A. Introduction

This lesson examines complaints that are brought directly under international human rights treaties and the special complaints mechanisms & procedures set up under the treaties.

Since the early 1970s international complaint mechanisms have developed apace, and you can now bring claims to the United Nations concerning violations of your rights under four of the 'core' human rights treaties:

1. The International Covenant on Civil and Political Rights which covers abuses of civil and political rights;
2. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which covers abuses involving torture and cruel treatment;
3. The International Convention on the Elimination of All Forms of Racial Discrimination, which covers abuses of racial discrimination; and
4. The Convention on the Elimination of All Forms of Discrimination against Women, which covers abuses involving sex discrimination.

Each of these treaties establishes a quasi-judicial committee to examine complaints. The complaint mechanisms are designed to be uncomplicated and accessible to the layperson. You do not need to be a lawyer or even familiar with legal and technical terms to bring a complaint before the bodies concerned. On the contrary, the system is intended to be as straightforward as possible.

The human rights protection mechanisms discussed in this lesson are by no means the only UN mechanisms available to individuals. The UN system also includes charter based human rights protection mechanisms (i.e. mechanisms based on the UN Charter) such as the Commission on Human Rights, the Commission on the Status of Women and the UN Special Rapporteurs. These charter based mechanisms are not addressed in this lesson series, which focuses on treaty based protection mechanisms.

B. Complaints under the international human rights treaties

Overview

A human rights treaty is a formal document negotiated by States that imposes binding obligations to protect and promote rights and freedoms on States parties that officially accept it (commonly through 'ratification'). The full texts of the treaties are accessible on the web site of the Office of the United Nations High Commissioner for Human Rights (OHCHR) at the following address: http://www.unhchr.ch/html/intlinst.htm

Under the treaties anyone may submit a complaint alleging a violation of treaty rights to the 'treaty bodies' (committees) for quasi-judicial adjudication. These committees are composed of independent experts elected by State parties to the relevant treaty. They are responsible for monitoring the implementation of the rights set forth in the treaties by State parties, and with deciding complaints brought against those States. While there are some procedural variations between the four committees, their design and operation are very similar.

Who can be the subject of a complaint??lt;/p>

A complaint under one of the four treaties can be made only against a State that satisfies two conditions. First, the State must be a party to the treaty in question, having ratified or otherwise accepted it. (You may refer to the Office of the High Commissioner for Human Rights' Treaty body database, to view ratifications and reservations). Second, the State party must have recognized the competence of the committee established under the relevant treaty to consider complaints from individuals. A State recognizes the Committee’s competence by becoming a party to a separate treaty or under a specific article of a Convention. (To check whether or not a state has done so, access the OHCHR treaty body database mentioned above, choose a relevant State by clicking on Ratifications and reservations and then click on Declarations on procedural articles.)

Who can make a complaint?

Anyone claiming that his or her rights under the relevant treaty have been violated can submit a complaint with a committee against a State party that satisfies these two conditions. It is not necessary to have a lawyer prepare your case, though legal advice usually improves the quality of the submissions. You may also bring a claim on behalf of another person on condition that you obtain his or her written consent. In certain cases, you may bring a case without such consent, for example, on behalf of persons unable to give formal consent, such as children, or where a person is in prison without access to the outside world.

What information do you need to provide in your complaint?

A complaint to a committee, also called a 'communication' or a 'petition', need not take any particular form, though should be in writing, in one of the secretariat’s languages, and signed. It should also supply the following necessary particulars:

• Your name, nationality and date of birth;
• Specify the State party against which your complaint is directed;
• If you are bringing the claim on behalf of another person, you should provide proof of their consent, or state clearly why such consent cannot be provided;
• The details of all the facts, in chronological order, on which your claim is based;
• The remedies you have sought from your country’s local courts and authorities, the dates and outcome of the proceedings. You should also state whether you have submitted your case to another means of international investigation or settlement;
• A statement about why you consider that the facts you have outlined constitute a violation of the treaty in question. It is helpful, though not strictly necessary, for you to identify the articles of the treaty that have allegedly been violated;
• Lastly, you should provide all documents of relevance to your claims and arguments, especially administrative or judicial decisions on your claim by national authorities (local courts or federal authorities).

If your complaint lacks essential information, you will be contacted by the secretariat with a request for the additional details.

When can you make a complaint under the human rights treaties?

In general, there is no formal time limit after the date of the alleged violation for filing a complaint under the relevant treaties. It is usually appropriate, however, to submit your complaint as soon as possible after you have exhausted domestic remedies.

The procedure

If your complaint contains the essential elements outlined above, your case will be registered, that is to say formally listed as a case for consideration by the relevant committee. You will receive notice of registration.

At that point, the case is sent to the State party concerned to give it an opportunity to comment. The State is requested to submit its observations within a set time frame. The time within which the State is required to respond to your complaint varies between procedures and is specified in the sections dealing with individual committees below. It is important to understand that this part of the process is about establishing whether or not your case is admissible and if it has merits. If the committee accepts your case and its merits, the committee can then make a final decision.

Once the State replies to your submission, you are offered an opportunity to comment. Again, the time frames vary somewhat between procedures. At that point, the case is ready for a decision by the relevant committee. If the State party fails to respond to your complaint, you are not disadvantaged. Reminders are sent to the State party and if there is still no response, the committee takes a decision on your case on the basis of your original complaint.

Special circumstances of urgency or sensitivity

Each committee has the facility to take urgent action where irreparable harm would otherwise be suffered before the case is examined in the usual course. The common feature is that the committee in question may, at any stage before the case is considered, issue a request to the State party for what are known as "interim measures" to prevent any irreparable harm to the victim. Typically, such requests are issued to prevent actions that cannot later be undone, for example implementing a death sentence or the deportation of an individual facing the risk of ill treatment and/or torture.

If you wish the committee to consider a request for interim measures, it is advisable to state this explicitly in your complaint, with reasons for why you consider such action to be necessary.

If there are particularly sensitive matters of a private or personal nature that emerge in the complaint, you may request that the committee suppress identifying elements in its final decision so that your identity does not become public.

The admissibility of your case

Before the committee to which you have brought your case can consider its merits or substance, it must be satisfied that the claim meets the formal requirements of admissibility. When examining admissibility, the committee may consider one or several of the following factors:

• That you (or the person on whose behalf you are bringing the complaint) are a victim of the alleged violation.
• If you are acting on behalf of another person, that you have obtained sufficient authorization or you are otherwise justified in doing so.
• That the alleged violation relates to a right actually protected by the treaty.
• That your complaint of violation of a treaty is sufficiently substantiated.
• That your complaint relates to events that occurred after the entry into force of the complaint mechanism for your State (exceptions to this rule may apply).
• That you have exhausted all available domestic remedies (exemptions from this rule may be allowed, for example, where the exhaustion of remedies would be unreasonably prolonged, or would plainly be ineffective - you should, however, give detailed reasons why the general rule should not apply).
• That your complaint is not an abuse of the complaints process.
• That your complaint is not being examined under another international mechanism of investigation or settlement - the aim being to avoid unnecessary duplication at the international level.
• That your complaint is not precluded by a reservation which the State party to the treaty has made, for example limiting a committee’s competence to examine certain communications.

If you think there is a risk that your claim may be considered inadmissible on one of these grounds, it is helpful to present your counter-arguments in the initial complaint.

The merits of your case

Once a committee decides your case is admissible, it proceeds to consider the merits of your complaint, stating its reasons for concluding that a violation has or has not occurred under the various articles it considers applicable. A number of States have also entered substantive reservations that may limit the scope of the human rights obligations they assume under the treaties. In most cases, a committee will decline to consider complaints falling within areas covered by a reservation, though in exceptional circumstances it may find a reservation impermissible and consider the case despite the purported reservation. (Reservations or declarations entered may be viewed in the Treaty Body database on the OHCHR web site).

The Committees' consideration of your case

The committees consider each case in closed session. Although some have provisions for oral proceedings in their rules of procedure, the practice has been to consider complaints on the basis of the written information supplied by the complainant and the State party. The committees do not go beyond the information provided by the parties to seek independent verification of the facts, nor do they consider briefs provided by third parties.

Once the committee makes a decision on your case, it will notify you and the State party simultaneously. The text of any final decision on the merits of your case or of a decision of inadmissibility will be posted on the OHCHR’s web site at the following address: http://www.unhchr.ch/html/menu2/8/jurispr.htm?lt;/p>

What happens once a committee decides your case??lt;/b>

It should be noted at the outset that there is no appeal against committee decisions and that, as a rule, the decisions are final. What happens to your case subsequently depends on the nature of the decision taken. The committee may decide:?lt;/p>

• That you have been the victim of a violation by the State party of your rights under the treaty and issue recommendations. The committee will invite the State party to supply information within three months on the steps it has taken to give effect to the committee’s findings.
• That there has been no violation of the treaty in your case or that your complaint is inadmissible. Here the process is complete once the decision is sent to you and the State party.
• That your case is admissible, either in general or with reference to specific claims or articles. In this case the State party is requested to make submissions on the merits within a specific time frame. You will then have a period for comment on the submissions, following which the case is usually ready for consideration by the committee.

Having understood what constitutes a human rights treaty and its corresponding complaint mechanisms, we may now look at specific international treaty procedures.

1. Procedure under the Optional Protocol to the International Covenant on Civil and Political Rights

Introduction

In respect of violations of rights under the International Covenant on Civil and Political Rights (the Covenant), you can find the complaints mechanism in the Optional Protocol to the Covenant. Under this, the Human Rights Committee (the Committee) has been established to receive and decide on complaints, which it does so at three sittings per year. Before the Committee can hear your complaint however, it must establish that the State party against which your complaint is directed has formally recognized the existence of the Committee. This recognition is indicated in the Optional Protocol.

The complaint procedure

You may submit a complaint of a violation of the Covenant to the Committee, or if you are representing another individual or individuals, on their behalf.

After you have submitted your complaint, it will be referred to the Committee’s Special Rapporteur on New Communications who will decide whether or not your complaint will be registered. Following registration, the Committee sends the complaint to the State party concerned, which has six months to comment on the admissibility and the merits of your complaint. Upon receipt of these, the Committee will send them to you for your comments. You will have two months to reply to the State party’s comments.

It is worth noting a few things about this procedure. First, the Committee may vary this process to quicken things; second, the Committee may depart from the general rules on admissibility outlined above, and consider acts or events preceding the entry into force of the Optional Protocol for the State party concerned. It may also consider complaints submitted to or under review of another international mechanism of investigation or settlement, including complaints submitted to the Special Rapporteur of the Commission on Human Rights or under the '1503 procedure'.

If you are concerned that the State party may take some action against you that may harm you or the victim who you are representing, you may also include in your complaint a request to the Committee to issue interim orders to prevent the State party from doing so.

The Committee’s decision

If, after considering the merits of your case, the Committee decides that you, or the individual(s) you represent, are a victim(s) of a violation of the Covenant it may:

• Recommend remedial action be taken by the State (e.g. release from detention, further and proper investigations, payment of compensation); and
• Invite the State party to supply information within a fixed period on the steps it has taken to give effect to the committee’s recommendations.

Where there is no follow up with the recommendations, the Committee’s Special Rapporteur on Follow-up will monitor the State party for implementation of the recommendations. Also, the extent to which the State party has taken steps to implement the recommendations is reported in the Committee’s Annual Report.

How long will my case take?

Typically, cases will be resolved within one and three years of registration of the complaint.

Where can I find a copy of the Covenant, Optional Protocol, and the Committee’s Rules of Procedure?

To view the Covenant, click onto this link: http://www.unhchr.ch/html/menu3/b/a_ccpr.htm

To view the Optional Protocol, click onto this link: http://www.unhchr.ch/html/menu3/b/a_opt.htm

To view the Committee’s Rules of Procedure: These are available in PDF format and may be found by doing a search for "Rules of Procedure" on the UNHCHR website or by clicking here: http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/HCHR+En?OpenDocument

How to direct complaints to the treaty bodies?lt;/i>

For complaints to the Human Rights Committee, direct your correspondence and inquiries to:
Petitions Team
Office of the High Commissioner for Human Rights
United Nations Office at Geneva
1211 Geneva 10 Switzerland
Fax: +41 22 9179022 (particularly for urgent matters)
Email:?lt;a href="mailto:tb-petitions.hchr@unog.ch">tb-petitions.hchr@unog.ch

2. Procedure under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment

Introduction

Regarding violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (the Convention), the complaints mechanism can be found in the Convention. Under the Convention, the Committee against Torture (the Committee) has been established to receive and decide on complaints, which it does so two times per year. For the Committee to hear complaints made against a State party, the State party concerned must have formally recognized the existence of the Committee. This recognition is indicated in the Convention.

The complaint procedure

You may submit a complaint to the Committee, or if you are representing another individual or individuals, on their behalf.

After your complaint is registered it will be sent to the State party concerned which will have six months to comment on the admissibility and merits of the complaint. Upon receipt of the State party’s comments, the Committee will then send a copy to you for your comment, and you will have six weeks in which to reply. It is worth noting a few things about the procedure. First, the Committee may vary the procedure to quicken things up; second, the Committee may reject a complaint if: (i) it is pending a decision or has already been decided by another international mechanism; or (ii) some time has elapsed since it was decided by the national authorities in the State concerned and your submitting it to the Committee.

If you are concerned that the State party may take some action against you or the victim which would effectively damage your case, you may apply to the Committee for interim orders to prevent such action being taken.

The Committee’s decision

If the Committee decides that your case is admissible and that it has merits, that is that a state action or proposed action has violated or would violate its obligations under the Convention, the Committee may make recommendations to the State party on how it can remedy those violations. The Committee may also invite the State party to supply information within a fixed period, usually 90 days, on the steps it has taken to give effect to the committee’s recommendations.

Where there has been a failure to follow up, the Committee’s Rapporteur for Follow-up will monitor the State party for implementation of the recommendations.

How long will my case take?

Typically, cases will be resolved within one to two years of registration of the complaint.

Where can I find a copy of the Convention, the Optional Protocol, and the Committee’s Rules of Procedure?

To view the Covenant, click onto this link: http://www.unhchr.ch/html/menu3/b/h_cat39.htm

To view the Optional Protocol, click onto this link: http://www.unhchr.ch/html/menu2/6/cat/treaties/opcat.htm

To view the Committee’s Rules of Procedure: These are available in PDF format and may be found by doing a search for "Rules of Procedure" on the UNHCHR website or by clicking here: http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/HCHR+En?OpenDocument

How to direct complaints to the treaty bodies

For complaints to the Committee against Torture, direct your correspondence and inquiries to:
Petitions Team
Office of the High Commissioner for Human Rights
United Nations Office at Geneva
1211 Geneva 10 Switzerland
Fax: +41 22 9179022 (particularly for urgent matters)
Email: tb-petitions.hchr@unog.ch?lt;/p>

3. Procedure under the International Convention on the Elimination of All Forms of Racial Discrimination

Introduction

For complaints submitted under the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention) the complaints mechanism is contained in the Convention itself. Under the Convention, the Committee on the Elimination of Racial Discrimination (the Committee) has been established to receive and decide on complaints, which it does so two times per year.

The complaint procedure

You may submit a complaint to the Committee, or if you are representing another individual or individuals, on their behalf. After your complaint is registered, the Committee will send a copy to the State party, who will have three months to comment on the admissibility of the complaint, and if none, then on the merits of the complaint. If the State party argues that your case is inadmissible, you will be sent a copy of its comments and will have six weeks in which to comment on these. The Committee will then meet to decide the issue of admissibility. If the State party has no objection to admissibility, it will have another three months to comment on the merits of the complaint. The Committee will then send you a copy of the State party’s comments on the merits and you will then have six weeks in which to reply. The Committee will then meet to make its final decision.

In a departure from the general rules applicable to the treaty committees, the Committee will still review and decide on a case even though it has been decided by another international mechanism or is pending a decision before one. However, the Committee will only hear cases that are submitted within six months following a violation.

If you are concerned that the State party may take some action against you that may harm you, or the victim who you are representing, you may also include in your complaint a request to the Committee to issue interim orders to prevent the State party from taking such action.

The Committee's decision

Where the Committee finds that a state action or proposed action has violated or would violate a State party’s obligation under the Convention, it may make recommendations to the State party and invite it to report within a certain period on the steps it has taken to implement those recommendations. Unlike the other treaty committees, the Committee may also make general or specific recommendations even if the State party is found not to be in violation of the Convention and may also issue general or specific recommendations to all State parties to the Convention.

How long will my case take?

Typically, cases will be resolved within one year of registration of the complaint.

Where can I find a copy of the Convention, and the Committee’s Rules of Procedure?

To view the Convention, click onto this link: http://www.unhchr.ch/html/menu3/b/d_icerd.htm

To view the Committee’s Rules of Procedure: These are available in PDF format and may be found by doing a search for "Rules of Procedure" on the UNHCHR website or by clicking here: http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/HCHR+En?OpenDocument

How to direct complaints to the treaty bodies

For complaints to the Committee on the Elimination of Racial Discrimination, direct your correspondence and inquiries to:
Petitions Team
Office of the High Commissioner for Human Rights
United Nations Office at Geneva
1211 Geneva 10 Switzerland
Fax: +41 22 9179022 (particularly for urgent matters)
Email: tb-petitions.hchr@unog.ch

4. Procedure under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women

Introduction

The complaints mechanism to the Convention on the Elimination of All Forms of Discrimination against Women (the Convention) is contained in the Optional Protocol to the Convention. Under this, the Committee on the Elimination of All Forms of Discrimination against Women (the Committee) has been established to receive and decide on complaints, which it does so two times per year.

The complaint procedure

You may submit a complaint to the Committee, or if you are representing another individual or individuals, on their behalf. After the registration of your complaint, the Committee will send a copy to the State party concerned which will have six months to comment on the admissibility and merits of the complaint. The Committee will then send you a copy of the State party’s comments and you will be directed on when you are to submit your counterarguments. Thereafter, the case will be ready for a decision of the Committee. It is important to note that the Committee may vary the procedure and accelerate it. In a departure from the general rule, the Committee may seek documentation from the UN or other bodies that may assist it in deciding the case. In this regard, both State party and complainant will be given an opportunity to comment on such documentation within a fixed period. Also, the Committee may reject a complaint if it is pending before, or has been decided by, another international mechanism of investigation or settlement.

If you are concerned that the State party may take some action against you that may harm you, or the victim who you are representing, you may also include in your complaint a request to the Committee to issue interim orders to prevent the State party from taking such action.

The Committee’s decision

Where the Committee issues a decision and makes recommendations against a State party, the State party will have six months within which to submit a detailed report on the steps it has taken to implement the Committee’s recommendation.

Where can I find a copy of the Convention, the Optional Protocol, and the Committee’s Rules of Procedure?

To view the Convention, click onto this link: http://www.unhchr.ch/html/menu3/b/e1cedaw.htm

To view the Optional Protocol, click onto this link: http://www.unhchr.ch/html/menu3/b/opt_cedaw.htm

To view the Committee’s Rules of Procedure: These are available in PDF form and may be found by doing a search for "Rules of Procedure" on the UNHCHR website or by clicking here: http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/HCHR+En?OpenDocument

For complaints to the Committee on the Elimination of Discrimination against Women, direct your correspondence and inquiries to:
Committee on the Elimination of Discrimination against Women
c/o Division for the Advancement of Women, Department of Economic and Social Affairs
United Nations Secretariat
2 United Nations Plaza
DC-2/12th Floor
New York, NY 10017
United States of America
Fax: + 1-212-963-3463

C. Questions for discussion

1. When submitting a complaint before a UN committee, it is important to consider the relevant treaty or convention under which you are claiming an abuse of your rights. Given the outline above, what other UN documents affecting the submission of complaints would you need to consider before submitting a complaint? What impact could a State party’s declarations or reservations have on the submission of your complaint?
2. What potential problems or threats to a complainant or his/her case could possibly arise which you should be prepared to deal with?