Individual communications under the International Covenant on Civil and Political Rights

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1 Individual communications under the International Covenant on Civil and Political Rights Njal Hostmalingen, Director at International Law and Policy Institute Speech for the Angolan Bar Association 15 June 2015 Boa tarde! First of all, thank you for inviting me to give this short talk on individual human rights complaints to the International Covenant on Civil and Political Rights (ICCPR). It is interesting for me to see how the trainee laqyers now have been trained to meet with everyday life realities of being lawyers. I am a registered lawyer myself, but I do not practice as much as I wish I could. My presentation will not be very long, only about 30 minutes. Unfortunately I do not speak Portuguese, but Anja S Ostgard will translate. I have been visiting Angola 10 the last three years, and I know I should have been able to communicate far better in your language. The Human Rights Committee The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations in 1966, and entered into force 23 March Angola ratified the ICCPR in The treaty monitoring body is the Human Rights Committee. Its role and mandate stems from ICCPR art The Human Rights Committee has four main functions: Consider state reports (art 40) Adopt general comments (art 40) Examine interstate complaints (art 41-42) Examine individual communications (ICCPR First Optional Protocol) Signatory map ICCPR [This slide indicates signatory states and state parties to the ICCPR. As you see there are quite many states that have ratified: states have signed and 22 have no action.] ICCPR OP The mandate to handle individual communications is regulated in a separate protocol to the ICCPR. This opt- in possibility was established since the negotiation parties could not come to an agreement on including this in the main convention. The optional protocol entered into force 23 March 1976, the same year as the main convention. Angola ratified the optional protocol in

2 The idea behind the individual complaints mechanism is described in the preamble: to achieve the purposes of the International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant) and the implementation of its provisions it would be appropriate to enable the Human Rights Committee set up in part IV of the Covenant (hereinafter referred to as the Committee) to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant Signatory map ICCPR OP [This slide indicates signatory states and state parties to the ICCPR Optional Protocol. As you see there are quite many states that have ratified: 115. This is far less than the main convention. 4 states have signed and 78 have no action.] Signatory map ICESCR OP [This slide is less blue and more orange. It shows the ratifications of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the sister covenant of ICCPR. This protocol is younger, and is more political controversial. Only 20 states have ratified, 26 have signed, and 151 have no action. Angola has signed, but not ratified.] Admissibility To bring an individual communication to the Human Rights Committee is not an easy task, and even very skilled and experienced lawyers find it difficult to help their clients. Time does not allow us to dig deep into this, but the website ohchr.org gives more detailed instructions. (See especially tions.aspx) The first article states: A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol. The state subject to complaints must thus be party to the Optional Protocol, which is the case both with Angola and Norway. The second article declares: Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration. 2

3 The individual must thus relate the claim to one or more of the provisions in the ICCPR. In addition, the individual must prove that he or she has exhausted all domestic remedies. In Angola as in Norway, the case must thus have been decided by domestic courts all levels up to the Supreme Court if necessary. The third article states: The Committee shall consider inadmissible any communication under the present Protocol which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of the Covenant. There is pretty much work to be done for lawyers here. You need to have patience, and to be accurate. You may only use one of the six UN languages (thus Spanish or English). Procedure All communications must be written and not anonymous (article 2 and 3). If the communication is not declared inadmissible, the committee must follow a specific procedure. The procedure is written and confidential ( in camera ). Registration and communication to the state party is the first step, according to article 4: 1. Subject to the provisions of article 3, the Committee shall bring any communications submitted to it under the present Protocol to the attention of the State Party to the present Protocol alleged to be violating any provision of the Covenant. 2. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. The next step is for the Committee to look at the information presented. It does not have powers to conduct fact- finding missions. When it is ready to conclude, the Committee submits its views to the state party and the individual (article 5 paragraph 4): 1. The Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the State Party concerned. 2. The Committee shall not consider any communication from an individual unless it has ascertained that: (a) The same matter is not being examined under another procedure of international investigation or settlement; (b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged. 3. The Committee shall hold closed meetings when examining communications under the present Protocol. 4. The Committee shall forward its views to the State Party concerned and to the individual. 3

4 National level follow- up In international law, and especially international human rights law, politics is always relevant. One obvious example is the Uhuru Kenyatta case, much discussed all over Africa. The views by the Human Rights Committee are not legally binding. There was just not sufficient support for such a mechanism. Some regional treaty monitoring bodies, such as the African Court and the European Court, managed to establish legally binding mechanisms. This is reflected in some of the wording of the Optional Protocol, such as communication, views and consider. But in real life, the decisions play a very important role. The views are incorporated in new views, and into the Committee s general comments. Scholars make use of the views in their academic articles, books and lectures. And so do domestic courts. In Norway the government and courts will take views from the HRC very seriously, and thus giving the HRC more or less a standing as a supreme Supreme Court in human rights cases. This might not be the case in all OP countries. Caseload of the HRC A treaty body that on paper can handle complaints from 115 countries in the world should in theory have an enormous caseload. But the fact is that there are not all that many cases. From 1977 till March 2014 there were not more than registered cases. The Committee has adopted views in of these communications (850 violations and 185 not). In comparison the Norwegian Supreme Court received cases in 2014 alone, and ruled in 104 of these cases. The workload indicates that both you as a lawyer and the client need patience this might take many years. But also pending cases have an effect, at least I notice that in Norway: it gives the client hope of a positive outcome. Workload [This slide shows the caseload, and more interestingly, the rapid increase in the recent years.] Human rights treaty bodies [Our last slide gives a very brief overview over other monitoring bodies.] Summing up, it seems that there is a growing interest among lawyers and law students on human rights as applicable legal norms. I think this is fruitful: better knowledge will result in better decisions, both for individuals as the right holders and state authorities as the duty bearers. Obrigado! 4

5 Links from the website of the Office of the High Commissioner for Human Rights: In English: The International Covenant on Civil and Political Rights: The First Optional Protocol to the International Covenant on Civil and Political Rights: one.pdf In Spanish: O Pacto Internacional dos Direitos Civis e Políticos: O Protocolo Facultativo do Pacto Internacional dos Direitos Civis e Políticos: 5