Who can receive a complaint?
At present, seven of the nine Committees 1 allow for complaints from individuals (or groups of individuals) relating to alleged violations by a State Party of the rights guaranteed by the instruments concerned.
Complaint mechanism instituted by the Optional Protocol to the ICESCR
On 10 December 2008, the General Assembly adopted the Optional Protocol to the ICESCR. This was an important breakthrough, in that it instituted a mechanism for individual complaints to the CESCR, settling the difficult debate on the question of the “justiciability” of economic, social and cultural rights. Uruguay was the 10th state to ratify the Optional Protocol to the ICESCR, which triggered its entry into force on 5 May 2013, along with the individual complaint mechanism. As of March 2021, 46 states had signed the Optional Protocol, and 26 states had ratified it. 2
In the future the Committee will very likely be called upon to examine the Human Rights implications of the activities of enterprises in states where, or from where, they operate. Of particular interest to the Committee will likely be the rights to health, to housing, to food and to fair and favourable working conditions. However the extraterritorial effectiveness of the new mechanism remains limited (i.e. the possibility of lodging a complaint against the country of origin of a transnational enterprise for violations committed in a third country), because article 2 of the Protocol specifies that to be admissible a complaint must come from persons who “fall within the jurisdiction of a State Party, who assert that they are subjected to a violation by that State Party. 3
Who can file a complaint?
As a general rule any individual can submit a complaint to one of the Committees against a state that meets the prior conditions, i.e.:
- The state that is alleged to have violated the rights in question has, depending on the treaty, either ratified the instrument, accepted it or approved it. 4
- The state that is alleged to have violated the rights in question has accepted the competence of the Committee to accept individual complaints. 5
The assistance of a lawyer is not required, even though professional help can improve the quality of the communication by making sure that all the relevant factors likely to be of interest to the Committee have been included.
In principle, the direct victim of the alleged violations, or in certain cases, a group of victims, must lodge the complaint. The treaty bodies do not allow for actio popularis (or action in defence of a collective interest).
When the direct victim is not in a position to lodge the complaint in person, it can be lodged on his or her behalf. Such is the case, for instance, if the victim is incapable of acting, or if the possible violation is sufficiently certain and imminent. 6 However, except in special cases, when a complaint is brought on behalf of a third party, written consent must be obtained beforehand. 7
Under what conditions?
With some variations, all the Committees operate in accordance with the following principles: 8
The communication must not be anonymous. It must be signed and be made by an identifiable individual (or in certain cases a group of individuals) falling within the jurisdiction of the state concerned at the time of the alleged violation(s). If the complainant is acting on behalf of another person, proof of that person’s consent must be given, or the action must be justified by other means. The author of the communication, or the victims of the alleged violations, can also request that the identity and personal information of the victim(s) be kept confidential. This request, however, must be stated explicitly in the communication.
The complainant must prove that he (or the person on whose behalf he is acting) is personally and directly affected by the acts, decisions or omissions of the state in question. General and abstract complaints are not admissible.
In principle, the complaint should not be under consideration in another international or regional mechanism. There can however be some exceptions to this principle. For instance, it may be ruled that there is no duplication of procedure when a different individual is concerned, even if other parties to the domestic proceedings have referred the matter to other mechanisms of international settlement 9 , or if the legal arguments put forward are different. 10
The complaint must not be manifestly ill-founded. It must be sufficiently substantiated, both regarding the facts and the arguments put forward.
The complaint must not be an abuse of the complaints process, i.e. frivolous, or an inappropriate use of the complaints procedure. This would be the case, for instance, if the same claim were repeatedly brought to the same Committee without there being any new circumstances, although it had already been dismissed.
The complaint must not be precluded by a reservation made by the State to the treaty in question. This means that the State must not have made a formal statement limiting its obligations under the treaty provisions alleged to have been violated by the complainant.
Domestic remedies must have been exhausted, unless detailed reasons why the general rule should not apply are given. 11 This means that victims, or their representatives, must first refer their matter to national authorities (judicial or administrative), including any appeal processes, in order to obtain protection and/ or just and fair reparation for the violations suffered. Some treaties explicitly provide that the States Parties may set up a body at the national level to examine individual complaints in the first instance. In particular, Article 14 of CERD specifies that if that body does not settle the case satisfactorily, the complainant is then entitled to address a communication to the Committee within a six months period. However, such a rule shall not apply if the domestic remedies are unduly prolonged or clearly ineffective. The complainant must indicate clearly in the petition the steps taken at national level to obtain the realisation of the rights, or the reasons that prevented or discouraged him or her from doing so. Mere doubts as to the effectiveness of the domestic remedies are not enough.
In general, there are no formal deadlines for lodging an individual complaint with a Committee, but it is best to do so as soon as it is practically possible. 12
The treaty bodies are mandated to examine alleged violations of certain rights, when the events concerned took place after entry into force of the instrument for the state concerned.
Exceptionally, when the complaint concerns facts before that date, but which continue to have effects after the date of the entry into force of the mechanism, the Committee may decide to take into consideration the overall circumstances invoked in the petition and accept to deal with the complaint. 13
Process and outcome
Once the Committee has decided that the petition is admissible, it proceeds to examine the facts, the arguments and the alleged violation(s). During this process, it may decide to set up a working group or appoint a rapporteur for the examination of a specific complaint. It may also request further information or clarification.
The petitions are examined in closed session. Although some Committees have provisions for hearing parties or witnesses in exceptional cases, 16 the general practice has been to consider complaints on the basis of written information supplied by the complainant and the state concerned. In principle, information communicated through other means (e.g. audio or video) is not admissible.
The Committees do not investigate the alleged facts themselves. They base their understanding of the facts on the information provided by the parties. They can however request additional information from other United Nations bodies. They do not in principle consider reports by third parties (i.e. amicus briefs). 17
Special interim measures
Before making known its views on a particular complaint, each Committee has the ability, under its rules of procedure, to ask the State Party concerned to take interim or protective measures in order to prevent irreparable harm being done to the victim of the alleged violation. 18
The request for urgent action must be made, and be explicitly motivated, by the complainant. The adoption of interim measures does not however prejudge the Committee’s decision on the substance of the case.
CERD - Interim measures relating to an economic project in the USA
In April 2006, CERD used the Early Warning and Urgent Action procedure in connection with a dispute between the United States and the indigenous representatives of the Western Shoshones, concerning the privatization of their ancestral lands. In accordance with its Rules of Procedure, the Committee first sent the state, in August 2005, a list of questions in order to examine the problem. On the basis of information received and in the absence of answers to the questions from the state, the Committee adopted a series of recommendations. In particular CERD urged the United States to establish a dialogue with the Western Shoshone representatives in order to reach an acceptable solution. Pending such an agreement, the Committee called upon the state to adopt a series of measures, including the freezing of “any plan to privatize Western Shoshone ancestral lands for transfer to multinational extractive industries and energy developers”. 19
The Committee then takes a decision on the petition, indicating the reasons for considering that there has or has not been a violation of the provisions mentioned. The Committee’s decisions are published on the website of the Office of the United Nations High Commissioner for Human Rights 20 . There are two kinds of decision:
Recognition of the alleged violations: If the Committee recognises wholly or in part that the allegations of Human Rights violations mentioned in the complaint are well-founded, the State Party will be invited to supply information to the Committee, by a certain deadline, on the steps it has taken to give effect to the Committee’s findings, and to put an end to the violation(s).
the communication is considered to be ill-founded: The procedure before the Committee comes to an end as soon as the decision has been forwarded to the complainant(s) and the state concerned.
In certain cases the Committee can appoint a Special rapporteur to follow-up the findings with the state concerned. The Rapporteur can base their understanding of the situation on the information provided by civil society organisations.
The Committees in action in corporate-related Human Rights abuses
CCPR – Ángela Poma Poma v. Peru
“Object: Reduction of water supply to indigenous pastures […] In the present case, the Committee observes that neither the author nor the community to which she belongs was consulted at any time by the State Party concerning the construction of the wells. Moreover, the state did not require studies to be undertaken by a competent independent body in order to determine the impact that the construction of the wells would have on traditional economic activity, nor did it take measures to minimize the negative consequences and repair the harm done. The Committee also observes that the author has been unable to continue benefiting from her traditional economic activity owing to the drying out of the land and loss of her livestock. The Committee therefore considers that the state’s action has substantively compromised the way of life and culture of the author, as a member of her community. The Committee concludes that the activities carried out by the State Party violate the right of the author to enjoy her own culture together with the other members of her group, in accordance with article 27 of the CPR Covenant.” 21
CCPR – Länsman et al v. Finland
“The authors are all reindeer breeders of Sami ethnic origin from the area of Angeli and Inari; they challenge the decision of the Central Forestry Board to pass a contract with a private company, Arktinen Kivi Oy (Arctic Stone Company) in 1989, which would allow the quarrying of stone in an area covering ten hectares on the flank of the mountain EtelaRiutusvaara.” (Paragraph 2.1)
“The authors affirm that the quarrying of stone on the flank of the Etelä-Riutusvaara-mountain and its transportation through their reindeer herding territory would violated their rights under article 27 of the Covenant, in particular their right to enjoy their own culture, which has traditionally been and remains essentially based on reindeer husbandry.”
“The Committee recalls that economic activities may come within the ambit of article 27, if they are an essential element of the culture of an ethnic community.”
The Committee recalls that the freedom of states to pursue their economic development is limited by their obligations under Article 27 (Paragraph 9.4), but concludes that the quarrying on the slopes of Mt. Riutusvaara does not constitute a violation of that Article.
“[The Committee] notes in particular that the interests of the Muotkatunturi Herdsmens’ Committee and of the authors were considered during the proceedings leading to the delivery of the quarrying permit, that the authors were consulted during the proceedings, and that reindeer herding in the area does not appear to have been adversely affected by such quarrying as has occurred.”
However, the Committee warns that if these quarrying operations were to be expanded, “the State Party is under a duty to bear in mind the cultural rights of minorities when either extending existing contracts or granting new ones.” 22
Legal force of the Committees’ decisions
Although having quasi-judicial status and a certain authority, the Committee’s rulings on individual complaints are not legally binding. However, it is generally considered that states have an obligation in good faith to take Committees’ opinions into consideration and to implement their recommendations. Moreover, Committees’ decisions play an extremely important role in determining, on the basis of concrete situations, the content of the rights contained in the conventions. The Committee decisions also help determine the extent of the obligations of the states.
These individual complaints procedures are still very rarely used to invoke the responsibilities of states for violations of Human Rights by business enterprises. 23 The complaints procedure established by the Optional Protocol to the ICESCR will certainly play a central role in determining the roles and responsibility of states in relation to protecting Human Rights against violations involving non-state actors. Some civil society organisations are calling for the creation of a body that would have jurisdiction to directly examine the international responsibilities of transnational enterprises.