A/HRC/15/37/Add.4 15. First, the above measures of the NTER, like the NTER overall, distinguish on the basis of race, because they are intended to and in fact do apply specifically to indigenous individuals and communities in the Northern Territory and not to others. The NTER measures specifically target indigenous people or apply to people and land within “prescribed areas” which, pursuant to section 4 (2) of the NTER Act, are specified “Aboriginal land” and other designated areas that are populated almost entirely by indigenous people. These areas cover some 600,000 square kilometres and encompass more than 500 Aboriginal communities and over 70 per cent of Aboriginal people within the Northern Territory (approximately 45,500 Aboriginal men, women, and children).7 16. Second, the differential treatment of indigenous peoples in the Northern Territory involves impairment of the enjoyment of various human rights, including rights of collective self-determination, individual autonomy in regard to family and other matters, privacy, due process, land tenure and property, and cultural integrity. These rights are recognized, inter alia, in the International Covenant on Civil and Political Rights (ICCPR) (especially arts. 1, 14, 17, 27) and in the United Declaration on the Rights of Indigenous Peoples (especially arts. 3, 5, 7, 8, 11, 15, 18, 19, 20, 23, 26, 32). The Declaration places special emphasis on the right of indigenous peoples to self-determination and selfgovernment (arts. 3, 4), to be actively involved in the design and implementation of development initiatives in their communities (art. 23), to control the disposition of their lands and territories (arts. 26, 32), and to be consulted for “legislative or administrative decisions that may affect them” (art. 19). Significantly, by all accounts, the NTER was initiated without any consultation with the affected indigenous communities. Additionally, especially in its income management regime, the NTER imposes discriminatory treatment of indigenous peoples in relation to their right to social security, which is protected by the International Covenant on Economic, Social and Cultural Rights (ICESCR) (art. 9). 17. As a party to both the ICCPR and the ICESCR, Australia must respect the human rights protected by these treaties, in addition to being bound to the provisions of the Convention to Eliminate Discrimination; and, having declared its support for the Declaration on the Rights of Indigenous Peoples, it should also adhere to the principles of that instrument. 18. Under the Convention to Eliminate Discrimination (art. 2.1), and various other human rights instruments, including the ICCPR (art. 2.1) and the ICESCR (art. 3), States are obligated to avoid and prevent discriminatory treatment on the basis of race that impairs the enjoyment of human rights. The proscription against racial discrimination is a norm of the highest order in the international human rights system. Even when some human rights are subject to derogation because of exigent circumstances, such derogation must be on a non-discriminatory basis. Under article 4 (1) of the ICCPR, “[i]n time of public emergency which threatens the life of the nation” a State party may derogate certain rights of the Covenant “to the extent strictly required by the exigencies of the situation” and only “provided that such measures ... do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.8 Similarly, the Declaration states in article 46 that “[a]ny such limitations [on the rights contained therein] shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society”. 7 8 30 Northern Territory Emergency Response – Report of the NTER Review Board (October 2008), p. 9 (“Report of the NTER Review Board”). Emphasis added. GE.10-13887