Individual Communications Mechanism and Human Rights

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International Human Rights Question 1 To assess whether individual communications can lead to the greater realisation of human rights, it is imperative to consider; the benefits which the individual communications mechanism (ICM) provides individuals with, a discussion of the shortfalls of the ICM and how other methods of monitoring and protecting human rights may overcome these issues. It shall be argued that the ICM, despite providing for greater access to human rights for individuals, cannot be a better hope for realising human rights than other methods of monitoring and protection. “It is through individual complaints that human rights are given concrete meaning”[1]. This statement reflects the purpose of the ICM which allows individuals to vindicate their rights at the international level[2] by making a claim to the body associated with the relevant treaty and allege a violation of their rights provided under that treaty[3]. Not all human rights treaties contain an ICM, but to the extent that it exists, it is monitored by a Committee empowered to make decisions upon complaints[4]. The ICM can be found in 4 main treaties; the International Covenant on Civil and Political Rights[5], the Convention on the Elimination of All Forms of Discrimination Against Women[6], the Convention on the on the Elimination of All Form of Racial Discrimination[7] and the Convention against Torture and Other Cruel or Degrading Treatment or Punishment[8]. The benefits of the ICM can clearly be seen. Firstly it provides an individual with a platform which is independent of influence and bias from their State of origin[9]. The ICM has a wide ambit and offers protection and standing to individuals not offered to them by their domestic courts[10]. By allowing more applicants to obtain access to international law, it empowers a greater amount of individuals to assert their rights over their State and therefore changing the nature of enforcement of International rights to make it more personalised than it previously was[11]. Additionally, by empowering individuals to bring forward their own claims, there’s no need for reliance upon third party approval to make claims on their behalf such as NGO’s. By allowing individuals to bring their own claims, the ICM provides greater access to human rights remedies and strengthens the human rights system as individuals won’t need to depend upon third parties to protect their rights. Furthermore a State will be less likely to infringe upon rights if they’ll be held accountable by numerous individuals. This empowered of individuals by the ICM appears to be a step in the right. The main issues with the ICM can be seen in the requirements to bring a complaint. The State which the individual is domiciled in must be a party to the respective treaty and the individual must satisfy the locus standi and justiciability requirements (discussed below), Even if an individual satisfies these requirements, the case may be struck out by the committee as inadmissible with no appeals procedure[12]. If however an individual is successful in obtaining a decision in his favour, it doesn’t necessarily mean it’ll be enforced as the Committee have considerably less power than that of the domestic courts[13]. Furthermore, remedies available to the Committee are limited. The Committee may make a public pronouncement of a breach denouncing the offending State[14], request the State amend the breach or award financial compensation[15]. It should be noted however that financial compensation is rarely used and isn’t enforceable by domestic or international courts[16]. It has been suggested that ceding the Committee’s power to the municipal legal systems may allow for greater protection of human rights as the domestic courts would not only be more willing to uphold the rights being breached[17], but in a stronger position to do so, and therefore eliminate limitations of upholding rights at the international level. However it’s questionable if this is the most appropriate approach as the very nature of human rights is concerned with State infringement of rights, providing the domestic courts who are an arm of the State with such power is inappropriate. The ICM therefore has serious issues with enforcement (although the same could be said for international law in general) but it should also be noted most ICM cases are bought by NGO’s[18], this further creates problems where a treaty doesn’t allow third parties to bring cases on behalf of individuals, the individual may plead their case poorly or due to ignorance of procedural requirements, have their case declared inadmissible altogether. In this sense it can be argued that the ICM, by shifting too much power to the individual may deprive them of achieving sufficient protection of their rights. A look at the treaties which provide an ICM shows they have relatively similar requirements in regards to justiciability. The claimant must exhaust all domestic remedies[19] unless this requirement severely prejudices a claimant. An individual is also limited under the treaties from bringing a claim to multiple bodies to ensure effectiveness, consistency and clarity within the ICM process, it could be argued however that this restriction results in only a selection of rights being enforced rather than all of the individual’s rights as a whole. Moreover, the treaties demand the individual is under the jurisdiction of a State party to the treaty which covers the breach, the State has to be a signatory and opted to be bound it[20]. This reflects the nature of the ICM which is state-centric[21], it is created by international actors to be used against States violating rights they awarded individuals. The State is central to the ICM and regrettably, this means that a State is very much in control of who may complain of a breach and of what[22]. The ICM is therefore limited by State influence which prevents the greater realisation of rights. Furthermore, the lack of domestic enforceability of the Committee’s decision puts the ICM under serious doubts[23]. The committee’s lack of effective remedies are limited, as mentioned above, to pronouncing the states liability in violating human rights[24]. It has been stated that the enforcement procedures used by the treaty bodies “have had very limited demonstrable impact”[25], as only 30% of replies from States display willingness to implement their views or offer remedy to victims[26]. The idea of the ICM was to allow individuals to complain against offending States but the restrictions placed upon the ICM result in a limited amount of rights being protected, the ICM does nothing to address the underlying causes of the of the violations, merely providing remedies which are rarely enforced does nothing to bring about true protection by altering a States practise[27]. It has become evident from the discussion above, the main issues the ICM faces is of enforcement and remedies. Although the ICM has some benefits particularly owing to the ability to assert rights at an international level, the restrictions and influence placed upon the procedure by States prove to be too much of a hindrance. The alternative methods of monitoring and protecting human rights which shall be discussed below are not as limited as the ICM and can overcome some of the shortfalls of the procedure. State Reports State reports are arguably the “most prevalent” method used for the realisation of human rights[28]. The lack of enforcement faced by the ICM can be overcome through the use of State reports which States are obliged to submit at the Committees request[29] and allows the Commission to monitor the implementation of International instruments[30]. Reports can be analysed and questions can be sent to the State with the intention of creating an open dialogue to resolve issues. State reports are regarded as very successful due to the publicity and attention they draw upon the offending State, which may result in international condemnation, although it is obvious some States are clearly more easily embarrassed (for example a State advocating rights compared to a State with a record of violations). State reports encourage implementation of rights and indirectly overcome enforcement issues faced by the ICM as even the drafting process allows States to reflect upon conformity with their obligations[31]. However this isn’t to say that reports are without issue. Reports may arrive unusually late and vary in quality, there’s also a lack of sanctions. Regardless, State reports are an effective method of monitoring and is often used as the only method to review compliance, this alone shows the confidence placed in this method by the Council. State to State accusations: Interstate complaints can overcome some shortfalls of the ICM. Several treaties provide for a State to make complaints to treaty bodies regarding violations by another State[32]. States are not limited by the same locus standi requirements of individuals[33] and are not bound by the same limitations as the ICM. This allows States to uphold rights within the treaties and bring claims against a violators. However it should be acknowledged that some States are reluctant, particularly for political reasons, to make accusations against other States[34]. This is not a problem for someone wishing to use the ICM. Furthermore States have no obligation to make accusations against offending States. The indirect implications is that this method of monitoring human rights should not be relied upon by individuals hoping for States to uphold their rights and the political issues of its use make it an unpopular option for States which is reflected in the rarity of its use[35]. The effectiveness of this method of enforcement stems from its use as a political force, whilst the ICM can be heavily influenced by the origin State, this method remains free from external influences and can rather serve as a deterrent. NGO’s Nongovernmental Organisations (NGOs) monitor rights and pressure governments into implementing human rights principles[36] and monitoring procedures. Arguably, many of the monitoring procedures only exist today due to the persistent pressure and lobbying by NGO’s[37]. In this sense NGO’s shouldn’t be understated as they can constantly pressure State parties and have been effective in doing so (for example NGO’s have been fundamental to the development of standards such as women’s rights by campaigning for the African Protocol on the Rights of Women[38]). NGO’s are increasing in power and influence and this can be seen through the expansion of NGO’s such as Amnesty International. This increasing influence can help to compliment the ICM as NGO’s regularly offer direct assistance to individuals, and bring claims on their behalf (provided the relevant treaty allows third party complaints). The most compelling evidence for the increase in power of NGO’s is seen from the increasing calls for accountability of NGO’s[39]. It can be argued that NGO’s provide a better hope for the greater realisation of human rights than the ICM as the increasing power of NGO’s results in greater pressure being applied upon States, something which individuals (even when they have obtained decisions in their favour) cannot do, this in turn can lead to strengthening of the ICM. Reform: One of the main arguments for reforming the ICM is due to the procedural issues when considering a case, its estimated there are currently 500 cases awaiting consideration[40] with an average waiting time of 45 months from submission date the committee issuing findings[41]. In response to this issue and in regards to enforceability issues mentioned above, academic M Schmidt believes a permanent court or standing body with the power to adjudicate complaints should be created[42]. However the issue with this view is the nature of international rights, States are unlikely to approve and this may be a deterrent to ratify human rights instruments. Perhaps further education or advice should be granted to individuals as argued by Kjærum, as the main reason for high inadmissibility rates is due lack of understanding of the procedural requirements[43] by individuals. This essay sought to discuss whether the ICM could provide better compliance with human rights than other methods, the discussion above shows that although there’re benefits to the ICM, the shortfalls are too great. Other methods of monitoring can overcome these shortfalls of the ICM and the natural response would be to attempt to integrate these methods, but perhaps allowing each method to grow individually would the best way to ensure greater compliance with human rights law. 1
[1] Ohchr, ' Human Rights Treaty Bodies - Individual Communications' (ohchr.org 2015) <http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/IndividualCommunications.aspx> accessed 21 April 15 [2] Ibid. [3] A Bayefsky, How to Complain to the Un Human Rights Treaty System (1st, Kluwer Law International, Great Britain 2003) 33 [4] Alexandra R. Harrington, ‘Delayed Devotion: The Rise of Individual Complaint Mechanisms Within International Human Rights Treaties’, LEGAL STUDIES RESEARCH PAPER SERIES No. 17 of 2011-2012 available <http://ssrn.com/abstract=1898673>accessed 10 April 2015, 6. [5] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) [6] International Convention on the Elimination of All forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) (ICERD) [7] The Convention on the Elimination of All Forms of Discrimination against Women (adoped 18 December 1979, entered into force 3 September 1981) (CEDAW) [8] Ibid, (n 3), p 4. [9] B Galligan, Rethinking Human Rights (1st, The Federation Press , Sydney 1997) 81 [10] Mireille G.E. Bijnsdorp, The Strength of the Optional Protocol to the United Nations Women’s Convention, 18 NETH. Q. HUM. RTS. 329 (2000), 337. [11] International Law Association, Committee on International Human Rights Law and Practice, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies (2004) where it was stated that the output of the treaty bodies had influenced the way many national courts interpret treaty provisions. [12] OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1976); OPTIONAL PROTOCOL ON THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (2008); INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (1969); OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION AGAINST WOMEN (2000); CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (1987); INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES (2003); OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (2008). [13] Human Rights Committee General Comment 33: Obligations of State Parties under the Optional Protocol (2008), available: <http://www2.ohchr.org/english/bodies/hrc/comments.htm> accessed 14 April 2015. [14] Wade M. Cole, When All Else Fails: International Adjudication of Human Rights Abuse Claims, 1976 – 1999, 84 SOCIAL FORCES 1909 (2005 – 2006) at 1911 – 1912. [15] Ibid, (n 14) [16] ibid [17] Shotaro Hamamoto, An Undemocratic Guardian of Democracy – International Human Rights Complaint Procedure, 38 VICTORIA U. WELLINGTON L. REV. 199 (2007), 200. [18] R Smith, Textbook on International Human Rights (5th, Oxford University Press, Oxford 2014) 148 [19] A Kumar, Human Rights (1st, Sarup & Sons, Delhi 2002) 99 [20] per Art 1of the Vienna Convention on the Law of Treaties: United Nations, Vienna Convention on the Law of Treaties, 23 May 1969,United Nations, Treaty Series, vol. 1155, p. 331,available: <http://www.refworld.org/docid/3ae6b3a10.html>accessed 4 April 2015. [21] A Harrington, 'DON’T MIND THE GAP: THE RISE OF INDIVIDUAL COMPLAINT MECHANISMS WITHIN INTERNATIONAL HUMAN RIGHTS TREATIES ' [2012] DJCIL 153, 154 [22] Alexandra R. Harrington, ‘Delayed Devotion: The Rise of Individual Complaint Mechanisms Within International Human Rights Treaties’, LEGAL STUDIES RESEARCH PAPER SERIES No. 17 of 2011-2012 available <http://ssrn.com/abstract=1898673>accessed 15 April 2015, 28-29 [23] Mose and T. Opsahl, ‘The Optional Protocol to the International Covenant on Civil and Political Rights’, (1981) 21 Santa Clara Law Review 271, 329–331; D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, (2nd ed., Clarendon Press 1994), 202. [24] Ibid (n 21), 32. [25] Heyns & F. Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (Kluwer Law International 2002), 6. [26] UN GA, 57th Session. Report of the Human Rights Committee, 11 July 2002, UN Doc. /57/19, vol. I, Supp (No. 40),para. 225. In 2009 the HRC estimated thatthe figure still amounts to roughly 30 per cent; UN GA, 64th session. Report of the Human Rights Committee, UN Doc. A/64/40 (Vol. I) Supp. No. 40, paras. 230-236. [27] J Donnelly, Universal Human Rights in Theory and Practice (1st, Cornell University Press, USA 2003) 176 [28] R Smith, Textbook on International Human Rights (5th, Oxford University Press, Oxford 2014) 154 [29] OHCHR, 'Human Rights Committee' (ohchr.org ) <http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx> accessed 15 April 1520 [30] R Murray, The African Commission on Human and People's Rights and International Law (1st, Hart, USA 2000) 16 [31] Ibid (n 27). [32] UNHR, 'Human Rights Bodies - Complaints Procedures' (ohchr.org ) <http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx#interstate > accessed 15 April 2015 [33] Ibid (n 27) p 146. [34] Laboni Amena Hoq, The Women’s Convention and Its Optional Protocol: Empowering Women to Claim Their Internationally Protected Rights, 32 COLUM. HUM. RTS. L. REV. 677 (2000 – 2001) at 685 [35] Ibid (n 27) p 155. [36] Humanrights, 'Human Rights Organizations' (humanrights.com e.g. 2005) <http://www.humanrights.com/voices-for-human-rights/human-rights-organizations/non-governmental.html> accessed 15 April 2015 [37] G Alfredson, International Human Rights Monitoring Mechanisms (2nd, Koninklijke, Netherlands 2009) 680 [38] Recoomended textbook page 105 [39] S Joseph, Research Handbook on International Human Rights Law (1st, Edward Elgar Publishing, USA 2010) 133 [40] T Innes, 'A Critical Assessment of the UN Human Rights Treaty Body Systems’ Effectiveness' (sjol.co.uk ) <http://www.sjol.co.uk/issue-4/a-critical-assessment-of-the-un-human-rights-treaty-body-systems-effectiveness> accessed 25/04/2015 [41] ibid [42] M G. Schmidt, 'Individual human rights complaints procedures based on United Nations treaties and the need for reform' [1992] ICLQ 658, [43] Kjærum, Thematic Focus: The Treaty Body Complaint System, Human Rights Monitor Quarterly http://www.ishr.ch/document-stuff/browse-documents/doc_download/1069-the-treaty-body-complaint-system-hrmq3 accessed 15 April 2015
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