1  The 1503 procedure of the Commission on Human Rights (‘The 1503 procedure’) also known as the confidential procedure, is the private complaint procedure that was in place at the time of the United Nations Commission on Human Rights/United Nations Human Rights Council (‘Commission’), the main intergovernmental body dealing then with human rights within the United Nations (UN) system. It thus constituted one of the mechanisms of the Commission whose supervisory body was the UN Economic and Social Council (‘ECOSOC’). The procedure was replaced by the Human Rights Council (Complaints Procedure: Human Rights Council) with the creation of the Human Rights Council, a subsidiary organ of the UN General Assembly (‘UNGA’) in 2006 by Resolution 60/251 of the UNGA.

2  The 1503 procedure was created in 1970, years after the Commission was established in 1946, and introduced by Resolution 1503 (XLVIII) of the ECOSOC on 27 May 1970. The Commission had stated early on that ‘it has no power to take any action in regard to any complaints concerning human rights’ (Report to the ECOSOC on the first session of the Commission (1947) para. 22). This position, known as the ‘no power doctrine’, prevailed for years within the UN. Following its establishment, the Commission devoted its resources to work on the drafting of the Universal Declaration of Human Rights (1948) and international human rights treaties. This position, approved by the ECOSOC (Resolution 728 F (XXVIII), para. 1), was justified mainly by the fact that human rights were considered a matter of domestic affairs of States. There was no desire from the Commission’s members to respond to human rights violations and consider individual complaints within its framework, despite the large number of spontaneous complaints sent and the various calls—including from René Cassin and Henri Laugier—to set up such a system of individual complaints and examine these violations.

3  Resolution 1503 thus served as a framework for such an expansion of the mandate of the Commission in the late 1960s, which was about to put an end to the doctrine of absence of power. The examination of a situation of human rights violations was at first initiated by developing States mainly to react to apartheid in South Africa before being subsequently broadened. This precedent/ad hoc practice was institutionalized with Resolution 1235, adopted by the ECOSOC on 6 June 1967, allowing the Commission to examine in public meetings situations of human rights violations all over the world. The 1503 procedure followed thereafter, providing a confidential procedure to consider individual situations.

4  Titled ‘Procedure for dealing with communications relating to violations of human rights and fundamental freedoms’, Resolution 1503 was adopted by vote and entered into force two years later in 1972. The procedure was revised in 2000, within what is known as the ‘Selebi reform’, which aimed to strengthen its effectiveness. The new rules are contained in ECOSOC Resolution 2000/3. This revision, which should have addressed deficiencies raised by the procedure, had effects on the course of future developments mainly by facilitating certain procedural aspects of the mechanism (see para. 19 below) without radically changing its substance.

5  The 1503 procedure is one of the oldest complaint mechanisms in place within the UN. The International Convention on the Elimination of All Forms of Racial Discrimination (1965) established the Committee on the Elimination of Racial Discrimination (CERD) to monitor the implementation of the Convention and ‘to receive and consider petitions from individuals and groups of individuals within its jurisdiction who claim to be victims of a violation of any of the rights set forth in this Convention’ (Art. 14(2)). This was followed by the International Covenant on Civil and Political Rights (1966), which provides for the establishment of a Human Rights Committee (‘HRC’) responsible for supervising the implementation of the Covenant. However, unlike the individual communications brought before the UN Committee (see Human Rights, Treaty Bodies) or complaints brought before regional courts for human rights (such as the European Court of Human Rights (ECtHR) or the Inter-American Court of Human Rights (IACtHR)), the 1503 procedure—contrary to what its name might suggest—is and remains known as the ‘complaint procedure’ and, as some still believe today, does not consider individual cases. It relates, as did the public procedure instituted by ECOSOC Resolution 1235, to a human rights ‘situation’ in a specific country. But, unlike Resolution 1235, these violations must be qualified as gross. The procedure is thus not competent to provide for an individual remedy for human rights violations but can result in a review (confidential or public) of the situation in the state concerned.

6  Even if Resolution 1503 remains in general vague on its nature and its object (Decaux (2007) 76), its purpose is above all to react to a situation of gross violation of human rights (see paras 9–12 below). The mechanism aims to try to put an end to such a situation without, however, constituting an international inquiry procedure (Inquiry Procedures: United Nations Human Rights Bodies). To a certain extent, it can be compared with the Special Procedures communications system, but, unlike the latter, which is the sole responsibility of independent experts, the decision maker of the 1503 procedure remains the Commission in its intergovernmental component. The 1503 procedure therefore does not provide, in any form, reparations for victims of human rights violations, but it could lead to an examination (confidential or public) of the situation in any state (member and non-member of the UN) concerned by the communication, provided it complies with certain formal and material requirements.

7  The main characteristic of the procedure is the confidential nature of the review of the state concerned. The procedure, given its purpose, is in no way a judicial procedure. It is, instead, a political and diplomatic one, like the Universal Periodic Review procedure (Universal Periodic Review Procedure: Human Rights Council), and thus designed to provide for an international review of the policies and practices of a state seen or suspected to be responsible for gross violations of human rights. Moreover, while it is supposed to examine serious situations, it does not constitute an emergency procedure, especially because the examination takes considerable time (see para. 27 below).

8  Many aspects of the 1503 procedure, like other mechanisms of the Commission such as the Special Procedures, were established empirically over the years, and several aspects of its functioning result from practice. Resolution 1503, composed of ten articles and rather technical, sets out the procedural regime, the different stages, and the key aspects for the procedure to be processed.

9  Concerning material competence, the complaint must relate to violations of human rights characterized by a certain degree of gravity, a factor making this procedure original. As provided in Resolution 1503, these acts must be characterized by ‘a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms’ (para. 1). The category of human rights concerned seems rather broad, although the Sub-Commission on Prevention of Discrimination and Protection of Minorities (whose duties are stated in the Resolution 728 F (XXVIII) of 30 July 1959), which became the Sub-Commission on the Promotion and Protection of Human Rights (‘Sub-Commission’), gives an example in Resolution 1 XXIV: ‘policies of racial discrimination and segregation and of apartheid in any country, including colonial and other dependent countries and peoples’ (para. 1(b)). The title of this resolution uses the same wording with a slight nuance:

10  This marks a similarity between the 1503 procedure and the regime of special sessions of the Commission, which also examine situations of gross and systematic violations of human rights that have been committed in a particular state. However, unlike the confidential procedure, only states can decide to hold a special session that takes place in a public meeting.

11  From a legal point of view, a given situation characterized by a certain degree of gravity in international human rights law often relates to violations characterized as ‘gross’ and ‘systematic’. However, it should be specified from the outset that the concept of gross violations is not clearly defined, including in Resolution 1503. It is often used indifferently within diplomatic bodies as a language style and often referred to when addressing the issue of reparations for victims of human rights violations qualified as such. According to the preparatory work and the debates that led to the adoption of Resolution 1503, the situation has to relate to several violations committed over a period of time and constitutive of inhumane or degrading treatments. The violations must affect several victims, such as the policy of apartheid explicitly cited in Resolution 1503, and their severity must lead to a conclusion that they can ‘no longer [be] regarded as falling exclusively within the domestic jurisdiction of States’ (OHCHR, ‘Frequently asked questions’). They concern the overall spectrum of human rights recognized by the two Covenants of 1966, including civil, political, economic, social, and cultural rights and may be committed in times of peace or war. M Cherif Bassiouni (following Theo Van Boven), former rapporteur of the Sub-Commission, on the issue of reparations for victims of gross and systematic violations of human rights and fundamental freedoms, gave a valuable definition of the notion of ‘gross’. According to him, ‘gross violations of human rights’ are often used within the framework of the UN ‘not to denote a particular category of human rights violations per se, but rather to describe situations involving human rights violations by referring to the manner in which the violations may have been committed or to their severity’ (Report of the Independent Expert on the Right to Restitution, M Cherif Bassiouni (1999) para. 85).

12  The different geographical situations/different human rights violations committed in a specific country, which have been considered under the procedure, confirm these criteria. Even if Resolution 1503 expressly mentions violations related to discrimination, it must be noted that this classification of violations is mainly examined within the framework of the public procedure, with the confidential procedure focusing on violations of civil and political rights in dictatorial and authoritarian regimes (Tolley (1984) 447–48).

13  The procedure is governed by formal and procedural criteria that have been revised with the Selebi reform in 2000. The communication must fulfil certain admissibility criteria and the procedure must also follow several specific steps mainly of a technical nature.

14  Resolution 1503 focuses on the different stages and steps to follow for the examination of the complaint (see paras 18–22 below). It entrusts the Sub-Commission to first address the issue of the admissibility criteria of the communication. These rules were established by the Sub-Commission with its Resolution 1 adopted on 13 August 1971 at its 24th session. These criteria can be summarized according to this resolution as follows: source of the communication, content of the communication and the existence or not of other remedies.

15  First of all, it must be stressed that, as noted by several authors, some of these criteria can be perceived as being either too broad or very restrictive (Tardu (1980) 561). Apart from the abovementioned question that the communication must be linked to a consistent pattern of gross and reliably attested human rights violations, the communication must meet certain requirements. Resolution 1 (XXIV) gives information mainly relating to what the communication should not be. The communication can originate from a person or group of persons who are victims of these violations. However, the communication can also emanate from persons or groups of persons who are not victims but ‘who have direct and reliable knowledge of these violations’ (para. 2(a)). It is also the case for non-governmental organizations (‘NGOs’) that also have ‘direct and reliable knowledge of such violations’ and are ‘not resorting to politically motivated stands contrary to the provisions of the Charter of the United Nations’ (para. 2(a)). This seemingly broad criterion is obviously in the nature of things given that the procedure does not deal with individual cases. Anonymous communications are excluded; the plaintiff must be ‘clearly identified’—but their identity can remain hidden from the members of the Commission. Regarding the content of the communication, it must clearly describe the facts alleged and the various human rights violated. Communications can be declared inadmissible if the language used is not appropriate—‘essentially abusive’ and ‘contain insulting references to the State against which the complaint is directed’ (para. 3(b))— and the facts are based solely on the media—‘based exclusively on reports disseminated by mass media’ (para. 3(d)).

16  In practice, the communications took several forms, ranging from the simplest and not very detailed—page of a notebook, postcard—to the most detailed and elaborate document, often emanating from NGOs which did not hesitate to send communications of several hundred pages. These communications were first sent to the Centre for Human Rights and then, with the creation of the UN High Commissioner for Human Rights, to the Office of the High Commissioner who acted as a secretariat for the confidential procedure (Human Rights, United Nations High Commissioner for (UNHCHR)).

17  The requirement of prior exhaustion of domestic remedies which is often found in judicial and complaint procedures at the international and regional level, in particular within the framework of the procedure of international human rights bodies, is also applicable except if ‘such remedies would be ineffective or unreasonably prolonged’ (para. 4(b); Previous Exhaustion of Local Remedies: Human Rights Bodies). It seems that this requirement was interpreted ‘rather liberally’ (Tardu (1980) 571) as a proposal that ‘communications must provide clear proof that all national recourse procedures have been exhausted’ (Report of the 24th Session of the Sub-Commission (1971) para. 18(d)C) but which was not adopted by the members of the Sub-Commission. Furthermore, communications related to a case settled by the State concerned shall also be declared inadmissible (Resolution 1 (XXIV) para. 4(c)).

18  The communication must be addressed ‘within a reasonable time’ after such exhaustion (para. 5). In addition to domestic remedies, Resolution 1 (XXIV) adds an inadmissibility rule regarding the international level and more specifically communications whose ‘admission would prejudice the function of specialized agencies of the United Nations system’ (para. 4(a)). This rule, which at first glance, is unclear, seems to be related to the complaint procedure of the International Labour Organization (ILO) (Cassese (1972) 384; Complaint Procedure: International Labour Organization (ILO)) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) procedure for the examination of complaints (Tardu (1980) 591), thus not encompassing complaints submitted to treaty bodies—which are not specialized agencies.

19  According to Resolution 1503, the initial phase of the procedure consisted of the establishment of an ad hoc working group known as the Working Group on Communications (‘WGC’) which was put in place by the Sub-Commission in its Resolution 2 (XXIV) of 16 August 1971. The role of the WGC, according to paragraph 1 of Resolution 1503, is ‘to consider all communications … which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms within the terms of reference of the Sub-Commission’. The WGC is composed of five independent experts, acting in their personal capacity—and not representing their States—and members of the Sub-Commission. They are selected according to an equitable geographical distribution and can meet for two weeks once a year in a private meeting before the session of the Sub-Commission. The WGC is attached to the Sub-Commission, which was considered the main subsidiary body—composed of experts—of the Commission—and was replaced with the creation of the Human Rights Council by the Human Rights Council Advisory Committee. It is therefore the first body that examines the communications with the response of the State concerned and decides whether it is necessary to continue the examination.

20  At this stage, the WGC can either discontinue the procedure, maintain it with a request for additional information from the targeted government or transmit the ‘situation’ to the Sub-Commission. The government is informed of this transmission but not the authors of the request. During the first ten years, it is estimated that ten situations were transferred per year to the Sub-Committee (Tolley (1984) 440). With the Selebi reform, the WGC could decide by a majority of votes to transmit the situations directly to the Commission. The purpose of the elimination of this stage was mainly to ‘reduce the overly long delays in the … process’ (Decision 2000/109, Annex, para. 36). It met for the first time from 31 July to 11 August 1972 and examined about 20,000 individual communications (Report of the Sub-Commission, 28 September 1972, para. 109).

21  Thirdly, a working group known as the Working Group on Situations (‘WGS’) was established within the Commission by Decision 3 (XLVIII) of the Commission in 1974 during its 30th session. Like the WGC, the WGS is composed of five members representing their state—and not experts—appointed by the five regional groups taking into account the rotation in membership and approved by the ECOSOC. The WGS can meet at least one month before the Commission and, as stated in Decision 3, has ‘to examine the documents transmitted by the confidential resolution of the Sub-Commission’ (para. 2). The review concerns the situation as a whole and not the communication, as is the case with the WGC The options available to this working group are to some extent also similar to the WGC concerning the situation under consideration: remain seized, refer to the Commission or close the case.

22  The last stage takes place at the level of the Commission. Based on the recommendations addressed by the WGS, the Commission has many options. Firstly, it can remain seized of the situation and request additional information from the government concerned by the situation. Secondly, the Commission has the power to terminate the case if it finds that the case does not constitute a situation of gross violations of human rights. Thirdly, the Commission can remain seized of the situation and, as stated in paragraph 6(b) of Resolution 1503, decide to appoint ‘an investigation by an ad hoc committee’. This investigation can only take place if the State concerned consents to it. Fourthly, according to paragraph 6(a) of Resolution 1503, the Commission determine ‘whether it requires a thorough study by the Commission and a report and, recommendations … in accordance with paragraph 3 of Council resolution 1235’. This scenario does not seem very clear, especially regarding the meaning that could be given to the term ‘thorough study’. The resolution does not explicitly refer to the consent of the State concerned for setting a ‘study’, which, contrary to the case of an ‘investigation’, can be interpreted as not requiring such consent. Given the practice and the various interpretations given to these two mentioned paragraphs—related to the ‘thorough study’ and the ‘investigation by an ad hoc committee’—a uniform answer would seem compromised.

23  It seems that no situation, at least until the 1980s, was treated by resorting to an ‘investigation’ or a ‘study’ in the formal sense. Here, the Commission resorted to the Secretary-General—therefore a body external to the Commission—who tried to resolve the situation using their offices and mediation (Tolley (1984) 450–52). However, it could be also considered that the Commission interpreted the paragraph as allowing for the transfer of the situation to another procedure. The situation is thus still examined within the framework of the Commission through the creation of a special procedure with a country mandate who will report to the Commission (these mechanisms still exist within the Human Rights Council (Special Procedures: Human Rights Council)). The countries’ special procedures related to Chad, Uzbekistan, and Liberia were created under the 1503 procedure (Limon (2017) 52, fn 86). We can also cite the situations in Equatorial Guinea and Afghanistan, which, after having been examined by procedure 1503, were in 1979 and 1984 transmitted to be examined under the 1235 procedure. Finally, the Commission can make recommendations to the ECOSOC.

24  In general, despite the positive aspects of the procedure, in particular regarding the flexibility of certain criteria concerning the admissibility of communications, the mechanism did not meet the expected success as desired by civil society when it was set up—despite the revision of 2000 which aimed to strengthen it.

25  At the beginning, it was considered an innovative channel to address human rights violations by the UN organs, especially since the Commission was not doing so (see above). It then constituted an innovative mechanism in the field of the protection of human rights, specifically because individual communications within the treaty system would not be permanently put in place until many years later. When the procedure was set up, it was favourably received, in particular by civil society actors and human rights defenders, who saw it as an effective tool to deal with human rights violations at the international level. NGOs welcomed with satisfaction the establishment of the mechanism and were active at the beginning, such as Amnesty International (AI) or the International Commission of Jurists (ICJ), addressing detailed communications that reported gross human rights violations worldwide. However, over the years, when the 1503 procedure started revealing its flaws in several respects, they no longer used it, referring to other more efficient and transparent human rights mechanisms.

26  In addition to its very complex technical nature and lack of clarity regarding certain aspects, the basic problem with the 1503 procedure concerned its very essence, specifically the confidential nature of the mechanism. Thus, it is difficult to have a real-time assessment—which will be based on speculative information or from the media only—concerning the treatment of human rights violations around the world. During the first years of the organ’s functioning, a very restrictive reading of Resolution 1503 prevailed. The Commission, apart from a few leaks by the press, never divulged the name of the state examined under the procedure. Certain loosening relaxation of these rules has been observed, for example in 1978, when the Commission publicly announced the names of the states examined under the 1503 procedure—but without giving details, in particular on the violations of human rights concerned by the complaint. Nevertheless, secrecy was, on the whole, the rule and declassification of certain documents the exception.

27  More than 83 countries were examined under the 1503 procedure from the five regional groups, with a clear preponderance within the Group of African States and the Group of Asia-Pacific States (for all states examined, see Callejon (2008) 407–48). Some examinations were quite short, while others took several years before they were transmitted to a public examination. The situation in Afghanistan, for example, was subject to confidential examination from 1981 to 1984 before leading to a special procedure that operated for several years.

28  These rather long delays are also characteristic of the procedure. As Resolution 1503 imposes no limits on the treatment of the complaint, the review may take years, an aspect that the revision of 2000 tried to rectify by removing a phase of the process (see para. 20 above).

29  Given the confidential nature of this procedure, it was widely criticized as having with time become manifestly politicized given the predominant place of the states in the examination process. The inequality of rights between the author of the complaint and the state concerned is ‘one striking aspect of the procedure’ (Tardu (1980) 562) which takes various forms. The 1503 procedure is by no means a judicial or quasi-judicial proceeding involving due process rights and the rules applicable to trial proceedings. However, there is such disproportion between the rights conferred to the state under review and the rights of the plaintiff from the beginning of the process that we can speak of a breach of equality. For instance, the government is informed of the decisions of the WGC, while the plaintiff is not. This is also the case when the situation is transmitted to the Commission, with the state having the right to appoint a representative. State representatives can be present at the deliberations of the Commission, justify and defend themselves but also answer questions concerning the situation under review—this rule has become permanent since the 34th session of the Commission in 1978. Even when the state concerned was a member of the Commission, the latter could take part in the deliberation and even vote concerning its own situation.

30  The correspondence with the plaintiff is kept to a bare minimum. The plaintiff only receives a notification at the beginning of the communication as an acknowledgement indicating that his communication will be treated according to the established rules. The author thus does not receive any information on the fate of their complaint. Paragraph 8 of Resolution 1503, which provides that all actions to implement the text ‘shall remain confidential’, was usually invoked when the plaintiff asked about the fate of his communication. Thus, the victim may not have received any information on the future and outcome of their complaint for years.

31  The fact that the 1503 procedure is not established by a treaty—unlike the UN committees—but by a UN resolution has its advantages, in particular, because the examination can focus on any state in the world, member or not, of the UN. Nevertheless, the disadvantage is that it remains a procedure within the jurisdiction of the states. Its implementation:

32  Its confidential nature, which is supposed to remedy the politicization of the Commission, and in particular the fact that States do not like to be targeted publicly at the international level regarding their human rights obligations, has turned against the procedure, making it even more politicized than other mechanisms. Several situations of gross violations of human rights were thus not examined by the Commission under the confidential procedure, such as the beginning of the situation in Greece during the Regime of the Colonels. Double standards and selectivity became one of its prominent aspects. Certain countries were no longer examined under the confidential procedure—nor the public procedure—whereas the human rights situation was far from satisfactory. Uganda, for example, was no longer examined under the 1503 procedure by the Commission in 2001 while the human rights situation was very worrying, and the violations had reached a climax.

33  Despite its flaws and the criticisms addressed to it, the confidential procedure worked until the end of the Commission in 2006. The members of the Commission thus did not put an end to its existence, as they could have done under paragraph 10 of resolution 1503, which states that it ‘should be reviewed if any new organ entitled to deal with such communications should be established within the United Nations or by international agreement’. With the establishment of the Human Rights Council in 2006, as mentioned above, the mechanism was even replaced by the complaint procedure, without bringing major changes to the established practice under the 1503 procedure.

34  Indeed, with the creation of the Human Rights Council, which replaces the Commission on Human Rights, the question of whether the 1503 procedure should be maintained seemed entirely legitimate for several reasons. First of all, in addition to the failure of the 1503 procedure to deal effectively with human rights violations, the treaty bodies have set up a real system, as imperfect as it could be, allowing individuals to file complaints for violations of the provisions of the main human rights treaties (CERD, HRC, United Nations Committee Against Torture (CAT), Committee on the Elimination of Discrimination Against Women (CEDAW)). In addition, the Commission had already set up a multitude of mechanisms to respond to human rights violations around the world. This is particularly the case with the special procedure and also the commission of inquiry and fact-finding missions that have continued over the years—and notably with the Human Rights Council—and become an important tool for dealing with gross violations of human rights.

35  The main credit goes to the Sub-Commission, which had an important role in determining which situation should be referred to the Commission according to the 1503 procedure. Some authors have considered that there was a time, especially from 1970 on, when the strength of the Sub-Commission came above all from the confidential procedure (Decaux (2007) 63). That was the case for about 80 situations between 1975 and 2000, which indicates that the mechanism has nevertheless been able to react to certain situations of human rights violations around the world. It has thus made it possible to examine the human rights situation of a state, member or not of the UN, which may have not signed and ratified any human rights treaty. In addition, the examination of certain situations, sometimes over many years, has led to the creation of special procedures, particularly geographical ones. The latter, which have played a decisive role in the treatment of human rights violations, have thus enabled the Commission to target certain states, which, once and for all, has buried the no-power doctrine.