Right to Individual Petition before UN Human Rights Treaty Bodies: the softly-spoken enforcer of human rights treaties?
By Başak Çalı, Alexandre Skander Galand, and Valentina Azarova
Center for Global Public Law, Koç University
Compared to regional human rights courts, the jurisprudence of the UN treaty body committees is not, with some exceptions, very well known to international scholars and students. While the general comments issued by the committees, containing summary answers to general interpretive questions on specific human rights issues, are regularly cited, comparative analysis of and references to the committees’ views on individual cases are less common.
There are multiple reasons for this. First, the committees’ views on individual cases are ineffectively disseminated nationally. This is despite the fact that almost all views demand that the respondent ‘publish the present views and … have them widely disseminated in the official languages of the State party’. Second, the UN treaty body system’s presentation of the cases on the treaty body database’s website is organised per treaty body. This system does not lend itself to easily providing a full picture of the committees’ views across treaty bodies. It is much easier to follow the case law of regional courts and commissions than it is to grasp UN human rights law jurisprudence produced by eight separate Committees in its totality. Third, the committees’ views are not legally binding even though a growing body of experts regards them as authoritative interpretations of the treaties. As Martin Scheinin suggests, they may be considered as subsequent practice within the meaning of Article 31(3)(b) of the Vienna Convention on the Law of Treaties. Thus, compared to the binding court judgments of the regional human rights systems, views from the UN committees are often looked down on due to their soft law nature, despite their contributions to jurisprudence.
The proliferation of the right to individual petition and increase in State opt-ins
Despite issues around the dissemination, accessibility, and binding status of the views, the popularity of the right to individual petition has proliferated across UN treaties. Currently, eight UN human rights treaty bodies may receive individual communications. One other UN human rights treaty—the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families—also provides for the possibility to have individual complaints submitted, but out of its 51 States parties only three (Guatemala, Mexico, and Uruguay) have accepted this—seven short of the ten needed to activate its entry into force.
Indeed, State opt-ins to the right to individual petition before UN committees are on the rise, with the Human Rights Committee (HRC) and Committee for the Elimination of Discrimination Against Women (CEDAW) also providing access to individuals from over one hundred countries.
- Human Rights Committee (HRC)—116 out of 169 States parties
- Committee Against Torture (CAT)—67 out of 161 States parties
- Committee for the Elimination of Discrimination Against Women (CEDAW)—109 out of 189 States parties
- Committee for the Elimination of Racial Discrimination (CERD)—55 out of 178 States parties
- Committee on the Rights of Persons with Disabilities (CRPD)—86 out of 173 States parties
- Committee on the Rights of the Child (CRC)—32 out of 196 States parties
- Committee on Economic, Social and Cultural Rights (CESCR) —15 out of 165 States parties
- Committee on Enforced Disappearances (CED) —21 out of 56 States parties*
* These quantities are current as of 22 April 2017.
Rising popularity amongst individuals
Despite their non-legally binding status, the UN treaty bodies have also attracted a large number of complaints from diverse corners of the world and have proven popular in all regions. UN treaty bodies enjoy the scope of universal jurisdictional. Significantly, the UN committees provide a supranational human rights forum for individuals from regions with no existing regional human rights courts. Individuals from Australia (151) and South Korea (131), for instance, have made important uses of this system in challenging their domestic laws and practices. In addition, they cover countries that are not under the jurisdiction of human rights courts in their regions. The highest numbers of communication to the HRC have been from Canada (218) and Belarus (205), two States which are not under the jurisdiction of their regional human rights courts. The UN human rights petition system compensates for a lack of regional courts and a lack of jurisdiction of domestic courts over some of the UN member States.
The UN committees also receive communications from States that are already subject to the jurisdiction of regional human rights courts. For instance, among the States where there have been more than one hundred complaints submitted to the HRC are Denmark (168), Spain (124), and the Netherlands (111). In this role, the UN treaty bodies allow access to individuals who have been turned away by a regional human rights court. While the jurisdictional clauses in some of the committees’ constitutive instruments require that the same matter is not being examined under another international procedure for investigation or settlement (known as lis pendens clauses), others, such as CAT and CEDAW, exclude cases examined by another human rights procedure from their jurisdiction. Nonetheless, the committees have adopted a broad interpretation of forum conflict and have admitted complaints despite an apparent jurisdictional conflict when the other human rights procedure did not examine the same matter (eg, Aarass v Spain, HRC; Kirsanov v Russian Federation, CAT; and X and Y v Georgia, CEDAW). There is also evidence that complainants choose to withdraw their complaints before the regional human rights courts so that their case may instead be addressed by one of the UN treaty bodies. For this reason, the committees’ backlogs of cases have increased significantly, with the HRC, in particular, facing serious challenges to its capacity to deal with individual complaints.
Progressive Substantive Law
On matters of substantive human rights law, the UN human rights committees offer important advantages compared to regional human rights courts on certain issue-areas and rights. Importantly, the UN committees have a firmer and more granular approach to equality litigation, including issues such as direct and indirect discrimination, reasonable accommodation, and stereotyping. The bodies further have more specific standards when it comes to the right to legal assistance (see, eg, YM v Russian Federation, HRC, on the right to replace a lawyer), enforced disappearance (see, for instance, the HRC’s case law on enforced disappearance in Bosnia and Herzegovina), and group-specific rights. With respect to the last of these categories, the CERD decision in TBB–Turkish Union in Berlin/Brandenburg v Germany comes to mind as taking into account structural discrimination when seeking balance between hate speech and freedom of expression. CEDAW in its views on inter alia gender violence offers much more specific guidance to judges, domestic or regional, on how to carry out vulnerability analysis. The Human Rights Committee’s decision to remove the time requirement from the definition of enforced disappearance provides a jurisprudence of great use for other human rights monitoring bodies and the International Criminal Court. Through individual complaints, the CRPD has interpreted how the reasonable accommodation clause applies to specific cases (eg, X v Argentina on the obligation to provide sufficient reasonable accommodation to ensure that persons with disabilities in detention can live independently and participate fully in all aspects of life in their place of detention). The CESCR is adjudicating economic, social, and cultural rights at the global level. The committees have also made important advances in specifying general and individual remedies for treaty violations (see, for instance, this blog post on the remedial practice of the HRC with respect to violations committed during Algeria’s civil war in the 1990s).
The wide range of cross-cutting human rights issues decided by the UN human rights committees point to an emerging corpus juris of UN human rights law. As the committees develop their own respective case law, there is, of course, a risk of fragmentation of norms — and human rights norms are amongst them. The recent practice of treaty bodies (especially the cross-citations of CAT standards by HRC and CEDAW) when it comes to the principle of non-refoulement shows that the committees in their own individual cases also work to reinforce norms that are protected across the UN human rights treaties.
The individual cases of the UN committees are becoming increasingly relevant for national courts, regional human rights courts, and other international courts in comparative international human rights law. The contribution is significant. The committees are improving norm specification, norm development, and norm reinforcement. This has the capacity to foster global judicial dialogues on human rights interpretation across regions.
Yet, this work remains under-funded and under-studied. The committees’ working methods and the means to disseminate case law in its totality are also in need of improvement. The 2020 review of the UN treaty body system offers an important opportunity for increasing the accessibility of the UN human rights corpus juris by strengthening the methods and procedures of the rights to individual petition and their mainstreaming into the UN system.
As of April 2017, the Center for Global Public Law (CGPL) team of Oxford Human Rights Law Reporters (OxHRLR) has produced around one hundred headnotes covering the case law of the UN human rights treaty bodies. To take stock of this experience and offer an opportunity for dedicated reflection on UN human rights law jurisprudence, the CGPL is organising a workshop to take place at Koç University Law School on 8 June 2017 that aims to bring together UNHRL committee members, IHRL expert researchers, and the OxHRLR reporters to analyse patterns and trends in UN human rights law through the case law of the UN committees and map the challenges they face both from within and in terms of their perception and oversight by other human rights bodies and scholarly and expert communities.
For reflections on the direction of the recent case law of the treaty bodies, please visit the blog series of Center for Global Public Law at Koç University Law School.
M Scheinin, ‘Impact on the Law of Treaties,’ in MT Kamminga and M Scheinin (eds), The Impact of Human Rights Law on General International Law (OUP Oxford 2009) 33.