How To Complain About Human Rights Treaty Violations
The State Reporting System
- How Does the State Reporting System Work?
- Submission of Initial and Periodic Reports by States Parties
- Lists of Issues
- Formal Consideration of the State Party's Report
- Concluding Observations or Comments
- How Can Complainants Make Use of the State Reporting System?
- A Source of Information about the Committee's Approach to Convention Obligations
- Method of Bringing Attention to an Individual Complaint
- Follow-up from Successful Individual Communications
One of the principal mechanisms by which the treaty bodies monitor the extent of compliance by states parties with their obligations under the human rights treaties is through a system of state reporting.
Under each of the treaties, states parties undertake to submit reports to the treaty bodies explaining the progress made and problems encountered in implementing treaty obligations. The state reporting system intersects with the system of individual complaints, and may be able to be used to the advantage of authors or prospective authors of individual complaints.
2. How Does the State Reporting System Work?
There are differences in the procedure adopted by each of the treaty bodies in monitoring state reports. However, there are common elements.
a) Submission of Initial and Periodic Reports by States Parties
Under the treaties, each state party undertakes to submit an initial report within a time frame specified in the treaty (normally one or two years from the entry into force of the treaty for the state concerned). The report is supposed to detail:
- the measures that the state party has adopted to give effect to the provisions of the treaty
- the progress made in giving effect to the provisions of the treaty, and
- the factors and difficulties the state party has encountered that have affected the degree of fulfilment of its obligations under the treaty.
States parties also undertake to submit subsequent periodic reports, at an interval that is either specified in the treaty itself, or stipulated by the relevant treaty body.
In order to assist states parties in their reporting tasks, the treaty bodies issue general guidelines for the preparation of reports, which detail the preferred format and the information that should be included in the reports.
b) Lists of Issues
On receipt of states parties' initial and periodic reports, the practice of many (but not all) of the treaty bodies is to prepare a list of issues, which notifies the state party of the matters of particular interest to the treaty body.
Some of the treaty bodies ask the state party to submit written answers to the list of issues in advance of the treaty body's formal consideration of the state party's report.
c) Formal Consideration of the State Party's Report
The state report is scheduled for examination at a meeting of the treaty body, and the state party is invited to send representatives to present the report and answer the treaty body's questions.
At the scheduled meeting, the representatives of the state party make an initial presentation, and then the members of the treaty body engage in a dialogue with the representatives, asking questions about the state party's implementation of the treaty and raising any concerns they might have.
d) Concluding Observations or Comments
The treaty body then adopts concluding "observations" or "comments" on the state party's report. In the concluding comments or observations the treaty body identifies concerns that it has about non-compliance. The treaty body makes recommendations for action by the state party to enable improved implementation.
Important points to note:
In the case of all six treaty bodies, one member of the treaty body (called the "country rapporteur") is appointed by the treaty body to take a leading role in the evaluation of a particular state party's report, the drafting of lists of issues (where applicable), and concluding comments. Some of the treaty bodies refuse to disclose which of their members has been appointed as the country rapporteur.
Country information and NGO involvement
The treaty bodies evaluate states parties' reports in light of whatever information is available to them about the situation in the country at issue, including external sources. This may include, for example, country information prepared by the treaty body's secretariat, information provided by other UN agencies, and information provided by any non-governmental organizations that may have a particular interest in the subject matter or the country at issue.
Practices differ between the respective treaty bodies as to how actively they seek out such information.
States parties' reports are made available to the public, if not by the state party (contrary to their responsibilities), then by the UN secretariat. The treaty bodies' formal consideration of states parties' reports also takes place in public.
Practices differ among treaty bodies as to whether lists of issues are made available to the public and whether the meeting at which concluding observations are adopted is open to the public.
Once adopted, however, the treaty bodies' concluding observations are always released publicly.
Practices differ between treaty bodies as to when and in what circumstances Committee members meet with the press. However, a press statement is released by the media section of the United Nations secretariat at the end of each session. A "summary record", which summarizes the dialogue between the treaty bodies and the states parties' representatives, is sometimes published as a UN document, but practices very widely as to the timing of the availability of the summary record which may be years after the actual meeting.
Practical difficulties faced by the treaty bodies in monitoring states parties' reports
The treaty bodies face a number of practical impediments in monitoring states parties' reports. In particular:
- Many states parties have fallen significantly behind in the submission of reports. A significant number of states parties have never submitted their initial reports.
- The treaty bodies do not have adequate resources to keep up with the burden of considering states parties' reports, and consequently there are considerable delays, sometimes of several years, between receipt of a report by a treaty body and the formal consideration of the report. This phenomenon is decreasing, however, as treaty bodies have adopted rules permitting states to expunge their whole record of overdue reports with the submission of a single report. It remains to be seen whether this approach will have the ultimate effect of encouraging or discouraging the submission of state reports at regular intervals (as required by the treaties).
- When states have failed to produce a report for many years, some of the treaty bodies will now examine the country situation in the absence of a report. This process entails additional difficulties, concerning information-gathering and the ability of the process to encourage reform at the domestic level without the engagement of the state party.
3. How Can Complainants Make Use of the State Reporting System?
For the complainant or prospective complainant, the state reporting system may be relevant in the following ways.
a) A Source of Information about the Committee's Approach to Convention Obligations
The concluding comments or observations issued by the treaty bodies on the states parties' reports are a potential source of information for gauging the treaty bodies' approach to the interpretation of the treaties. This information can be used to assess the likelihood that an individual complaint will succeed before a particular treaty body and to inform the preparation of the complaint.
In the concluding comments, the treaty bodies identify practices engaged in by the state party that are of "concern". Occasionally, the treaty body will go further and actually state that a particular practice violates the state party's treaty obligations. When faced with an individual complaint based on similar practices, such expressions of "concern" will tend to support a conclusion of a treaty violation.
b) Method of Bringing Attention to an Individual Complaint
If the state party that has violated a person's rights under one of the treaties is due to have a state report examined by that treaty body, the state reporting system can be used as a means of bringing the violation to the treaty body's attention, and putting pressure on the state party to rectify the situation.
Points to note about this potential use of the state reporting system are as follows:
- In practice, this option will generally only be available at selected times, that is, if the state party has provided its written report to the relevant treaty body but the report has not yet been formally considered. That is the time when the treaty body will be interested in receiving information from external sources that bears on the state party's record of implementation of its treaty obligations, including its obligation to comply with the Committee's Views in individual cases.
- In contrast to the individual complaint system, there are no formal restrictions on who can bring information to the Committee's attention. It could be the alleged victim of a violation, a non-governmental organization, or any other third party. However, in the case of previously unexamined individual complaints the more established and authoritative the source of the information, the more weight the treaty body is likely to attach to it.
- The treaty bodies' focus in the context of state reporting is on a state party's overall record of compliance rather than on individual and isolated instances of violation. Accordingly, the treaty bodies are more likely to be interested if the violation was particularly egregious, if it involved a violation of more than one individual's rights, or if the complaint is an ongoing one and involves a policy or practice that has not been addressed by the state party.
- It should be made clear in the information provided to the treaty body why the information is being provided. In other words, it should be clearly stated that it is relevant to the treaty body's assessment of the state party's record of implementing its treaty obligations in the course of its consideration of the state report. Where the information relates to a situation which has not been the subject of a complaint, and the victim wants his or her identity to be protected from disclosure to the state party, that should also be made clear.
- The state reporting system is extremely unlikely to result in the treaty body recommending that the state party provide an individual remedy for violation of the treaty. More likely outcomes are:
- The treaty body might include questions about the alleged violation in its list of issues.
- At the formal consideration of the state report, the treaty body might question the state party about the violation.
- Although unlikely, the treaty body might express concern about the alleged violation in its concluding comments, or recommend that laws or policies be examined to ensure that similar violations do not occur in the future.
- Media coverage of the state reporting system might pick up on the violation, thereby bringing further pressure to bear on the state party to remedy the violation.
c) Follow-up from Successful Individual Communications
The state reporting system similarly permits complainants to bring situations of non-compliance with prior Views to the treaty bodies attention and to have the non-compliance directly and publicly raised with the state party. Thus the state reporting system can be used as a method for putting pressure on the state party to remedy the violation.
Two of the treaty bodies have formally recognized the important role that the state reporting system can play in providing an opportunity for subsequent follow-up from successful individual communications.
- The Human Rights Committee, in its consolidated guidelines for state reports, has asked that state parties include in their state reports information on any steps they have taken to respond to the Committee's recommendations and concerns expressed in "Views" on individual communications.
- The CEDAW Committee has provided in its Rules of Procedure that the Committee may request states parties to include information in their state reports on any action taken in light of the Committee's Views and recommendations on individual communications (Rule 73).
The victim or author and his or her supporters should treat the state reporting system as a valuable vehicle for putting additional pressure on the state party to grant a remedy for the violation. The relevant time period for utilizing the state reporting system is after the state party has provided its written report to the relevant treaty body but before the report has been formally considered. The limitations of the state reporting system as a vehicle for follow-up to individual complaints, however, is that the actual consideration of a state report from the particular state party may be years after the Committee's finding of a violation.