1. Introduction
There are currently four treaties which involve an individual complaints procedure, and in some fact situations more than one treaty may be available to potential complainants. In these cases a complainant must decide which of the procedures would be the best avenue to advance their case. The process will involve determining whether there is more than one complaints procedure open to the complainant, and deciding which of the available avenues is preferable.
2. Is There a Choice of Forum?
The individual will have an initial choice of forum, if at least:
(a) the state has ratified more than one of the optional protocols and/or given more than one of the required declarations recognizing the competence of the Committees to examine individual complaints, and
(b) the fact situation relates to a right which is found in more than one of these treaties.
If these two conditions are met, admissibility criteria varying among complaint mechanisms may still affect the potential effectiveness of the different treaty complaints procedures in relation to the individual's case.
a) Ratification
An individual can only bring a complaint against a state that has both ratified the treaty, and accepted the associated individual complaint mechanism. Therefore the first step is to determine the treaties and individual complaint mechanisms to which the state, that is the object of the complaint, is a party. If the state has accepted more than one individual complaint mechanism, it is possible that the individual may have a choice of forum.
Differences as to the date of acceptance of different complaint mechanisms may also limit the choice of forum, since the violation must have occurred after ratification, unless the violation is continuing.
b) Treaty Rights
An individual can only bring a complaint of a violation of rights which are set out in the treaty associated with the complaint mechanism. The next step is therefore to determine whether the fact situation relates to a violation of rights in more than one of the treaties (having a complaint mechanism which the state in question has ratified).
c) Reservations
A state party may have made reservations to one or more of the treaties which would affect the viability of the complaint. The complainant should therefore review any reservations entered by the state, and any commentary by the treaty body on the reservation.
3. Choosing the Best Forum
The following factors should be considered in choosing the most appropriate forum if more than one treaty may apply.
a) Admissibility Considerations
A particular case may or may not be admissible under all or some of the complaint mechanisms. That is, a case may be inadmissible under one treaty but admissible under another.
Individuals versus groups
Claims under CAT and CCPR are limited to individuals, whereas claims under CERD or CEDAW may be brought by groups of individuals as well as by individuals.
Time limits
CERD requires that a complainant submit his or her case within six months following the exhaustion of domestic remedies.
There is no time limit within which to bring a claim in the case of the CCPR, but very long delays in bringing the claim may be considered by the Human Rights Committee to be an abuse of the right of submission. The Human Rights Committee will require that a ‘convincing' or ‘reasonable' explanation be given to justify a significant delay in bringing a complaint.
In the case of CAT there is no time limit within which to bring a claim.
In the case of CEDAW there is no time limit within which to bring a claim.
Has the case ever been considered by another international forum
b) Expertise of the Treaty Bodies
CAT, CEDAW and CERD all have a narrower focus with respect to the category of persons or rights that are protected than the CCPR. This difference may be important in deciding which forum is best suited to a particular case. Thus if a case involves not only discrimination, but also a denial of a fair hearing or a violation of freedom of expression, it would likely be preferable to raise multiple or interrelated violations simultaneously before the Human Rights Committee. The same would be true if a case is not limited to a claim of torture, but there are also considerations of due process or of arbitrary detention.
c) Substantive Provisions of the Treaties
Although treaty rights do overlap, rights contained in more than one treaty may differ in terms of their specificity, breadth and the categories of people they protect. It is important to read the provisions of each treaty to compare their terms, their limitations, and their past interpretation by the Committees to ensure their applicability in a particular case.
Overlapping rights found in more than one treaty associated with a complaints procedure are the following:
Discrimination against women
The CEDAW Convention covers a broad number of contexts involving discrimination against women. Anti-discrimination provisions are found in general form in the CCPR, notably in articles 3 and 26. The CEDAW definition of discrimination in the treaty entails elements which should be applied to the concept of discrimination in the CCPR, but which are subject to the Committee's interpretation. For example, the CEDAW definition makes clear that discrimination entails acts which have the purpose or effect of impairing equal rights, and hence clearly covers legislation or policies which appear neutral on their face.
Discrimination in matters relating to marriage and family relations
Measures to eliminate discrimination concerning marriage and family relations are covered in both article 16, CEDAW and article 23(4) CCPR.
Discrimination in matters relating to race, colour, descent, or national or ethnic origin
The CERD Convention covers a broad number of contexts involving discrimination on the basis of race, colour, descent or national or ethnic origin. Anti-discrimination provisions are found in general form in the CCPR, notably in article 26. The CERD definition of discrimination in the treaty entails elements which should be applied to the concept of discrimination in the CCPR, but which are subject to the Committee's interpretation. For example, the CERD definition makes clear that discrimination entails acts which have the purpose or effect of impairing equal rights, and hence clearly covers legislation or policies which appear neutral on their face.
Propagation of racial hatred
Both Article 4 of CERD and Article 20 of CCPR place obligations on states to prohibit incitement to racial hatred.
Prohibition of torture, cruel, inhuman or degrading treatment or punishment
The CAT Convention covers a range of rights relating to the prohibition of torture, and of cruel, inhuman or degrading treatment or punishment. Torture, or cruel, inhuman or degrading treatment or punishment is also prohibited in article 7 of the CCPR. The understanding of torture by CAT, and by the Human Rights Committee as indicated in their General Comment Number 19, is similar.
However, the CAT definition contains certain elements which indicate that CCPR article 7 may be of wider application. In contrast to the CAT Convention, the concept of "torture" is not defined in the CCPR, and may therefore not be subject to the explicit limitations contained in the CAT Convention.
In addition, there may be a threshold of severity applied in the context of CAT which is not applied in the context of the CCPR.
On the other hand, CAT, unlike the CCPR, contains a specific number of contingent rights and duties (such as to prevent, prosecute, investigate, non-refoulement), which are not express in the CCPR.
d) The Case law of the Treaty Bodies
The Human Rights Committee has developed case law on many of the CCPR rights. CAT has developed much more limited case law, and largely on the issue of return or extradition in circumstances where persons would likely be subjected to torture. CERD has very little case law, as a result of receiving very few complaints. Since CEDAW's Optional Protocol entered into force only on December 22, 2000, it has yet to develop case law.
Where it exists, the case law on the provisions of the treaty which are sought to be invoked should be examined in making a choice of the best forum. A Committee may or may not have made a ruling on a similar case in the past. The Committees attempt to maintain consistency in the interpretation of the treaties. Hence, a previous ruling in a similar case will provide a good indication of the chances of a successful or unsuccessful outcome in each case. Subsequently, when a forum is selected, it is also helpful in an author's submission to point out similarities in his or her case with previously decided cases.
e) The General Comments or Recommendations of the Treaty Bodies
The Committees may have issued a "General Comment" or "General Recommendation" concerning the subject matter or related issues of the potential complaint. A General Comment or Recommendation is a statement that has been formally adopted by the Committee which interprets, clarifies or expands upon a particular treaty right. General Comments and Recommendations are published in the annual reports of the Committees. Even if a Committee has no developed case law on a treaty right, it may have issued a General Comment that indicates its interpretation or position on a specific subject. These General Comments can be used to evaluate the Committee's likely position on an issue in the absence of case law. Subsequently, when a forum is selected, an author should also refer to any language of General Comments or Recommendations which supports his or her case in their submissions to the Committee.
f) Time Taken to Decide Cases
The four Committees differ in the time taken to consider complaints. For example, the Human Rights Committee has the longest delay. On average, from the time a complaint is registered, inadmissibility decisions may take about two years, and final Views on the merits may take four years from registration to conclusion. Cases are dealt with more expeditiously when both the petitioner and the state party furnish the Committee with all information within the prescribed time limits. Decisions which combine the issues of admissibility and merits sometimes take as little as two years, especially in capital punishment cases.
CAT does not have a significant backlog of complaints: decisions on cases, including both admissibility and merits are usually taken in less than two years. Few cases are submitted to CERD, so delays associated with the volume of cases are not applicable. As CEDAW's complaint process is in its infancy, backlog is currently not an issue.
g) Interim Measures/Urgent action
If a case is urgent in nature and the author wants the Committee to ask the state to take interim measures (such as stay of execution or deferral of deportation), the willingness or ability of the Committee to make such requests to states parties is a key factor. The success rate of such requests should also be taken into account.
Interim measures may be ordered to avoid irreparable damage to the victim of the alleged violation. While the Annual Report now states the number of occasions in which the Special Rapporteur has made interim measure requests, it does not state how many of these requests have been honoured. The success rate is reportedly more than 90% in the Human Rights Committee and almost 100% in the case of CAT).
h) Remedies
There may be different remedies for rights violations available in a particular case. Prior case law may indicate the preferences of a treaty body for particular requests of states parties in terms of remedies. A Committee may be more or less likely than another Committee to request the specific remedy that the complainant is seeking, or to specify a particular remedy at all.
For decades, the Human Rights Committee did not specify a particular remedy, and tended to allow the state party to determine the remedy required. On the other hand, the Committee has specifically requested states parties, for example, to: pay a specific sum of compensation, make restitution in full, reinstate a person in public service at a specific level of seniority, amend legislation, release a prisoner, and commute a death sentence.
CAT will be satisfied that a state party has met its obligations under article 3 not to forcibly return an individual to a state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture, by a variety of means. This includes solutions of a legal nature (such as, by granting the petitioner asylum or a temporary or permanent residence permit) or solutions of a political nature (such as by finding a third state that is willing to admit the applicant to its territory and to undertake not to return or expel him or her). Furthermore, a state may be liable to compensate victims of torture, even in the absence of a criminal conviction of a state official.
CERD will sometimes propose remedies which are not personal in nature, and recommend that legislation be amended, or the state party review its policy and procedures in the relevant area, or otherwise take general measures to counteract racial discrimination in the future. CERD has also recommended that investigations into reports of discrimination be conducted, and that petitioners be given compensation or offered alternative employment.
i) Compliance with the Committee's Views
Human Rights Committee
Of the final Views adopted over the history of the Optional Protocol, three-quarters have revealed a violation of the Covenant. A significant proportion of registered cases, though, come from a very limited number of countries.
According to the Committee, their insistence that a remedy be forthcoming in response to a finding of a violation has been respected in about one-fifth of the cases.
Committee Against Torture
Thus far states parties have generally complied with the Committee's Views, particularly in article 3 cases where they have refrained from expelling individuals to countries in which they risk torture.
Committee on the Elimination of Racial Discrimination
In the few cases decided states parties have generally complied with the Committees' Opinions, carried out investigations and issued appropriate directives and regulations.
Committee on the Elimination of Discrimination Against Women
Not yet applicable.
j) Overlap with Non-treaty Mechanisms
The Special Procedures and Urgent Appeals
Over the past decade the Commission on Human Rights has created numerous Special Procedures with ever-widening mandates. There are over a dozen country rapporteurs/representatives/independent experts, and almost two dozen thematic rapporteurs/representatives/independent experts, and two thematic working groups. In recent years the Special Procedures have conducted over 50 field missions, and issued about 1000 urgent appeals annually.
Procedures which receive and respond in some form to complaints include:
Working Groups
Thematic Rapporteurs/Representatives
and some Country Rapporteurs or Representatives which are normally appointed on an annual basis.
The Special Procedures have more flexibility in relation to a number of functions as compared with the treaty bodies.
At least as long as universal ratification of the human rights treaties and the accompanying individual complaint mechanisms has not occurred, mechanisms which extend the principles of international human rights protection beyond participation in the treaty system will be necessary.
At the same time there is overlap. Some states are subject to the attention of both special procedures and the treaty bodies. The standards applied by the special procedures in their work are often the human rights treaties, although they also utilize non-treaty provisions such as the Universal Declaration on Human Rights, and the Standard Minimum Rules for the Treatment of Prisoners. Nevertheless, sometimes this overlap is not strictly-speaking duplication. Treaty bodies have limited capacity to deal with general emergency situations, to focus on systemic human rights violations, or to focus on violators for sustained periods of time.
There are situations where individual cases are first sent to the special procedures and later to the treaty bodies on substantially the same issues. To date, the treaty bodies have tended not to count these initial entreaties as running afoul of the provisions in CAT, the Optional Protocol to the CCPR, and CEDAW's Optional Protocol, that disallow communications relating to matters which have been examined, or are being examined, under another procedure of international investigation or settlement.
In many ways, the work of the special procedures is more visible. Their work often involves on-the-spot investigations or high profile visits. They have more direct media contact, and they usually report to the Commission on Human Rights, and/or the General Assembly in person. There is also an immediacy associated with their work that is frequently not affiliated with the methodical examination of reports, or the lengthy written examinations of a relatively small number of individual cases by the treaty bodies. The visibility of the Special Procedures has resulted, in practice, in the individual complaints received by the UN being directed to country or thematic rapporteurs. A prior analysis of the ability of the treaty bodies to consider these individual complaints often does not occur. No set of clear, transparent priorities in terms of the most appropriate venue for complaints currently exists within the Office of the UN High Commissioner for Human Rights.
Those responsible for directing complaints to treaty or non-treaty mechanisms within the Office of the High Commissioner tend to distinguish between two kinds of communications: so-called "urgent appeals" which are usually directed to the Special Procedures, and substantive complaints without an urgent dimension that may, or may not, end up in the treaty bodies' complaints procedures. The main focus of attention is on channelling urgent appeals to the relevant country or thematic rapporteurs or working groups, and coordinating joint urgent appeals among these procedures when appropriate. Little attention is given to directing the appeal instead to a treaty body.
The ability of the treaty bodies to act in this urgent context has, however, been underestimated. In about 90% of the cases in which the Human Rights Committee has used its interim measures procedure states have followed their requests. CAT's record is almost 100%.
The Human Rights Committee normally acts through the Special Rapporteur on New Communications in the case of the Optional Protocol; if the Special Rapporteur cannot be reached, the UN Secretariat will reach a member of the Bureau of the Committee. With respect to CAT, the UN Secretariat can deal directly with the Rapporteur for New Complaints and Interim Measures. Hence, in neither case will requests for interim measures be held up until full meetings of the treaty bodies are held.
In addition, the criterion for the use of the urgent action or interim measures procedures is not a final determination that domestic remedies have been exhausted. The test is irreparable damage. According to the Human Rights Committee rules, "interim measures may be desirable to avoid irreparable damage to the victim". Requesting the application of interim measures "does not imply a determination on the merits of the communication." The rules also indicate that a request for interim measures does not imply a positive or final decision on admissibility (although capricious disregard of the conditions underlying the request would not be consistent with the treaty's intent). According to CAT rules, the criteria for the use of the interim measures procedure similarly is the avoidance of "possible irreparable damage" to the individual claiming to be a victim of a violation. According to CAT, such a request addressed to the state party does not imply that any decision has been reached on the question of the admissibility of the complaint.
At the same time, with few relevant cases or requests the treaty bodies' application of the "irreparable damage" criteria to date has been limited. The Human Rights Committee may believe that arbitrary detention does not constitute irreparable damage if financial compensation for the time spent in prison is an alternative. If someone has disappeared, to date the Human Rights Committee has not used the interim measures procedure to order the individual to be produced.
Furthermore, an urgent appeal is only properly before a treaty body where there is an allegation of a violation of a treaty right. For example, since the CCPR does not prohibit the death penalty itself, allegations must relate to Covenant provisions such as the right to a fair hearing. Or since the CCPR does not prohibit extradition or expulsion itself, allegations must relate, for example, to the right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment.
In deciding on the comparative usefulness of the treaty bodies and the Special Procedures in a specific case, the following factors should be borne in mind:
ECOSOC Resolution 1503/the Sub-Commission on the Promotion and Protection of Human Rights, the Commission on the Status of Women Mechanism, and Systemic Human Rights Abuses or Communications Affecting Groups and Minorities
Most complaints coming to the UN, which allege systemic or group rights violations, or complain of abuses in situations of massive violations of human rights, make no mention of the specific UN mechanism they wish to address. Most often these complaints or letters are sent to a procedure developed under a resolution of the Economic and Social Council (ECOSOC). Cases relating to a systematic pattern of human rights violations, or to groups of victims, in general are not sent to the treaty bodies.
The ECOSOC 1503 Procedure is not directed at an assessment of the accuracy of an isolated individual violation, or the suggestion of a particular remedy. Overall it is intended to bring to the attention of the UN Commission of Human Rights situations of massive human rights violations, and subsequently to pressure UN states to take action in relation to the state, by for example, appointing a Special Rapporteur to investigate and monitor the situation. ECOSOC 1503 cases are directed at establishing that there are reasonable grounds to believe that "a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms exists". Cases may be brought by individuals without the same degree of relationship to the victim or proof of authority to act on the victim's behalf, as is required by the treaty complaint mechanisms.
Individuals seeking an evaluation of individual claims, but who are also victims in a broader context of systemic human rights abuses affecting groups or minorities, can and should make use of the treaty system where state ratification of the relevant instruments, and admissibility requirements, permit. The Optional Protocol to the CCPR clearly covers complaints from minorities (Article 27) or systemic discrimination (under Article 26). A number of other Covenant provisions relate to group rights, or rights which are exercised in community with others, such as freedom of religion. The distinguishing feature of what can be brought under the Covenant as distinct from ECOSOC 1503 cases should not be whether they apply to groups or are systemic in nature. The qualifications for using the Optional Protocol are that there is an identifiable victim, and the communication has been submitted by the victim or a person close enough to the victim.
In deciding on the comparative usefulness of the treaty bodies and the ECOSOC 1503 Procedure in a specific case, the following factors should be borne in mind:
Complaints concerning women are also sent to the Commission on the Status of Women (CSW). Through the communications procedure of the CSW, allegations of violations against women which are directed at a particular state are considered by a CSW Working Group. They also consider government replies to these allegations. The Working Group submits a report to the CSW bringing to its attention those communications which appear to reveal a consistent pattern of reliably attested injustice and discriminatory practices against women. The report identifies the categories of violations which the communications reveal. In turn, the CSW may "take note" of the report and/or make recommendations for action to ECOSOC in relation to the trends and patterns revealed by communications.
Similar considerations to the relative usefulness of the ECOSOC 1503 procedure apply in weighing the usefulness of the CSW procedure as against the CEDAW Optional Protocol, or the other treaty body complaints procedures which relate to women's rights. The CSW does not take decisions on the merits of communications, and the communication procedure therefore does not provide an avenue for the redress of individual grievances. There is nothing to prevent an individual from simultaneously drawing the attention of CSW to an individual example of violation of women's rights and where the state party has ratified the CEDAW Optional Protocol, from submitting a complaint to CEDAW.
k) Regional Mechanisms Versus the Treaty Bodies
A person whose human rights have been violated and who wishes to obtain redress can choose between regional bodies (the European Court of Human Rights, the Inter-American Commission and Court of Human Rights, the African Commission of Human and Peoples Rights) and the UN treaty bodies.
In making this choice, factors to consider include:
The UN Human Rights Committee offers perhaps the highest percentage of decisions favourable to petitioners. Yet, because its decisions are not legally binding, and a non-cooperative state generally need not fear disapprobation in other contexts (such as may be the case with Council of Europe members seeking to join the European Union), the rate of implementation is relatively low.
Many petitioners prefer the regional procedures of the European Court of Human Rights and the Inter-American Commission/Court of Human Rights. The decisions of the European Court under the European Convention on Human Rights are legally binding and persons who have been successful in the Court have received effective relief in most cases. The decisions of the Inter-American Court under the American Convention on Human Rights (excluding "advisory opinions") are also binding. The decisions of the Inter-American Court in most cases also result in the receipt of reparations and the conduct of investigations, although not trials or punishment of those responsible.
The regional systems have other advantages, including the possibility of having legal counsel appointed at no cost, and the availability of oral hearings. Moreover, the European system in particular has a large Secretariat (over 100 lawyers) with a much broader range of linguistic competence. A case can be filed to the European Court of Human Rights in almost 40 languages. Cases can be filed with the Inter-American petition system in English, Spanish, French and Portuguese, and its complement of staff lawyers is approximately 15.
As is evident from the judgments of the European Court of Human Rights, cases are very carefully argued and remedies are spelled out in greater detail. One of the disadvantages of the recommendations of UN bodies is that, frequently, they are vague, and the state party is merely urged to grant the victim "an appropriate remedy".
The backlog of cases in the European system is greater, and the average time required for a final decision may be longer than for the treaty bodies. CAT and CERD can decide cases within two years, while the Human Rights Committee decides cases on average about four years, although some categories of cases may be decided in half that time.