The International Covenant on Civil and Political Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Elimination of All Forms of Discrimination against Women; and the Convention on the Rights of Persons with Disabilities have mechanisms that enable individuals to send an individual complaint, generally called a “communication”, to the corresponding committee, alleging that their rights set forth in the respective human rights treaty have been violated.63 However, the acceptance of such mechanisms is optional. The author of a communication should also be aware that the State concerned may have filed a reservation to any of the treaty’s provisions, which limits the substantive scope of the State’s obligations.
The provisions for individual complaints are set out in the first Optional Protocol to the International Covenant on Civil and Political Rights, article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination, article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and the Optional Protocol to the Convention on the Rights of Persons with Disabilities. The procedure for handling complaints is similar under all five treaties. It is imperative, however, to consult the exact language of the respective treaty before filing a communication.64
Several of the committees have developed forms to facilitate the submission of a communication.65 It is not mandatory to use these forms, but they do offer guidance on the type of information which should be included in a communication. Each communication should be sent to OHCHR in Geneva, clearly indicating the name of the committee to which it is addressed.
Upon receipt of an individual complaint, the secretariat of the committees makes an initial assessment as to whether certain preliminary criteria for a prima facie case have been met. If
63 The complaints procedure differs in respect of the International Covenant on Economic, Social and Cultural Rights; the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; and the International Convention for the Protection of All Persons from Enforced Disappearance, as follows. An optional protocol authorizing communications to the International Covenant on Economic, Social and Cultural Rights was opened for signature in September 2009 and will enter into force three months after 10 States parties have ratified it. It also provides for an optional procedure under which an inquiry may be initiated by the Committee on Economic, Social and Cultural Rights itself, if it receives information that indicates
“grave or systematic” violations of the Covenant. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families has an individual complaints procedure that will come into force once 10 States parties have accepted this procedure in accordance with article 77 of the Convention.
In accordance with article 31 of the International Convention for the Protection of All Persons from Enforced Disappearance, a State party may at the time of ratification of this Convention or at any time afterwards declare that it recognizes the competence of the Committee on Enforced Disappearances to receive and consider individual communications.
64 Further information on complaints procedures under specific human rights treaties is available from OHCHR Fact Sheet No. 7/Rev. 2 (forthcoming).
65 Ibid., annexes.
so, a summary of the communication is sent to the special rapporteur/working group, who acts on behalf of the respective committee. The special rapporteur/working group also assesses the registration criteria and, on behalf of the committee, instructs as to whether or not the communication will be registered.
Once a communication is registered, it is communicated to the State party concerned so that the State may comment on the allegation(s). The State’s response, if any, is forwarded to the author of the communication, who may in turn comment on the State’s observations. The committee sets a time limit on this exchange. The failure of a State to respond does not prevent the committee from proceeding with examination of a case.
The first step a committee takes in considering a complaint is to determine whether the complaint is admissible. Conditions for admissibility are normally specified in the treaty itself and in the committee’s rules of procedure and include that:
• The communication is not anonymous and that it stems from an individual or a group of individuals66 subject to the jurisdiction of a State party recognizing the competence of the committee concerned to receive and consider individual communications;
• The individual claims to be a victim of a violation by the State party concerned of any of the rights set forth in the covenant or convention. No general complaints about the human rights situation in a country are admissable. As a general rule, the communication should be submitted by the individual themselves or by his or her relatives or designated representatives. Although it is not mandatory to have a lawyer prepare the case, legal advice usually improves the quality of the submissions;
• The communication is compatible with the provisions of the treaty invoked;
• The communication is not an abuse of the right to submit a communication;
• The complainant has exhausted all available domestic remedies. This usually includes pursuing legal claims through the national judicial system; mere doubt about the effectiveness of such action does not dispense with this requirement. However, this shall not be the rule where the exhaustion of remedies would be unreasonably prolonged, or if they would be ineffective or otherwise unavailable;
• The same matter is not being examined under another procedure of international investigation or settlement;67
• The complaint is sufficiently substantiated. The alleged victim should provide as much relevant information as possible in support of the allegation(s) made, and enclose copies of all relevant documents, in particular administrative and judicial decisions by national authorities concerning the claims. If the situation does not obviously constitute a human rights violation, the complainant may consider consulting relevant international jurisprudence, both within and outside the United Nations system.
66 The treaty bodies of the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment allow only individuals to submit complaints.
If a group of individuals submits a complaint to the Human Rights Committee or the Committee against Torture, each member of the group must provide a power of attorney. The Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of Persons with Disabilities allow groups of individuals to submit a complaint.
67 Article 5, paragraph 2 (a), of the Optional Protocol to the International Covenant on Civil and Political Rights.
Please note that this provision is expressed differently in the Convention on the Elimination of All Forms of Discrimination against Women (art. 4 (2) (a) of the Optional Protocol); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (art. 22 (4) (a) of the Convention); and the Convention on the Rights of Persons with Disabilities (art. 2 (c) of the Optional Protocol).
As a rule, committees consider the admissibility and merits of a communication jointly with its author. However, a committee may decide either at its own initiative or having received information from the State party concerned, pursuant to its rules of procedure, to separate consideration of the admissibility and merits of a case. The committee examines the communication in the light of all available information. Committee deliberations are confidential, and there is no opportunity to call witnesses or to engage the State concerned in oral debate, as there would be in a domestic court. The committee then forms its conclusion (depending on the committee, this may be called a “view”, “decision” or “opinion”), which is transmitted to the author of the communication and the State party, together with any suggestions and recommendations the committee may wish to make. In the event that a violation is found, the State party is invited to inform the committee in due course of the action it has taken in conformity with the committee’s suggestions and recommendations. All decisions of the committee are made public and reproduced in the committee’s annual report.
Committee conclusions are not legally binding judgements or decisions.68 However, each one represents an authoritative determination by the organ, established under the treaty itself, charged with the interpretation of that treaty. Ignoring a committee’s conclusions exposes a State to domestic and international criticism for not complying with its international obligations.
Most committees have established a follow-up procedure in order to monitor the implementation of its conclusions where it has found a violation of the relevant treaty by the State party. This procedure can facilitate compliance with the committee’s recommendations, which has sometimes been weak. Indeed, the mere fact that a well-founded case is brought to a committee may encourage a State to re-examine its policies or begin dialogue with minority representatives.
For minority rights activists it would be instructive to examine procedures related to the following communications: Complaint No. 161/2000 submitted under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by Hajrizi Dzemajl and 64 other Yugoslav citizens of Roma ethnicity; Communication No. 31/2003 submitted under the International Convention on the Elimination of All Forms of Racial Discrimination by Ms. L. R. and 26 other Slovak citizens of Roma ethnicity; and Communication No. 4/2004 submitted under the Convention on the Elimination of All Forms of Discrimination against Women by Ms A. S. of Hungary.
Urgent cases (Request for interim measures)
Each committee is competent to take urgent action where there is an imminent risk of serious and irreparable harm to the alleged victim before the case is considered by the committee. The alleged victim may ask that the committee adopt interim measures and immediately request the State party to take such appropriate and concrete measures of protection as may be required to avoid irreparable damage to the alleged victim while the communication is under consideration by the committee. Such a course will be adopted only when there is specific information about an imminent risk, for example, a pending execution or deportation. (Reporting urgent cases under the special procedures mechanisms is discussed in chapter IV.)
68 The Human Rights Committee has stated, “The character of the views of the Committee is further determined by the obligation of States parties to act in good faith, both in their participation in the procedures under the Optional Protocol and in relation to the Covenant itself. A duty to cooperate with the Committee arises from an application of the principle of good faith to the observance of all treaty obligations.” See general comment No.
33 (2008) on the obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, para. 15.
Contacts and further information
All the treaty bodies discussed in this chapter may be contacted via:
Office of the United Nations High Commissioner for Human Rights (OHCHR) Palais des Nations
8-14 Avenue de la Paix CH-1211 Geneva 10 Switzerland
Fax: 41 22 917 90 22
The specific committee being addressed should be specified in both the address and correspondence.
Information on the treaty system may be found in The United Nations Human Rights Treaty System (OHCHR Fact Sheet No. 30/Rev.1).69 Detailed guidance on working with the treaty bodies is given in: Working with the United Nations Human Rights Programme: A Handbook for Civil Society.
A number of works describe the practical aspects of using the treaty-based procedures described above. These include: G. Alfredsson and E. Ferrer, Minority Rights: A Guide to United Nations Procedures and Institutions (Minority Rights Group and Raoul Wallenberg Institute, 1998); S.
Lewis-Anthony and M. Scheinin, “Treaty-based Procedures for Making Human Rights Complaints Within the UN System”, in H. Hannum, Guide to International Human Rights Practice, 4th ed., (Transnational/Nijhoff, 2004); S. Farrior, “International Reporting Procedures”, in H. Hannum, Guide to International Human Rights Practice, 4th ed. (Transnational/Nijhoff, 2004).
Other useful guides to the work of particular treaty bodies include: A. Tanaka and Y. Nagamine, The International Convention on the Elimination of All Forms of Racial Discrimination: A Guide for NGOs (International Movement Against All Forms of Discrimination and Racism and Minority Rights Group International, 2001); M. Banton, Combating Racial Discrimination: The UN and its Member States (Minority Rights Group International, 2000); Division for the Advancement of Women, Assessing the Status of Women: A Guide to Reporting under the Convention on the Elimination of All Forms of Discrimination against Women (Commonwealth Secretariat, United Nations and International Women’s Rights Action Watch, 2000); P. R. Ghandhi, The Human Rights Committee and the Right of Individual Communication: Law and Practice (Ashgate, 1999);
and K. A. Young, The Law and Process of the U.N. Human Rights Committee (Transnational, 2002).
69 Available from www.ohchr.org/Documents/Publications/FactSheet30en.pdf (accessed 2 December 2012).