It is possible for an individual or group to take action against a particular State to the relevant Committee but in this case, only if the State in question has made a declaration according to article 14 of the Convention declaring its recognition of the competence of the Committee to receive such communications. Since the convention was adopted in December 1969, 47 States have made such a declaration and 35 cases have been decided.
Rulings are not binding, but are very persuasive.
- The Committee has found violations of the ICERD in a significant number of complaints that concern economic, social and cultural issues.
- Complaints under this Convention may be brought not only by or on behalf of individuals but also by or on behalf of groups of individuals.
- It is important to note that complaints to this Committee must be submitted within six months of the final decision by a national authority in your case.
- Your complaint will not be considered admissible if the same matter is pending before or has been the subject of a decision by another international procedure. (Article 14)
- When the Committee takes a decision (called an "opinion") on the merits of a complaint, it often makes suggestions and/or recommendations even if it has formally found that there has been no violation of the Convention. These suggestions or recommendations may be general or specific and addressed either to the State party in question or to all States parties to the Convention. Under rule 95(5) of the Committee’s rules of procedure, the State party is invited to inform the Committee in due course of the action it has taken on its suggestions and recommendations. On receipt of that information, the Committee takes whatever steps it deems to be appropriate.
Bear in mind thar discrimination on the ground of race, colour, descent, or national or ethnic origin, is often difficult to prove in individual cases. The whole process of consideration of a communication normally takes around two years, which might be long but is still less time-consuming than similar complaints procedures under other UN human rights instruments.
When considering taking a complaint to one of the UN treaty bodies such as the Committee on the Elimination of Racial Discrimination, it is also important to take into account the following:
The basic concept is that 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. They 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 Committee on the Elimination of Racial Discrimination, 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.189 http://www.cohre.org/store/attachments/COHRE%20Legal%20Practitioners%20Dossier.pdf