Some human rights treaties allow parties to the treaty to lodge complaints about other nations that have also accepted the treaty obligations, on the grounds that the latter are failing to adequately fulfil their human rights obligations. This procedure must be agreed to by nations that have accepted the treaty. In fact, no such complaint has ever been lodged in the UN human rights system, presumably because of the intense political hostility it would create, and because countries with poor human rights records tend not to accept this procedure.
There are three ways that an individual can make a complaint against a state:
- for massive violations – individuals or groups can make a confidential complaint to the Human Rights Council in relation to ‘consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world’ (see Human Rights Council complaint procedure below); or
- for individual abuses – an individual or their representative can complain to a treaty body using the provisions of a human rights treaty or a protocol associated with the treaty by which states agree to allow individuals who allege a violation of a human right to make a complaint to the treaty body that monitors the relevant treaty (see Treaty-based complaints below);
- for either individual or massive violations – an individual or a group can make a complaint to a special procedures mandate holder (see UN Human Rights Council Special Procedures).
Human Rights Council complaints procedure
A confidential complaints procedure from the now superseded Commission on Human Rights, referred to as the ‘1503 complaints procedure’, applied to gross violations of human rights or fundamental freedoms anywhere in the world. It could apply to a state regardless of whether it had ratified a relevant human rights treaty. It was adopted by the Commission on Human Rights and named after the number of the Economic & Social Council Resolution that created it.
The Human Rights Council has agreed to continue its own version of the ‘1503’ procedure. The new complaint procedure will address ‘consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and in any circumstances’. Complaints are confidential – in fact, the new complaint procedure retains many features of the old 1503 procedure. The complainant(s) must have direct or reliable knowledge (eg, victims, or a non-governmental organisation). The procedure does not lead to a direct remedy to the complainant(s), but is more systematic in its focus.
Some human rights treaties allow countries to accept the right of an individual to complain to the treaty monitoring body that the country has not properly implemented its duties to protect particular human rights. This process is made possible by the treaty, or by a subsidiary treaty called an ‘optional protocol’. The complaints are usually referred to as ‘communications’.
Treaties which allow for this process are:
- the International Covenant on Civil and Political Rights(ICCPR) (by becoming a party to its First Optional Protocol);
- the Convention on the Elimination of All Forms of Racial Discrimination(CERD) (by making a declaration in accordance with Article 14);
- the Convention against Torure(CAT) (by making a declaration in accordance with Article 22); the Convention on the Elimination of All Forms of Discrimination against Women(CEDAW) (by becoming a party to its Optional Protocol);
- the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families(CMW) (by making a declaration in accordance with Article 77); and
- the Convention on the Rights of Persons with Disabilities(by becoming a party to its Optional Protocol which is not yet in force) Australia has accepted an individual’s right under the first three of these treaties.
MAKING A communication
An individual’s complaint under a treaty is called a ‘communication’. Under the First Optional Protocol to the ICCPR, the communication is made to the Human Rights Committee (HRC) as the UN body with responsibility for monitoring that treaty. Similarly, a communication under CERD is made to the CERD Committee, under CAT to the CAT Committee, under CEDAW to the Committee on the Elimination of Discrimination Against Women and so on.
There are usually two stages to a typical communication procedure to a treaty body or committee. We will assume that the state the subject of the complaint is Australia. After the complaint is received – it must be in writing and may not be anonymous – the treaty body first decides whether it is ‘admissible’ (whether it satisfies a range of technical requirements). For example, the person making the complaint must have exhausted all available domestic remedies in Australian law for the alleged infringement of rights. In other words, a complainant must have pursued every possible legal avenue for redress, including appealing adverse decisions up to the highest court possible. In reality, this may not be a very demanding requirement in many human rights cases in Australia, because our legal system provides relatively few remedies for breaches of human rights.
If the complaint is admissible, the treaty body then considers the merits or the substance of the case, and decides if the particular activity or inactivity complained of breaches one of the rights set out in the relevant treaty. The decision of the treaty body is expressed as the ‘views’ which it has ‘adopted’.
The effectiveness of communications
The right of individual petition in international law is by no means a cure for human rights violations. First, it takes a very long time for a treaty body to make a finding (for instance, the average time for the Human Rights Committee is four years). Second, the treaty body’s adoption of views on the substance of a particular case is not strictly binding on the country concerned. The Committee’s views are simply forwarded to both the country and individual involved and are published in its annual report to the General Assembly of the UN. However, a treaty body’s views on the proper interpretation of the rights guaranteed under the treaty it monitors are considered authoritative, and Australia would be in breach of its obligations under that treaty if it failed to act on the treaty body’s views. Nonetheless, this remains a highly politicised question.
This procedure has been used successfully at least 14 times in relation to Australia with regard to subject matter as diverse as arbitrary detention, treatment of individuals while in gaol or detention, interference with family life, freedom of expression, right to a fair trial and unlawful discrimination. In Australia, the government of the day has rarely acted in accordance with the Committee’s concluding views.