BRINGING HUMAN RIGHTS COMPLAINTS TO THE UNITED NATIONS SYSTEM
by
Clarence J. Dias
I
Introduction
Clarence J. Dias
I
Introduction
A UN-fact sheet on the subject states in its opening sentence. "Anyone may bring a human rights problem to the attention of the UN and thousands of people around the world do this every year". There are a number of procedures available to individuals and groups who want the UN to take action on a human rights situation that is of concern to them and it is important that these procedures are as widely known as possible. But it is also important to have an accurate and realistic understand of what roles the UN can and cannot ply in respect of human rights.
The UN Charter establishes human rights as one of the three key goals of the UN along with peace and development. Accordingly, one of the first actions taken by the UN was to adopt the Universal Declaration on Human Rights and create the UN Commission on Human rights (hereafter Commission). At its very first meeting, in 1947, the Commission saw the need for procedures for handling complaints (which were euphemistically termed "communications") about human rights. During the fifty years since then, such procedures have been established, strengthened and improved. The fact that they exist and are frequently used, serves as a deterrent for human rights abuses and helps promote respect for human rights. During a fifteen-year period spanning the 1970s and 1980s, some 350,000 complaints were handled by the UN. There is undoubted scope for further improvement of such procedures and for more effective enforcement of international human rights standards. But it is also important to better understand the existing procedures since misperceptions as to what the nature and possible outcomes of these procedures are still widespread and lead to inevitable frustration regarding the UN's human rights mechanisms.
There are basically two types of procedures. One relates to individual cases and the other to a consistent pattern of violations affecting a large number of people over a protracted period of time. The former is called Optional Protocol procedure and the latter is known as the 1503 procedure (named after Resolution number 1503 of the UN Economic and Social Council which was adopted in 1970 and brought the procedure into existence.
II
The 1503 Procedure
The 1503 Procedure
It is important to stress, at the outset, that the 1503 procedure is not an adversarial one but rather one that relies on confidential dialogue with concerned governments by the UN, playing a mediational role. "Quite diplomacy" by the UN is the essence of this procedure - a fact which must be fully appreciated by those seeking to initiate the procedure.
The Complaint and Complainant
Any person, groups of persons or non-governmental organization may invoke the 1503 procedure if they have direct or second-hand knowledge of the alleged violations. The alleged violations can relate to any UN human rights convention, treaty or legal instrument. The complaint can be against any UN member allegedly involved in the violation. The complaint, however, must not relate to an individual violation but, as mentioned above, must relate to a "consistent pattern of violations" affecting "a large number of people over a protracted period of time". The complaint should be described as a "communication intended for handling under the 1503 procedure" and should be addressed to "Centre for Human Rights, UN Office at Geneva, 1211 Geneva 10, Switzerland". Communications can be sent by mail or through a 24-hour Fax Hot Line in Geneva whose number is 41 22 917-0092.
UN Actors Involved in Handling the "Communication"
Every month, the UN Secretary-General compiles a list of communications, with short description in each case, and any replies sent in by Governments.
Once a month, all members of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (hereafter the Sub-Commission) receive this list from the UN Secretary General. The list is also supplied to all members of the Commission on Human Rights.
A five-member Working Group of the Sub-Commission has been created to handle the communications. The Working Group on Communications meets for two weeks each year (just before the annual session of the Sub-Commission) and considers all the communications and Government's replies. The Working Group on Communications selects, for the attention of the Sub-Commission, cases where there seems to be reliable evidence of a consistent pattern of gross violations of human rights and, by agreement of a simple majority of its members, refers such communication to the Sub-Commission. The number of complaints referred by the Working Group on Communications to the Sub-Commission is only a fraction of the number of complaints received but those that are referred are well documented with several pages of documentation for each communication referred. An annual confidential report is also sent by the Working Group to the Sub-Commission. No further action is taken on communications which the Working Group has decided not to refer to the Sub-commission. The author of a communication is not informed by the Working Group of any action taken - this is to ensure the confidentiality of the proceedings. The UN Secretariat merely acknowledges receipt of the communication to the author but thereafter, the author should expect no further communication from the UN. This can often be a source of frustration for the author of the communication, but the 1503 procedure emphasizes the confidentiality requirement as being essential for meaningful dialogue with the government concerned.
The Sub-commission, on receipt of a communication referred by the Working Group, then decides whether to refer situations where there appears to be a consistent pattern of human rights violations to the Commission on Human Rights.
Subsequently, it is the turn of the Commission to determine:
1. whether a thorough study of a particular situation is needed, with a report and recommendations to the Economic and Social Council (ECOSOC); or
2. whether to appoint an ad hoc committee to make an investigation - but this requites the consent of the State where the violations are alleged to have taken place.
The 1503 procedure relies for its success on dialogue with governments and their cooperation. Accordingly, the Commission works through direct contacts to establish a dialogue with the Governments of the countries where the alleged human rights violations have occurred. These contacts are made either by the UN Secretary-General or by special representatives or independent experts who are appointed by the Commission and who report to it.
The cooperation of Governments is crucial for the 1503 procedure and a number of steps are taken to ensure this. The Sub-Commission emphasizes the important of receiving replies from Governments to allegations of human rights violations contained in communications received. The Commission also refers the documents on complaints to the Governments concerned, and invites them to make written comments. The Commission has also instructed the Sub-Commission to inform such Governments of its intention to refer a situation to the Commission and to invite observations in writing from the Governments.
To recapitulate the process:
(i) A communication can get sent by anyone to the UN Center for Human Rights in its capacity as the UN Secretariat regarding human rights;
(ii) The UN Secretariat acknowledges receipt of the communication, invites concerned Governments to reply, prepares a short description of each communication, complies a list of all communications received and, on a monthly basis, sends the list, the short description and replies, if any, to all members of the UN Sub-commission and to all members of the Commission on Human Rights. This gets sent in the name of the UN Secretary-General.
(iii) A five-member Working Group on Communications, created by the Sub-Commission, handles each communication and, by majority decision, selects those communications which it feels detail reliable evidence of a consistent pattern of gross violations of human rights, for referral to the Sub-Commission. At this point, for all practical purposes, the communication has become a complaint as to a consistent pattern of gross violations of human rights.
(iv) The Sub-Commission decides which of the communications it is reviewing refer to situations where there appears to be a consistent pattern of human rights violations and refers such situations to the Commission. The communication has thus become a complaint which, in turn, identifies a situation referring to gross human rights violations.
(v) A five-member Working Group on Situations, created by the Commission (annually since 1974) examines the material transmitted by the Sub-Commission and the observations of Governments and recommends a course of action to take in each case. The action may take the form of a study by independent experts, a Special Representative, or an ad hoc committee culminating in a Report to the Commission.
(vi) On receipt of the Report, the Commission debates the Report and adopts a decision that no further action be taken, that the situation be kept under review or that the Report be placed before the Economic and Social Council (ECOSOC) for any further action "The Council might see fit". The Government concerned has the right to be represented during the Commission's debate, and when its decision is being adopted. Once the Report is before ECOSOC it becomes public.
(vii) The Chairman of the Commission on Human Rights, since 1978, has made it a practice to announce, in public session, the names of the countries which have been examination - both countries where no further action is to be taken and countries which will continue to be under review.
Preparing a Communication
The following rules of procedure have been drawn up (by the Sub-Commission) to guide authors in the preparation of a Communication:
(i) Anonymous communications are inadmissible. A communication may come from individuals or groups who claim to be victims of human rights violations, or individuals or groups which have "direct, reliable knowledge of violations or from NGOs acting in good faith and with direct, reliable evidence of the situation it is describing.
(ii) Communications based only on reports in the mass media are inadmissible.
(iii) Each communication must describe the facts, the purpose of the petition and the rights that have been violated.
(iv) As a rule, a communication will not be considered if the language is abusive or if it contains insulting remarks about the State against which the complaint is directed, but if the other requirements are fulfilled, once the abusive language has been deleted, such communication may, nevertheless, be considered.
(v) Domestic remedies must have been exhausted before a communication is considered - unless it can be shown, convincingly, the solutions at the national level would be ineffective or that they would extend over an unreasonable length of time.
(vi) The rules of procedure seek to avoid overlapping, with other existing procedures, and the repeated submission of communications already dealt with by the UN.
(vii) No communication will be admitted if it runs counter to the principles of the UN Charter, the Universal Declaration of Human Rights, or other applicable human rights treaties, conventions, etc.
(viii) No communication will be admitted if it shows political motivations.
(ix) A communication will be admitted only if there are reasonable grounds to believe (taking into account any replies sent by the governments concerned) that there is a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.
III
"Optional Protocol" Procedure
"Optional Protocol" Procedure
The International Covenant on Civil and Political Rights has two "Optional Protocols". The first of them sets up a procedure for receiving and considering communications from individuals claiming to be victims of violations of any of the rights contained in the International Covenant on Civil and Political Rights.
The Complaint and Complainant
The complaint must relate to one or more rights contained in the International Covenant on Civil and Political Rights. The complaint must be against a State which is party to both the Covenant and the Optional Protocol.
The complainant must be an individual or individuals subject to the jurisdiction of the State against which the complaint is brought. Normally the complaint must come from the individual or individuals who claim to be victims of a violation by the State Party. But when the alleged victim cannot submit the complaint, the complaint can be submitted by any other person who justifies his authority to act on behalf of the alleged victim. An unrelated third party having no apparent links with the alleged victim cannot submit the communication. The complaint should take the form of a communication addressed to "Human Rights Committee, c/o Centre for Human Rights, United Nations Office at Geneva, 1211 Geneva 10, Switzerland". Communications can be sent by mail or through a 24-hour Fax Hotline in Geneva in whose number is 41 22 917-0092.
UN Actors Involved in Handling the Communication
All communications are received and considered by the UN Human Rights Committee - a body of 18 experts, appointed in their personal capacity set up under the International Covenant on Civil and Political Rights.
The Committee, even before deciding whether a communication is admissible or not, may ask the alleged victim or the State concerned to provide additional written information or observations and set a time limit. If the State replies at this stage, the person complaining receives a copy for comment. The receiving State has six months within which to make written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. Hence, it takes between six months and a year for the committee to decide whether a communication is admissible.
The Committee may decide to drop a complaint without a written decision; when the author withdraws it or shows, in some other way, that he does not wish to go on with the matter.
The Committee puts individuals who complain and the States which are alleged to have violated their rights on an equal footing throughout its proceedings. Each has an opportunity to comment on the other's documentation and arguments. While a communication is being considered, the proceedings are totally confidential. But the findings of the Committee- regarding admissibility and merits - are always made public and the Committee includes, in its annual report, a summary of its activities under the Optional Protocol. The entire process of dealing with a complaint is normally completed within two-to-three years.
Without prejudging the merits of the complaint, the Committee has the authority to give an interim opinion or order to the State concerned. For example, concerned about the state of health of an alleged victim, the Committee asked the government involved to have him examined urgently by a competent medical body and to submit a copy of the report of such body to the Committee. In another case, the Committee asked the State not to carry out a death sentence while the communication was under examination.
The Committee is bound to consider all written information made available to it by the parties concerned. The Committee does not have any independent fact-finding mechanism. The Committee has established that in many cases (involving threats to life, torture, arbitrary arrest, disappearance) the burden of proof cannot rest alone on the person who is complaining of the violation.
The Committee works by consensus, but individual members can add their opinions to the view it expresses on the merits of a case. During the first ten years of its existence, the Committee received 333 communications involving 28 States. In 76 of the first 88 cases examined by the Committee, it concluded that violations of the Covenant had occurred.
While it is true that the Committee has mechanism for enforcing its decisions, nevertheless, the decisions carry great weight.
Preparing A Communication
The Human Rights Committee has prepared a format for model communications (attached herewith). The Committee has also adopted the following rules of procedure regarding communications:
(a) All communications are considered by the Committee in closed meetings. Their letters, and other documents submitted do remain confidential.
(b) Anonymous communications are inadmissible.
(c) The Committee shall not consider any communication,
(i) if the same matter is being examined under another procedure of international investigation or settlement;
(ii) if the individual has not exhausted all available domestic remedies. This rule does not apply where "the application of the remedy is unreasonably prolonged; or
(iii) if the Committee considers the communication to be "an abuse of the right of submission" or to be "incompatible with the provisions of the Covenants".
Strengthening the Optional Protocol Procedure
At present, the only international human rights treaty to contain an optional protocol is the International Covenant on Civil and Political Rights. But at the UN World Conference on Human Rights held in Vienna in 1993, there was a call for similar optional protocol procedures to be included in the International Covenant on Economic, Social, and Cultural Rights and the Convention on Elimination of All Forms of Discrimination Against Women. Human rights victims and activists, worldwide, should press for the adoption of such optional protocol procedure in all human rights treaties. Moreover, only 43 of the first 87 States which had acceded to or ratified the International Covenant on Civil and Political Rights have ratified the Optional Protocol. All States should be urged to do so.
IV
Conclusions
Conclusions
Complaint procedures similar to the optional protocol procedure are also contained in two other human rights treaties: the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The UN Commission on Status of Women maintains two lists dealing with the human rights of women. One is a nonconfidential list containing summaries of communications which concern the promotion of the status of women in the political, economic, social, civil and educational fields. The other is a confidential list which contains summaries of communications on alleged violations which affect the status of women. Communications can be submitted to the UN Commission on the Status of Women, c/o Centre for Social Development and Humanitarian Affairs, Vienna International Centre, P.O. Box 500, 1400 Vienna, Austria.
Two UN specialized agencies, the ILO (the International Labour Organization) and UNESCO (the United Nations Educational, Scientific and Cultural Organization) have also created international legislation, treaties and conventions dealing with human rights. Both of these agencies have created committees of experts to receive regular reports from the governments of States Parties and have adopted procedures to deal with complaints and disputes over the application and interpretation of ratified conventions.
Thus, there do exists a variety of mechanisms and procedures for bringing human rights complaints into the United nations. But human rights enforcement must take place primarily at the domestic, national level. The UN system can help in many ways. It sets international human rights standards and promotes their adoption. It can monitor and "study" (a diplomatic euphemism for fact-finding and investigation) individual and patterns of human rights violations. But it can rarely provide concrete remedies, redress or compensation to the victims of human rights violation. That remains a task to be addressed primarily at the national level and, in some cases, secondarily, at the regional level. The utilization of UN processes, however, can have multiple strategic value:
(a) In some situations the UN represents both a forum of first resort (where there is no other) and a forum of last resort.
(b) The initiation of processes within the UN often help change the dynamics of negotiation for victims at the national level.
(c) Techniques and procedures used within the UN can often to suggestive of what can and should be introduced at a national level.
(d) The international "mobilization of shame" is often perceived as being the strongest sanction for the enforcement of human rights.
(e) In some instances (e.g., apartheid) maintaining the glare of international scrutiny year after year does provide results.
(f) The UN does provide several fora for the generation of international solidarity around human rights issues.
It is unrealistic to expect too much from the UN human rights system. But it is fatalistic and worse to demand too little from it either.
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