‘Past’ Violations under International Human Rights Law: The Indigenous ‘Stolen Generation’ in Australia
| Published date | 01 June 2005 |
| Author | Maria O'Sullivan |
| Date | 01 June 2005 |
| DOI | 10.1177/016934410502300204 |
| Subject Matter | Part A: Article |
‘PAST’ VIOLATIONS UNDER INTERNATIONAL HUMAN
RIGHTS LAW: THE INDIGENOUS ‘STOLEN
GENERATION’ IN AUSTRALIA
MARIA O’SULLIVAN*
The Government has to explain why it happened. What was the intention? I
have to know why I was taken (...) And an apology is important because I’ve
never been apologised to. My mother’s never been apologised to, not once,
and I would like to be apologised to.
1
Australians of this generation should not be required to accept guilt and
blame for past actions and policies over which they had no control.
2
Abstract
This article examines the debate relating to reparations for ‘past’ human rights violations, with
particular focus on the case of the indigenous ‘Stolen Generation’ in Australia. The ‘Stolen
Generation’ is a term used to describe the government-sanctioned practice of forced removals of
part-Aboriginal children from their indigenous parents and placement into non-indigenous
institutions and homes, which occurred in Australia from approximately 1910-1970. The
‘Stolen Generation’ violations present a unique and difficult legal question for international
human rights law because they straddle the divide between ‘historic’ violations and
contemporary acts, that is, they were committed by Australia after Australia signed key
agreements such as the UN Charter, the Universal Declaration on Human Rights, the
Declaration on the Rights of the Child and the Declaration on the Elimination of All Forms of
Racial Discrimination, but prior to its ratification of international human rights treaties such
as the International Covenant on Civil and Political Rights and the International Convention
on the Elimination of All Forms of Racial Discrimination. This means that bringing a claim
under international human rights law in relation to the violations raises a number of problems.
The object of this article will be to explore whether Australia can be held responsible under
Netherlands Quarterly of Human Rights, Vol. 23/2, 243-272, 2005.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 243
* Assistant Lecturer, Monash University, Melbourne, Australia. Many thanks to Professor Kevin Boyle,
University of Essex, and Professor Sarah Joseph, Monash University, for their helpful comments on
previous drafts of this article.
1
Confidential evidence given to the Australian Stolen Generation Inquiry, Bringing them home,
Human Rights and Equal Opportunity Commission (HREOC), Bringing them home: Report of the
National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families,
HREOC, Sydney, May 1997, ‘Confidential evidence 139’, at p. 277, www.austlii.edu.au/au/special/
rsjproject/rsjlibrary/hreoc/stolen/ (accessed 11 March 2005).
2
Prime Minister of Australia, John Howard, Opening Address to the Australian Reconciliation
Convention (Melbourne, 26 May 1997), online: Reconciliation and Social Justice Library,
www.austlii.edu.au/au/special/rsjproject/rsjlibrary/car/convention/pmspoken.html (accessed 11
March 2005).
244
international human rights law for the ‘Stolen Generation’ violations and possible avenues of
redress. In this regard, the focus of the article will be on the possible claims victims could make to
relevant treaty monitoring bodies and the types of obstacles they would face in doing so. These
legal questions are also relevant to the wider debate that is taking place in relation to
reparations, namely the extent to which a State can be held legally responsible to provide
reparations for past violations.
1. INTRODUCTION
The issue of reparations for human rights violations has in recent years become a
significant, but controversial, area of international human rights law. It has gained
prominence through a variety of factors – the increasing emphasis on implementa-
tion rather than standard-setting by UN bodies, the weakening of impunity
traditionally accorded to the perpetrators of human rights violations and a
recognition at the international level of a ‘right to redress’. The issue became a
focus of heated international debate during the 2001 Durban World Conference
against Racism when a number of countries called for reparations for the human
rights violations committed during the periods of colonialism and the trans-Atlantic
Slave trade.
3
To date, these calls have largely gone unanswered.
Along with these pre-United Nations, ‘historic’
4
violations, there have also been
calls in some countries for reparations relating to violations of a more contemporary
nature. One example of this, and one which raises many of the issues central to the
reparations debate, is that of the ’Stolen Generation’ in Australia.
The ‘Stolen Generation’ is a phrase used to refer to the government-sanctioned
practice of forced removals of indigenous children from their parents and
placement into non-indigenous institutions and homes, which occurred in
Australia
5
from approximately 1910-1970. This issue became a controversial topic
of public debate in Australia upon the release of a landmark report by the Australian
Human Rights and Equal Opportunity Commission (HREOC) in 1997, called
Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from their Families (Bringing them home or ‘the Report’).
6
The essence of the findings of Bringing them home was that the removal policies
Maria O’Sullivan
3
See World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance
(‘WCAR’), Durban, 1 September 2001, Press Release, ‘Opening Session of Conference General
Debate Focuses on Addressing Legacy of Slavery, Colonialism’, RD/D/19; www.un.org/WCAR/
pressreleases/rdd19.htm (accessed 11 March 2005). Lawyers in the United States, representing 30
million descendants of US slaves, have also launched a series of lawsuits against companies that
profited from slavery before it was abolished in 1863 (see ‘The Guilt of a Nation’, The Economist,13
April 2002, at p. 15).
4
I distinguish between what I call ‘historic’ violations, that is, those committed during periods of
colonialism and the trans-Atlantic slave trade and ‘past’ violations, to denote those violations which
although not current, were committed whilst the United Nations regime was established, that is
post-1950.
5
Australia is a common law country and a federation of six states and two territories. It has a written
Constitution which provides for a Parliamentary democracy based on the British Westminster
model but which contains no formal Bill of Rights.
6
For the terms of reference of the report, see Bringing them home,op.cit. (note 1), at p. i.
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