It is possible for an individual to take a complaint against a particular State to the Human Rights Committee but only if the State in question has recognised the competence of the Committee by ratifying Optional Protocol 1 to the ICCPR. Since the optional protocol was adopted in 1966, 105 States have done so and hundreds of cases have been decided by the Committee.
In addition to the reporting procedure, article 41 of the Covenant provides for the Committee to consider inter-state complaints. Furthermore, the First Optional Protocol to the Covenant gives the Committee competence to examine individual complaints with regard to alleged violations of the Covenant by States parties to the Protocol.
- Rulings are not binding, but are fairly persuasive.
The HRC has found violations of ICCPR rights in a significant number of cases through complaints that concern economic, social and cultural issues and is easily the most judicious of the UN committees.
- Inasmuch as the Covenant provides greater protection in some respects than is available under other international instruments, facts that have already been submitted to another international mechanisms can be brought before the Committee if broader protections in the Covenant are invoked.
- It has already recognised indirect indiscrimination in its case law.
- Given the large number of cases brought under the Optional Protocol, there may be a delay of several years between the initial submission and the Committee’s final decision.
- When the Committee decides that you have been the victim of a violation by the State party of your rights under the Covenant, the State is invited to provide information, within three months, on the steps it has taken to give effect to the Committee’s Views. The basis for this requirement is that the State party, in article 2, paragraph 3, of the Covenant, has guaranteed you an effective remedy for any violation of your rights. Its response will be transmitted to you for comment. The Committee often indicates what an appropriate remedy would be, for instance payment of compensation or release from detention. In the event of failure by the State party to take appropriate steps, the case is referred to a member of the Committee, the Special Rapporteur on Follow-up of Views, for consideration of further measures to be taken. The Special Rapporteur may, for example, issue specific requests to the State party or meet with its representatives to discuss the action taken.
When considering taking a complaint to one of the UN treaty bodies such as the Human Rights Committee, it is also important to take into account the following:
-Anyone may bring a complaint alleging a violation of treaty rights to the body of experts set up by the treaty for quasi-judicial adjudication. These bodies are composed of experts elected by States parties to the relevant treaty. They are tasked with monitoring implementation in States parties of the rights set forth in the treaties and with deciding on complaints brought against those States.
The alleged victim must not be anonymous and must live within the jurisdiction of a state that has:
- ratified the respective treaty;
- recognized the competence of the treaty body to deal with complaints; and
- not made any reservations that precludes the committee from considering that particular case.
- It is not necessary to have a lawyer prepare your case, though legal advice usually improves the quality of the submissions. Be aware, however, that legal aid is not provided under the procedures. You may also bring a claim on behalf of another person on condition that you obtain his or her written consent. In certain cases, you may bring a case without such consent. For example, where parents bring cases on behalf of young children or guardians on behalf of persons unable to give formal consent.
- In general, there is no formal time limit after the date of the alleged violation for filing a complaint under the relevant treaties. It is usually appropriate, however, to submit your complaint as soon as possible after you have exhausted domestic remedies.
UN treaty body timeline
1. Complainant prepares the ‘complaint’ (also called ‘communication’ or ‘petition’);
2. Complaint is received by the secretary-general of the UN who brings it to the attention of the relevant treaty body;
3. Treaty body registers the complaint;
4. Treaty body examines the complaint and considers:
a) the admissibility of the complaint and (if admissible);
b) the merits of the communication (i.e. whether or not there has been a violation of a treaty article);
5. The State party is required to respond to the complaint;
6. The complainant has an opportunity to reply to the State’s response.
After hearing from both parties (or after having given the State a reasonable time to respond), the treaty body issues its ‘views’ (also called ‘opinions’ or ‘decisions’) to both the complainant and the relevant State. Where the committee finds a violation, the views will request the state to provide redress for the victim. Often this will take the form of asking the state to change the law so that a similar violation cannot occur in future, and to provide limited compensation to the victim. Decisions of international committees/courts are final – there is no appeals process.
This process often takes 2-3 years.
For more detailed information about rules for making a complaint to the Human Rights Committee, the procedure for the determination of the complaint and other resources, follow the link to the excellent Litigating Economic, Social and Cultural Rights:
Legal Practitioners Dossier released by the Centre on Housing Rights and Evictions (COHRE) at p.179