Recourse Under Treaty Bodies
Module 11: Introduction to UN Mechanisms
One of the key activities of many treaty bodies is considering individual complaints (also known as petitions or individual communications) from rights holders or their duly appointed counsel. Through these complaints, the treaty bodies consider allegations by petitioners that a state has violated its treaty obligations. After hearing from the petitioner and responses from the concerned state, the treaty body issues its decision, formally called ‘views’, on whether or not the petitioners’ claims of a human rights violation are made out and makes a recommendation.(1) The treaty bodies’ recommendations are not formally (legally) binding, but their bodies’ views have considerable normative weight.(2)
Currently the complaint mechanisms of eight treaty bodies have entered into force, namely:
- The Human Rights Committee
- The Committee on Elimination of Discrimination against Women
- The Committee against Torture
- The Committee on the Elimination of Racial Discrimination
- The Committee on the Rights of Persons with Disabilities
- The Committee on Enforced Disappearances
- The Committee on Economic, Social and Cultural Rights
- The Committee on the Rights of the Child
For a complaint to be admissible, the state must have accepted the jurisdiction of the treaty body over individual complaints. The mechanism for authorising this differs according to the treaty. For example, in the case of the ICCPR, the individual complaints mechanism is contained in the (first) Optional Protocol to the ICCPR. As a result, it is only where a state has ratified the Optional Protocol that the Committee is authorised to consider individual communications against that state. For other committees, the procedure through which individual complaints are authorised is contained within the core human rights treaty. For example, for the Committee against Torture to consider complaints, the relevant state must have recognised the Committee’s competence over individual complaints through a declaration made under Article 22 of the Convention against Torture.
The UNHRCtte will likely be the Committee best placed to consider complaints about digital rights and freedom of expression issues because this right (and the right to privacy) is explicitly guaranteed in the ICCPR. However, other treaty bodies may also be appropriate for such a complaint. For example, in cases involving freedom of expression of children, complainants may consider making a complaint to the Committee on the Rights of the Child, which oversees the Convention on the Rights of the Child, which also guarantees freedom of expression for children. A violation of freedom of expression may have gendered other discriminatory aspects, in which case a complaint may be appropriate to, respectively, the Committee on Elimination of Discrimination against Women or the Committee on the Elimination of Racial Discrimination.
When deciding whether to make an individual complaint to a UN treaty body, the following considerations should be kept in mind:
- It is important first to determine the state which is responsible for the alleged human rights violation. Usually, this is straightforward. However, the transnational nature of digital rights issues may mean that this requires some consideration. For example, a complaint might involve states’ failure to fulfil positive obligations in relation to private actors that may have connections to more than one jurisdiction.
- Petitioners must determine which treaty bodies have geographical jurisdiction (known as competence ratione loci) over the complaint. A useful tool for this is the OHCHR’s interactive dashboard, which lists the status of human rights treaty ratifications for UN member states.(3) For example, the Maldives, Nepal, the Philippines and Sri Lanka are parties to the (first) Optional Protocol to the ICCPR, and thus recognise the competence of the UNHRCtte over individual communications.(4)
- Where a state party accepts the jurisdiction of different treaty bodies, thought should be give to the most effective way to pursue a complaint, as one of the general criteria for the admissibility of complaints to treaty bodies is that no complaint regarding the same matter may be pending before another international body.(5) A key consideration as to which committee to choose will be which violation is most central to the complaint. However, at a practical level, counsel may consider whether different treaty bodies have different processing times, in view of the lengthy backlogs of certain committees of up to several years to process individual complaints. Information on processing times may be inferred from the annual reports of the treaty bodies.(6) Despite the lengthy backlog of many treaty bodies, when complaints involve particularly urgent matters, petitioners may be able to apply for ‘interim measures’, whereby a treaty body requests that a state refrain from taking certain actions to avoid ‘irreparable damage’ before the underlying complaint is considered on its merits.(7)
- For complaints to be deemed admissible, petitioners must generally be able to show that domestic remedies have been exhausted, although there are some exceptions, for example, where no effective or realistic domestic remedy is available. In addition, complaints should be submitted as soon as possible after the exhaustion of domestic remedies, with certain treaty bodies specifying an exact time limit.(8) For the UNHRCtee, there is no absolute cut off. However, “a communication may constitute an abuse of the right of submission, when it is submitted five years after the exhaustion of domestic remedies by the author of the communication, or, where applicable, three years from the conclusion of another procedure of international investigation or settlement, unless there are reasons justifying the delay, taking into account all the circumstances of the communication.”(9)
- Another criterion of admissibility is that the treaty body must have temporal competence over the complaint (known as ratione temporis). This generally means that the violation occurred after the relevant instrument came into force for the state party. However, treaty bodies may also have jurisdiction over a ‘continuous violation’, defined by the Human Rights Committee as “an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication of the previous violations of the State party.”(10)
- The complainant must have standing to bring a complaint. In contrast to strategic litigation involving public interest litigants before domestic courts and some regional human rights courts, the UNHRCtte requires complainants be actually, personally aggrieved human beings and does not permit public interest actions (known as ‘actio popularis’).(11) Corporations and other non-human entities do not have standing to make complaints before that Committee,(12) although groups of similarly impacted individuals may submit a collective complaint.(13) The petition can be made by the person or persons alleging the violation(s) or through a duly appointed representative.
The above considerations are generally applicable to the individual complaint process before treaty bodies. However, counsel must do their own research when deciding whether to bring forward and in drafting individual complaints and should consult the specific admissibility criteria of the relevant treaty body. The most up-to-date version of the relevant UN treaty body’s rules should be consulted, along with any relevant case law of the treaty body, as well as the text of the treaty and any relevant protocols. Complaints should explicitly outline how they meet all criteria for admissibility and clearly identify which articles are alleged to have been violated and the remedy or remedies sought. It is helpful to refer in submissions to any pertinent case law of the treaty body, as well as any pertinent general comments, such as the UNHRCtte’s General Comment No. 34, which focuses on freedom of expression.(14)
Treaty Body Reviews
Another key function of treaty bodies is the obligation to report regularly, whereby state parties are required to report periodically on their performance in terms of their progress or lack thereof in terms of respecting treaty rights. Once a state has lodged its initial report, there is a process of review involving the oversight treaty body, which ends up with the latter publishing a report with their observations on the status of the state’s implementation of treaty obligations and recommendations for improvements. There are opportunities for civil society members to play a role in this process as the treaty bodies invite submissions. As a result, where a state is a party to a human rights treaty, rights-holders may be able to bring their concerns to the relevant treaty body when their state is up for review, even if it has not recognised the treaty body’s jurisdiction over individual complaints.(15)