’s ability to act as an impartial arbiter in the context of an intensified Cold War emerged. However, not only the Cold War, but a lack of enthusiasm amongst later political and bureaucratic actors for international modes of enforcement, and concern about the ‘subversive’ role of individual and NGO activists fuelled the adoption and retention of preferences for minimalist forms of international enforcement. Only with the international politicisation of race in the early 1960s and Australia’s fear of becoming internationally isolated did Australia move towards acceptance of broader means of international enforcement of human rights. This article identifies some of the underlying assumptions and philosophies informing policy choices, but ultimately points to the need to subject the effect of both personal and party-philosophical influences on understandings of human rights to greater scrutiny. It thus belies the existence in the past of agreement as to the appropriate role for the UN in human rights scrutiny and highlights the likelihood of continued divergence on this central question.

Part 1 provides an overview of the international debates concerning the desirable shape of international mechanisms to monitor and support rights within the ICCPR. Parts II, III and IV examine Australia’s policies chronologically in what can be termed the ‘Evatt period’ (1946-1949), the ‘Spender period’ (1949-1951) and a period termed the ‘Casey and Bureaucratic period’ (1951-1966). The titles for the periods reflect the identity of the major decision-makers and the timing of the major movements in Australian policy, having been chosen after the analysis was undertaken. Material has been drawn primarily from the National Australian Archives, and the UN Archives in Geneva and New York, although augmented by the personal collections of actors and interviews with contemporary bureaucrats.

I. Overview of the International Debate

The International Bill of Rights was negotiated over a period of 19 years. In the first two years, 1947-1949, the focus was on creating the UDHR,[16] a document which was to be a non-binding statement of rights.[17] Following its adoption on 10 December 1948, the Commission on Human Rights and later the General Assembly moved towards defining binding instruments of international human rights law. The result in 1966 was the adoption of the ICCPR and the ICESCR. In addition to defining the relevant norms and deciding the nature of a state’s implementation obligations, the question arose as to how the international community was to be involved in monitoring and responding to alleged human rights violations committed by states parties to the human rights Covenants: that is, what were to be the forms of international scrutiny of rights? Notwithstanding the consistent stance of the Union of Soviet Socialist Republics (USSR) that all forms of international implementation represented an interference with state sovereignty,[18] the majority of delegations favoured some form of international implementation. The questions then multiplied: What form of system? An adjudicatory system or conciliatory system? Should individuals have a right to petition bodies or should only states have that right? Should the system of implementation be identical for all forms of rights?

Debate around these issues was intensive during the early years of deliberations of the Commission on Human Rights (1947-1952) and then in the later years of the investigation by the Third Committee of the General Assembly (1963-1966).[19] Even before the 1952 decision to draft two separate Covenants,[20] separate implementation schemes were being discussed for civil and political rights and economic, social and cultural rights. When finalised, the ICCPR included not only a system of periodic reporting by states and an international evaluation process, but a complaints mechanism. A Human Rights Committee was developed to conciliate inter-state complaints and provide views on communications from individuals in circumstances where states had ratified the Optional Protocol to the ICCPR.

In respect of civil and political rights, a range of implementation options were canvassed before the international community opted for the Human Rights Committee report and complaint-based system.[21] Various papers on implementation were authored by the Secretariat of the UN and the Working Group on Implementation of the Commission on Human Rights.[22] Alternatives considered included an International Court of Human Rights,[23] a High Commissioner for Human Rights[24] and ad-hoc Committees of Inquiry.[25] In 1950, the Commission on Human Rights voted in favour of the establishment of a permanent body based on the French model for a Commission of Inquiry and Conciliation. The body was to hear only complaints between states and to offer its ‘good offices’ to the states concerned with the aim of facilitating a friendly solution to the dispute. State representatives of the Commission on Human Rights would elect appropriate members to sit on the Committee.[26] The current Human Rights Committee was based heavily on this model.[27]

The right of individuals to petition the Human Rights Committee was a thorny issue. In 1949, when this right was put to the vote, the Commission on Human Rights was evenly divided. In accordance with the rules, the motion failed and no right of individual petition was included in the original drafts.[28] Only in the final stages of the negotiations did majority support coalesce around a United States compromise proposal for a separate protocol to be drawn up giving individuals a right of petition.[29] The Optional Protocol to the ICCPR was thus born and finalised at the same time as the ICCPR.

Granting the Committee powers to inquire independently into human rights practices of individual countries was considered but rejected. In 1950, when the Commission voted in favour of the French-style inquiry and conciliation body, it rejected a proposal that the Committee should have a general power to supervise ‘observance of the provisions’ of the human rights Covenant’.[30] In 1955, India’s proposal that the Committee be able to initiate inquiries of its own accord met with no greater success.[31] A system of compulsory periodic reporting by states was the preferred system.[32] The Human Rights Committee would consider such reports, and be empowered to make ‘general comments’ on their contents.[33]

During the final voting on the ICCPR in 1966, Australia voted in favour of all aspects of the international implementation system, the periodic reporting system, the state-to-state complaints and the Optional Protocol. Australia ratified the ICCPR in 1976, and in 1991 it ratified the Optional Protocol. However, as Parts II, III and IV will demonstrate, this ultimate voting pattern belied Australia’s variable stances.

II. Evatt Period (1946-1949)

With Dr Evatt at the helm of the External Affairs portfolio, Australia was at the forefront of calls for extensive international judicial means of enforcement of human rights norms. Australia supported individuals and NGOs having access to the international community to adjudicate their human rights disputes. The preferred model was the establishment of an International Court of Human Rights. Neither opposition from traditional allies such as the United States and the United Kingdom, nor objections that a court would interfere with the ‘domestic jurisdiction’ of a state weakened Australia’s stance. Even the intensification of the Cold War did not threaten Evatt’s belief in the fundamental right and duty of the international community to scrutinise and respond to individual human rights complaints. Only the inability to garner majority support for the proposal lead to Australia’s secondary support for less-intrusive ‘conciliation and inquiry’-type bodies.

During the Evatt period, international implementation was seen as the key issue for the International Bill of Rights process. When Australia was invited to be a member of the first Commission on Human Rights, for example, Evatt directed Colonel Hodgson to attend the proceedings, specifically exhorting advocacy of a Court of Human Rights.[34] When three sub-groups were established by the Commission in 1947, to consider the Declaration, the Covenant (as it was then termed), and implementation respectively, Australia opted for primary membership of the Implementation Sub-Group. So passionately did Australia espouse the cause of binding, enforceable human rights norms, that it originally objected to the formulation of the non-binding UDHR.[35] In 1948, however, it was to welcome the Declaration as a necessary precursor, a first step towards a binding Covenant.[36]

The centrepiece of Evatt’s bold implementation policy was the proposal for an International Court of Human Rights. The Commission on Human Rights was not the first forum in which Evatt had put forward such a proposal. At the Paris Peace Conference in 1946,[37] Australia advocated the establishment of a European Court of Human Rights.[38] Drawing upon such international precedents as the Permanent Court of International Justice and the Arbitral Tribunal of Upper Silesia,[39] Australia suggested that if provisions were to be inserted in the peace treaties dealing with human rights, there needed to be also an international mechanism for the enforcement of such rights. From the papers included in the Brief for Australian delegates to the Paris Peace Conference, the proposal appears to have been particularly influenced by the writings of Professors Bentwich and Kaeckenbeeck.[40]

In defending the European Court proposal, Evatt and other Australian delegates rejected the utility of political remedies to deal with human rights abuses. Evatt, for instance, derided the effect of state declarations alone:

The history of the territorial adjustments made at the Conference of Versailles suggests that basic and essential rights and freedoms of the individual – who is so often the cipher in territorial adjustments – should not hinge simply upon declarations made by states. Such declarations, standing alone, are not sufficient to guarantee the inalienable rights of the individuals and behind them it is essential that some sufficient sanction be established.[41]

Negotiations between parties (particularly states parties) were also viewed as providing second-class justice. States might compromise an individual’s interests in circumstances where a court would make an order for redress.[42] Quoting C A Macartney, negotiations were seen as ‘tempering injustice with mercy, but … not meting out justice’.[43] Diplomatic redress was insufficient since human rights were ‘not things to be created or extinguished, to be granted or withheld, to be enlarged or restricted, according to the politics of governments and the workings of diplomatic processes’.[44] National governments alone could not be trusted to protect human rights since individuals would be subject to the arbitrary will of a majority.[45] A court, on the other hand, would not only serve to give individuals remedies, but would serve as a deterrent to would-be perpetrators of abuse.[46] The proposal was given little consideration at the Paris Peace Conference, with delegates concluding that the topic should be incorporated into the later discussions by the UN ECOSOC.[47] The Australian delegation did not appear surprised by this outcome, though it felt that proper consideration had been a casualty of the ‘blind-stabbing’ rush to compromise with the USSR to gain a peace treaty.[48] However, they saw their proposal as remaining important for assisting in the campaign for a European Court of Human Rights that would be in turn the precursor of a ‘World Bill and Court of Fundamental Rights’.[49]

When the Commission on Human Rights began its deliberations, the Australians were quick to grasp the opportunity to resurrect the Court of Human Rights proposal. Obeying his orders from Evatt, Colonel Hodgson raised the issue of the Court at the first meeting of the Commission.[50] Whenever the opportunity arose, Australians spoke with great fervour about the establishment of a Court. One Australian delegate for instance proclaimed:

The Australian proposals for an International Court of Human Rights have been put forward because we favour a continuous, effective, and just system of international supervision. In English law the remedy is to us as important as the right, for without the remedy there is no right. Our basic thesis is that individuals and associations as well as states must have access to and full legal standing before some kind of international tribunal charged with the supervision and enforcement of the covenant. In our view either a full and effective observance of human rights is sought, or it is not. If we do seek it, then the consequence must be admitted and the idea of compulsory judicial decisions accepted.[51] (emphasis added)

Echoing statements at the Paris Peace Conference, Australian delegates disparaged the sufficiency of General Assembly Resolutions that condemned abuses, given their vulnerability to attack as being tainted by political considerations.[52] Australia opposed the United Kingdom proposal that individuals be able to petition the General Assembly for relief on the basis that under the scheme individuals required state sponsorship to petition the General Assembly and that the scheme would have the unfortunate tendency to turn human rights into political issues.[53] A similarly hostile reaction was given to the United States-Chinese proposal for state-to state mediation on the basis that there would be no enforcement machinery, that implementation would peter out if the committee of three (the two states and a third appointed by the Secretary-General) failed, and that intervention would be ‘a diplomatic act, and would take place, or not, in accord with political interests’.[54]

A detailed statute for the International Court was prepared by Australia in 1948, clarifying the parameters of the Court’s anticipated powers.[55] The statute made provision for a wide range of categories of parties to have standing before the Court: states (including in certain situations, states which were not parties to the international covenants), individuals, groups of individuals, and associations, whether national or international. The Court could also receive information from public international organisations and request information from such organisations. It was also empowered to request the Commission on Human Rights to carry out particular investigations.

The Court was to have jurisdiction over:

(i) All disputes arising out of the interpretation and application of the Covenant on Human Rights referred to it by any party to such Covenant;
(ii) All disputes arising out of the interpretation and application of Articles concerning human rights in any treaty or convention between States referred to it by any party to such treaty or convention;
(iii) All matters concerning the observance of Human Rights by the parties to such Covenant or to any such treaty of Convention referred to it by the Commission on Human Rights.[56]

This jurisdiction clause was startling in its breadth. It included not only disputes arising from the Covenants being drafted but also human rights disputes arising under any other treaty if one party referred the case, or matters relating to either category of treaty referred by the Commission on Human Rights (a form of non-voluntary jurisdiction). As a result of pressure within the Commission on Human Rights, a filtering role for the Commission, in relation to the complaints of individuals and associations, was introduced. In addition to jurisdiction over contested cases, the Court was to have the capacity to give advisory opinions on questions relating to human rights at the request of the Commission on Human Rights. The Court itself was to be the ultimate arbiter of its own jurisdiction.

Comparatively little detail about remedies was included in the draft statute. Like the statute for the International Court of Justice,[57] the draft statute for the Court stated that its decisions would bind only the parties. Judgments were to be without appeal.[58] Powers of the Court to award damages or reparations were not mentioned. The lack of any details concerning remedies might have been considered an oversight had it not been for the fact that, at the Paris Peace Conference, Australia had put forward proposals for the enforcement of judgments. In that context, Australia had suggested that the Court make orders for damages and that such orders would be enforceable against the revenues or other property of the state.[59] By the time of the Commission on Human Rights, this feature was omitted, leaving the Working Group on Implementation a free hand to devise a new system.

The Working Group on Implementation recommended that the successful party (or the Commission on Human Rights) be given the capacity to raise violations with the General Assembly. The General Assembly would then make a recommendation as to appropriate action.[60] Australia did not express any particular concern at this model, a response that seems somewhat surprising in so far as the Working Group’s model did not provide for guaranteed redress for individuals. It may have been that Australian delegations remained confident that states who respected the rule of law would abide by Court judgments without future coercive mechanisms being required. Certainly, at the Paris Peace Conference, Australia had downplayed the issue of enforcement of judgments, stating ‘[t]he problem to be solved is not the enforcing of a judgement (which is one of the ultimate problems of International Law), but the implementing of clauses’,[61] an issue presumably, of political will.

The Court was not seen as a derogation of state sovereignty, but a fulfilment of obligations under the UN Charter:

If we believe in the idea of international bills of human rights we must necessarily accept these limitations [on sovereignty] … In the Charter we have already accepted the principles governing our actions in these fields, and there should be no objection to a system which seeks to keep us up to our obligations.[62]

At the Paris Peace Conference Australian delegates had been savage in their derision of the ‘sovereignty’ objection. Sovereignty was said to be:

an outmoded conception, a fetishist survival whose worship should be anathema in the fact of economic and human inter-relationships of our one atomic world. … Gentlemen, every international agreement is a derogation of sovereignty.[63]

In the Commission on Human Rights, Australian delegates were more moderate in their statements. Sovereignty of states was accepted as a valid concept. It was not regarded, however, as a barrier to state acceptance of human rights obligations and the establishment of an international court.

As John Humphrey, the Director of the UN Division of Human Rights (1946-1966), has pointed out, the Australian proposal for a Court does not appear such a radical suggestion when considered in the light of the Council of Europe’s establishment of such a body in 1950.[64] Yet, despite receiving the endorsement of the Working Group on Implementation,[65] the proposal never came close to enjoying the support of a majority of the Commission.[66] Within the Working Group on Implementation, only Belgium actively supported the proposal.[67] The USSR was implacably opposed to the proposal which it perceived as a breach of sovereignty.[68] The United Kingdom regarded the proposal as premature in light of the fact that the content of the Bill had not yet been determined.[69] The United States pointed to the chilling effect the Court might have upon ratifications given the prevailing world climate.[70] Chile described the scheme as ‘utopian’.[71] While France offered some support, it regarded the moment for such a Court as ‘not yet ripe’,[72] preferring a Commission of Inquiry and Conciliation. Even the international jurist, Professor Lauterpacht, a strong proponent of developing the international human rights system, rejected the Australian proposal on the bases that it would be controversial given outstanding concerns about the scope of domestic jurisdiction and state sovereignty, that it would encourage litigation, and that it would be ineffective in being able to evaluate domestic law systems.[73]

As early as December 1947 Australian delegates were pointing to the need for a revision of policy given the unpopularity of the Court proposal.[74] By April 1949 the Department of External Affairs concluded that the Court proposal was destined for rejection despite evidence of growing support by NGOs.[75] Interestingly, the Department suggested that not even Australia would ratify a Covenant that included a Court ‘at the present time’ and questioned the effect that the Cold War would have on the impartial dispensation of justice.[76] Bowing partially to this pressure, Evatt directed that ‘for tactical reasons’, delegates should continue to push for a Court, while working towards the establishment of the French-style conciliation and inquiry commission.[77]

Even as Australia moved to support the French Commission model, its support rested on two pre-conditions: that the body be a permanent body, and that individuals enjoy a right to petition the body. Australia also supported the Commission reviewing the legislation of state parties:

Should the Commission decide that the time is not yet ripe for the setting up of an international court, the Australian Government would wholeheartedly support the proposals put forward by Professor Cassin last year, providing for a review of the extent to which the laws of the contracting states are consistent with the Covenant, the examination, if necessary by investigation, of the complaints of states, associations and individuals, and the proposal, where appropriate, of recommendations to the General Assembly. Whilst this would not go as far as we would wish in the protection of human rights, it may well be as far as we can go at the present time, and would clearly make a very important contribution to what we are striving to do.[78]

Australian support was also made conditional upon the Commission being given the power to request an advisory opinion from the International Court of Justice.

When the issue of individual petitioning was raised discretely, Australia voted in favour of individuals having a right of petition with respect to human rights violation.[79] In disputing claims that UN bodies were not well suited to hearing individual claims, Australian delegates pointed to the example of the Trusteeship Council’s effective operation.[80] Again in responding to claims that a right of petition would not respect ‘national sovereignty’,[81] Australia confirmed the statement of the Belgian representative (Delhousse):

national sovereignty was always raised in international law by those who took a reactionary attitude … if that objection were raised at every stage of its work, the UN would in due course be destroyed.[82]

Australia reiterated its understanding that articles 55 and 56 of the UN Charter meant that there was not the least doubt concerning the competence and even the obligation of the UN to undertake international action in some form or other. The only debatable question ‘was that of the methods and the time’.[83] It would be anomalous if inhabitants of trust territories could approach the UN with their human rights complaints, but that inhabitants of metropolitan countries would be precluded from doing so.[84] Instead of accepting the view that article 2(7) precluded the UN considering human rights matters within individual countries, Australian delegates put forward a dynamic view of article 2(7) such that, even had human rights matters previously been a matter of ‘domestic jurisdiction’ (a point not conceded),

certain matters of domestic jurisdiction could be transferred to international jurisdiction. That would not constitute a violation, but rather an exercise of sovereignty. A country would always be free to demand guarantees against irresponsible petitions.[85]

What were the main contributing factors to this individual- and internationalist-centred view of implementation of human rights guarantees? Clearly, Evatt himself was an internationalist; a believer in the UN as a means of avoiding war and pre-cursors to war, such as human rights violations.[86] However, to suggest that Australia’s policies were simply a product of an ebullient ‘honeymoon’ relationship with the UN would be to ignore the warnings being given by allies and internally as to the dangers of the Cold War. A choice was made in the midst of the growing crisis to support UN scrutiny of human rights matters. It was Evatt’s choice, one made seemingly with little conferral with party colleagues.[87] Having led the delegation at the Paris Peace Conference (and possibly authored the original drafts of the Court proposal),[88] Evatt gave repeated instructions to delegates to continue pushing for a Court at the Commission. This preference for international and judicial modes of dispute resolution had thus a strong personal flavour to it.

Looking at Australian Labor Party policy of the time, there was little that dictated a preference for judicial means of dispute resolution. Neville Harper and David Sissons have commented that the Court proposal was consistent with Evatt’s ‘firm belief that judicial procedures should be more widely utilised at the international level’.[89] As a former High Court judge, Evatt’s belief in formal adjudicatory mechanisms is not all that surprising. Equally, it seems to have been Evatt’s strong personal belief that it was the state’s responsibility to represent the interests of the individual and so seek ways of facilitating the individual’s access to the international realm.[90] Burton, Evatt’s personal assistant, who was appointed by Evatt to be Secretary of the Department of External Affairs, has stated that Evatt identified with people rather than institutions and so challenged practices and legal norms which did not reflect individual concerns.[91] The fact that Australia’s policies were so little shaped by Cold War tensions also seems referable to Evatt’s well-documented sense that the Cold War should not dominate policy discussion.[92]

Evatt’s Labor allegiances arguably created more fertile soil for the adoption of an internationalist approach, or at least a greater receptiveness to it than might be expected from his Liberal counterparts. At a level of rhetoric, Labor retained a commitment to forming international alliances with labour movements. Admittedly, its solidarity actions with ‘workers of the world’, at least those from neighbouring countries, continued to be compromised by its sensitivity concerning the ‘cheap labour’ threat of Asiatic and Pacific Islander workers, and its policies on international issues which have been described by Crisp as ‘consistently and robustly nationalistic’, and ‘frequently isolationist, and not uncommonly parochial and wanting in wider perspective and imagination’.[93] However, at the level of ideals, Labor remained historically supportive of united international labour movements and eagerly participated in conferences of the International Labour Organization.[94] Importantly, too, Labor believed in governmental intervention in society to transform conditions of life. It is arguable that this belief in ‘interventionist’ policies made Labor politicians more receptive to the introduction of an international governance scheme that would similarly seek to transform society. Unfortunately, given Evatt’s lone existence as a Labor Minister for External Affairs during this period, it is not possible to do more than speculate on this connection. What is clear that Evatt’s successors were not to share his views, either on the Cold War or the desirable role of the UN in investigating human rights abuses.

III. Spender Period (late 1949-1951)

Percy Spender in his brief term as Minister for External Affairs produced a fundamental shift in attitude towards issues of international implementation. After a hesitant beginning, Spender authorised withdrawal of the Court proposal and instituted strong anti-individualist petitioning strategies. During 1950-1951 the UN and its subsidiary bodies were perceived as institutions designed to assist states in their efforts to promote human rights, but not to hear the complaints of disaffected individuals or groups who were regarded as potentially subversive.

In March 1950 the Department of External Affairs prepared a submission for Spender focusing on the available choices regarding the international implementation of human rights. The options outlined were:

(i) an International Court of Human Rights (as previously proposed by Australia);

(ii) ad hoc fact-finding Committees that would be engaged where one state made a complaint against another state (a proposal favoured by the United Kingdom and the United States); and

(iii) a permanent Commission of Inquiry and Conciliation (as proposed by France).

The Department, in keeping with its views in 1949, suggested that the Court proposal was ‘quite unreal’ given the fundamental differences in philosophy and in legal procedures between East and West:

A condition precedent to the successful functioning of such a Court is the common acceptance of a basic humanistic philosophy and agreement on fundamental legal concepts and procedures by the States Parties to the Statute.[95]

Spender agreed with the Department’s proposal that the Court proposal be referred to the International Law Commission for further study.[96] The Commission on Human Rights instead resolved that the Australian proposal should remain on its continuing agenda.[97] When the three options were again put to Spender in March 1950 by his Department, Spender supported the United Kingdom’s proposal to have ad hoc fact-finding Committees whose jurisdiction would be limited to inter-state conflicts. Spender rejected the Department’s arguments in favour of a Commission of Inquiry and Conciliation (augmented by a High Commissioner for Human Rights),[98] annotating the submission put to him concerning the proposal with the comment: ‘[t]here is the further objection that it could easily be made a political instrument, and intermeddle in the domestic concerns of any State’.[99] In this brief statement, Spender revealed his abiding concerns and assumptions which were so distinct from Evatt’s.

First, Spender thought that there was no guarantee that a UN body would dispense impartial justice. Instead, such a body was envisaged as vulnerable to manipulation by state actors with differing political ideological agendas. It was a view that was obviously related to the intensified political tensions dominating many of the discussions in the UN. Second, however, Spender was indicating that he considered that human rights matters were a matter of ‘domestic concern’ for states, rather than being an appropriate subject for international scrutiny. The focus of Spender’s concern was and remained upon providing for stable government. It was thus a heavily state-centric, rather than individually focused, view.

In late 1950 and 1951, Australia moved towards support for the French model of a permanent Conciliation/Inquiry body. This did not represent a change of heart, but a pragmatic recognition that the French proposal enjoyed overwhelming international support.[100] Spender’s world view of supporting restrictive implementation mechanisms was to remain influential in shaping other aspects of Australia’s international implementation policy.

The dominance of such a state-centric view is apparent in Spender’s position on whether individuals should have a right to petition the UN with respect to infringements of human rights. In what represented a complete reversal of policy from the Evatt period, Spender directed that Australia oppose individual petitioning mechanisms and be cautious concerning petitions from non-government organisations. In response to a submission from the Department of External Affairs that concluded that it would be premature to have petitions from individuals, Spender explicitly limited the Australian delegation to support for the right of petition for signatory states alone.[101] In the final weeks of his Ministry, Spender reiterated that petitioning was a privilege that individuals could not be trusted not to abuse.[102] Furthermore, Spender perceived that permitting individuals or non-government organisations to petition the UN would run the risk of lowering the prestige and authority of the national law courts. In his view, such arguments overrode theoretical considerations based on individual liberty and political theories.[103] For Spender individual petitioning would:

inevitably lead to outside interference frequently from people whose chief concern is interference in domestic matters of a State. Further, it will lend itself to agitation within a country for nefarious purposes.[104]

If permitted to petition the international community, individuals might destabilise states. Implicit in his reasoning was that states could be trusted to act in the best interests of its citizens,[105] and that those who sought ‘international intervention’ were seeking to destabilise the state. H F E (Fred) Whitlam as Australia’s representative in 1951 echoed this state-centric view. While the state had a responsibility to protect the rights of individuals, international society was to be concerned with the relations of states:

States were still the greatest societies of the world, both as national entities and as members of the international community. They existed not only to rule, but also to ensure the protection of the people under their control and jurisdiction who owed them allegiance and even those within their jurisdiction who did not owe them allegiance.[106]

In a dramatic manner befitting the Cold War context of the ongoing negotiations, Whitlam pointed to the potential for a right of individual petitioning to undermine the basis of ordered government:

Every existing institution was being challenged today. It would be both impolitic and unwise to present an opening to those who were desirous of decrying the principles and institutions of justice.[107]

Colin Moodie, as Australian representative in the Third Committee of the General Assembly, spoke in similar terms against granting individuals a right of petition. To Spender’s list of objections, however, Moodie added a ‘floodgates’ argument.[108] Since individuals in most states made representations to their governments on matters covered by the Covenant, it would only be reasonable, Moodie stated, to assume that many of these people, if dissatisfied with action by their government would proceed to bring their grievance before the Committee.[109] The planned Committee would not have the resources to deal with such a number of complaints, nor should it be required to find such resources when the bulk of such complaints could be dealt with adequately by individual governments.[110]

Slightly more enthusiasm for the concept of non-government organisation petitioning was evident within departmental ranks. In April 1950 his Department attempted to persuade Spender that support might be given to the United States compromise proposal to draft a separate protocol giving non-government organisations the right to petition the Human Rights Committee.[111] Spender was unmoved. After caustically noting that he considered ‘non governmental bodies were seeking to extend unduly their authority’ through the petitioning proposal, Spender withheld support from this proposal on the basis that it was impossible to know which non-government organisations were in contemplation.[112] The Australian delegation was thus to oppose the proposal.

Evident also in Australia’s stance on individual petitioning was an increasing use of the shield of ‘domestic jurisdiction’ as a justification for limiting UN involvement in the scrutiny process.[113] Thus, in expressing his opposition to Australia responding to individual communications from Australian individuals, Spender stated:

These matters have nothing whatever to do with the Commission and we should do what we can to prevent their discussion and if discussed record unequivocally that we will not have outside interference in our domestic affairs.[114]

More ambiguous statements were made in the Commission on Human Rights concerning whether the UN had a pre-existing right to be involved in matters of the enforcement of human rights. At the 211th Meeting of the Commission, held in April 1951 immediately prior to Spender’s resignation, Whitlam accepted that ‘from the very beginning of the present chapter in international relations’, the conception that the individual and his rights were of concern to the international community had prevailed.[115] At the same time, however, Whitlam did not accept that the UN thereby had any right to choose expansive methods of international implementation. State sovereignty had to be protected and international inquiry into an individual state’s practices could only be permitted to the extent that states agreed to such intervention.[116] For Spender, defending the ‘domestic jurisdiction’ of states (a field that he saw including human rights practices) was a priority. Submissions to him were returned to departmental officials with references to ‘domestic jurisdiction’ underlined.[117]

In jealously guarding Australia’s domestic jurisdiction against the intervention of the UN or the subversive antics of Australian individuals, Spender’s approach to international implementation was markedly different from that pursued during the Evatt period. Spender’s stance was influenced by a perceived need to preserve Australia from the destabilising effect of communism. Spender’s adoption of such a Cold War perspective was typical of Liberal Party politicians during the 1950s. As David Lowe has demonstrated, though some of the anti-communism rhetoric was designed to achieve electoral advantage, Menzies and his Liberal counterparts had genuine fears that communism represented a real threat to Australian society.[118]

Yet Spender’s shift of direction did not simply relate to whether the international community could be trusted to provide impartial injustice. In so far as Spender consistently spoke of the interest of the state, he was privileging the interest of the state above that of the disaffected individual. Not only was the individual’s interest marginalised in the Spender period, but the ‘complaining individual’ was demonised.

As with the Evatt period, it is possible to see a combination of forces at play in producing this narrowed approach to international implementation. Spender was influenced to a much greater extent by the fear of communism and the Cold War than Evatt (though not necessarily all his Labor colleagues). Quite apart from this ‘external factor’, however, there is his distinct state centrism. Considered against the background of the Liberal Party’s emphasis on the role of the state to facilitate and support individual initiative, the privileging of the state interest appears somewhat paradoxical. Menzies, for instance, repeatedly affirmed the primary place of individual freedom in Liberal thought and the role of politicians to ‘serve a community in which he shares power and responsibility’.[119] His attitude might be said to reflect a personal philosophy. Alternatively, an argument could be made that his state centrism was a version of Liberal Party ‘non-interventionism’ if the international community was regarded as akin to ‘the state’, and an individual government was regarded as the ‘international citizen’. In this equation, however, there would be little room for the individual, whose interests did not coincide with that of the ‘international citizen’ of the state. Either thesis needs to be tested against the actions of future Liberal Party actors.

What can be stated confidently, is that the policies which Spender instituted were to continue to shape Australian policy over the remaining 15 years of the international negotiations.

IV. Casey and the Bureaucratic Period

During the terms of Richard Casey (1951-1960) and his successors as Minister for External Affairs, there were few novel developments in Australian policy. Instead, opposition to extensive international implementation powers was further entrenched. Australia continued to resist proposals empowering the UN to consider actively the human rights practices of individual states (without that state’s consent), such as giving the Human Rights Committee independent powers, establishing a High Commissioner for Human Rights, or permitting individuals an automatic right to petition the UN. There were two particular legacies left by Casey. First, Casey entrenched a policy direction that Australia was not to become ‘internationally isolated’ in its approaches. Second, after indicating his initial preferences in 1951-2, he permitted bureaucrats such as Fred Whitlam and his successors to take over the bulk of policy decision-making. The result was that Australia remained committed to minimalist state-centred systems of implementation, until such time as the pressure not to be isolated produced a reversal of Australia’s voting patterns and apparent support for the system eventually adopted.

At the commencement of Casey’s term, Australia made its formal announcement that it supported the French Commission model. A policy movement accepted during the Spender period, Australia’s change of heart was couched in terms of being persuaded in the face of the overwhelming support given to the proposal by other delegations.[120]

Having effectively lost the battle against the establishment of a permanent body, Australian delegations headed by Whitlam spearheaded a campaign to ensure that any Committee’s operations would be kept within narrowly defined boundaries. The Brief for the Ninth Session of the Commission on Human Rights in 1953, for instance, directed delegates to clarify that the Committee’s functions to exercise its ‘good offices’ would not include actual visits to countries to investigate human rights situations. The Committee was to be restricted to sitting in New York and Geneva and was to be informed by the state parties of the relevant state of affairs.[121] Likewise, Whitlam opposed the Committee having any independent power to initiate its own inquiries in the 1953 sittings of the Commission on Human Rights.[122] The underlying approach was to downplay the importance of international implementation mechanisms, seeing them essentially as supplements to domestic action, an ‘exercise of moral influence’ rather than a primary method of enforcing human rights.[123]

The legitimate role of the UN was regarded as acting as facilitator and ‘support agent’ for the efforts of states. In the Brief for the Eighth Session of the Commission on Human Rights (1952), the delegate was directed to support the view that ‘the principal function of the Human Rights Committee is to exercise “good offices” and not to endeavour to act as a body concerned with bringing offenders to heel’.[124] Similarly, Australia supported the appointment of persons with special qualifications to the Committee (rather than political representatives) on the basis that specially qualified persons could assist states between whom a difference had arisen to form a better relationship with each other.[125] It was a conception, however, that led to continued opposition to the UN accepting petitions from individuals or organisations and so investigating practices within a state without that state’s consent.

Petitioning was one subject matter on which there appeared to be a division as between his advisers and Casey. Fred Whitlam had evinced publicly his sympathy for a system of petitions. At the 245th meeting of the Commission on Human Rights in early May 1951, for example, Whitlam noted that many cogent arguments had been given in favour of individual and non-government organisation petitions that appealed ‘not only to the mind, but also to the heart’.[126] The Department was also aware of the United Kingdom’s preparedness to support individual petitioning should the United States proposal attract support. As such, the Department of External Affairs put a series of arguments to Casey recommending that Australia move to at least support the United States NGO-petitioning system[127] The Department noted the unlikelihood of states actually submitting complaints about other states because of fear of retaliatory action.[128] Only through allowing NGOs to petition the UN bodies would there be a fulfilment of article 55 of the Charter, the Department argued. Furthermore, the United States had inserted a provision that only NGOs recognised by two-thirds of members would be able to bring complaints, thus safeguarding against the actions of ‘extremist and irresponsible’ NGOs. Domestic remedies would also have to be exhausted before international petitioning was permitted. In recommending support for NGO petitioning, the Department did suggest that such a procedure be contained within a separate protocol containing safeguards for domestic jurisdiction and adequate rules of procedure.[129]

There is no record of the final version of this submission or Casey’s response in the Department of External Affairs’ files. Publicly, Australia remained against any form of non-state petitioning.[130] The delegation to the Eighth Session of the Commission on Human Rights in 1953 was instructed to maintain opposition to any form of non-state petitioning, but to be mindful of the opinion of the United Kingdom and France.[131] It is likely, therefore, that Casey gave an ‘oppose, but do not become isolated’ response to his Department. By the Ninth Session Brief in 1954, the Australian delegate was directed that Australia’s ‘final position’ might have to be taken ‘with regard to the views of other British Commonwealth countries and the United States’.[132] Similarly, in the 1955 Brief for the General Assembly which was to remain the guide for Australian delegations for seven years, delegations were advised to continue opposing petitions ‘unless there was a clear majority vote (including the UK)’. If Australia was likely to be in a minority position, delegates were ordered to report back to the Department on the views of other governments, in particular the United Kingdom.[133]

Australia’s stance on petitioning only changed as a result of Australia finding itself in a minority position. In 1965, in the parallel negotiations for the International Convention on the Elimination of All Forms of Racial Discrimination (CERD),[134] the Australian delegation suggested that Australia’s failure to support the petitioning process was likely to receive adverse comment and lead to implications that Australia supported racial discrimination. Apartheid and racial discrimination had become the focus of international human rights debate, and Australia, which was facing intensified criticism of its policies with respect to Aboriginal rights and immigration, was reluctant to be associated with those seeking to defend the apartheid regime. The Department of External Affairs prepared a submission for the then Minister of External Affairs, Paul Hasluck. In addition to pointing to the fact that Australia had in practice tended to respond to individual petitions,[135] the submission referred to the virtual unanimity within the western bloc in favour of supporting strong implementation measures for the CERD. The hope was said to be that such mechanisms would put communist and Afro-Asian countries on the defensive.[136] The Department considered it unwise for Australia to vote with a group that had reason to be concerned about its own record, and to be isolated from virtually all western countries. Ultimately, the submission relied upon political ‘anti-isolation’ reasoning. It thus sought approval for the delegation to vote in favour of the optional petitioning procedure for individuals and to vote in favour of the non-optional petitioning procedure for non-government organisations if abstention would isolate Australia from other western countries.[137] Minister Hasluck agreed.[138]

Having felt pressured into changing its stance on the petitioning question in the CERD negotiations, Australia followed suit in relation to the ICCPR. The delegation was instructed that it should indicate to the western powers Australia’s readiness to be guided by majority view on the issue.[139] Although noting that Australia’s preference was for there to be no individual petitioning in the ICCPR, Australia was not prepared to be isolated. Thus Australia was to avoid final commitment on the matter.[140] On 3 December 1966 Australia voted with the rest of the western group in favour of the Optional Protocol.[141]

With respect to periodic reporting, Australia originally opposed such an obligation. The focus of attack was the ability of the Human Rights Committee to evaluate civil and political rights in the abstract (requiring reviews of judicial decisions and legislation). Whilst conceding the ability of the Committee to consider particular alleged breaches, it questioned whether there were appropriate benchmarks to be used in evaluating rights abstractly.[142] Ultimately, Australia surrendered its objections, seemingly in the face of overwhelming support for the system of reporting.

Rather than wholeheartedly embracing international scrutiny of individual human rights records, Australian conservatism was merely resurrected in a different form, that of interpreting the treaty provisions. In explaining the effect of the finalised ICCPR to other Departments in 1967, for example, Patrick Brazil (the then outposted Legal Adviser to the Department of External Affairs from the Attorney-General’s Department) made the following comment:

The limitation on the Council and the Commission to making general recommendations should mean that these bodies will not single out situations in individual countries for special comment and criticism.[143] (italics added)

Likewise in relation to the Human Rights Committee, Brazil stated:

It is to be noted that under Article 41 the Committee is not given any competence to decide complaints or even to make recommendations for their solution.[144]

No reference was made to the Optional Protocol to the ICCPR in explaining the potential breadth of the ICCPR. Although this memorandum was prepared after the conclusion of the Covenant debates, it is likely that Brazil’s understanding corresponded with those of the Department of External Affairs as of the date of the Covenants being finalised. If, as is likely, this interpretation was accepted by Departments receiving the Memorandum, a sense of complacency about the significance of international scrutiny would have been created.

To a large extent, the reasons for the adoption of such policies in the Casey and Bureaucratic period mirror those applicable in the Spender period. International tensions remained high, as anti-colonial sentiments joined with Cold War tensions to produce a bitterly divided UN. Even had there been less tension, however, Australia would still have been likely to adopt restrictive implementation policies in view of the state-centrism that had become an entrenched part of Australian policy. The fact that bureaucrats with likely Labor sympathies such as Whitlam,[145] as well as Liberal Ministers adopted the state-centrist approach belies an easy correlation between a Liberal party philosophy and restrictive approach. Instead, this prevalence of state-centrism tends to suggest the existence of a multiplicity of factors, including contemporary legal education, personal philosophies and (for some) party philosophies in contributing to this conservatism.

By the late 1960s bureaucratic and political aversion to being isolated combined with a defensiveness about Australia’s racial record to produce a softening of Australia’s policies. However, viewed in context, these late shifts were only superficial in nature. The favouring of minimalist forms of international implementation remained strong and became an undercurrent supporting conservative interpretations of the treaties once finalised.

V. Conclusion

Examining Australia’s historic policies towards the international implementation of civil and political rights reveals the shrinking nature of Australia’s enthusiasm for strong, independent international mechanisms to scrutinise the human rights records of individual countries during the period 1946-1966. Although remaining engaged in the international negotiations, Australia’s support for the UN adjudication of individual and NGO complaints was largely limited to three years in the late 1940s, propelled by the vision of Dr Evatt. Under the leadership of P C Spender, subsequent Foreign Affairs Ministers and bureaucrats, Australia decried independent UN investigations, and preferred minimalist UN human rights monitoring. In what was to be, therefore, Australia’s dominant negotiating stance, the UN was envisaged as a source of technical assistance for states, but a body which should otherwise remain largely uninvolved in individual state practices. Whilst ultimately voting in favour of the Human Rights Committee’s powers and the Optional Protocol to avoid being internationally isolated and grouped with defenders of apartheid, Australia’s basic commitment to a minimalist model of UN activity remained influential in dictating early interpretations of the ICCPR. Given heavy bureaucratic reliance on ‘previous legal opinions’, it is possible that such conservative interpretations continue to infuse bureaucratic understandings.

Having unearthed the marked contrasts in Australia’s ‘pre-ratification’ history, continued analysis is necessary to identify the dominant influences in producing the shifts. What this article has suggested is that contrary to most commonly cited ‘Cold War’ theories about the stilted development of the international human rights norms, one must look more deeply at the complex interaction of personal, party-political and bureaucratic influences to understand the varying attitudes to international scrutiny of human rights. In Evatt’s enthusiasm for an International Court of Human Rights, one sees both his personal commitment to judicial modes of dispute resolution and ‘individual-centred’ thinking, and a commitment to ‘internationalism’ that seems to fit comfortably with his Labor Party allegiance. Spender, a Liberal Party Minister, and Whitlam, a senior Bureaucrat with likely personal Labor party sympathies, steered Australia towards more-restrictive policies based upon a state-centric model of international relations. In this model, the UN had a legitimate role in assisting states to fulfil their obligation, but not in responding to the subversive complaints of individuals and NGOs. In producing this world view, personal philosophies appear to have been at play, though this article has also suggested the possible equation by some Liberal actors of the interest of the individual in freedom with a perception of the individual state as the individual ‘international citizen’ to be protected from undue interference.

The nature of the contrasts and dominant factors contributing to these contrasts suggest that the patterns noted in the ‘pre-ratification’ history might have continuing significance. This article is not intended to suggest that the current debate can be immediately juxtaposed with this early history, nor that the future trajectory of Australian action will necessarily replicate the pattern of the ‘pre-ratification’ history. Important distinctions can be drawn on a number of grounds. In the intervening 36 years between 1966 and the present, the identity of the relevant actors (including bureaucratic players) has obviously changed. Political philosophies too cannot be assumed to be identical in all respects to those of an earlier period. It is also a powerful argument that subsequent to 1966, Australia ratified the ICCPR, the Optional Protocol and the Vienna Convention on the Law of Treaties[146] and so bound itself to the ‘objective’ meaning of the treaties and, by implication, to relinquish its ‘subjective’ views. Internationally and domestically, a number of significant political events have taken place which themselves have the potential to impact on understandings of international obligations.

However, for contemporary readers, the resonances between Australian statements uttered in the 1950s and 1960s and the official pronouncements of more recent origin remain marked. The contrasts between the Evatt and Spender periods might also seem familiar to analysts comparing attitudes to international human rights bodies as between the Hawke/Keating governments and the Howard government. Such parallels suggest that the influence of subjective assumptions, understandings and philosophies has not yet been exhausted. The current emphasis on the theory of objective international obligations in Australian human rights scholarships cloaks these divisions and assumes a ‘community of understanding’ as to the implications of Australia’s ongoing obligations. Yet, the very dynamism of Australian policy-making revealed in this article provides a key to moving towards consensus.

Once the effect of party-political philosophies and personal philosophies of both political leaders and bureaucrats is acknowledged, not only is a space created for entering into the dialogue on the underlying philosophic body system, but the most pertinent pressure points are also revealed. Thus, one is able to focus directly on sites of resistance and tension within party philosophies and bureaucratic ‘orthodoxies’. The process of gaining acceptance for the international human rights regime is thus understood not as a one-off step through ratification, but as an ongoing process to gain consensus over the developing ‘objective meanings’ and which also addresses directly and respectfully philosophic and institutional sources of resistance to these ‘objective meanings’ within an ever-changing state.

[∗] BA(Hons)/LLB(Hons) (ANU), LLM (Columbia), PhD (ANU). The research presented in this article is drawn from the author’s doctoral dissertation on Australia’s policies during the negotiations of the International Bill of Rights (1946-1966). The full study is due to be published in late 2003. I wish to express my particular thanks to Hilary Charlesworth, Peter Bailey and Ian Hancock for their valuable insights.

[1] Most recently, the Attorney General and Minister for Foreign Affairs have issued a Joint Press Release criticising the Report of the UN High Commissioner’s special Envoy, Justice Bhagwati into conditions at Australia’s detention centres: ‘Government Rejects the Report of the UN Human Rights Commissioner’s Envoy into Human Rights and Immigration Detention’, Joint Media Release, 31 July 2002, available online at

109_02_un_hr_report.html. For a good summary of previous criticisms of UN human rights treaty bodies, see D Otto, ‘From “Reluctance” to “Exceptionalism”: The Australian Approach to domestic implementation of human rights’ (2001) 26(5) Alternative Law Journal 219 at 220; H Charlesworth, Kathleen Fitzpatrick Lecture, University of Melbourne, 17 May 2001.

[2] Joint News Release of the Minister for Foreign Affairs, the Attorney-General and the Minister for Immigration and Multicultural Affairs, 29 August 2000: ‘Improving the Effectiveness of United Nations Committees’. The full text can be found on the Attorney-General’s website:

[3] See Otto, above n 1, 219.

[4] (16 December 1966), 999 UNTS 171; 6 ILM 368; first Optional Protocol (16 December 1966), 999 UNTS 302.

[5] Space considerations negated the opportunity to present policies towards the enforcement mechanisms of both the ICCPR and the ICESCR. The focus on the ICCPR was chosen because of the more extensive debates surrounding enforcement clauses and should not be read in any way as an intended affirmation of the primacy of civil and political rights, or the legitimacy of viewing rights under the ICCPR and ICESCR separately.

[6] As to overall accounts of the development of the International Bill of Rights, see J Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (1999); L Henkin, The International Bill of Rights (1981); and L B Sohn and T Buergenthal, International Protection of Human Rights (1973).

[7] GA Res 217A (10 ecember 1948).

[8] (16 December 1966) 993 UNTS 3; 4 ILM 360.

[9] Australia ratified the ICCPR in 1980 and the ICESCR in 1976. It did not ratify the Optional Protocol until 1991. It is possible, however, that Australia may have had obligations under customary international law during the ‘pre-ratification’ period, see below n 17.

[10] See eg, R Piotrowicz and S Kaye, Human Rights in International and Australian Law (2000); the studies in D Kinley (ed), Human Rights in Australian Law (1998). Peter Bailey has given some consideration to Australia’s ‘pre-ratification’ human rights history in relation to Commonwealth legislative power: P Bailey, Human Rights: Australia in an International Context (1990) ch 5. However, the only studies of Australia’s ‘pre-ratification history’ remain the contemporary accounts: see G Sawer, ‘The United Nations’ in G Greenwood and N Harper (eds), Australia in World Affairs, 1950-1955 (1957) and his subsequent entries in the volumes covering 1955-1960, 1960-1965; N Harper and D Sissons, Australia and the United Nations (1959).

[11] The study thus joins analyses of other states’ historic attitudes towards human rights: see, eg, C Palley, The United Kingdom and Human Rights (1991); M Glen Johnson, ‘The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights’ (1987) 9 Human Rights Quarterly 19; M A Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2002).

[12] The transparency of the early period relates to the fact that in the negotiations, Australia was forced to make comment, clause by clause, on the substantive matters and is also assisted by records older than 30 years of age being freely available pursuant to the Archives Act 1988 (Cth).

[13] The objective approach to treaty interpretation has been the dominant approach since the finalising of the Vienna Convention on the Law of Treaties 1969, (23 May 1969), 1155 UNTS 331; 8 ILM 679.

[14] H F E (Fred) Whitlam was an influential public servant – having served as Crown Solicitor during the Evatt years, and being appointed as a Consultant to represent Australia at the Commission on Human Rights from 1950-1954. He may be best known to a modern Australian audience as the father of former Prime Minister, Gough Whitlam.

[15] Kenneth Bailey, often known as ‘Professor Bailey’ in recognition of his original career as a law academic at Melbourne University, served under Labor and Liberal governments. He was Secretary of the Attorney-General’s Department and Commonwealth Solicitor General (1946-1964).

[16] Universal Declaration of Human Rights, GA Res 217A (1948).

[17] There is significant literature available on the way in which norms of the UDHR have subsequently become binding as a matter of customary international law: see eg, T Meron, Human Rights and Humanitarian Norms as Customary Law (1989).

[18] As to the Soviet hostility to all forms of international implementation, see J Humphrey, Human Rights and the United Nations: A Great Adventure (1984) 54 and F Jhabvala, ‘The Soviet Bloc’s View of the Implementations of Human Rights Accords’ (1985) 7 Human Rights Quarterly 466. It is also noted in the Report of the Australian Delegate to the Fifth Session of the Commission on Human Rights, in NAA A 432/85, Item 47/725 Pt 3.

[19] The Third Committee of the General Assembly is the Committee on Social and Humanitarian Affairs.

[20] The issue of whether to proceed with drafting one or two Covenants was a thorny question debated from 1949 until 1952, agitated at the Commission on Human Rights, ECOSOC and the General Assembly. For a detailed account of this debate, see M C R Craven, The International Covenant on Economic, Social and Cultural Rights (1995) 18-20.

[21] For an excellent account of the Human Rights Committee, see D McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991) ch 1.

[22] See for instance, Report of the Drafting Committee, 1947, UN Doc E/CN.4/21, Annex H; and Secretariat documents: UN Doc E/1371, 9 UN ESCOR, Supp (No 10), 1949, Annex III; UN Doc E/4511, accompanying UN Doc A/5655, 18 GAOR, Annexes, Agenda Item 48 (1963).

[23] Australia was the leading proponent of a Court of Human Rights as is discussed later. See for instance, UN Doc E/1371, 9 ESCOR Supp 10 (1949).

[24] The establishment of this office was encouraged in particular by Uruguay and the United States, see Humphrey, above n 18, 130; McGoldrick, above n 21, 13.

[25] The United Kingdom in particular supported the establishment of ad hoc fact-finding committees as discussed later.

[26] The 1950 decision of the Commission on Human Rights is discussed by McGoldrick, above n 21, 6.

[27] The details of the inter-state complaint mechanism were largely settled by 1950 and adopted by the General Assembly in 1966. The details of the Commission’s manner of appointment and establishment were subject to greater debate and were not resolved until 1953-4. For a detailed history of the drafting of Part IV of the ICCPR, see M J Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (1987) 501-787.

[28] This right was later discussed in the Commission on Human Rights (eg, in 1951) and the Third Committee of the General Assembly (1950), but was not reversed: see Craven, above n 20, 18; McGoldrick, above n 21, 7.

[29] See McGoldrick, ibid, 14.

[30] Ibid, 6.

[31] As to the Indian proposal, see UN Doc A/2929, in 10 GAOR, Annexes, Agenda Item 28, Part II (1955), quoted by McGoldrick, above n 21, 13.

[32] Bossuyt, above n 27, 623. In most particulars, the clause adopted (art 40(1) of the ICCPR) was identical to that proposed by the Commission on Human Rights. The major amendment deleted reference to the qualifying term ‘legislative and other’ measures taken by state parties.

[33] Art 40(4) ICCPR.

[34] Cablegram from the Department of External Affairs (DEA) to Hodgson, 23/1/47, in NAA A 1838/1, Item 856/13 Pt 1.

[35] Report of Australian Representative on Drafting Committee, International Bill of Human Rights, First Session of the Commission on Human Rights, in NAA A 1838/1, 856/13/2/1.

[36] Cablegram from Delegation to Commission on Human Rights to DEA, 11/12/48, in NAA A 1838/1, 856/13 Pt 5. See too Australia’s ‘anticipation’ of further development of international modes of implementation in its speech upon the UDHR’s adoption: Speech of Australian delegate to General Assembly on Declaration of Human Rights, in NAA A 1838/1; 856/13/7 Pt 2; also available as Speaker’s Notes on the Report of the Commission on Human Rights, undated but circa December 1948, ‘UN Charter’ Folder, Evatt Collection, Flinders University.

[37] The Paris Peace Conference of 1946 negotiated the peace treaties between the Allies and Romania, Bulgaria, Hungary, Finland, Austria and Germany. It also drafted a treaty between the Allies and Italy. Documents relating to the Paris Peace Conference are found in NAA A 1067/1, Item E/46/38/28, and NAA A 10563/; For general commentary on the Paris Peace Conference, see C W P Waters ‘Voices in the Wilderness: HV Evatt and the European Peace Settlement’, in D Day (ed), Brave New World: Dr H V Evatt and Australian Foreign Policy: 1941-49 (1996); S Kertesz, The Last European Peace Conference: Paris 1946 – Conflict of Values (1985).

[38] Statement Concerning the formation of a European Court of Human Rights included in NAA A 1838/1, Item 856/13 Pt 1.

[39] The Arbitral Tribunal of Upper Silesia was set up after the First World War to deal with claims between German and Polish citizens regarding their treatment following the re-drawing of boundaries between the two territories: see C A Macartney, ‘League of Nations’ Protection of Minority Rights’ in E Luard (ed), The International Protection of Human Rights (1967) ch 2.

[40] Extracts from these two authors are to be found in the Briefs for Australian delegations: see for instance, Statement for Australian Delegate on Court of Human Rights, Political and Territorial Commission for Italy, in NAA A 1067/1, Item E/46/38/28. Professor Bentwich had sugested in 1944 that the time was ripe for a Court of Human Rights, whilst Kaeckenbeeck, in reflecting on the operations of the Silesian Arbitral Tribunal, concluded that future nationality tribunals needed to have power over individual-initiated complaints and have the power to make binding determinations: see N Bentwich, ‘Statelessness through the Peace Treaties After the First World War’ (1944) British Year Book of International Law 171, 176; Dr Kaeckenbeeck’s reflections on the Arbitral Tribunal for Upper Silesia from his text, The International Experiment of Upper Silesia: A Study in the Workings of the Upper Silesian Settlement, 1922-1937 (1942), are quoted in the Statement for Australian Delegate on Court of Human Rights, Political and Territorial Commission for Italy, in NAA A 1067/1, E/46/38/28.

[41] Statement by Delegate for Australia in Paris Peace Conference, undated, in NAA A 1838/278, 856/13 Pt 1.

[42] Ibid.

[43] Ibid. The Delegate was quoting from C A Macartney, National States and National Minorities (1934) 11-12.

[44] Ibid.

[45] European Court of Human Rights: Statement by Delegate for Australia, undated, in NAA A 1838/278, Item 856/13 Pt 1.

[46] Statement by Dr Herbert V Evatt, First Delegate of the Australian delegation, Australian Amendments and Proposed Additions to Draft Treaties, 21 August 1946, ‘War-Paris Peace Conference, 1945-6’ Folder, Evatt Collection, Flinders University.

[47] Doc C.P. (JR) 4th Meeting, 11 September 1946, RG 31, International Conference, Paris Peace Conference 1946, Box 2; UN Archives, New York. Note that in a later document prepared by the UN Secretariat, the failure of the Court proposal was attributed to delegations’ view that the Security Council offered a sufficient forum for the resolution of human rights issues: Memorandum on Implementation, in NAA A 432/85, Item 47/725 Pt 3.

[48] Letter from J A Beasley to Evatt, 14/2/47, ‘War – Paris Peace Conference 1945-6’ Folder, Evatt Collection, Flinders University. Evatt himself expressed resentment at the attitude of the Council of Foreign Ministers (UK, USSR, USA, France and China) who were unwilling to consider changes to the text they had previously agreed to: Cablegram from Evatt to J A Beasley and R Hodgson, 11/1/47, ‘Cables – London – 1943-1946’ Folder, Evatt Collection, Flinders University.

[49] ‘International Court of Civic Rights and International Nationality Tribunal’, paper in Briefing for Australian delegation to Paris Peace Conference, undated, in NAA A 1067/1, Item E 46/38/28.

[50] Cablegram from R Hodgson to Evatt, 8/2/47, in NAA A 1838/1, Item 856/13 Pt 1; See too: Report on First Session of Commission on Human Rights; in NAA A 1838/1, Item 856/13 Pt 1: ‘It was left to Australia to point out that no International Bill of Rights would have any effect unless there was provision for enforcement’.

[51] Statement by Australian Representative on International Court of Human Rights, undated, in NAA A 432/82, Item 1947/725 Pt 3. See to similar effect statement of Alan Watt in the Third Committee of the General Assembly: UN Doc A/C.3/SR 92, 56, 2 October 1948.

[52] Statement by Australian Representative on International Court of Human Rights, undated, in NAA A 432/82, Item 1947/725 Pt 3.

[53] Humphrey, above n 18

, 39. Humphrey comments that in his opinion Australia did not give the United Kingdom proposed Bill of Rights fair consideration because of their misplaced enthusiasm for a court.

[54] Memorandum from J D L Hood, Australian Mission to the UN, to the Secretary, DEA, 16/2/49, in NAA A 1838/1, Item 856/13/7 Pt 2.

[55] The draft Statute can be found in NAA A 1838/1, Item 856/13/7 Pt 1; It was also included in the Report of the Working Group on Implementation’s Report to the Commission on Human Rights: UN Doc E/CN.4/53, Annex C.

[56] Ibid.

[57] (26 June 1945), Aus TS 1975 No 50.

[58] Statute for the Court of Human Rights, in NAA A 1838/1, Item 856/13/7 Pt 1.

[59] Statute for a European Court of Human Rights, contained in NAA A 1067/1, Item E 46/36/8.

[60] Report of Fifth Session of the Commission on Human Rights, Report to ECOSOC, Annex III, 36-7. (1949); E/1371, 9 ESCOR Supp 10.

[61] Paper entitled ‘International Court of Civic Rights and International Nationality Tribunal’, included in brief to Paris Peace Conference, in NAA A 1067/1, Item E 46/38/8.

[62] Statement by Australian Representative on International Court of Human Rights, undated, in NAA A 432/82, 1947/725 Pt 3.

[63] Quoted in internal memorandum to Watt concerning the Court of Human Rights, (author unclear), undated, in NAA A 1838/278, Item 856/13/2. This position seems to have been somewhat at variance with the official briefing for the Paris Peace Conference which included an extensive note from Professor Bentwich stressing that human rights were a matter of international concern, such that no infringement of sovereignty was involved with respect to the establishment of a court: Annex D to papers from the Peace Conference, contained in memorandum from Australian External Affairs Office, London to the Secretary, DEA, dated 7/11/46, in NAA A 1067/1, Item E/46/38/28.

[64] Allan Watt cited the European community’s movement towards a court hopefully in the Third Committee in 1948: UN Doc A/C.3/SR 92, 56; 2 October 1948.

[65] Report of Working Group on Implementation, Annex C to Commission on Human Rights, Second Session Report to the Economic and Social Council, 36-54. Included in the Report is a summary of the debate on the Australian proposal. The Report of the Working Group was subsequently adopted by the Commission on Human Rights. Colonel Hodgson considered the acceptance of the Report in the Plenary Session to be a ‘signal victory for Australian proposal for Court of Human Rights’. He reported that the proposal was ‘widely commended and even Governments previously in opposition namely United States and United Kingdom agreed scheme merited consideration by their Governments and voted for its transmission’: Cablegram from R Hodgson to DEA, 16/12/47, in NAA A 1838/1, Item 856/13/2.

[66] Harper and Sissons report that Australia faced almost continuous opposition from the great powers: Harper and Sissons, above n 10, 252.

[67] Memorandum from the Secretary, Attorney-General’s Department, to the Secretary, DEA, 14/4/49, in NAA A 1838/1, Item 856/13/7 Pt 2. In initial reports Hodgson was more hopeful – reporting to Watt that when first raised, support was received from India, Uruguay and to some extent France and Belgium. Chile and Iran was also reported to be sympathetic: Cablegram from R Hodgson to Evatt, 8/2/47, in NAA A 1838/278, Item 856/13 Pt 1.

[68] Hodgson, for instance, in his report on the Second Session of the Commission on Human Rights reported that the USSR objected to the Australian proposal ‘on the well known theme that it would impinge upon the sovereignty and independence of States’. A copy of the report is to be found in NAA A 1838/278, Item 856/13 Pt 2.

[69] See Cablegram from R Hodgson to Evatt, 8/2/47, in NAA A 1838/1, Item 856/13 Pt 1.

[70] United States Delegation Handbook No 1, UN Commission on Human Rights, Third Session, 1948, Box 4581, Eleanor Roosevelt Papers, Franklin D Roosevelt Library, Hyde Park.

[71] Report of Australian Representative on the Drafting Committee of the International Bill of Rights, 1947, in NAA A 1838/1, Item 856/13/2/1.

[72] Ibid. As to the French proposal, see UN Doc E/CN.4/82/Add.10/Rev 1, and UN Doc E/CN.4/147; described in memorandum from the Australian Mission to the UN to the Secretary, DEA, 16/2/49, in NAA A 1838/1, Item 856/13/7 Pt 2.

[73] H Lauterpacht, An International Bill of The Rights of Man (1946); quoted and discussed in memorandum from the Australian Mission to the UN to the Secretary, DEA, 16/2/49, in NAA A 1838/1, Item 856/13/7 Pt 2.

[74] Cablegram from DEA to R Hodgson, 5/12/47, in NAA A 1838/278, Item 856/13/2.

[75] Memorandum from T G Glasheen, for the Secretary, DEA to the Secretary, Attorney-General’s Department, 14/4/49, in NAA A 1838/1, Item 856/13/7 Pt 2.

[76] Letter from T G Glasheen, on behalf of the Secretary, DEA to the Secretary, Attorney-General’s Department, 14/4/49, in NAA A 432/82, Item 47/725 Pt 3.

[77] Evatt’s directions were repeated in the memorandum from the A/g Secretary, DEA, to Australian Mission to the UN, 28/4/49, in NAA A 1838/1, Item 856/13/7 Pt 3. Similarly, in the draft answer to the Secretary-General’s Questionnaire on Implementation prepared before the change of government, the development of a two-stage process incorporating a Commission and a Court represented a significant shift in Australia’s stance on the working of the Court: in NAA A 1838/278, Item 856/13/7 Pt 5.

[78] Statement of Australian Delegate in the Commission on Human Rights, undated, circa 1949 in NAA A 432/82, Item 47/725. See too Memorandum from A/g Secretary, DEA to the Australian Mission to the UN, 28/4/49, in NAA A 1838/1, Item 856/13/7 Pt 3.

[79] UN Doc E/CN.4/SR 118: McGoldrick, above n 21, 5-6.

[80] A Watt, Australian representative, UN Doc A/C.3/SR 159, 701-702; 26 November 1948.

[81] Typical of this response was the statement of Mr Insfran of Paraguay: ‘even if the abolition of national frontiers was a legitimate and noble aspiration, it was not one that could be realized as things were at present, and any measures that did not respect the national sovereignty of States would be out of place’: UN Doc A/C.3/SR 159, 700; 26 November 1948.

[82] Watt, above n 80, 699-701.

[83] Ibid.

[84] Ibid.

[85] Ibid, 701.

[86] Supporters and detractors of Evatt alike have recognised Evatt’s passionate commitment to the UN and his belief in creating a strong international system to maintain peace: see eg, Harper and Sissons above n 10, 276-280; K Tennant, Evatt: Politics and Justice (1972). Evatt labelled ‘steady and unwavering support for the United Nations, especially the purposes and principles declared in the Charter’ to be the first and fundamental principle of Australia’s foreign policy: See Notes of Speech on Foreign Affairs, House of Representatives, 9 February 1949, ‘Speeches and Statements, 1948-9(a)’ Folder, Evatt Collection, Flinders University; See too Evatt’s speech in 1948: Commonwealth of Australia, House of Representatives, Debates, vol 196 (1948) 748-50.

[87] Contemporaries recall that Evatt enjoyed great autonomy in settling Australia’s foreign policy: Interview with Dr J Burton conducted by author, Canberra, 1 September 1999. Certainly there are few records of Dr Evatt taking such questions to Cabinet, for instance.

[88] Although Dr John Burton, Evatt’s personal secretary at the time of the Paris Peace Conference, has recalled that Evatt took comparatively little interest in the texts of the peace treaties, neither Burton nor Alan Renouf, the other Australians who drafted amendments to the treaties have claimed responsibility for the court proposal: Interview with Dr J Burton conducted by author, Canberra, 1 September 1999; A Renouf, The Champagne Trail: Experiences of a Diplomat (1980) 29-30.

[89] Harper and Sissons, above n 10, 258.

[90] Ibid, 3.

[91] Ibid.

[92] See D Lowe, Menzies and the ‘Great World Struggle’: Australia’s Cold War 1948-1954 (1999); M Burgmann, ‘Hot and Cold: Dr Evatt and the Russians, 1945-1949’ in A Curthoys and J Merritt (eds), Australia’s First Cold War, vol 1: Society, Communism and Culture (1984) 80-108.

[93] L F Crisp, The Australian Federal Labour Party, 1901-1951 (1978) 98.

[94] See ibid, 99-103.

[95] Copy of Submission from T G Glasheen to Minister of External Affairs, annotated by Spender, in NAA A 1838/1, Item 895/3/12.

[96] See Brief for the Australian Delegation to the Eighth Session of the Commission on Human Rights, in NAA A432/20, Item 54/3779 Pt 7.

[97] H F E Whitlam, Australian representative, UN Doc E/CN.4/SR 201, 12, 14; 19 May 1950.

[98] Copy of Submission from T G Glasheen to Minister of External Affairs, annotated by Spender, 3/3/50, in NAA A 1838/1, Item 895/3/12.

[99] Ibid.

[100] Submission to Minister of External Affairs, 22/9/50, in NAA A 1838/1, Item 856/13 Pt 10.

[101] Spender’s views were expressed in response to a submission put to him on 24 October 1950. The delegation was informed that Spender would ‘not countenance’ the idea of individuals or non-government organisations being given the right of petition: memorandum from Australian Mission to the UN New York to the Secretary, DEA, 29/9/50, in NAA A 1838/1, Item 856/13 Pt 9.

[102] Spender’s views were relayed to the delegation, in Cablegram from DEA to Australian delegation, 20/4/51, in NAA A 1838/1, 856/13/10/6 Pt 2.

[103] Ibid.

[104] Memorandum of A H Tange, Assistant Secretary to Australian representative on Commission on Human Rights, 13/4/51, A 1838/1, 856/13/10/6 Pt 1.

[105] Note the parallels between this benign view of the state (in shielding it from international scrutiny) and the way in which Menzies perceived ‘responsible government’ as limiting the need for constitutional entrenchment of human rights: see R G Menzies, Central Power in the Australian Commonwealth (1967) 52. The issue of Australia’s attitudes towards ‘domestic implementation’ of human rights, including legislative and constitutional reform, is outside the scope of this article.

[106] H F E Whitlam, Australian representative, UN Doc E/CN.4/SR 211, 13; 23 April 1951.

[107] Ibid.

[108] C Moodie, UN Doc A/C.3/SR 301, 197; 1 November 1950.

[109] Ibid.

[110] See letter from Australian Mission to the UN New York to the Secretary, DEA, 2 November 1950, in NAA A 1838/1, Item 856/3 Pt 9.

[111] Copy of Submission from T G Glasheen to Minister for External Affairs, annotated by Spender, 28 April 1950, in NAA A 1838/1, Item 856/13 Pt 8.

[112] Ibid.

[113] Note this echoes Spender’s concern that the UN was overstepping its mark in relation to non-self-governing territories – a theme in his first foreign policy speech, see Commonwealth of Australia, House of Representatives, Debates, vol 208 (1950) 4014-5.

[114] Memorandum from A H Tange to Australian Representative to Human Rights Commission, 13/4/51, in NAA A 1838/1, 856/13/10/6 Pt 1.

[115] Whitlam, above n 106, 12.

[116] Ibid.

[117] See eg, Submission to Minister for External Affairs, annotated by Spender, 28 April 1950, in NAA A 1838/1, Item 856/13 Pt 8; Watt has highlighted the similarity between the views of Spender during his Ministry concerning the scope of the UN proper authority and those he voiced as a judge on the International Court of Justice in Certain Expenses of the United Nations [1962] ICJ Rep 151. A Watt, The Evolution of Australian Foreign Policy, 1938-1965 (1968) 332-3.

[118] See Lowe, above n 92, ch 3.

[119] R G Menzies, ‘Our Liberal Creed’ (1964) in H Mayer (ed), Australian Politics: A Reader (1966) 265.

[120] General Statement made by Representative in Third Committee (accepting implementation procedures) 10 December 1951, in NAA A 1838/1, Item 856/13/22.

[121] Brief for the Australian Delegation to the Ninth Session of the Commission on Human Rights, in NAA A 1838/1, Item 856/13/10/8/1.

[122] H F E Whitlam, Australian representative, UN Doc, E/CN.4/SR 341, 4; 9 April 1953.

[123] H F E Whitlam, Australian representative, UN Doc A/C.3/SR 436, 10; 16 March 1954.

[124] Brief for the Australian Delegation to the Eighth Session of the Commission on Human Rights, in NAA A 432/20, 54/3779 Pt 9.

[125] H F E Whitlam, Australian representative, UN Doc E/CN.4/SR 343, 6; 10 April 1953.

[126] H F E Whitlam, Australian representative, UN Doc E/CN.4/SR 245, 9; 16 May 1951.

[127] (Draft) Submission from A H Tange to Minister for External Affairs, 17/5/51, in NAA A 1838/1, Item 856/13 Pt 8.

[128] Ibid.

[129] Ibid.

[130] See eg, distinguishing of experience of the Trusteeship Council: UN Doc A/C.3/SR 363; 10 December 1951 (R L Harry).

[131] Brief for the Australian Delegation to the Eighth Session of the Commission on Human Rights, in NAA A 432/20, 54/3779 Pt 9.

[132] Brief for the Australian Delegation to the Ninth Session of the Commission on Human Rights, in NAA A 1838/1, 856/13/10/8/1.

[133] Brief for the Australian Delegation to the Tenth Session of the Commission on Human Rights, in NAA A 1838/1, 856/13/10/9 Pt 3.

[134] (21 December 1965), 660 UNTS 195.

[135] Following the creation of the UN, persons within Australia sent letters of complaint to the UN regarding alleged human rights violations. The letters were mostly referred to the Commission on Human Rights which adopted the procedure, of sending the letters to the state in question and seeking a response: ECOSOC Res 75 (v), ECOSOC Res 275 (X), 10 ECOSOC Supp 1 (1950). Australia’s general practice was to provide responses, particularly during the ‘Bureaucratic period’.

[136] As to concerns about the Communist and Afro-Asian blocs proposal for all implementation measures to be inserted into a separate protocol to the CERD, see letter of J H Hoyle, Australian Mission to the UN New York to DEA, 21 October 1965, in NAA A 1838/1, Item 929/4 Pt 20.

[137] Submission from M R Booker to Minister for External Affairs, annotated by Hasluck, 23 November 1965, in NAA A 1838/1, Item 929/5/6 Pt 3. Note there was some departmental unease with the tactics of the western bloc. L J Lawrey of the Australian Mission communicated to the United States representative, Kotschnig his fear of the risks of promoting ‘hasty adoption of politically slanted implementation measures: reported in letter from L J Lawrey to the Secretary, DEA, 7/12/65, in NAA A 1838/1, Item 929/4 Pt 20.

[138] Submission from Booker to Minister for External Affairs, annotated by Hasluck, above n 137.

[139] Cablegram from DEA to Australian Mission to the UN New York, 1 November 1966, in NAA A 1838/1, Item 929/4 Pt 21.

[140] Ibid.

[141] Cablegram from Australian Mission to the UN New York to DEA, 3 December 1966, in NAA A 1838/1, Item 929/4 Pt 22.

[142] Brief for the Australian Delegation to the Ninth Session of the Commission on Human Rights (1953), in NAA 1838/1, 856/13/10/8/1. See too Brief for the Australian Delegation to the Tenth Session of the General Assembly, in NAA A 462/21, Item 575/1.

[143] P Brazil, Background Paper on the Covenants, 27/6/67, in NAA A 1838/1, Item 856/13/7 Pt 2.

[144] Ibid.

[145] E G Whitlam, Abiding Interests (1997) 282. It is clear that Whitlam took an active role in developing policy and was not merely reflecting back the views of elected representatives. His personal correspondence also indicates his level of discomfort with expansive forms of international scrutiny such as an International Court of Human Rights, seeing such initiatives as going outside the realm of art 2(7) of the Charter: Memorandum from H F E Whitlam to Solicitor General, K H Bailey, 2/8/55, in NAA A 432/68, Item 68/2797 Pt 3.

[146] (23 May 1969), 1155 UNTS 331; 8 ILM 679.

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