The United Nations Human Rights Committee is a United Nations body of 18 experts that meets three times a year for four-week sessions (spring session at UN headquarters in New York, summer and fall sessions at the UN Office in Geneva) to consider the five-yearly reports submitted by 168 UN member states on their compliance with the International Covenant on Civil and Political Rights, ICCPR, and any individual petitions concerning 112 States parties to the Optional Protocol.
- Inter State Communications
- Individual complaints (Communications) to the Committee
- Who can bring a complaint before the Human Rights Committee
- What the complaint must include
- The Complaints Procedure
- Following a Decision
- Notable Jurisprudence
- Toonen v Australia
- Drake v New Zealand
- State reporting under the ICCPR
- The Human Rights Committee
- The process of State reporting under the ICCPR
- Aims and objectives of the State reporting system
- NGO Reports
- Effectiveness of the State reporting system
- Future alternatives
- State reporting on the ICCPR in New Zealand
- General Comment 34 on Freedom of Opinion and Expression
The Committee is one of ten UN human rights treaty bodies, each responsible for overseeing the implementation of a particular treaty.
States that have ratified or acceded to the First Optional Protocol (currently 115 countries) have agreed to allow persons within their jurisdiction to submit complaints to the Committee requesting a determination whether provisions of the Covenant have been violated. For those countries, the Human Rights Committee functions as a mechanism for the international redress of human rights abuses, similar to the regional mechanisms afforded by the Inter-American Court of Human Rights or the European Court of Human Rights. The First Optional Protocol entered into force on 23 March 1976.
The Second Optional Protocol, in force since 11 July 1991, addresses the abolition of the death penalty and has 81 states parties.
The Human Rights Committee should not be confused with the more high-profile Commission on Human Rights, a Charter-based mechanism, or its replacement, the Human Rights Council. Whereas the Commission on Human Rights was a political forum where states debated all human rights concerns (since June 2006, replaced by the Council in that function), the Human Rights Committee is a treaty-based mechanism where a group of experts examines reports and rules on individual communications pertaining only to the International Covenant on Civil and Political Rights. It remains disputed whether the Human Rights Committee's "Views under article 5(4) of the Optional Protocol" qualify as decisions of a quasi-judicial body or simply constitute authoritative interpretations on the merits of the cases brought before them.
The members of the Human Rights Committee, who must be "of high moral character and recognized competence in the field of human rights", are elected by the member states but on an individual basis, not as representatives of their countries. They serve four-year terms, with one-half of their number elected every second year at the General Assembly.
The Covenant provides for inter-State complaints "that enables one State Party to charge another with a violation to the treaty." "[N]o interstate complaint mechanism has yet been submitted" (up to 2009). This is still a matter of jurisdiction and it is optional to the committee of whether or not they will accept such complaint or not.
Individual complaints (Communications) to the Committee
The United Nations Human Rights Committee has the jurisdiction to examine individual complaints (or communications) concerning the violation of rights contained within the International Covenant on Civil and Political Rights (ICCPR), by virtue of the First Optional Protocol to the Covenant. This treaty is one of five international human rights treaties that contain individual complaints procedures. In addition, there are bodies with procedures in place to consider complaints that are not within the jurisdiction of the treaty body system.
Who can bring a complaint before the Human Rights Committee
The communications procedure has been deliberately formed to be easily accessible to the general public; there is no need for legal terminology or the consultation of a lawyer to partake in the complaints process. However, consultation with a lawyer preceding the complaint is advised. The person bringing the complaint (the "author") must be someone who claims to have had his or her rights under the convention breached under Article 2 of the First Optional Protocol. If the victim is unable to issue the complaint him or herself then a representative may do so on his or her behalf provided that the third party has the written consent of the victim to represent them, or, if the victim is unable to give their own consent, the third party has provided justification for their representing the victim. Further, in accordance with Article 1 of the First Optional Protocol, the claimed violation of rights under the ICCPR must have been committed by a State party who has acceded to that Protocol or "recognised the competence of the Committee to receive such complaints".
What the complaint must include
There is no prescribed form that a complaint must conform to, however, it must be in writing (in one of the working languages of the Secretariat: English, French, Spanish or Russian) and signed by the author or the author's representative. The complaint should contain all relevant information to the event or events that have taken place, including a chronological factual account of the events themselves, the identifying features of the victim (name, date of birth, nationality and so on), as well as the state involved, and, finally, what steps have been taken by the victim to exhaust all domestic remedies available to him or her. It is also advised that any additional documents (such as domestic court decisions and any relevant municipal laws) are provided to the Committee as part of the complaint. Finally, and perhaps most importantly, the author must establish why he or she believes that the event or events described constitute a violation of the rights granted by the ICCPR. It is important that the description of events are as detailed as possible; if necessary details are not included the author will be contacted and asked to provide them. Even though there is no prescribed form that a complaint must adhere to, examples or guidelines are provided by many NGOs and the United Nations.
The Complaints Procedure
Following the submission of a complaint the author will be advised if it has been registered and the complaint will also be sent to the State concerned for comment. Article Four of the First Optional Protocol provides that the State will have six months to submit comments on the complaint. Once the Committee has received the comments from the State these comments will be provided to the author who can then issue a response (generally within two months). Following the comments there is generally a two-stage process comprising the "Admissibility" stage and the "Merits" stage, however, due to the immense workload that the United Nations Human Rights Committee has, these two stages are usually undertaken simultaneously. The Committee assesses complaints on a closed basis in accordance with Article Five of the First Optional Protocol and for that reason only the original written complaint, the response from the State and the reply by the author will be considered. The Committee does not take any further action to verify the information that has been provided and the author or representatives of the State cannot take part via phone or video connection. If there is the potential for a substantial harm to occur that is permanent in nature, such as the execution of a death penalty or the deportation of a person who could face torture, then the author of the complaint can request that it be greeted with Urgency. Cases such as these are covered by Rule 86 of the Committee's Rules of Procedure. Accordingly, the Special Rapporteur on New Communications can issue 'interim measures' in order to prevent the harm occurring while the complaint is being considered. The Committee views any failure by the State to adhere by these interim measures a breach of their obligations under the First Optional Protocol.
There are a variety of criteria that the Committee can consider in order to determine whether the complaint is admissible or not. The Committee can consider one or all of these criteria, it is entirely discretionary. Some of the Factors that can determine admissibility include:
When the Committee releases its view (or decision) it will outline the merits of the case or the reasons why it did or did not find that a violation had taken place. It will also include any conclusions drawn by Members whose findings differed from those of the Committee generally. This will be decided on the facts presented in the original complaint as well as taking into account the laws of the State party in conjunction with the rights contained in the ICCPR. If the State had made a reservation to the right in question when acceding to the ICCPR then generally the Committee will respect this, however, in some exceptional cases, they can come to the conclusion that the reservation itself is not acceptable.
Following a Decision
Once the Committee has issued its view, the stance that it has taken will determine what happens next. If the Committee determines that no violation of a right contained in the ICCPR has occurred then no further action will be taken. However, if the Committee decides a breach has occurred then the State must submit an 'update' to the Committee of the steps that it has taken to address the violation within three months in accordance with Article 2, paragraph 3 of the ICCPR. In Article 2, paragraph 3 the State has agreed to remedy any breaches of rights contained within the covenant. This response is also transmitted to the original author.
The Committee has received thousands of complaints since its inception and due to this workload it can take a number of years before a decision is reached. During this time there have been a number of notable decisions that provide an indication of the way the Committee interprets the criteria used to determine admissibility as well as providing evidence of the practical application of the ICCPR.
Zoltowski v Australia http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2F115%2FD%2F2279%2F2013&Lang=en is case decided by a Committee in 2015. The complaint is about Australian government officials, the Department of Foreign Affairs and Trade and the Central Authority, who violated Human Rights of the author and his son by arbitrarily/unlawfully "removing" a child from under father's care, which has occurred with the State's collusion and complicity.Further concealment of evidence by the State eventuated in deeper separation and alienation of a child from his family.
Toonen v Australia
Toonen v Australia is a case decided by the Committee in 1992. The complaint in this case centred around a law in Australia that criminalised homosexual acts but had not been enforced in the country for ten years. Toonen himself had never been prosecuted under this law, however, the Committee determined that he could still be considered a victim due to the emotional anguish that the existence of such a law put him through.
Drake v New Zealand
Drake v New Zealand is a case that was decided by the Committee in 1997. Drake had been a prisoner of war in Japan during World War Two and made an individual complaint to the Committee about the actions of the New Zealand Government concerning prisoners of war following the war. One complaint was about the Treaty of San Francisco entered into between the Allies and Japan as Drake felt that his right to a remedy had been removed as a consequence of not being able to seek reparation from Japan. In addition to this, in 1988 the New Zealand Government issued reparations for those who were prisoners of war in Germany during World War Two and not those in Japan, which Drake alleged was discrimination. In both complaints the events themselves occurred before New Zealand was a party to the First Optional Protocol and so was inadmissible ratione temporis. Even if this were not the case, the claim would have been unsubstantiated as the alleged discrimination was not on any of the listed categories of discrimination of the ICCPR and therefore not within the jurisdiction of the Committee.
For other United Nations Human Rights Committee Decisions see Waldman v Canada, Diergaardt v Namibia, and Ignatāne v Latvia.
The Human Rights Committee is composed of 18 independent experts who are persons of high moral character and recognized competence in the field of human rights.
State reporting under the ICCPR
In common with all of the major UN human rights treaties, the ICCPR requires states that have ratified the Covenant to submit an initial report for consideration by a supervisory committee, in this case the Human Rights Committee, and thereafter to submit periodical reports at intervals of (in the case of the ICCPR) five years. The reports are expected to detail progress in implementing the treaty in domestic law and practice. The state's delegation appears before the Human Rights Committee in Geneva or New York to discuss the report, in a public process usually referred to as an 'examination' but officially termed a 'dialogue with the State Party'. At the end of a session (in which several states are considered) the committee issues 'concluding observations' on each state, using the report, the dialogue, and any other relevant information submitted by, for example, national human rights institutions or non-governmental organisations. These observations are used to commend the state for any progress in the implementation of ICCPR principles and to identify areas where improvement is expected.
The Human Rights Committee
The United Nations Human Rights Committee is the body responsible for overseeing and advising ratified states on the implementation of ICCPR treaty principles, within that state. With 160 ratified member states as of April 2012 the workload of the committee is heavy and thus the committee relies on each state at the national level to implement ICCPR principles, while acting as a periodic monitoring system. The Committee itself comprises 18 members nominated for election for their specialised knowledge in human rights and ‘high moral character’.
The process of State reporting under the ICCPR
On ratifying the ICCPR, a state is then bound to report under Article 40 of the ICCPR, and has rights under Article 41 to make inter-state complaints for possible breaches of ICCPR principles. Article 40 requires that within one year an initial report is made and subsequently, periodic updates are made every four years or when specifically requested by the committee. The principal purpose of the report is to promote state compliance with the treaty principles and it should be an "honest appraisal of their conformity to the treaty obligations". Article 40(1) states that the report should set out "the measures [that the State has] adopted which give effect to the rights recognised herein and on the progress made in the enjoyment of those rights".
States are requested in the initial report to address in detail every Article in Parts I, II and III of the Covenant, particularly legal norms (the constitutional and legal framework for the implementation of Covenant rights); and explain with examples, access to remedies for any violations of Covenant rights. These reports therefore tend to be comprehensive. In periodic reports however, the Committee is concerned with the discussion of provisions identified in their concluding observations, progress on enjoyment of ICCPR rights and Articles of which there has been significant development since the last submission. The Covenant does not offer prescriptive guidelines on how to prepare a state report. The Committee instead issued general guidelines on structure in UN Doc. CCPR/C/66/GUI/Rev.2 (2001).
Once the report has been written by the state, the procedure for consultation is as follows:
- The State party submits its report to the Human Rights Committee;
- The Human Rights Committee presents the State party with a list of issues and questions based on the concerns raised by the report (at which point there is opportunity for input from the United Nations system—NHRIs and NGO reports, also called 'shadow reports');
- The State party may submit written replies to a list of issues and questions;
- The use of constructive dialogue between the Committee and the State party delegation during session (another opportunity for input from the United Nations system, NHRIs and NGOs whom may utilise);
- The Human Rights Committee issues its concluding observations on the report, inclusive of further recommendations for the State to consider in future;
- Lastly, procedures are used to follow up on implementation of the Human Rights Committees' recommendations.
Aims and objectives of the State reporting system
The aims and objectives of the state reporting system under the ICCPR were discussed in General Comment 1 of the Committee on Economic, Social and Cultural Rights (CESCR). CESCR concluded the State Reporting System was to be more than a procedural requirement, but additionally meet further aims and objectives."The process of reporting provides an opportunity for an individual State party to conduct a comprehensive review of the measures it has taken to bring its national law and policy into line with the provisions of the treaties to which it is a party."
During the process of state reporting, NGOs may indicate their interest to the secretariat on a particular state's report and then prepare a submission to be considered alongside the state report. The input of non-governmental organisations allows for an assessment on the state of civil, social and political rights and takes into account such assessments in the view of organisation that may to be affected by ICCPR principles. The utility of NGO input has been noted by the World Conference on Human Rights in Vienna 1993 in its concluding Declaration, in the protection of human rights and in humanitarian services. NGO reports also give the public an opportunity to assist in the assessment of the government's overall adherence to the covenant or on particular matters. These reports may be assessed prior to the meeting or in some circumstances an NGO may be admitted to the meeting. Consequentially, the NGO may take a record of the meeting, facilitating dissemination of information back to the state concerned.
The process is not intended to be entirely negative, with States able to highlight in their reports progress which has been made examples of good practices. The process also allows for evaluation of internal structures of implementation and identification of further assistance the state may require. The mechanism provides an opportunity for constructive dialogue between the state and the committee rather than acting as adversarial proceedings.
As a consent-based process, ensuring rights under the ICCPR internationally is fraught with difficulty. The mechanism relies on member states to implement standards by way of incorporation of ICCPR principles into municipal law or implementation through conduct. Where implementing ICCPR principles into domestic law would conflict existing policy or law, a state may ignore such a principle. New Zealand for example, has been considered slow in incorporating ICCPR principles for the reason of Parliamentary Supremacy; it may not restrict future Parliaments by strictly adopting all principles into law. A further issue is in delay between making reports and consideration by the HRC. There have been many attempts for this reason, to reform the treaty body system and make systems more effective, coherent and coordinated.
Commentators have stated that one motivation to submit these reports may be to avoid identification by other states as having failed to implement ICCPR principles, or risk the embarrassment of being blacklisted. The publication of State Reports on the internet allows for individual access to a country's progress as well as the response from the HRC. Public accessibility to reports has been further aided with a United Nations General Assembly resolution (57/300) to make available in the UN information centre of each state, copies of recent state reports, summary records and concluding observations. This stigma that may result from non-compliance does not prevent some reports being excessively late, and in some cases, erroneous. The non-invasive nature of the process means the committee is precluded from enforce recommendations made during the reporting process, therefore the power lies with the state in deciding whether the observe these observations.
Effectiveness of the State reporting system
The effectiveness of the use of state reporting has been questioned and as a result, a further mechanism for review was created in 2007; the UPR. The review was introduced to "complement" existing older mechanisms; particularly the State Reporting System. The Reports system has been regarded as weak for the fact it its success depends on the willingness of states to cooperate. Though in theory, reports should be an honest appraisal, constructive criticism of perceived failures to adhere to Covenant principles is unlikely. Further criticisms exist towards the length of the reports required as well as the onerous requirements, duplication of subject matter between various treaty reports and the lack of resources of the committee to process reports timely.
In the reporting process, challenges typically arise in delays of reporting or consideration, non-reporting. In its 2006 Annual Report, the committee listed a number of countries overdue in reporting, for example Gambia (21 years overdue) and Equatorial Guinea (17 years overdue) and the aforementioned duplication of report requirements among treaty bodies. In his September 2002 report the former UN Secretary General Kofi Annan on 'Strengthening the United Nations; an agenda for further change' suggests one solution to the duplication issue may be to streamline reports. As "the content and timeliness of reports affects the quality of decision-making throughout the system" delays are critical and therefore, standardisation of reporting requirements will provide an efficient system and improve the state reporting process overall. A further suggestion of Annan was for "an integrated treatment of interrelated issues" through a single document to address adherence to ratified treaties.
In attempting to address issues around the state reporting process, a number of undertakings have been attempted. One such example is of the World Conference on Human Rights in its Vienna Declaration and Programme of Action, which sought to implement a system whereby Human Rights officers are assigned to states, working at the regional level, for the purpose of disseminating information, training and aiding implementation on a technical level.
In response to state frustration over the workload in preparing these reports, the HRC in July 2010 proposed a new optional reporting procedure called the ‘List of Issues Prior to Reporting’ (LOIPR). The LOIPR system implements a new procedure whereby the committee sends the state a list of issues to address and the resulting report satisfies the requirements of Article 40 of the ICCPR. This system remains in the pilot stage until 2015 where the procedure will be reviewed “in terms of its practicality, effectiveness and capacity to improve the examination of the human rights situation in the State parties”. It is intended LOIPR will allow for time to be used more efficiently and provide focus to the report. A further advantage of the procedure will be that a state will not have to submit both a periodic report and LOIPR report (though initial reports will be required). LOIPR remains an optional report and states may elect to continue with the periodic reports system or may be required by the committee to prepare a full report.
State reporting on the ICCPR in New Zealand
Since ratification of the ICCPR in December 1978, New Zealand has submitted five reports. The central criticism given by the treaty body is due to only partial incorporation of the ICCPR into domestic law with the New Zealand Bill of Rights Act 1990 (NZBORA). Some rights under the Covenant have not been recognised in the legislation, for example Article 1 'right of self-determination' and Article 20 prohibition on propaganda. Further, on ratification NZ made several reservations on Articles 10 (2)(b), 10 (3), 14 (6), 20 and 22.
General Comment 34 on Freedom of Opinion and Expression
In July, 2011, the UN Human Rights Committee adopted a 52-paragraph statement, General Comment 34 on the International Covenant on Civil and Political Rights (ICCPR) 1976, concerning freedoms of opinion and expression. Paragraph 48 states:Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favor of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.