Inquiry Procedures: United Nations Human Rights Bodies
- Disappearances — Individual complaint procedure — International courts and tribunals, procedure — Compliance with international decisions — Fact-finding and inquiry — Quasi-judicial bodies, procedure
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
1 Inquiry procedures are a set of mechanisms used by some United Nations (‘UN’) Human Rights, Treaty Bodies (‘HRTB’) with a view to investigating ex officio grave and systematic violations of human rights. Six treaty bodies (‘TB’) have been empowered to conduct these procedures, namely, the Committee Against Torture (‘CAT’), the Committee for the Elimination of Discrimination Against Women (‘CEDAW’), the Committee on Enforced Disappearance (‘CED’), the Committee on the Rights of Persons with Discapacities (‘CRPD’), the Committee on Economic, Social and Cultural Rights (‘CESCR’), and the Committee on the Rights of the Child (‘CRC’).
2 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT Convention’), adopted on 12 December 1984, embodies a provision specially dealing with inquiry procedures. Article 20 CAT Convention is the source of analogous provisions in the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (‘OP-CEDAW’) adopted on 10 December 1999, the Convention on the Protection of All Persons from Enforced Disappearance (‘CPED’) adopted on 13 December 2006, the Optional Protocol to the Convention on the Rights of Persons with Disabilities (‘OP-CRPD’) adopted on 12 December 2006, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (‘ICESCR-OP’) adopted on 10 December 2008, and the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (‘OP-CRC-IC’) adopted on 19 December 2011.
3 The adoption of the core human rights treaties provided the first monitoring machinery, a system of periodical reports, and a system of individual complaints. States Parties to all UN human rights treaties undertake the obligation to submit periodical reports to the given TBs on the measures they have adopted which give effect to the protected rights and on the progress made in the enjoyment of those rights. This system is aimed at showing the general situation of the implementation of the protected rights, making lacunae and conflicting rules visible.
4 The system of individual complaints allows individuals to lodge complaints with TBs, alleging violations of the protected rights, provided that the State has recognized the competence of the TB to handle those petitions and that they have exhausted domestic remedies, and that the same case is not being handled by another organ with similar capacity. At the very beginning only the Committee on Human Rights established by the International Covenant on Civil and Political Rights, the Committee for the Elimination of Racial Discrimination, and the CAT included the communication system. Three treaties adopted by the end of last century and at the beginning of the present one followed the same pattern, namely the Committee on Migrant Workers, the CED, and the CRPD. The CESCR, the CEDAW, and the CRC were given that capacity through an additional protocol to the given conventions.
5 The inquiry procedures were envisaged to address patterns of systematic violation of protected rights as in the case of torture and enforced or involuntary disappearances, and structural discrimination as in the case of women, children, and persons with discapacities. These procedures are the only ones in the context of the TBs' mechanisms to bring the possibility of a visit to the country.
6 The text of the CAT Convention is the very first to deal with inquiry procedures. Its Article 20 enables the CAT to decide to conduct an inquiry when it receives reliable information which appears to contain well-founded indications that torture is being systematically practised in the territory of a State Party. Following a common policy of all TBs, the CAT shall invite the given State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.
7 Other treaty bodies will act accordingly in the light of the provisions of the relevant treaty and optional protocol establishing individual communications/complaints procedures (Human Rights, Individual Communications/Complaints) or rules. There are differences in the scope and treatment of the inquiry in all of them, but the common view is that in certain circumstances, grave or systematic violations of the protected rights or a systematic practice or torture or enforced disappearances require an investigation.
8 For a treaty body to conduct an inquiry, such capacity should be explicitly provided for in the governing text. In the case of CAT, the general principle is that when the treaty enters into force for a State, its duties include those embodied in Article 20. However, a State may opt out from the inquiry procedure, that is to say that it has to declare that it does not recognize the competence of the Committee provided for in Article 20 (Art 28 (2) CAT Convention). As of 15 June 2018, 14 States out of the 164 State Parties to the Convention do not recognize the CAT competence as provided for in Art 20. Those States are Afghanistan, China, Equatorial Guinea, Eritrea, Israel, Fiji, Kuwait, Lao People’s Democratic Republic, Mauritania, Pakistan, Saudi Arabia, Syrian Arab Republic, the United Arab Emirates, and Vietnam.
9 Four other governing texts follow the CAT Convention's pattern, and all of them consider the competence of the relevant treaty body accepted when a State Party expresses its consent to be bound by the treaty, but include an opt out clause (Art 10 OP-CEDAW; Art 8 OP-CRPD; Art 13 OP-CRC-IC).
10 The ICESCR-OP works the other way round: it embodies an opt in clause, so a State Party has to accept the competence of the CESCR specially for inquiry procedures.
11 The International Convention for the Protection of All Persons from Enforced Disappearance does not provide for a specific acceptance by a State Party for the CED to conduct an inquiry procedure. There is no opt out clause either. From a formal point of view, unless a reservation is formulated regarding the inquiry procedure, the TB has jurisdiction on all State Parties to conduct an inquiry. However, as no decision has been taken so far by CED, the practice has yet to be established.
C. Applicable Law
12 Every treaty body applies primarily the relevant human rights treaty. However, they should be free to invoke customary international law, as well as other conventional rules binding on the State concerned, to support their findings.
13 Regarding its inquiry on the allegations of grave and systematic violations of the right to education, the CRPD stated that the Convention does not establish new rights for persons with disabilities, but instead explicitly clarifies for the first time that the right to education is the right to an inclusive and quality education, thus completing a process of normative development that began in various international human rights instruments. The right to education is provided for in Article 26 Universal Declaration of Human Rights (1948), which states that everyone has the right to education. Article 13 International Covenant on Economic, Social and Cultural Rights (1966) reaffirms the above, adding that education should enable all persons to participate effectively in a free society and promote understanding and tolerance. The right of children with disabilities to have effective access to education and training with a view to achieving their social integration and individual development is enshrined in Article 23 Convention on the Rights of the Child (1989) (‘CRC’). Article 28 CRC lays down a child’s right to education, a right that is to be achieved on the basis of equal opportunity, while Article 29 stipulates that a child’s education shall be directed to the development of the child’s personality, talents, and mental and physical abilities to their fullest potential (Inquiry concerning Spain carried out by the Committee under article 6 of the Optional Protocol to the Convention ('Inquiry concerning Spain’), 2018, para 5).
1. Competence Ratione Materiae
14 Inquiry procedures under the CAT Convention and the CPED deal with international crimes. Their standards are different from the other four.
15 In fact, Article 20 (1) CAT Convention provides for a decision on inquiry procedures when the CAT receives information ‘that torture is being systematically practised in the territory of a State Party’. In the same line, Article 34 CPED allows the CED to consider whether an inquiry should be conducted when it receives information ‘that enforced disappearance is being practised on a widespread or systematic basis in the territory under the jurisdiction of a State Party’. Both require a systematic practice because each and every case of torture and of enforced disappearance is grave and serious.
16 At its first inquiry, the CAT adopted the following definition of systematic practice of torture, still in force:
[t]he Committee considers that torture is practised systematically when it is apparent that the torture cases reported have not occurred fortuitously in a particular place or at a particular time, but are seen to be habitual, widespread and deliberate in at least a considerable part of the territory of the country in question. Torture may in fact be of a systematic character without resulting from the direct intention of a Government. It may be the consequence of factors which the Government has difficulty in controlling, and its existence may indicate a discrepancy between policy as determined by the central Government and its implementation by the local administration. Inadequate legislation which in practice allows room for the use of torture may also add to the systematic nature of this practice (General Assembly Report on the CAT Addendum, 1993, para 39).
17 In the case of the CPED, the standard is set forth in the treaty which requires that a State Party be seriously violating the provisions of the Convention and that enforced disappearance be practiced on a widespread or systematic basis in the territory under the jurisdiction of a State Party (Arts 33 and 34). Both can lead to a decision of conducting an inquiry. It should be noted that the CPED's Article 5 provides that the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.
18 All the other governing texts require an inquiry procedure to be decided on the grounds of information regarding grave or systematic violations of the rights protected in the given text (Art 8 (1) OP-CEDAW; Art 6 (1) OP-CRPD; Art 11 (2) IESCR-OP; Art 13 (1) OP-CRC-IC).
19 The CEDAW has to assess whether the received information reveals grave or systematic violations of the protected rights. It considers that the findings of the Committee regarding the gravity of the violations must take into account, notably, the scale, prevalence, nature, and impact of the violations found (Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland, 2018, para 79; Report of the Inquiry concerning Canada, 2015, para 213).
20 Regarding the term systematic, CEDAW considers that it refers to the organized nature of the acts leading to the violations and the improbability of their random occurrence. In this sense, the Committee has stressed that a ‘systematic denial of equal rights for women can take place either deliberately, namely with the State Party’s intent of committing those acts or as a result of discriminatory laws or policies, with or without such purpose’ (Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland, 2018, para 80).
21 The CPD has not set a standard of what it considers to be grave or systematic violations. The Committee usually makes a detailed description of the violations examined in the inquiry and then concludes that the findings made in the inquiry are or are not grave and systematic violations as established in Article 6 Optional Protocol (Inquiry concerning Spain, 2018, para. 80; Inquiry concerning the United Kingdom of Great Britain and Northern Ireland, 2017, para. 113).
22 As of 30 June 2018, neither CED nor CESCR or CRC have conducted any inquiry procedure. Different reasons may explain this situation: the rather short time the mechanism has been available for the different areas, the need to raise awareness in the given areas, the reluctance of States to accept the mechanism and the visits, also the need for more resources.
2. Competence Ratione Temporis
23 A general rule establishes that unless otherwise provided, human rights treaties apply to facts occurred from the day of the entry into force of the relevant instrument with respect to a given State (Art 28 Vienna Convention on the Law of Treaties).
24 OP-CRC-IC establishes the competence of the Committee solely in respect of violations by the State Party of any of the rights set forth in the Convention and/or the first two Optional Protocols thereto occurring after the entry into force of the present Protocol for the given State (Art 20 (1) OP-CRC-IC). In fact it stresses the general rule.
25 The CPED establishes in Article 35 (1) that the CED will have competence solely in respect of enforced disappearances which commenced after the entry into force of the Convention. This is a particularly important provision because, as enforced disappearance is considered to be a continuous crime, human rights tribunals have declared their competence over it even when the kidnapping had taken place before the entry into force of the given treaty (Blake v Guatemala, 1998, para 40).
E. The Establishment of An Inquiry
1. Transmission and Examination of the Information
26 Legal rules dealing with inquiries provide that the UN Secretary-General shall bring to the attention of the relevant Committee information that is or appears to be submitted in order to initiate an inquiry (Rule 75 CAT Rules of Procedure (‘CAT-RP’); Rule 77 CEDAW Rules of Procedure (‘CEDAW-RP’); Rule 78 CRPD Rules of Procedure (‘CRPD-RP’); Rule 88 CED Rules of Procedure (‘CED-RP’); Rule 22 CESCR Rules of Procedure (‘CESCR-RP’); Rule 31 CRC Rules of Procedure (‘CRC-RP’)). Actually, this task is carried out by each treaty-body secretariat at the Office of the United Nations High Commissioner for Human Rights (Human Rights, United Nations High Commissioner for (UNHCHR)) from the time of its creation in 1993.
27 There is no specific requirement regarding the person that can submit such information to the UN Secretary-General. In the great majority of cases, non-governmental organizations (‘NGOs’) submit information to the relevant Committee and request the initiation of an inquiry.
28 In all cases, with slight differences, the Secretary-General (each treaty-body's secretariat) shall maintain a permanent record of the information (Rule 76 CAT-RP; Rule 78 CEDAW-RP; Rule 79 CRPD-RP; Rule 89 CED-RP; Rule 23 CESCR-RP). Upon receipt and registration of the information, the Secretary-General shall, when necessary, prepare a brief summary and make it available to the members of the Committee (Rule 77 CAT-RP; Rule 79 CEDAW-RP; Rule 90 CED-RP; Rule 24 CESCR-RP; Rule 32 CRC-RP).
2. Preliminary Consideration by the Treaty Body
29 Following the registration and summary of the information, the Committee shall undertake a preliminary consideration of such information. This is intended to fulfil a two-fold purpose. First, it allows the Committee to ascertain the reliability of the information and/or of the sources of information brought to its attention for the initiation of the inquiry. Second, the Committee must determine whether the information received contains reliable indications of grave or systematic violations of the human rights set forth in the relevant convention, because this will provide the legal basis for the initiation of the inquiry (Rule 81 CAT RP; Rule 82 (1)–(2) CEDAW-RP; Rule 82 (1)–(2) CRPD-RP; Rule 91 (1)–(2) CED-RP; Rule 26 (1)–(2) CESCR-RP; Rule 34 (1)–(2) CRC-RP).
30 In order to conduct their preliminary consideration, treaty bodies must take into account the observations submitted by the State concerned and may obtain additional information from different sources, which generally include representatives of the State Party concerned, governmental organizations, NGOs, UN bodies and specialized agencies, individuals, and national human rights institutions (Rule 82 (3)–(5) CAT-RP; Rule 83 (2)–(3) CEDAW-RP; Rule 83 (2)–(3) CRPD-RP; Rule 92 (2)–(3) CED-RP; Rule 27 (2)–(3) CESCR-RP; Rule 35 (2)–(3) CRC-RP).
31 As a common practice, the information received is corroborated with UN sources, NGOs, and, sometimes, with national human rights institutions. This allows assessing its reliability before making the finding that human rights are systematically or gravely violated in a given State Party. That was the case with the inquiry concerning the situation of indigenous women in Canada, initiated by CEDAW on the grounds of the information received from the NGOs Feminist Alliance for International Action and Native Women’s Association of Canada. Such information was corroborated by other information received from CERD, the universal periodic review, and the Special Rapporteur on the rights of indigenous peoples (Report of the Inquiry Concerning Canada, 2015, para 93 (d)).
32 Sometimes when a situation of grave and systematic violations takes place, more than one competent human rights mechanism becomes concerned and their assessments and findings become useful to all. When CEDAW decided to conduct an inquiry into the situation of women's murders and disappearances in Ciudad Juárez in Mexico, other mechanisms of the international community also became aware of that, such as the Special Rapporteur of the Commission on Human Rights on extrajudicial, summary or arbitrary executions, the Special Rapporteur on violence against women, the Special Rapporteur on the independence of judges and lawyers, the Inter-American Commission on Human Rights (‘IACHR’) and its Special Rapporteur on Women’s Rights (Report on Mexico, 2005, paras 30–31).
3. The Decision to Establish an Inquiry
33 Once the information received is examined together with the observations by the State Party concerned, the treaty bodies must decide whether an inquiry should be conducted. They have to assess whether the alleged violations amount to grave or systematic violations of the relevant treaty or, in the case of the CAT Convention and CPED, whether they amount to a systematic practice (General Assembly Report on the CAT, 2001, para 150). Those findings lead to the establishment of an inquiry.
34 The rules of procedure of the six TBs provide that they may appoint one or more members to conduct the inquiry and prepare a report within a fixed time limit (Rule 84 (1) CAT-RP; Rule 84 (1) CEDAW-RP; Rule 84 (1) CRPD-RP; Rule 93 (1) CED-RP; Rule 28 (1) CESCR-RP; Rule 36 (1) CRC-RP). Those in charge of the inquiry shall determine their own methods of work, taking into account the relevant treaty and rules of procedure.
35 The cooperation of the State concerned is crucial for the success of the inquiry, so HRTBs will deploy all efforts to obtain it. Furthermore, treaty bodies may request the State Party concerned to nominate a representative to meet with them. Similarly, they may request the State Party concerned any information that may be considered relevant to the inquiry (Rule 85 CAT-RP; Rule 85 CEDAW-RP; Rule 85 CRPD-RP; Rule 94 CED-RP; Rule 29 CESCR-RP; Rule 37 CRC-RP). The purpose is that the inquiry be fruitful.
F. Working Methods
36 The designated members of the Committee in charge of the inquiry may decide to undertake a visit to the State Party concerned. To that end, the State has to give its consent to the visit and an arrangement has to take place relating to the facilities for the mission (Rule 86 CAT-RP; Rule 86 CEDAW-RP; Rule 86 CRPD-RP; Rule 93 CED-RP; Rule 30 CESCR-RP; Rule 38 CRC-RP; General Assembly Report of the CAT, 1996, para 188). In 1997, a first inquiry procedure was engaged regarding Egypt and a visit was requested. The government delayed the decision on the visit and instead sent delegates to Geneva to meet CAT members in charge of the procedure (UNGA Report of the Committee Against Torture, 1996, paras 188–95). Later, in 2017, in the absence of an affirmative response to its request to conduct a visit, the CAT decided to proceed with its confidential inquiry regarding Egypt without a visit (General Assembly Report of the CAT, 2017, para 61). No visit could take place in the context of the inquiry procedures engaged by the CAT regarding Nepal (General Assembly Report of the CAT, 2011, para 97).
37 The requirements for this kind of visits are analogous to those established for the special procedures of the Human Rights Council (Special procedures: Human Rights Council). As an illustration, on the occasion of its visit to Brazil, the CAT agreed with the visited State freedom of movement in the whole country and facilitation of transport in restricted areas; freedom of inquiry, regarding in particular access to all detention centres and places of interrogation, contact with central and local authorities of all branches of government, with representatives of NGOs and other private institutions, with witnesses and other persons considered necessary for the fulfilment of the mandate; and full access to all documentary material relevant to the inquiry. It also required assurances by the government that no-one meeting the Committee would be subject to any kind of reprisals because of that cooperation; appropriate security arrangements, without, however, restricting the freedom of movement of the members conducting the enquiry; and full enforcement of the status provided for in Article 23 Convention. (Report on Brazil, 2009, para 18).
38 With regard to the visit to Mexico, the Committee noted the support and cooperation of the government for the visit and that, as a result, the Committee members were able to visit places of detention at little or no notice, to talk in private with all the detainees they asked to see, and to hold unimpeded discussions with relatives, former detainees, and representatives of NGOs (Report on Mexico, 2003, para 21).
39 Sometimes, in order to conduct the visit properly, the mission may require other people to join it. As an illustration, within the procedure in the CRPD, the designated members may invite interpreters or persons with special competence in the fields covered by the CRPD (Rule 88 CRPD Rules).
40 Within the context of the visits, the designated members may hold hearings in order to determine facts or issues relevant to the inquiry. In addition, the designated members shall establish the conditions and guarantees needed for conducting the hearing. For example, the members of the Committee shall request the State Party concerned to ensure that the individuals providing information or taking part in the hearings are not subjected to ill-treatment or retaliation as a consequence of such participation (Rule 87 CAT-RP; Rule 87 CEDAW-RP; Rule 87 CRPD-RP; Rule 96 CED-RP; Rule 31 CESCR-RP; Rule 39 CRC-RP).
G. Findings and Recommendations
41 In order to complete the proceeding, the designated members shall submit to the Committee the findings at which they have arrived after an examination of the information received. Such findings shall be examined by the Committee, which shall transmit them, through the Secretary-General, to the State Party concerned, together with any relevant comments and recommendations. Finally, in most cases the State Party concerned must submit its observations on the Committee’s findings within a term of six months. This is a common general standard that eventually may be adapted by the given TB.
42 In specific cases, distinctions as to the different situations examined through the inquiry are stressed in the reports. As an illustration, the CEDAW report on the inquiry on violence against aboriginal women in Canada covers the vulnerability of aboriginal women to violence due to the legacy of colonization, their disadvantaged socioeconomic situation, their reluctance to seek help from the authorities for fear that their children will be placed in foster care, and their vulnerability to prostitution and trafficking. It also covers the high levels of violence faced by aboriginal women from within and outside their community and the response of the police and the justice system (Report of the Inquiry Concerning Canada, 2015, para 94).
H. Follow Up
43 Upon completion of the inquiry, the TBs may request the State Party concerned to inform them of any measures adopted in response to the inquiry. Such request for information can be made in two different manners. First, the Committees may request the State to provide the information in the reports to be regularly submitted by the States Parties on the measures adopted to give effect to their obligations under the relevant Treaty. Second, after the end of the period stipulated for the State Party concerned to submit its observations on the Committee’s findings and recommendations, the Committee may invite the State to provide it with information on the measures adopted to give effect to such recommendations (Rule 89 CAT-RP; Rule 89 CEDAW-RP; Rule 89 CRPD-RP; Rule 97 CED-RP; Rule 33 CESCR-RP; Rule 41 CRC-RP; UNGA Report of the Committee Against Torture (2002) para 137–71).
I. Overall Assessment
44 As of 30 June 2018, only three treaty bodies empowered to conduct inquiry procedures have been required and decided to do so; the CAT, CEDAW, and CRPD. They conducted 16 inquiry procedures. The procedure is theoretically well conceived and adapted to the goals pursued. It adds a layer of protection when situations become grave and systematic. However, it is still not universal because not all States accept it and it requires extensive funding.
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