During Guatemala’s fourth universal periodic review (UPR) this week, states repeatedly called on Guatemala to take steps to deal with three ongoing crises: attacks against human rights defenders, endemic corruption and a lack of judicial independence.
One major component overlooked in the United Nations’ (UN) process this year to strengthen the human rights treaty bodies is the individual complaint mechanisms, whereby victims of abuse can raise their cases before these bodies. This is surprising, as individual complaints has been one of the fastest growing aspects of the United Nations human rights machinery in the last several decades.
Currently, eight of the ten existing human rights treaty bodies can give their “views” (it is not a formal judicial process, so the term “judgments” is not used) on individual complaints (or “communications”, in UN parlance). Parallel to the rise in the ability of the bodies to receive individual complaints, there has also been a steady increase in the number of states voluntarily accepting the individual communications mechanism (under the treaties, it is optional).
Between 2013 and 2015, the number of States that ratified the Optional Protocols enabling the Committee on the Rights of the Child and the Committee on Economic, Social and Cultural Rights to examine individual communications has increased by 144% and 90%, respectively. States have opted into the individual communication mechanisms from all five continents. In return, a number of the Committees, most notably, the Human Rights Committee (HRC) and the Committee against Torture (CAT), have adopted hundreds of views. In 2018-2019 alone, the HRC adopted an average of 130 final decisions, and CAT 57.
Furthermore, the treaty bodies are not short of new cases, as is demonstrated by the backlog of communications awaiting review by some of the Committees—a backlog amounting to 1,587 communications as of 31 October 2019. Between 2013 and 2016 there was an 85% increase in the number of registered individual communication to the treaty bodies, followed by a further 80% increase in 2018-2019 (compared to 2016-2017) .
As of 31 October 2019, there was a backlog amounting to 1,587 communications awaiting review.
The treaty bodies have often embraced the individual complaints mechanisms-driven model of human rights protection, traditionally associated with regional human rights courts and commissions. However, the next challenge for the UN human rights system as a whole is to make this model count for victims of human rights violations and for the end-users—those who use the committees’ work to buttress human rights decision-making and advocacy. This includes victims of human rights violations, judges, national human rights institutions, civil society, and regional human rights courts and commissions.
There are significant challenges to overcome to achieve this.
The first challenge concerns the inability of the treaty bodies to address complaints in a timely and efficient way. Delays in cases, which oftentimes concern grave human rights violations, mean significantly delayed justice for victims. Currently, some victims wait for years even before the registration of their complaints is acknowledged. It is imperative that a victim-centered approach drives handling these individual complaints efficiently, and that the UN treaty body secretariat rises to the challenge of dealing regularly with a large volume of such complaints. The treaty bodies can learn from the practices of regional human rights courts and commissions.
The second challenge concerns the task of developing and disseminating the “views” of the UN treaty bodies on these hundreds of complaints—a crucial, global, human rights jurisprudence. There are eight treaties, eight Committees, about 250 views issued per year—and an under-resourced secretariat that lacks the capacity to properly organize and present this body of work. But victims need to know whether it makes a significant difference to complain before one committee or another, how they ought to present their case, what procedural rules apply, and more. Further, significant discrepancies between the UN treaty bodies’ decisions undermines their credibility and disadvantages individuals and groups who are not experts (and unable to navigate easily the legal complexities).
Victims need to know whether it makes a significant difference to complain before one committee or another, how they ought to present their case, what procedural rules apply, and more.
The third challenge concerns effective implementation. As organizations such as the European Implementation Network point out, implementation of human rights judgments is an uphill struggle, even in the case of the European Court of Human Rights. The UN treaty bodies face even bigger challenges, as the domestic legal status of “views” in each country depends on the domestic legal framework, judicial interpretation by courts and the executive branch. While there have been important clarifications in this regard in some countries, such as Spain, more work needs to be done to ensure that states provide individual reparations for victims and take measures so similar violations do not reoccur.
There are many positive examples where the UN treaty bodies have successfully led to redress for victims of human rights violations and given important interpretive guidance to domestic as well as regional courts. Treaty bodies have provided robust protections, amongst others, for LGBTI individuals, women, victims of non-refoulement, victims and next of kin of enforced disappearances, and children.
- Provide basic and essential knowledge for victims of human rights violations to effectively access the complaint mechanisms before the UN human rights treaty bodies;
- Better communicate with complainants during the examination of the complaint;
- Improve the coherence, transparency and quality of decision-making on individual communications;
- Ensure the clarity and usefulness of the remedies recommended;
- Follow up effectively so that the committees’ views are implemented;
- Ensure effective dissemination of the committees’ work to the end-users;
- Urgently improve funding to the Office of the UN High Commissioner for Human Rights (OHCHR) to ensure the highest levels of expertise in handling individual communications.
In sum, these recommendations urge all stakeholders involved to strengthen and enhance the effective functioning of the UN individual complaints mechanisms. A victim-centered perspective and the needs of end-user must be incorporated in all efforts that seek to improve the system. This is the only way to further strengthen the transformative potential of the treaties, and their individual complaints mechanisms.
The views and opinions expressed in this editorial belong solely to the author and do not necessarily reflect ISHR’s.
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