The United Nations Human Rights Treaties
How To Complain About Human Rights Treaty Violations
1. The Human Rights Committee
The Human Rights Committee is the only Committee that formally follows-up on cases where there has been a violation of a treaty right. CEDAW is expected to do so in the future in light of specific provisions in the CEDAW Optional Protocol relating to follow-up. The Human Rights Committee will keep track of whether or not a state has followed through on the Views of the Committee, and whether or not an appropriate remedy has been given to the victim. None of the Committees can force the state to provide a remedy to the victim, but the practice of follow up may serve to put some pressure on the state party to comply with the Committee's decision.
For the purpose of Follow-up, the Committee appointed one of its members to serve as a Special Rapporteur on Follow-up to Individual Communications. The purpose was to ensure that the Human Rights Committee properly focussed on the issue of follow-up, particularly in light of the poor record of compliance with the Committee's Views.
After the Committee has made a finding on the merits of a violation of a provision of the Covenant, it asks the state party to take appropriate steps to remedy the violation. The recommended remedy may be more or less specific. But in recommending a remedy, the Committee routinely indicates to states parties:
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views.
In other words, Article 2 of the Covenant legally binds ratifying states to provide an effective remedy for those whose Covenant rights have been violated, and for over two decades the Committee has exercised its competence and responsibility under the Optional Protocol to determine whether there has been a violation. Therefore, although the Optional Protocol refers to the Committee's decisions as "Views", refusal to implement those Views is clearly incompatible with the spirit and purpose of the Protocol.
To date, the Committee has performed the task of follow-up with minimal transparency and effort. In theory, the Committee's rules of procedure specifically require that information furnished by the parties within the framework of follow-up, and decisions of the Committee relating to follow-up activities, are "not subject to confidentiality" (unless the Committee takes a special decision to the contrary). (Rule 97) The practice is quite different. Authors of cases in which the Committee has found a violation of the Covenant therefore need to press the Committee to undertake greater follow-up efforts, including:
2. Committee Against Torture
The Committee has recently adopted a follow-up mechanism, which provides for the designation of one of its members as Rapporteur for Follow-up. The Rapporteur is expected to monitor the responses of states parties to the Committee's request for information on the remedy provided, and to meet with representatives of selected states parties that have not responded positively to the Committee's request. They are also enabled to make visits to states parties in the course of follow-up activities. (Rule 115)
3. Committee on the Elimination of Racial Discrimination
CERD does not have a follow-up procedure on individual communications revealing a violation of the Convention. The Committee includes in its annual report to the General Assembly the text of its final Views.
4. Committee on the Elimination of Discrimination Against Women
The CEDAW Optional Protocol specifically refers to follow-up (Article 7).
Within six months of the Committee issuing its Views and recommendations, the state party will be directed to submit to the Committee a written response, including information on any action taken. The Committee may invite the state party to submit further information about measures taken, and may request that information be included in subsequent state reports.
Under its Rules of Procedure, the Committee is to designate a rapporteur or working group on follow-up, who will ascertain the measures taken by states parties to give effect to the Committee's Views and recommendations. The Committee is also to include information on follow-up in its annual reports to the General Assembly.
In the absence of decided cases to date, CEDAW has yet to develop specific follow-up practices.
An individual complaint to a treaty body provides a person who believes his or her rights have been violated with an opportunity to receive a determination from an international expert body that supports the claim of a violation and an entitlement to a remedy. Treaty body Views are generally not enforceable in domestic courts of states parties. The treaty bodies themselves, and the political organs of the UN such as the General Assembly or the Commission on Human Rights, engage in little or no follow-up of these Views. Nevertheless, a decision of an international expert body that an individual's human rights, and a particular state's obligations to protect those rights, have been violated can be a powerful tool for applying pressure for redress.